HomeMy WebLinkAboutVA198900041 Action Letter 1989-06-14 \ IIII) /IP
COUNTY OF ALBEMARLE
Department of Zoning
401 M4-Intire Road
Charlottesville. Virginia 22901-4596
(804) 296-5875
June 14, 1989
Mr. Don Wagner
P. O. Box 5526
Charlottesville, VA 22905
Re: Board of Zoning Appeals Action
VA-89-41, Tax Map 56, Parcel 110
Dear Mr. Wagner:
This letter is to inform you that on June 13 , 1989, during the
regular meeting of the Albemarle County Board of Zoning Appeals,
the Board ruled to allow your application for VA-89-41 to be
withdrawn.
If you have any questions, please contact our office.
Sincerely,
Okiv . r. P
Amelia M. Patterson
Zoning Administrator
AMP/st
cc: VA-89-41
,of AL.04,41111 1?`S
Rily"°11"74-
COUNTY OF ALBEMARLE
Department of Zoning
401 McIntire Road
Charlottesville, Virginia 22901-4596
(804) 296-5875
MEMO
TO: Jesse R. Hurt, Director of Inspections
Richard Moring, Director of Engineering
Ron Keeler, Chief of Planning
FROM: Amelia M. Patterson, Zoning Administrator
RE: Variance Application, VA-89-41
Jo Bob's Restaurant
DATE: May 26, 1989
Please see the attached information regarding the above-noted
request. Please comment (in writing) on the following points:
1. What is the relevant history of applications on this
property, as it relates to your Department?
2 . In your opinion, are there implications to the general
public health, safety and welfare if the structure is
allowed to be reconstructed?
If possible, please provide comment by Thursday, June 1st. My
report is scheduled for completion by Friday, June 2nd.
Thank-you.
AMP/st
Enclosures
STAFF REPORT - VA-89-41
OWNER/APPLICANT: Preston O. Stallings
TAX MAP/PARCEL: 56/110
ZONING: HC, Highway Commercial
LOCATION: On the south side of Route 250 west,
approximately 1 mile east of the blinking
light at Route 240, adjacent to the
west of Blue Ridge Builders Supply
REQUEST: The applicant requests a variance from
Section 6. 6. 1 of the Albemarle County
Zoning Ordinance, which states:
"6. 0 NONCONFORMITIES
6. 6. 1 Whenever any nonconforming structure,
except signs, or structure the use of which
is nonconforming is damaged as a result of
factors beyond the control of the owner
and/or occupant thereof, such structure may
be repaired and/or reconstructed and the
nonconforming use thereof continued as
provided in this section provided that such
repair and/or reconstruction shall be
commenced within twelve (12) months and
completed within twenty-four (24) months
from the date of such damage; and provided
further that no such structure shall be
enlarged or expanded as a part of such
repair and/or reconstruction. "
The applicant requests a variance to permit an extension of twelve
(12) months to complete repair and/or reconstruction of a
non-conforming structure, for a total of thirty-six (36) months
from the date of such damage. The Ordinance requires that such
work be completed within twenty-four (24) months from the date of
damage. The applicant's justification for variance (attached)
cites his good faith attempt to provide alternate use of the
property as cause of delay.
HISTORY:
September 16, 1971, the Board of Supervisors approved ZMP-175 to
rezone this and adjacent parcels from A-1, Agriculture to B-1,
Business.
March 8, 1977 , the Board of Zoning Appeals approved VA-77-04 to
allow a variance of 115 feet from the required 150 foot setback,
for an addition to Gola's Restaurant.
Staff Report - VA-89-41
Preston Stallings
Page 2
July, 1987, Jo-Bobs Restaurant was destroyed by fire.
December, 1987, the Planning Commission accepted the applicant's
request for indefinite deferral of ZMA-87-15. This involved
adjacent parcels 109A and 109B.
May, 1988, a building permit was issued to repair interior fire
damage.
November 21, 1988, application was made for ZMA-88-22 , Great
Eastern Management Company, which included this property. It was
deferred by the applicant on several occasions, and was denied by
the Board of Supervisors on May 17, 1989.
December, 1988, an inspection was made and found that some work
had been completed. It primarily involved replacing some boards.
No further building inspections to date.
December 13 , 1988, the Board of Zoning Appeals deferred VA-88-90.
This request included this property and involved sign and parking
setbacks, and sign height and area increases. On January 10,
1989, the Board of Zoning Appeals allowed withdrawal of a portion
of the request (signage) and denied the parking setback request.
RECOMMENDATION:
The perceived hardship in this case is self-imposed. The intent
of this non-conformity section is to accommodate reconstruction in
a timely and good faith manner so as to avoid governmental delay
and temporary loss of livelihood. If pursued in a timely fashion
with good faith effort by the applicant, the time periods provided
are sufficient. There is no clearly demonstrable hardship
peculiar to this property that is not shared by others.
The relevant Ordinance section from which the applicant seeks
relief is intentionally universally applied to all uses and zoning
districts, and relates to "process" as differentiated from
"substance. " Rather than a time extension or temporary variances
from various setback (and possibly other regulations) , it is more
appropriately a review of the specific Ordinance sections from
which variation or exception is sought.
This parcel is not of exceptional narrowness, shallowness, size or
shape. Althought the rear of the lot is severely steep,
sufficient level land exists exclusive of scenic highway setbacks
to permit construction in accordance with Section 30. 5 Scenic
Areas Overlay District.
Staff Report - VA-89-41
Preston O. Stallings
Page 3
The application should be denied for cause:
1. The applicant has not provided evidence that the strict
application of the Zoning 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 not shared by other properties in the same zoning district
and the same vicinity.
3 . The applicant has not provided evidence to demonstrate that
the authorization of the variance will not alter the character
of the district.
If the Board should find cause for approval, they may chose to
consider conditions such as those noted on the attached memo from
Planning. (See asterisked items)
Amelia Patterson
Page 3
June 1, 1989
of their knowledge of local conditions and the needs of
their individual communities, are allowed wide discretion in
the enactment and amendment of zoning ordinance {Byrum v.
Board of Supervisors, 217 Virginia 37, 225, 2nd 369 (1976) ) .
Therefore, should their be conflict between BOCA regulations
and decision of the Planning Commission pursuant to Section
32.7.6 of the Zoning Ordinance discernible as to "local
conditions, " it would appear that "the most severe or
stringent requirement or standard shall prevail. " {Section
2 . 3 . CONFLICTING ORDINANCES of the Zoning Ordinance. )
Recommend that if the BZA chooses to grant variance, that
such action be postured so as not to interfere in any
fashion the Planning Commission's authority for review of
site plan. Obviously, building plan review and comment from
Fire Official will be critical to Planning Commission review
of site plan.
VA-89-41 Preston Stallings: seeks relief from Section 6. 6. 1
to allow extension of 12 months to complete repair and/or
reconstruction of a non-conformation structure. You have
posed two questions. What is the relevant history of
applications on this property as it relates to your
Department? Attached please find the staff report for
ZMA-88-22 which provides a brief summary of applications on
this and adjoining properties. You may wish to determine
what applications are relevant to your review. Bill Fritz
and I are at your service as to specifics of applications
filed since the fire.
In your opinion are there implications to the general public
health, safety and welfare if the structure is allowed to be
reconstructed? Yes, but these problems can be mitigated by
appropriate conditions on the variance. I believe it would
be appropriate for the BZA to impose conditions on the
variance to insure that the public interest is served:
1. Planning Commission approval of access - This
variance is requested so the applicant can
continue to pursue other uses of the property and
other properties. Granting of this variance
should not encumber the Planning Commission from
integrating this use with adjoining development.
Amelia Patterson
Page 4
June 1, 1989
2. Planning Commission approval of landscape plan.
The Planning Commission may require such
landscaping/buffering as deemed appropriate to the
intent of the scenic area designation to
compensate for reduced parking and building
setback.
Au 3 . Compliance with signage regulations of 30.5 SCENIC
OVERLAY DISTRICT, except as prior variance may
have reduced setback.
4. Compliance with Section 19. 1 of the Code of
Albemarle (Run-off Control Ordinance) whether or
not additional impervious coverage is proposed.
These conditions are recommended in lieu of complete site
plan review under current ordinance by the Planning
Commission.
I do not believe that this petition, in strict construction
is appropriate as a variance (Please see memorandum entitled
POWERS AND DUTIES OF BOARD OF ZONING APPEALS: VARIANCES,
dated May 30, 1989) . This a request for relief from a
procedural matter of the ordinance which I do not find
expressly in the definition of "variance" in the Code of
Virginia (Section 15. 1-430 (p) ) . However, I do believe that
the following construction could be applied to this
petition:
1. The applicant has voluntarily applied for temporary
variances from various setback (and possibly other
regulation) of the zoning ordinance. I am unsure as to
"temporary" variances, however, the Code does contain
language as to acquisition in good faith, therefore,
should a change of ownership occur, it would seem
questionable as to standing of a future owner to
request additional "temporary" variances.
2 . The applicant has voluntarily offered that such
variances will not exceed a period of 12 months. The
BZA is authorized to impose conditions, then certainly
the BZA is authorized to accept conditions offered by
an applicant. Also, it would not appear inappropriate
for the BZA to consider any future request for time
extension as "new business. "
Amelia Patterson
Page 5
June 1, 1989
3 . Should the applicant choose to exercise this variance,
it would seem appropriate for the BZA to impose
conditions related to the (physical development)
variances which are in actuality being requested.
As primary author of the Zoning Ordinance, permit me to
state my recollection as to the origin and legislative
intent of Section 6. 6. 1, should the BZA choose to consider
the petition as currently filed. The County zoning
ordinance is comparatively liberal regarding reconstruction
of non-conforming structures. Most ordinances (including
the County's prior ordinance) require conformance if the
structure is damaged to a specified extent.
In the late 1970 's, a country store burned. Reconstruction
required issuance of a special use permit, zoning variances,
and site plan approval. The applicants complained that
these delays affected their livelihood.
During development of the current zoning ordinance and
zoning map, the Planning Commission recommended that all
country stores receive C-1 zoning which would, at least,
avoid the need for special use permit if destroyed.
However, the Board of Supervisors chose not to recognize one
class of use, but to include Section 6. 6. 1 in the current
ordinance which relieves any non-conforming structure from
compliance with most County regulation at time of
reconstruction. I believe it was the Board's intent that
Section 6. 6. 1 accommodate reconstruction in a timely and
good faith manner so as to avoid governmental delay and
temporary loss of livelihood. I do not believe it was the
Board's intent that this provision be employed for
convenience to pursue other, more intensive uses of a
property. That is to say, I believe it was the Board' s
intent that Section 6.6. 1 as written was adequate to
avoid any "clearly demonstrable hardship approaching
confiscation" but I do not believe that the Board intended
the provision to be employed as a "special privilege or
convenience sought by the applicant" (Section 34 .2 of the
Zoning Ordinance) .
J VA-89-42 ConAgra Consumer Frozen Foods: To reduce building
setback from fifty (50) to zero (0) feet. Due to
development prior to zoning regulation, many businesses and
other uses in Crozet do not meet required building setback,
however, as stated in recent public hearing some of these