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HomeMy WebLinkAboutAP201900004 Application 2019-08-12Albemarle County Planning Application Community Development Department 401 McIntire Road Charloftesville.VA22902-4596 Voice: f434) 29E-5832 Fax : (434) 972-4126 TMP 05000-00-00-04900 ] Own,,(,): BUFTON, EVELYN & JOHN R MAUS Application #I AP201909004 PROPERTY INFORMATION Legal Description ACREAGE Magisterial Dist. Rivann I a Land Use Primary Residential Single-family (inclmodular homes Current AFD Not in A/F District Current Zoning Primary Rural Areas APPLICATION INFORMATION Street Address 1_7380 GORDONSVILLE RD GORDONSVILLE, 22942 Entered By 1 Buck Smith 'pplic cation Type AP -Peal of Zoning Administrator's Determination Project [EVELYN BUFTON AND - 30 - H - N - R - M - A - US 12r2019 Received Date Final Received Date F03/12/19 Submittal Date 08/12/19 Total Fees 258 Closing File Date L Submittal Date Final Total Paid 258 Revision Number L Comments r Legal Ad 'SUB APPLICA r_ r!Appims nt :'BUFTW EVELYN &JOHN R MAUS P 0 BOX E GORDONSWLLEV 22942 .. ............. ................. ....................... ............... . rm2ry Z=nts=t JACK M AU 5 P.O. BOX E GORDONSWLLE 22942 ... .................. EVELYN BUFTON AND JOHN R MAUS i - Signature of Contractor or Authorized Agent Date 408941006 ........... FOR OFFICE USE ONLY AP # U ��©��%d Y SIGN # ZONING ORDINANCE SECTION: Fee Amount $), Date Paidb �Z By who? /'/ l(J I e Receipt # Ck# By: Application for�tyc Appeal of Zoning Administrator's Determination m Appeal of Zoning Administrator's Determination = $258 FEES to be paid after staff review for public notice: Appeals of the Zoning Administrator require a public hearing by the Board of Zoning Appeals. Virginia State Code requires that notice for public hearings be made by publishing a legal advertisement in the newspaper and by mailing letters to adjacent property owners. The total fee for public notice will be provided to the applicant after the final cost is determined and must be paid before the application is heard by a public body. Staff estimates the total cost of legal advertisement and adjacent owner notification to be between $350 and $450. This estimate reflects the average cost of public notice fees, but the cost of certain applications may be higher. ➢ Preparing and mailing or delivering up to fifty (50) notices $215 ➢ Preparing and mailing or delivering each notice after fifty (50) $1.08 for each additional notice + actual cost of first-class postage ➢ Legal advertisement (published twice in the newspaper for each public Actual cost hearing) (averages between $150 and $250) Contact Person (Who should we call/write concerning this project?): Jack Maus Address Post Office Box E City Gordonsville State VA Zip 22942 Daytime Phone (540) 894-1006 Fax # (540) 406-5911 E-mail jackmauslaw@gmail.com Owner of Record Evelyn Bufton and John R. "Jack" Maus Address Post Office Box E City Gordonsville State VA Zip 22942 Daytime Phone (804) 432-0920 Fax # (540) 406-5911 E-mail ebuftonlaw@gmail.com Applicant (Who is the Contact person representing?): Evelyn Bufton and John R. Maus Address Post Office Box E City Gordonsville Daytime Phone( 540) 894-1006 Fax # (540) 406-591 State VA Zip 22942 E-mail jackmauslaw@gmail.com County of Albemarle Department of Community Development 401 McIntire Road Charlottesville, VA 22902 Voice: (434) 296-5832 Fax: (434) 972-4126 Revised 11/1/2015 Page 1 of2 Project Name: Bufton & Maus Law Office Tax map and parcel: 050000-00-00-04900 Physical Street Address (if assigned): 7380 Gordonsville Road Gordonsville Virginia 22942 Zoning: rural Location of property (landmarks, intersections, or other): Rt. 231 approximately 2 miles north of the intersection with Lindsay Road - across from Fielder's Choice Farm The following information shall be submitted with the application and is to be provided by the applicant: 1) Completed application including subject of appeal. 2) Justification for applicant's position, including error in Zoning Administrators determination. You may use the space below to provide this information or submit an attached sheet. 3) If applicable, a copy of the latest deed for the property involved, and the approved and recorded plat. 4) If applicable, the appropriate drawings showing all existing and proposed improvements on the property and any special conditions for the situation that may justify the appeal. 5) Reference to the relevant Zoning Ordinance section or other applicable regulations or case precedence to justify the appeal. 6) Appropriate fee made payable to the County of Albemarle. Explanation of error in determination and justification of applicant's position: As further explained on the attachment the iusitification for applicants' position is that (1) they fully disclosed to the Department of Community Development their intended use for the building (2) the Department issued a Building Permit approving the placement of the building, (3) the applicants relied on the Building Permit in locating the building, and(4) the appli- cants' reliance on the Building Permit and their expenditure of substantial funds to construct the building is to their detriment if they are unable to use the building for itpwner/Applicant Must Read and Sign intended purpose. I hereby certify that the information provided on this application and accompanying information is accurate, true and correct to the best of my knowledge and belief. Date: Sig e of Owner or Contract Purchaser, Agent rint Name Daytime phone number of Signatory Board of Zoning Appeals Action/vote: Board of Zoning Appeals Chairman's signature: Date: Revised 11/1/2015 Page 2 of 2 ATTACHMENT TO APPLICATION FOR APPEAL OF ZONING ADMINISTRATOR'S DETERMINATION Background When the applicants applied for a building permit, they submitted a copy of the architectural plans for the structure, which called for a building of approximately 1000 square feet with 2 offices, a conference room, a bathroom and a small kitchenette. The applicants' clear intention was to use the building as a law office and to meet there with clients and other professionals incidental to their law practice. The Department of Community Development (hereinafter, "the Department") issued a building permit that required the building to be set back only 6 feet from the side property line. A copy of the building permit is attached as Exhibit 1. The foundation for the building was staked out so that it is parallel to the residence rather than the side property line. So, at its nearest point, the building is set back 14 feet away from the side property line. At its furthest point, the building exceeds the 25 foot side setback requirement. When the foundation was staked, the applicants asked the Department to send a representative to visit the site to make sure that the stakes were properly placed. When that representative said that the location was correct, the applicants constructed the building in that precise location. The building was constructed in full compliance with the Statewide Building Code as enacted by Albemarle County and has passed the final inspection. The applicants have been told by the Department of Community Development that they are entitled to a Certificate of Occupancy.' Indeed, within hours after the final construction inspection was done, the County's Tax Assessor visited the property to ascertain its effect on an increased property tax assessment. Now, the Zoning Administrator has determined that he cannot approve a Major Home Occupation Clearance because the entire building is not set back 25 feet from the side property line. 1 The Department has indicated to the applicants that, although the building has been completed in full compliance with the building code, the Department has, at the time of filing of this Application, withheld the Certificate of Occupancy because it did not want to influence the zoning process. Those are two entirely different issues and the Department's refusal to issue a Certificate of Occupancy under these circumstances is arbitrary and capricious. 1 Case Precedent to Support the Appeal The applicants have been unable to find any legal precedent that precisely deals with this situation. However, there are other legal precedents that are instructive about the appropriate resolution of this appeal. The law in Virginia is clear that, if one person relies on the representations of another to their detriment, the person making the representation is prevented (or estopped) from later taking a different position. Allowing one party to change positions under certain circumstances would be unfair. That's why the doctrine is called "equitable estoppel." said: In Stewart v. Lady, 251 Va. 106, 465 S.E.2d 782 (1996), the Supreme Court of Virginia To establish equitable estoppel, it is not necessary to show actual fraud but only that the person to be estopped has misled another to his prejudice (internal citation omitted) or that the innocent part acted in reliance upon the conduct or misstatement by the person to be estopped. Khoury v. Memorial Hospital, 203 Va. 236, 123 S.E.2d 533 (1962) ....Elements necessary to establish equitable estoppel, absent a showing of fraud and deception, are a representation, reliance, a change of position, and detriment. 251 Va. at 112- 113, 465 S.E.2d at 785. All of those elements necessary to prove equitable estoppel are present in the applicants' case: • There was a representation (that the side setback was only 6 feet), • The applicants relied on the representation, • The applicants changed their position (they spend over $120,000.00 to build the office where it was permitted), and • The applicants have suffered a detriment (that the County will not allow them to use the building for its intended purpose). The principle of equitable estoppel applies to zoning issues as well. In Chapel Creek, Ltd. V. Mathews County, 12 Va. Cir 350 (1988), a developer had acquired a parcel of land on which he intended to build a 6-unit apartment building. He received approval for that and, when he learned that the County was going to enact an ordinance that prevented expansion `A of that project, took additional steps to increase the size of his project before the ordinance became effective. When the Zoning Administrator denied the building permit for the expanded project, the developer sued and lost. However, the Court said this: The doctrine of equitable estoppel provides that the right to use or develop land cannot be infringed upon by legislative action when the owner or developer of such land has in good faith relied upon some act or failure to act by a governmental body and made a substantial change in position. (Internal citations omitted) ...[A] property owner may acquire a valid nonconforming use or acquire a vested right to complete construction of a nonconforming building where, in good faith and in reliance upon a validly issued building permit, the property owner has begun substantial construction or has incurred substantial expenses relating directly to the construction. (internal citations omitted) The most obvious missing link in petitioner's case is the threshold government act, the issuance of a building permit. 12 Va. Cir. At 3S3. Unlike the developer in Chapel Creek, the applicants in this case had a validly issued building permit and constructed the building in accordance therewith. The applicants have finished construction of the building as it was permitted and, as indicated above, have spent in excess of $120,000.00 to do so. As a result, Albemarle County is estopped from denying the applicants a zoning clearance. Furthermore, the Supreme Court of Virginia, in Lee v. City of Norfolk, 281 Va, 423, 706 S.E.2d 330 (2011) applied language from Jones v. Board of Governors, 704 F.2d 713 (4th Cir. 1983) in which that Court said: [S]ignificant departures from stated procedures of government and even from isolated assurances by governmental officers which have induced reasonable and detrimental reliance may, if sufficiently unfair and prejudicial, constitute procedural due process violations. 281 Va. at 436. The decision of the Zoning Administrator is so unfair and prejudicial that it violates the applicants' due process rights under both Article I, §11 of the Constitution of Virginia, and under the Sth Amendment to the Constitution of the United States as made applicable to the States through the 14th Amendment. Finally, it appears that the Zoning Administrator takes the position that the setback requirements in Code §18-10.4 are mandatory. However, the heading at the top of the setback table merely says that "Area and bulk regulations within the RA, rural areas, zoning 3 district are as follows:" That's not enough to make the setback requirement mandatory, Even if the word "shall" could be inferred from the ordinance, the Supreme Court of Virginia has recently ruled that "shall" is not always mandatory, but that it can also be directory. Rickman v, Commonwealth, 294 Va. 531, 808 S.E.2d 395 (2017). In fact, the Court said that: Under Virginia law, the use of the term "shall" in a statute is generally construed as directory, rather than mandatory, and, consequently, no specific, exclusive remedy applies unless the states manifests a contrary intent. (internal citations omitted). 294 Va. at 539. In fact, one of the decisions cited in Rickman, was Tran v. Board of Zoning Appeals, 260 Va. 654, 536 S.E.2d 913 (2000). In Tran, the Board of Zoning Appeals issued a ruling outside of the 90-day period prescribed by Virginia Code §15.2-2312. The Supreme Court of Virginia ruled that the word "shall" in the statute was directory, not mandatory so that a BZA decision outside the 90-day limit was valid. As indicated above, the County Assessor has determined that the structure adds value to the property. The Department of Community Development recently visited the property and assigned the office building a separate 911 address. The applicants were told that, so long as the building was going to be visited by third parties, it needed a separate 911 address in case of an emergency. The applicants don't understand why the County needs to plan for the presence of third parties if the applicants are not allowed to have them in the building. In summary, for all of the reasons set forth above, the applicants submit that the decision of the Zoning Administrator to deny them a Major Home Occupation approval was incorrect and should be reversed by the Board of Zoning Appeals. 0