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Home My WebLink AboutSDP201800034 Correspondence 2018-08-02El 1r.+ LAW OFFICES T"MBLAY & SMITH, PLLC M. E. (DICK) GIBSON, JR. 105 EAST HIGH STREET THOMAS E. ALBRO CHARLOTTESVILLE, VIRGINIA 22902-5115 MELISSA M. RITTER TELEPHONE: (434) 977-4455 THOMAS M. HENDELL FACSIMILE: (434) 979-1221 EVAN D. MAYO www.tremblaysmith.com August 2, 2018 Via hand -delivery The Honorable Cheryl V. Higgins, Judge Albemarle County Circuit Court 501 East Jefferson Street Charlottesville, Virginia 22902 0 E. GERALD TREMBLAY 1922-2003 LLOYD T. SMITH, JR. 1932-2018 OF COUNSEL JOHN K. TAGGART, III Re: In Re January 9, 2018 Decision of the Board of Zoning Appeals of Albemarle County / Case No. CL18-232 Dear Judge Higgins: As requested, I have enclosed my draft order relating to the July 20, 2018 hearing on my client's Motion to Vacate and for a Restraining Order. The only point of disagreement between the parties is whether the court's order stayed further proceedings on the decision appealed from the BZA pending resolution of this case. The last sentence in the last paragraph of the order represents our submission on this point. Counsel for Tiger Fuel Company recall that the Court ruled that it issued a restraining order under Va. Code § 15.2-2314 granting a stay from further proceedings on the issue appealed from and granting Tiger Fuel Company an additional 90 days to submit its final site plan. Counsel for Tiger Fuel Company recall that the Court specifically ruled that it was granting the stay on further proceedings based on "due cause shown" under §15.2-2314. In addition to matching the Court's clear language on July 20, 2018, including a stay within the restraining order is the only way to achieve the purposes of the Court's ruling: without the stay, the extension of time for Tiger Fuel Company to submit its final site plan would be ineffective. Ms. Saternye's letter rejected Tiger Fuel Company's previous final site development plan because a special use permit had not been "submitted and approved." The approval process for a special use permit can take many months; it requires scheduling a pre -submission meeting with the County, a mandatory ten-day waiting period, and an indeterminate amount of time during which the County and the applicant dicker over the conditions of the special use permit. It is impossible for Tiger Fuel Company to secure approval of the special use permit before August 8, 2018, which would presumably cause the County to once again reject the final site development plan for the missing approval. Tiger Fuel Company would be left in the same position in which it began when it filed its Motion for a Restraining Order. If the Court imposed the stay, Tiger Fuel Company would plan to submit two final site development plans by August 8, 2018: one which includes a special use permit application and one which does not. When the Court resolves this appeal on its merits in October, the resulting order could lift the restraining order's stay so that the County and Tiger Fuel Company could move forward under the final site development plan that matches the court's ruling. A stay would also streamline the issues for trial over the next two months by eliminating any further A TREMBUY a SMITH, PLLC *W� The Honorable Cheryl V. Higgins, Judge August 2, 2018 Page 2 disagreements over administrative decisions until after this Court resolves the underlying dispute. I respectfully request that the Court adopt the enclosed draft order, which best captures the letter and spirit of the Court's July 20, 2018 ruling from the bench. Very truly yours, WARMAIN's Evan D. Mayo EDM Enclosure cc: Mr. Greg Kamptner, Esq. (via e-mail to gkamptner ra albemarle.org) (w/ enclosure) Mr. Andrew Herrick, Esq. (via e-mail to aherrick(aialbemarle.org) (w/ enclosure) Mr. Gordon Sutton (via e-mail to Sutton ,tigerfuel.com) (w/ enclosure) Mr. Justin Shimp (via e-mail to ustinOshimp-enginerring.com) (w/ enclosure) l on VIRGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF ALBEMARLE IN RE: JANUARY 9, 2018 DECISION ) OF THE BOARD OF ZONING APPEALS } CASE NO. CL18000232-00 OF ALBEMARLE COUNTY ) CAME this 201h day of July, 2018, the Petitioner Tiger Fuel Company (the "Petitioner"), by counsel, and the Respondent Board of Supervisors of Albemarle County, Virginia (the "County"), by counsel, on the Petitioner's "Motion to Vacate and for Restraining Order" (the "Motion"). Upon considering the Petitioner's Motion, the County's Response filed herein, and the oral arguments of counsel, the Court hereby finds as follows: 1. Petitions for Writ of Certiorari to review decisions of Boards of Zoning Appeals (BZAs) are statutory in nature, which statutes must be strictly construed. 2. The Virginia Code provides separate statutes for appeals of zoning officers' determinations to BZAs and for appeals of BZAs' decisions to Circuit Courts. 3. Virginia Code § 15.2-2311 and Albemarle County Code § 18-34.3(f), which isderived from it, apply only to appeals of zoning officers' determinations to BZAs. 4. Virginia Code § 15.2-2314 applies only to appeals of BZAs' decisions to Circuit Courts. 5. Virginia Code § 15.2-2311(C) does not stay further proceedings. 6. On November 7, 2017, pursuant to Virginia Code § 15.2-2311, the Petitioner appealed official Letter of Determination LOD2017-00027 for Parcel ID 09400-00-00-03900, which was a determination of the need for a Special Use Permit for water consumption for the use proposed with SDP2017-00009 Boyd Tavern Market (the "SP Determination"), to the Albemarle County Board of Zoning Appeals (the "Albemarle BZA"). 7. On January 9, 2018, the Albemarle BZA affirmed the zoning officer's SP Determination. 8. On February 5, 2018, pursuant to Virginia Code § 15.2-2314, the Petitioner appealed the Albemarle BZA's January 9, 2018 decision to this Court. M 9, Under Virginia Code § 15.2-2311, all proceedings in furtherance of the SP Determination were stayed from November 7, 2017 (the date of the Petitioner's appeal of the SP Determination) until February 5, 2018 (the date of the Petitioner's appeal of the Albemarle BZA's decision), a period of 90 days. WHEREUPON, pursuant to Virginia Code § 15.2-2314, on due cause shown, the Court hereby GRANTS the Petitioner's Motion for a Restraining Order by extending any applicable submission time limits by the same 90-day period during which all proceedings in furtherance of the SP Determination were stayed, which allows the Petitioner to submit its final site plan on or before August 8, 2018. In addition, the Restraining Order imposes a stay on all further proceedings by the County on the decision appealed from. ENTER: DATE: Prepared at the direction of the Court: Respectfully objected to on the grounds noted in the County's Response and at oral argument, including: 1. Because over one year has already passed since conditional approval of initial site plan SDP2017-00009 on May 10, 2017, that plan has already expired, rendering both the Petitioner's present Motion and its underlying Petition herein moot. 2. Under Virginia Code § 15.2-2311, the Petitioner would have had no more than a 53-day stay, between the Petitioner's appeal to the Board of Zoning Appeals (11/7/2017) and the BZA's actual decision (1/9/2018). With only a 63-day stay of the one-year time limit on initial site plan submissions, the Petitioner's plan has still already expired, again rendering both the Petitioner's present Motion and its underlying Petition herein moot. 3. Circuit Courts lack jurisdiction to directly review and/or vacate zoning officers' determinations, that jurisdiction being reserved to Boards of Zoning Appeals under Virginia Code § 15.2-2311. Seen and Andrew H. Herrick, VSB #37236 Counsel for Respondent Board of Supervisors of Albemarle County, Virginia cm cm I ask for this: Evan D. Mayo, Esq. ( SB #89383) Counsel for Petitioner Tiger Fuel Company