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HomeMy WebLinkAboutAP201900004 Presentation 2019-09-10Lrf2C;l1�ZA COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902-4596 Phone (434) 296-5832 Fax (434) 972-4126 ALBEMARLE COUNTY BOARD OF ZONING APPEALS COUNTY OFFICE BUILDING 401 MCINTIRE ROAD LANE AUDITORIUM, 2:00 P.M AGENDA TUESDAY, OCTOBER 1, 2019 1. Call to Order 2. Establish a Quorum 3. Public Hearing: A. Project Number: AP201900004 Bufton & Maus TMP 50 - 49 Property Owner/Appellant: Evelyn Bufton and John R. Maus Staff: Bart Svoboda/Kevin McCollum 4. Approval of Minutes A. June 4, 2019 5. Old Business 6. New Business 7. Adjournment BOARD OF ZONING APPEALS MEETING GUIDELINES Thank you for attending the Board of Zoning Appeals (BZA) meeting. The following information is provided to help ensure the meeting proceeds as efficiently and effectively as possible. As a courtesy to others, please turn off all cell phones during the meeting. General Information: This meeting is recorded and later transcribed into minutes approved at a later meeting date. Each item set for public hearing will begin with a presentation of the staff report. Next, the applicant or appellant for that item will be invited to speak. During the course of the process, the Chairman will open the public hearing to comments from the public. At the end of these proceedings the Chairman will announce that the public hearing is closed. Once the public hearing is closed, no further public comments will be allowed unless the Board asks for additional information from the applicant or appellant. The BZA reserves the right to digress from these guidelines in any particular case. To Members of the Public: If you wish to address the Board, please raise your hand or stand when the Chairman asks for public comments for that item. When it is your turn for comment, please come to the microphone and state your name for the record. For uncommon spellings, please spell your name for the recording secretary. If you are with a group of people, you may want to have a spokesperson present your position to the Board. In order to give all speakers equal treatment and courtesy, the Board requests that speakers adhere to the following guidelines: • Come forward to the speaker's podium and state your name; • Address comments directly to the Board as a whole - open public debate is prohibited; • State your position and give facts and other data to back it up — keep in mind that there is a 3 minute time limit for public comment; • Give written statements and other supporting material to the Recording Secretary (written comments are also welcome if you do not wish to speak). Additional Guidelines for Applicants and Appellants addressing the Board: • Please contact staff in Community Development ahead of the meeting to make any necessary arrangements for your presentation. The Recording Secretary will also need copies of any handouts __given to the BZA members for the official record of the meetin_q. • Be clear in stating your position and do not repeat information that has been previously submitted to the Board. • Stay on topic by addressing the questions in the application or by responding directly to staffs determination(s). Focus on presenting facts and data that support your position. • Keep in mind there is a 15 minute time limit for presentations and a 5 minute time limit for rebuttal comments. The Board will ask any necessary follow-up questions to clarify points made during the presentation. • Understand that the Board of Zoning Appeals cannot change County ordinances. The BZA reserves the right to place additional time limitations on speakers, as necessary. Phone (434) 296-5832 IRG1- COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902-4596 Memorandum Fax (434) 972-4126 To: Members of the Board of Zoning Appeals From: Kevin McCollum, Planner and Designee to the Zoning Administrator Division: Zoning Subject: Preliminary Package for AP-2019-004 "Bufton & Maus" Board of Zoning Appeals - October 1, 2019 Meeting Date: September 10, 2019 To Whom It May Concern: This memorandum serves as cover sheet and provides information on all of the items included in the AP-2019-4 Preliminary Package. This appeal is scheduled for the Board of Zoning Appeals on October 1, 2019. Preliminary Package Items: 1. RE: HO2019-00233 Major Home Occupation Clearance - Bufton and Maus, PLC This letter, written on July 30, 2019, informed the applicant that the above referenced Zoning Clearance could not be approved at the time because the structure did not comply with the primary structure setbacks for the Rural Areas zoning district. 2. Clearance Application A copy of the Major Home Occupation Clearance Application - HO201900233. 3. Applicant Submittal This preliminary package includes all of the information the Applicant provided with their appeal application. 4. Map A map of the subject property, 7380 Gordonsville Road. September 10, 2019 AP2019-4 Preliminary Package Page 2 5. Section 5.2A of the Zoning Ordinance This section of the Zoning Ordinance provides the regulations for Home Occupation Clearances in the Rural Areas zoning district. 6. Section 10.4 of the Zoning Ordinance This section of the Zoning Ordinance provides the area and bulk regulations for the Rural Areas zoning district. Lp r COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902-4596 Phone (434) 296-5832 Fax (434) 972-4126 July 30, 2019 John R. Maus 7380 Gordonsville Rd Gordonsville, VA 22942 RE: H02019-00233 Major Home Occupation Clearance - Bufton and Maus, PLC Parcel ID 05000-00-00-04900 (2.40 Acres) (the "Property"), 7380 Gordonsville Rd, Gordonsville, VA 22942 Mr. Maus: In response to your request for a Major Home Occupation Clearance for the above referenced Property in the Rural Areas, please be advised of the following: Based on the information provided with the application and the site inspection conducted on June 13, 2019 the accessory structure on the Property, proposed with building permit B2017- 02431 NNR, does not meet the applicable setback and yard requirements for primary structures required by Section 5.2A(c). Thus, the noted accessory structure cannot be used for the proposed Major Home Occupation until it is determined to comply with the primary structure setbacks for the Rural Areas zoning district. Therefore, in accordance with Albemarle County Code § 18-5.2A(c) and Albemarle County Code § 18-31.5(b) the above referenced Major Home Occupation Clearance cannot be approved at this time. Additionally, if the proposed Major Home Occupation operates on the Property without an approved Zoning Clearance it will be considered in violation and subject to Albemarle County Code § 18-36. If you are aggrieved by this determination, you have a right to appeal it within thirty (30) days of this notice, in accordance with Virginia Code § 15.2-2311. If you do not file a timely appeal, this determination shall be final and unappealable. An appeal may be taken only by filing an appeal application with the Zoning Administrator and the Board of Zoning Appeals, in accordance with Albemarle County Code § 18-34.3, along with a fee of $258. Additionally, a separate fee is required for the cost of providing notice and advertising of the appeal for a public hearing. Applications for Appeal of the Zoning Administrator's Determination are available at the Department of Community Development located at 401 McIntire Road, Charlottesville, Virginia 22902 or online at www.albemarle.org/cdapps. This form applies to the appeal of a decision of the zoning administrator or any other administrative officer pertaining to the Zoning Ordinance. July 30, 2019 HO201900233 Page 2 Regulations pertaining to the filing of an appeal to the Board of Zoning Appeals are located in Chapter 18, Section 34.3 of the Zoning Ordinance. They may be reviewed online at www.albemarle.org/countycodebza. (Please note that our online documents are in Adobe Acrobat PDF format and must be viewed with the Adobe Acrobat Reader or an equivalent. A link to download the free plug-in is available at the bottom of www.albemarle.org/cdapps.) Please contact me if you have questions or require additional information. Sincerely, Kevin McCollum Planner Authorized Designee to the Zoning Administrator Attachments: Links shown can be copied and pasted into web browser Albemarle County Code § 18-5 (See Section 5.2A for Major Home Occupation requirements) http://www.albemarle.org/upload/images/Forms Center/Departments/County Attorney/Forms/AI bemarle County Code Ch18 Zoning05 Supplement Regulations.pdf Albemarle County Code § 18-31 (See Section 31.5 for Zoning Clearance requirements) http://www.albemarle.org/upload/images/Forms Center/Departments/County Attorney/Forms/AI bemarle County Code Ch18 Zoning31 Admin Enforcement.pdf Albemarle County Code § 18-10 - Area and Bulk Regulations Sec. 10.4 ("applicable setback and yard requirements for primary structures" ref. 5.2A(c)) http://www.albemarle.org/upload/images/Forms Center/Departments/County Attorney/Forms/AI bemarle County Code Ch18 Zoning10 Rural Areas.pdf Albemarle County Code § 18-36 http://www.albemarle.org/upload/images/Forms Center/Departments/County Attorney/Forms/AI bemarle County Code Ch18 Zoning36 Violations.pdf FOR OFFICE USE ONLY do ( HO # bl It; I 1 l, v v l Fee Amount $� ` ` Date Paid �� y who? �. Receipt # 1�� Ck# I' S By. lq 2. Application for Major Home Occupation Clearance r "'� (Only for parcels in the Rural Areas Zoning District) .. Major Home Occupation Clearance = $27.00 + applicable fees This application may require additional review by the Fire Marshal. Fees in addition to those shown on this application may be required by the Fire Prevention Code Fee Schedule. A copy of the schedule is available from the Fire Marshal. Home Occupation, Major: An occupation, not expressly prohibited by section 5.2A, conducted for profit within a dwelling unit solely by one or more members of the family residing within the dwelling unit and up to two (2) additional persons not residing within the dwelling unit, with or without the use of accessory structures; provided that nothing herein prohibits the occupation from engaging other persons who work off -site and do not come to the dwelling unit or to any accessory structure to engage in the occupation. Applicant MUST HAVE the following information to apply: 1) Tax Map and Parcel Number (or Address) and a description of the Home Occupation. 2) A Floor Plan Sketch on the next page with the following: a) The total square footage of the dwelling; b) The square footage of area within the home being used for the occupation (note this cannot be more than 25% of the gross square footage of the dwelling). 3) If applicable, a survey, plat, or aerial map showing accessory structures and parking associated with the home occupation. The GIS Web enables easv viewing and Drintine of aerial mans. Name of Business: %�% �/��� _ PL c 0y5���,1 ,.� / Type of Business: � Tax map and parcel: Wo- 00— OO--C l OU Contact Person j(Who should we call/write concerning this project?): �h,-7 ) , Address �O 61� S V?1 [ P I t-�' - City(/V� �/'�-i �i WC State 06 Zip �� Daytime Phone G.� Fax # (WO) VUb S E-mail sJQ C�%� [s- '44_ /- Owner of Record Address Daytime Phone Fax # O I^- E-mail State Zip DESCRIPTION OF USE (If necessary, attach an additional sheet. Include information about the number of vehicles and number of employees associated with the use, hours of operation, use of accessory structures, etc.): County of Albemarle Department of Community Development 401 McIntire Road Charlottesville, VA 22902 Voice: (434) 296-5832 Fax: (434) 972-4126 4/23/2018 Page 1 of 4 Each major home occupation authorized in the Rural Areas zoning district is subject to the following: UNDERSTAND THE REQUIREMENTS FOR THIS CLEARANCE W LOCATION & AREA This home occupation shall be conducted within the dwelling unit or accessory structures, or both, provided that not more than twenty-five (25) percent of the gross floor area of the dwelling unit shall be used for the home occupation and further provided that the cumulative area used for the home occupation, including the gross floor area within the dwelling unit or any accessory structure and the area used for outdoor storage as provided in section 5.2A(g), shall not exceed one thousand ve hundred (1500) square feet. Plants that are planted in the ground that are to be used for a major home occup ion do not count toward the one thousand five hundred (1500) square feet limitation. [Section 5.2A (b) (1)] EXTERIOR APPEARANCE There shall be no change in the exterior appearance of a dwelling unit or other visible evidence of the conduct of the home occupation, except that one home occupation sign may be erected as authorized by section 4.15. Accessory structures shall be similar in facade to a single-family dwelling, private garage, shed, barn or other structure normally expected in a residential area and shall be specifically compatible in design and scale with other residential development in the area ' which it is located. Any accessory structure that does not conform to the applicable setback and yard requirents for primary structures shall not be used for a home occupation. [Section 5.2A (c) (1)] "T-ORS & SALES Customers, clients and students are permitted to visit the property where the home occupation is conducted. Only goods that are hand-crafted on -site and goods that are directly related to the home occupation, including but not limited to tools for pottery making and frames for artwork are permitted to be for sale to customers who comes to the site. [Sectio .2A (d) (1)] TRAFFIC Nov MC`^1 �r;PS Pc� w eel ? �4v g . �� o��� o7 CVgfb"✓ S � The traffic generated by the home occupation shall not exceed ten (10) vehicle round trips per day or more than thirty (30) vehicle round trips per week. For the purposes of this section, a "vehicle round trip" means one vehicle entering and exiting the site. [Section 5.2A (e)] ARKING 'L o C zt �i p o� All vehicles used in the home occupation and all vehicles of employees, customers, clients or students related to the hhoomeoccupation shall be parked on -site. [Section 5.2A (f)] L1OUTDOOR STORAGE The storage of goods, products, equipment other than vehicles used in the home occupation, or any materials associated with the ho occupation, other than natural landscaping materials such as mulch and plants, outside of an enclosed ��HOU'RS prohibited. [Section 5.2A (g)] OF OPERATION `A/L ct f `(f e ` Ve— 41 Ca f L10 vT f I The home occupation may operate up to six (6) days per week and the hours of operation shall be between 7:00 a.m. and 8:00 p.m. for those home occupations that have employees, customers, clients or students visiting the site. [Section 5.2A (h)] LY NUMBER OF VEHICLES The number of vehicles that may be used in the home occupation that are parked or stored on -site shall not exceed two (2) motor vehicles and two (2) trailers. [Section 5.2A (i)] UMBER OF HOME OCCUPATIONS More than one home occupation is permitted on a parcel, provided that the area occupied and the traffic generated by the home occupations shall be considered cumulatively and all requirements of this section shall apply. [Section 5.2A (j)] Major Home Occupation Clearance 4/23/2018 Page 2 of 4 E14T rORMANCE STANDARDS The home occupation shall comply with the performance standards in section 4.14. [Section 5.2A (k)] Does the use involve procedures, machinery or chemicals that may cause the following? YES NO NOISE VIBRATION GLARE HEAT AIR POLLUTION WATER POLLUTION RADIOACTIVITY ELECTRICAL DISTURBANCE NON -DOMESTIC WASTE DISCHARGED TO A SEPTIC FIELD OR SEWER ZIf S, then applicable standards must be addressed with a Certified Engineer's Report (available from staff). HIBITED USES (1) any use requiring a special use permit under section (10) shooting ranges 10.2.2 (2) animal rescue centers (11) commercial stables (3) automobile graveyards (12) rummage or garage sales other than those (4) restaurants determined by the zoning administrator to be occasional (5) storage yards (13) veterinary clinics or hospitals (6) gun sales, unless the guns are made on -site by one or (14) pyrotechnic (fireworks or bomb) device more family members residing within the dwelling unit manufacturing or sale (7) on -site pet grooming (15) Any other use not expressly listed that is (8) body shops determined by the zoning administrator to be contrary (9) equipment, trailers, vehicles or machinery rentals to the purpose and intent of section 5.2A. =CATIONS A (I)] & INSPECTIONS I will �e 5e k�(► fib,• r Ov- S "C' Written notice that an application for a zoning clearance for a major home occupation has been submitted will be sent to the owner of each abutting parcel under different ownership than the parcel on which the proposed home occupation would be located. The notice will identify the proposed home occupation, its size, its location, and whether there is a request for a waiver or modification. The notice shall invite the recipient to submit any comments before the zoning clearance is acted upon. The notice shall be mailed at least five (5) days prior to the action on the zoning clearance as provided in section 32.4.2.5. In addition, a public notice sign will posted on the property for the duration of the review. VSIGNAGE 2A (n)] A✓1 j stli'lale One sign that does not exceed four (4) square feet in sign area and only states the name of the person occupying the dwelling and identifies the product or service offered by the home occupation is permitted. No additional permit is required for this sign, however, it must not exceed 6 ft. in height and must be setback at least 5 ft. from the public road righ=DDITIONAL Section 4.15.2 (25) and 4.15.81 IMPROVEMENTS AND REVIEWS FROM OTHER AGENCIES A zoning clearance shall not be issued if, after review of any site, additional improvements are necessary to protect public health or safety. [Section 31.5 (c)] Other state and local resources, including but not limited to the Health Department, Virginia Department of Transportation, Building Official, and County Engineer are commonly asked to comment on Home Occupation applications. Major Home Occupation Clearance 4/23/2018 Page 3 44 WAIVERS OR MODIFICATIONS MAY BE SOUGHT ONLY FOR THE FOLLOWING• AREA The area requirements in section 5.2A(b) may be waived or modified, provided that the waiver or modification shall not authorize the home occupation to occupy more than forty-nine (49) percent of the gross floor area of the dwelling. In granting a waiver or modification of the area requirement, the commission shall make the following findings in addition to those findings in section 5.1: (1) the nature of the home occupation requires storage or additional space within the dwelling unit to conduct the home occupation; (2) the primary use of the dwelling unit as a residence is maintained; and (3) the waiver or modification would not change the character of the neighboring agricultural area or the residential neighborhood. [Section 5.2A (m) (1)] TRAFFIC The traffic limitation in section 5.2A (e) may be waived or modified. In granting a waiver or modification of the traffic limitation, the commission shall find, in addition to those findings in section 5.1, that the waiver or modification would not change the character of the neighboring agricultural area or the residential neighborhood. [Section 5.2A (m) (2)] REVIEW PROCESS AND ADDITIONAL FEES WITHOUT WAIVER REQUEST ($27 + notice fees) WITH A SPECIAL EXCEPTION ($27 + $457 + notice fees) 1. Submit Home Occupation application ($27). 1. Submit Home Occupation application and Waiver 2. Staff will review for completion and mail abutting application ($25 + $457). owner notification (Fee varies based on number of 2. Staff will review for completion and mail abutting letters). owner notification (Fee varies based on number of 3. Staff will visit property to post public notice sign, letters). review parking areas, proposed location of sign, and 3. Staff will visit property to post public notice sign, storage areas (if applicable). review parking areas, proposed location of sign, and 4. Staff will approve application if requirements have storage areas (if applicable). been met and pick-up public notice sign. 4. Staff will coordinate date of next available Planning Commission meeting to process special exception 5. Staff will approve application if requirements have been met and pick-up public notice sign. Owner/Applicant Must Read and Sign I hereby apply for approval to conduct the Home Occupation identified above, and certify that this address is my legal residence. I also certi at I have read the restrictions on Home Occupations, that I understand them, and that I will abide b54tp onjunction with a business license, represents zoning approval to conduct the Major Home O(-/ igna a of Applicant Date Other Official Date Official Zoning Official ENGINEER'S REPORT ATTACHED: YES NO CONDITIONS: Date Date Major Home Occupation Clearance 4/23/2018 Page 4 of 4 N Plans BUFTON & MAUS LAW OFFICE Aim C.,,y. Vin i. Albemarle 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 ;n yi Gou�tty of Albemarle '� 4 Community Development Department 401 tv clntire Road Charlottesville, VA22902-4598 Voice: (434} 295-5832 Fax : (434) 972-4125 ,,. _ BUILDING PERMIT - Page i Acres 2.40 Primary ,Rural Areas Zoning .--- _ __ Building Permit 017-02431-NNR t-/ Entered By: lennifer Smith on 1011812012 Sub Application Ty Storage. U'i ingJaccessory structure (new or Associated Building - - —-_----------------- - - ---- Permit Street Address: 738 VILLE RD GORDONSVILLE, 22942 WORK INFORMATION l lark Class Frame T 4 wer Su h' Tvo" Sena e Dsp2sal Tyr f Feundatian T New ?Mood Cartesian Well Private Other ......... :.............. 'Mork valuation Jurisdictional Area Other Foot Found, Desc.: $ 48,000.00 INo Service -- 'Nork [-WEWiTRUCTURE FOR HOME OFFICE Description: � Directions 7380 GORDONSVILLE RD Legal ACREAGE Description: Use Group Construction Type Square Footages: # of Stories 1 Porches 504 Unfinished Basement 15t Floor 792 Decks Other Un mished 2nd Floor Garage Total Unfinished Sq. Footage 3rd Floor Swimming Pool Finished Basement Other Habitable Total Habitable Sq. Footage Total Building Sq, Footage E== Set Backs; Front 7 Back Zoning Pre -Construction? Land Use? ;i e Fire Alarms Required? ;1 Bldg Pre -Construction? Lek Side 17� Right Side Fire Sprinkler hlr+.PA Code;r year Dwelling Units Accessory Structures � !•lobile\Prefab, Homes � Mobile Offices\Prefab, Units Carports e Bedrooms Baths 1.0 Paint Spray Booths Garages kitchens B swimming Pools'Hot B Other � Elewators%,Escalator':Liks Tubs\Spas (Res, Only) FN Contact Type Name IAddress City' State Zi CaJ .fork Phan Cell rea�l`,r._;A'r_ert bufton, evelyn &..john r maus ' :PO BOx E :.raga ra�pr t .. ....... ............... .. ....,.. ,., .-.5amEJ0Y�ner/agent 1 .... ....... ..... 0 i County of Albemarle 8UILDING PEPMiT - Pace 2 TIVIP 1 05000-00-00-04900 Acres 2.40 Primary Rural Areas Zoning 71�6hll`1- Building Permit = Bi2017-02431-NNR Community Development Department 401 McIntire Road Charlottesville, VA22902-4596 Voice: (434) 296-5832 Fax : (434) 972.4126 Current BUTTON, EVELYN & JOHN R MAUS Ownerfsl - _ - - - ------ -- — Y Major Acreage Subdiv.` Sub Application TypeLStorage building/accessory structure (new or Street ;address: 7380 GORDONSVILLE RD GORDONSVILLE, 22942 Entered By: Jennii'er Smith on 10/1812017 Associated Builcl P er rn it Separate permits may be required for Electrical, Plumbing, Heating, Ventilating and Air Conditioning. This permit becomes null and void if work or construction authorized is not commenced within 6 months, or if construction or work is suspended or abandoned for a period of 6 months at any time after work is commenced. I hereby certify that I have read and examined this application and know the same to be true and correct. All provisions of laws and ordinances governing this type of work will be complied with whether specified herein or not. The granting of a permit does not presume to give authority to violate or cancel the provisions of any other state or local law regulating construction or the narfnrmanrp of rnnchriirfinn By signing this building permit, the owner and/or their agent hereby grant employees of the Albemarle County Community Development Real Estate Departments the right to enter and inspect the subject property Monday through Friday between the hours of 8:00 a.m. and 5:00 P.m., holidays excepted. If you are not the owner of record, please check which applies: I certify that I am the agent for BUFTON, EVELYN & JOHN R MAUS ❑ , the Owner, and am authorized to submit this application on behalf of the Owner- under the agency granted to me. I am neither the Owner nor the Owner's agent. I certify that written notice of this application, by providing a copy of this application, will be mailed to the Owner at the following address ElP O BOX E GORDONSVILLE VA 22942 within 10 days of today's date as required by Virginia Code § 15.2-2204(H). I understand that, if I do not provide the notice to the Owner as provided herein, the building permit application and every other subsequent approval, permit or certificate related thereto could be determined to be void. of 0einer, Con?radar or Aa. - c_ , -'3 r':ye : Dale t e of . riidirff ,3 �"rc-ia orF.u1.ht.r¢e� REFr z at:ve Date EL CTRO IC RECORDS STATEMENT: Albemarle County is creating and using electronic records and electronic signatures as allowed by the Uniform Electronic Transactions Act (Virginia Code § 59.1-479 et seq.). As an applicant to the Building Permit process, you may consent to receive, or have online access to, electronic records and receive and create records having electronic signatures related to Buildinq Permits, Correspondence, Inspection Tickets and Certificates of Occupancy (the Buildinq Please initial here if you AGREE to receive and/or use electronic records and electronic signatures for Building Permit transactions. Ikiais of Grrrer. Contractor or Authorized Pnen+, Your agreement to conduct Building Permit transactions by electronic means does not prevent you from refusing to conduct other transactions by electronic means. 5 0 H n x r r� d r� x H d 3 cry I M County of Albemarle r Department of Community Development . k 401 McIntire Road, North Wing vG Charlottesville, Virginia 22902 4� DATE: 08/05/2019 TO: BUFTON, EVELYN & JOHN R MAUS P 0 BOX E GORDONSVILLE VA 22942 CC: Post Office, GORDONSVILLE FROM: Geographic Data Services (GDS) www.albernarle.org/cids 434-296-5832 SUBJECT: Physical Address Notification - NEW CONSTRUCTION TMP: 05000-00-00-04900 PERMIT#: B2017-02431NNR PHYSICAL ADDRESS: 7382 GORDONSVILLE RD As of the date of this letter, the physical address located at the above Tax Map Parcel (TMP) and/or Building Permit# is currently in our addressing system. To ensure proper location by emergency service providers, timely mail delivery, and the accuracy of other County records, please do the following: • If applicable, contact your telephone company to ensure this physical address is associated with your landline telephone number; Post the uddre_ _, for this structure in accordance ,%,ith Albemarle County's Road Naming and Property Numbering Ordinance and Manual;* To -_-_-Live nl: i! using this address, contact your post. If this is an address change and you didn't physica!!y move, do not submit a Change of Address form with the USPS. Any questions about mail delivery, zip code information, and determining where a mailbox should be installed, will be handled by the post office; If applicable, ensure that your records are up to date with Voter Registration (434-972- 4173), School Transportation (434-973-5716), and the County's Finance Department (434-296-5851); • Alert other County and non -County entities (e.g. credit card, utilities, etc.) as necessary. Note: any change in your physical address does not require the deed to your property to be re- recorded at the courthouse. *The County's Road Naming and Property Numbering Ordinance requires that this physical address number be posted so it is easily visible from the named street or road. The number named street or road, the addressnumberand road name roust appear on the mailbox. The numerals displayed should be at least three inches in height on a contrasting background and any previously displayed numbers, which could be confused with or mistaken for the address assigned, shall be removed from the mailbox and property. If you should have any questions regarding this physical address, please do not hesitate to contact our office. 7380 Gordonsville Rd Legend (Note: Some items on map may not appear in legend) Parcel Info ❑ Parcels 50-48A 50-49 7381 Ot�O 50-47 51-7 51-8 188 ft 2y Al9F GIS-Web Geographic Data Services ?� w .albemade.org/gis (434)296-6832 Any determination of topography or contours, or any depiction of physical improvements, property lines or boundaries is for general information only and shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination. June 6, 2019 ALBEMARLE COUNTY CODE 5.2A HOME OCCUPATIONS IN THE RURAL AREAS ZONING DISTRICT Each home occupation authorized in the rural areas zoning district shall be subject to the following: a. Purpose and intent. The purpose for authorizing home occupations in the rural areas zoning district is to encourage limited home -based economic development, balanced with the need to protect and preserve the quality and character of the county's agricultural areas and residential neighborhoods in the rural areas zoning district. The regulations in this section are intended to ensure that authorized home occupations will be compatible with other permitted uses, the agricultural areas, and the residential neighborhoods by regulating the scale, hours, external activities, external appearance and other impacts that may arise from a home occupation. b. Location and area occupied by a home occupation. A home occupation shall be located and sized as follows: Major home occupations. A major home occupation shall be conducted within the dwelling unit or accessory structures, or both, provided that not more than twenty-five (25) percent of the gross floor area of the dwelling unit shall be used for the home occupation and further provided that the cumulative area used for the home occupation, including the gross floor area within the dwelling unit or any accessory structure and the area used for outdoor storage as provided in section 5.2A(g), shall not exceed one thousand five hundred (1500) square feet. Plants that are planted in the ground that are to be used for a major home occupation do not count toward the one thousand five hundred (1500) square feet limitation. 2. Minor home occupations. A minor home occupation shall be conducted entirely within the dwelling unit, provided that not more than twenty-five (25) percent of the gross floor area of the dwelling unit shall be used for the home occupation and further provided that the gross floor area used for the home occupation shall not exceed one thousand five hundred (1500) square feet. C. Exterior appearance. The exterior appearance of a parcel with a home occupation shall be subject to the following: Major home occupations. There shall be no change in the exterior appearance of a dwelling unit or other visible evidence of the conduct of a major home occupation, except that one home occupation sign may be erected as authorized by section 4.15. Accessory structures shall be similar in fagade to a single-family dwelling, private garage, shed, barn or other structure normally expected in a residential area and shall be specifically compatible in design and scale with other residential development in the area in which it is located. Any accessory structure that does not conform to the applicable setback and yard requirements for primary structures shall not be used for a home occupation. 2. Minor home occupations. There shall be no change in the exterior appearance of a dwelling unit or other visible evidence of the conduct of a minor home occupation. d. Visitors and sales. Visitors and sales related to a home occupation shall be subject to the following: Major home occupations. Customers, clients and students may visit a major home occupation. The sale of goods by the major home occupation to a customer who comes to the site is prohibited except for goods that are hand-crafted on -site and accessory goods that are directly related to a major home occupation, including but not limited to tools for pottery making and frames for artwork. 18-5-22.46 Zoning Supplement #116, 8-7-19 ALBEMARLE COUNTY CODE 2. Minor home occupations. No customers, clients or students may visit a minor home occupation for a purpose related to the home occupation. The sale of goods or the provision of services by the minor home occupation to a customer, client or student at the site is prohibited. e. Traffic generated by a major home occupation. The traffic generated by a major home occupation shall not exceed ten (10) vehicle round trips per day or more than thirty (30) vehicle round trips per week. For the purposes of this section, a "vehicle round trip" means one vehicle entering and exiting the site. f. Parking. All vehicles used in a home occupation and all vehicles of employees, customers, clients or students related to a major home occupation shall be parked on -site. g. Outdoor storage. The storage of goods, products, equipment other than vehicles used in a home occupation, or any materials associated with a home occupation, other than natural landscaping materials such as mulch and plants, outside of an enclosed structure is prohibited. h. Days and hours of operation for major home occupations. Major home occupations may operate up to six (6) days per week and the hours of operation shall be between 7:00 a.m. and 8:00 p.m. for those home occupations that have employees, customers, clients or students visiting the site. i. Number of vehicles used in a home occupation. The number of vehicles that may be used in a home occupation that are parked or stored on -site shall not exceed two (2) motor vehicles and two (2) trailers. j. Number of home occupations. More than one home occupation is permitted on a parcel, provided that the area occupied and the traffic generated by the home occupations shall be considered cumulatively and all requirements of this section shall apply. k. Performance standards. All home occupations shall comply with the performance standards in section 4.14. Prohibited home occupations. The following uses are prohibited as home occupations: (1) any use requiring a special use permit under section 10.2.2; (2) animal rescue centers; (3) junkyards; (4) restaurants; (5) storage yards; (6) gun sales, unless the guns are made on -site by one or more family members residing within the dwelling unit; (7) on -site pet grooming; (8) body shops; (9) equipment, trailers, vehicles or machinery rentals; (10) shooting ranges; (11) commercial stables; (12) rummage or garage sales other than those determined by the zoning administrator to be occasional; (13) veterinary clinics or hospitals; (14) pyrotechnic (fireworks or bomb) device manufacturing or sales; and (15) any other use not expressly listed that is determined by the zoning administrator to be contrary to the purpose and intent of section 5.2A. in. Waivers and modifications. The waiver or modification of any requirement of section 5.2A is prohibited except as provided herein: Area. The area requirements in section 5.2A(b) may be waived or modified, provided that the waiver or modification shall not authorize the home occupation to occupy more than forty-nine (49) percent of the gross floor area of the dwelling. In granting a waiver or modification of the area requirement, the commission shall make the following findings in addition to those findings in section 5.1: (1) the nature of the home occupation requires storage or additional space within the dwelling unit to conduct the home occupation; (2) the primary use of the dwelling unit as a residence is maintained; and (3) the waiver or modification would not change the character of the neighboring agricultural area or the residential neighborhood. 18-5-22.47 Zoning Supplement #116, 8-7-19 ALBEMARLE COUNTY CODE 2. Traffic. The traffic limitation in section 5.2A(e) may be waived or modified. In granting a waiver or modification of the traffic limitation, the commission shall find, in addition to those findings in section 5.1, that the waiver or modification would not change the character of the neighboring agricultural area or the residential neighborhood. n. Zoning clearance required; notice of request. No home occupation shall commence without a zoning clearance issued under section 31.5. For each zoning clearance requested for a major home occupation, the zoning administrator shall provide written notice that an application for a zoning clearance has been submitted to the owner of each abutting parcel under different ownership than the parcel on which the proposed home occupation would be located. The notice shall identify the proposed home occupation, its size, its location, and whether any waiver or modification is requested. The notice shall invite the recipient to submit any comments before the zoning clearance is acted upon. The notice shall be mailed at least five (5) days prior to the action on the zoning clearance as provided in section 32.4.2.5. (Ord. 11-18(1), 1-12-11; Ord. 19-18(3), 6-5-19) 18-5-22.48 Zoning Supplement #116, 8-7-19 ALBEMARLE COUNTY CODE c. Provisions of section 10.3.3, rural preservation development, shall be applied to the entire parcel. Combination of conventional and rural preservation development within the parcel shall not be permitted, provided that the total number of lots achievable under section 10.3.1 and section 10.3.2 shall be permitted by authorization of more than one (1) rural preservation tract. Nothing contained herein shall be deemed to preclude the director of current development and zoning from approving a rural preservation development for multiple tracts of adjoining land, or on land divided or otherwise altered prior to the effective date of this provision; provided that, in either case, the provisions of section 10.3.3 shall be applicable; d. The area devoted to development lots together with the area of roadway necessary to provide access to such lots shall not exceed the number of development lots multiplied by a factor of six (6) expressed in acres; e. No rural preservation development shall contain less than one (1) rural preservation tract. The director of current development and zoning may authorize more than one (1) rural preservation tract in a particular case pursuant to the various purposes of rural preservation development as set forth in section 10.3.3.2 or in accord with section 10.3.3.3.c, as the case may be; f. No rural preservation tract shall consist of less than forty (40) acres. Except as specifically permitted by the director of current development and zoning at time of establishment, not more than one (1) dwelling unit shall be located on any rural preservation tract or development lot. No rural preservation tract shall be diminished in area. These restrictions shall be guaranteed by perpetual easement accruable to the County of Albemarle and the public recreational facility authority of Albemarle County in a form acceptable to the board. In accordance with Chapter 14 of the Code of Albemarle, the director of planning and community development shall serve as agent for the board of supervisors to accept such easement. Thereafter, such easement may be modified or abandoned only by mutual agreement of the grantees to the original agreement; g. Each application for a rural preservation development is subject to the review and approval of the director of current development and zoning. (§ 20-10.3.3.3, 11-8-89; § 18-10.3.3.3, Ord. 98-A(1), 8-5-98; Ord. 04-18(1), 5-5-04 effective 7-1-04) Sec. 10.4 Area and bulk regulations. Area and bulk regulations within the RA, rural areas, zoning district are as follows: REQUIREMENTS DIVISIONS BY DIVISIONS BY SPECIAL RIGHT USE PERMIT Gross density 0.5 du/ac 0.5 du/ac Minimum lot size 2.0 acres 2.0 acres Minimum frontage existing public roads 250 feet 250 feet Minimum frontage internal public or private roads 150 feet 150 feet Yards, minimum: Front (existing public roads) 75 feet 75 feet Front (internal public or private road)(Amended 11-13-91) 25 feet 25 feet Side 25 feet 25 feet Rear 35 feet 35 feet Maximum structure height 35 feet 35 feet (§ 20-10.4, 12-10-80; 8-14-85; § 18-10.4, Ord. 98-A(1), 8-5-98; Ord. 08-18(7), 11-12-08) 18-10-8 Zoning Supp. #113, 6-5-19