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Home My WebLink AboutAP201900004 Application 2019-10-08GREG KAMPTNER COUNTY ATTORNEY ANDREW H. HERRICK DEPUTY COUNTY ATTORNEY COUNTY OF ALBEMARLE Office of County Attorney 401 McIntire Road, Suite 325 Charlottesville, Virginia 22902-4596 PHONE (434) 972-4067 FAX (434) 972-4068 Marsha Alley, Recording Secretary Albemarle County Board of Zoning Appeals 401 McIntire Road Charlottesville, Virginia 22902 Re: Motion for Rehearing of Bufton & Maus appeal (AP201900004) Dear Marsha: RICHARD A. DELORIA AMANDA E. B. FARLEY SUSAN BAUMGARTNER ANTHONY R. BESSETTE SENIOR ASSISTANT COUNTY ATTORNEYS Please find enclosed a Motion for Rehearing of the Board of Zoning Appeals' October 1 decision in the Bufton & Maus appeal (AP201900004). This Motion is being filed pursuant to Rule 5(J) of the BZA's Rules or Procedure, on behalf of the Albemarle County Board of Supervisors. Though this decision has not yet been appealed to the Circuit Court, we strongly suggest that the Chair call a special meeting of the BZA, pursuant to Rule 2(C), before October 31. Though Virginia Code § 15.2-2308.1 precludes BZA members from certain direct communications with County staff, I'd welcome any questions that you or counsel may have. Thank you for accepting the Board of Supervisors' filing of this Motion. Sincerely, (LL Andrew H. Herrick Deputy County Attorney Enclosure Cc: James M. Bowling, IV, Esq. John R. Maus and Evelyn Bufton RECEIVED OCT 0 8 2019 5� e COMMUNITY cvtV,-, DEVELOPMENT VIRGINIA: BEFORE THE ALBEMARLE COUNTY BOARD OF ZONING APPEALS IN RE: BUFTON & MAUS LAW OFFICE APPEAL AP2019-00004 MOTION FOR REHEARING Pursuant to Rule 5(J) of Rules of Procedure of the Albemarle County Board of Zoning Appeals (the "BZA"), the Albemarle County Board of Supervisors (the "Board"), by counsel, respectfully moves for a rehearing of the BZA's October 1, 2019 decision in the above -captioned appeal. In support of its Motion, the Board respectfully states that the BZA (a) lacked any factual evidence that the proposed home occupation use in fact complied with the applicable (25 foot) setbacks, and (b) lacked any legal authority to waive those setbacks. In further support of its Motion, the Board further states as follows: 1. The Board incorporates by reference the materials previously submitted on its behalf, including (but not limited to): a. letter of Kevin McCollum, designee of the Zoning Administrator, to John R. Maus. dated July 30, 2019 (the subject determination of the present appeal); b. staff report of Kevin McCollum and Bart Svoboda, dated October 1, 2019; and c. memorandum of the undersigned counsel, dated September 19, 2019. Lack of Evidence/Burden of Proof 2. Under Virginia Code S 15.2-2309(1): "The determination of the administrative officer shall be presumed to be correct. At a hearing on an appeal, the administrative officer shall explain the basis for his determination after which the appellant has the burden of proof to rebut such presumption of correctness by a preponderance of the evidence." [emphasis added[ 3. Because the appellants failed to produce gRy evidence that the proposed home occupation use in fact complied with the applicable (25 foot) setbacks, the BZA should have affirmed the administrative determination, rather than insisting that the Zoning Administrator bear the burden of proving the appellants' non-compliance. 1 RECEIVED OCT 0 6 2019 COMMUNITYn DEVELOPMENT Lack of "Written Order, Requirement, Decision or Determination" Subject to Change 4. Though the BZA relied heavily on the "remedial nature" of Virginia Code § 15.2- 2311(C), the BZA failed to identify any specific "written order, requirement, decision or determination made by the zoning administrator or other administrative officer" that was being changed or restored. 5. Because no zoning administrator or other administrative officer was seeking to change, modify or reverse any such order, requirement, decision or determination, there was no such order, requirement, decision or determination for the BZA to restore. 6. Because all such orders, requirements, decisions and determinations remain unchanged, Virginia Code § 15.2-2311(C) simply does not apply to the subject appeal. Chance in Relevant and Material Conditions or Situations 7. The BZA's October 1 decision on this appeal has not already been appealed to the Circuit Court. 8. However, following the BZA's October 1 decision, the Board has indicated its strong concern and intent to further appeal the BZA's October 1 decision by October 31 unless the BZA first takes corrective action. 9. This change in one or more relevant and material conditions or situations bears on the BZA's original decision and justifies a prompt rehearing. WHEREFORE, the Albemarle County Board of Supervisors respectfully requests that the BZA promptly rehear its October 1, 2019 decision in the above -captioned appeal. Respectfully Submitted, ALBEMARLE COUNTY BOARD OF SUPERVISORS By Counsel 2 RECEIVED OCT 06 2019 COMMUNITY DEVELOPMENT Greg Kamptner, VSB # 33788 Andrew H. Herrick, VSB #37236 ALBEMARLE COUNTY ATTORNEY'S OFFICE 401 McIntire Road Charlottesville, Virginia 22902 (434) 972-4067 FAX (434) 972-4068 October 8, 2019 CERTIFICATE OF SERVICE I hereby certify that on this 8A day of October, 2019, a true copy of the foregoing Motion for Rehearing was sent by first-class mail, postage prepaid, to: James M. Bowling, IV, Esq. St. John, Bowling, Lawrence & Quagliana, LLP 416 Park Street Charlottesville, Virginia 22902 John R. Maus and Evelyn Bufton Post Office Box E Gordonsville, Virginia 22942 Andrew H. Herrick 3 RECEIVED s \"c.e OCT 0 0 2019 � COMMUNITY DEVELOPMENT Ll jq