HomeMy WebLinkAboutSDP201800034 Other 2018-06-2714
VIRGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF ALBEMARLE
In Re: January 9,2018 Decision of the Board of Zoning Appeals of Albemarle
County
TO.,Greg Kamptner, Esq.
Andrew H. Herrick, Esq.
County Attorney
401 McIntire Road
Charlottesville, VA 22902
CASE NO.: CL18000232-00
.NOTICE OF HEARING
PLEASE TAKE NOTICE that on Friday, the 1 P day of July, 2018, at 11: 00 a.m., or as
soon thereafter as counsel may be heard, the Petitioner, Tiger Fuel Company, by counsel, will
present the attached Motion to Vacate and for Restraining Order and evidence in support thereof,
and move the Court for the relief sought therein.
You are invited to attend.
Thomas E.-Albro (VSB, 28'l2)
Evan D. Mayo (VSB #89383)
TREMBLAY & SMITH, PLLC
105-109 East High Street
Charlottesville, Virginia 22902
Telephone: (434)977-4455
Facsimile: (434)979-1221
toin.albio@tremblaysmitli.coni
,evan.maV�tremtilaysin itli:com
TIGER FUEL COMPANY,
By Counsel
CERTIFICATE
I hereby certify that on June 27, 2018, I served a true copy of the foregoing upon the
respondents at the following addresses:
Greg Kamptner, Esquire
Andrew H. Herrick, Esquire
ALBEMARLE COUNTY ATTORNEY' S OFFICE
401 McIntire Road
Charlottesville, VA 22902
Counsel for Board of Supervisors of Albemarle County
Evan D. Mayo``
VIRGINIA:
IN THE CIRCUIT COURT OF THE COUNTY OF ALBEMARLE
In Re: January 9, 2018 Decision of the
Board of Zoning Appeals of Albemarle Case No. CL18000232-00
County
MOTION TO VACATE AND FOR RESTRAINING ORDER.
COMES NOW the Petitioner, Tiger Fuel Company ("Petitioner"), by counsel, and moves
this Court to Vacate Albemarle County's ("the County") determinations that SDP2018-00034 (the
"Final Site Plan') was not officially submitted and that SDP2017-00009 (the "Initial Site Plan")
has expired and moves this Court to impose a Restraining Order on the County to stay further
proceedings on SDP2017-00009 and SDP2017-00034 pursuant to its authority under § 15.2-2314
for good cause shown.
1. Tiger Fuel Company submitted the Initial Site Plan for Boyd Tavern Market on February
6, 2017. The Initial Site Plan was conditionally approved by the County on May 10, 2017. See
Exhibit 1, Conditional Site Plan Approval dated May 10, 2017. The letter of conditional approval
read, in part, "T'his approval shall be valid for a period of five (5) years from the date of this
letter, provided that the developer submits a final site plan for all or a portion of the site within
one (1) year after the date of this letter as provided in section 32.4.3.1 of Chapter 18 of the Code
of the County of Albemarle, and thereafter diligently pursues approval of the final site plan."
Exhibit 1, p. 1.
2. In addition, the conditional letter of approval stated that, "... a Special Use Permit (SP)
will be required to allow water usage of more than 400 gallons per site acre per day. The SP will
need to be approved prior to submittal of the final site plan." Exhibit 1, p. 1. The determination
that the proposed development required a special use permit for water usage exceeding 400
gallons per day was confirmed by Francis MacCall, Principal Planner, on October 9, 2017.
Exhibit 2, F. MacCall Letter of Determination dated October 9, 2017.
3. On November 7, 2017, Tiger Fuel Company appealed the decision of Francis MacCall
that a special use permit was required for water usage exceeding 400 gallons per site acre to the
Board of Zoning Appeals of Albemarle County ("BZA").
4. The Board of Supervisors alleged no procedural defect in Tiger Fuel Company's appeal.
The appeal was argued on the merits on January 9, 2018.
5. Albemarle County Code § 34.3(o, Effect of Filing an Appeal, concerns the effect of filing
an appeal to the BZA on an existing site application. The Code states:
An appeal shall stay all proceedings in furtherance of the action appealed
from unless the zoning administrator certifies to the board that, by reason
of the facts stated in the certificate, a stay would in his opinion cause
imminent peril to life or property. If the zoning administrator makes such
a certification, the proceeding shall not be stayed unless.either the board or
the Albemarle County Circuit Court grants a restraining order on
application and on notice to the zoning administrator and for good cause
shown.
See also Va. Code §15.2-2311. The action appealed from by Petitioner was the determination by
Francis MacCall that SDP2017-00009 required a Special use Permit for water usage above the
400-gallon per site acre limit. No Albemarle County Zoning Administrator made a certification
to the board that a stay would cause "imminent peril to life or property."
2
6. On May 7, 2018, in recognition that the one-year site plan approval period was about to
expire, and fearing that County would not honor the stay prescribed by § 15.2-2311, Tiger Fuel
Company submitted a final site plan "("SDP2018-00034 or the "Final Site Plan") but did not
request a special use permit because its necessity had not yet been adjudicated in the pending
appeal.
7. As Tiger Fuel Company anticipated, and in complete disregard of Va. Code § 15.2-2311,
on May 16, 2018 the County issued a letter informing Tiger Fuel Company's engineer that the
Final Site Plan was not "officially submitted" because "The required Special Use Permit was not
requested and approved prior to submittal of the final site plan." Exhibit 3, Letter from Paty
Saternye dated May 16, 2018, p. 1. The letter also stated that Tiger Fuel Company's Initial Site
Plan would expire in fifteen days if the company did not resubmit a final site plan that requested
a Special Use Permit for water usage exceeding 400 gallons per site acre. Id.
8. On June 12, 2018, the County filed its Motion to Dismiss, in which it argued that the
Initial Site Plan had expired because Tiger Fuel Company had not requested or received approval
of a special use permit within one year of May 10, 2018, which precluded "official submittal" of
its Final Site Plan. Exhibit 4, County's Motion to Dismiss, p. 4.
That Albemarle County should reject a final site plan based on a requirement that is
currently being appealed defies both logic and equity, in addition to the plain directive of § l 5.2-
2311. The County's argument in a Motion to Dismiss that its brazen violation of § 15.2-2311
moots this pending appeal is nothing less than hubristic.
10. Nor can the County argue that the BZA appeal's stay ended when the BZA rendered its
3-2 decision on January 9, 2018; Amelia McCulley's letter informing Tiger Fuel Company of the
decision reads: "If you are aggrieved by this decision, you have the right to appeal it within thirty
(30) days of the date of the decision, in accordance with Section 15.2-2314 of the Code of
Virginia. If you do not file a timely appeal, this decision shall be final and unappealable."
Exhibit 5, A. McCulley letter to Virginia Oil Company dated January 17, 2018 (emphasis
added). The BZA's decision becomes final when this Court affirms it; until then, the stay
provided under § 15.2-2311 persists. The County's determination that the Final Site Plan was not
officially submitted was premature and its determination that the Initial Site Plan expired was
unlawful. Tiger Fuel Company respectfully urges this Court to vacate both determinations and
thereby`revive the Initial Site Plan until this appeal is resolved on the merits.
11. Tiger Fuel Company informed the County of its duties under § 15.2-2311 by letter
immediately upon receiving news of the Final Site Plan's rejection. See Exhibit 6, E. Mayo letter
to P. Satemye dated May 18, 2018. No response was received by Tiger Fuel Company or any of
its agents before receipt of the June 12, 2018 Motion to Dismiss from the County in which it
claims for the first time that the Initial Site Plan has expired. Thus, no matching effort was made
by the County to meet and confer regarding its violation of §15.2-2311. In recognition that the
County either disagrees with or has disregarded its duties to stay all proceedings in furtherance
of the action appealed from under § 15.2-2311, Tiger Fuel Company requests that the Court
exercise its authority under § 15.2-2314 to enter a Restraining Order binding the County to the
clear letter of the law.
WHEREFORE, Tiger Fuel Company moves that the County's determinations that the Final Site
Plan was not "officially submitted" and that the Initial Site Plan has expired be vacated and fora
Restraining Order against the County staying all proceedings in furtherance of the action
appealed from.
4
Thomas E. Albro (VS_ ;#12812)
Evan D. Mayo (VSB #89383)
TREMBLAY & SMITH, PLLC
105-109 East High Street
Charlottesville, Virginia 22902
Telephone: (434) 977-4455
Facsimile: (434) 979-1221
tom.albro@tremblaysmith.com
evan.mayo@tremblaysmith.com
5
Respectfully Submitted,
Tiger Fuel Company
By Counsel
CERTIFICATE
I hereby certify that on June 27, 2018, a true copy of the foregoing was transmitted via e-mail to
the following counsel of record:
Greg Kamptner, VSB, #33788
Andrew H. Herrick, VSB #37236
ALBEMARLE COUNTY ATTORNEY'S OFFICE
401 McIntire Road, Suite 325
Charlottesville, VA 22902-4596
Phone: (434) 972-4067
Fax: (434) 972-4068
Counsel for Board of Supervisors of Albemarle County
Evan D. -Ma
G
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 229024596
Phone (434) 296-5832 Fax (434) 972-4126
May 10, 2017
Justin Shimp, Shimp Engineering
201 E. Main.Street, Suite M
Charlottesville VA 22902
SDP2017-9 Boyd Tavern Market — Initial Site Plan
Mr. Shimp,
The Agent for the Board of Supervisors hereby grants administrative conditional approval to the above referenced
site plan. This approval shall be valid for a period of five (5) years from the date of this letter, provided that the
developer submits a final site plan for all or a portion of the site within one (1) year after the date of this letter as
provided in section 32.4.3.1 of Chapter 18 of the Code of the County of Albemarle, and thereafter diligently pursues
approval of the final site plan.
In accordance with Chapter 18 Section 32.4.2.8 Early or Mass Grading may be permitted after the following
approvals are received:
1. Engineering approval of a VSMP plan meeting the requirements of Chapter 17 of the Code of the County
of Albemarle.
2. Approval of all easements for facilities for stormwater management and drainage control,
3. ARB recommends that an expert be engaged to establish accurate cemetery boundaries prior to grading the
site.
The final site plan will not be considered to have been officially submitted until the following items are received:
1. A final site plan that satisfies all of the requirements of section 32.6 of Chapter 18 of the Code.
2. A fee of $1,613.
Please submit 13 copies of the final plans to the Community Development Department. The assigned Lead
Reviewer will then distribute the plans to all reviewing agencies. Once you receive the first set of comments on the
final site plan, please work with each reviewer individually to satisfy their requirements.
Please review condition/comment #1 from the Planning Division (Paty S.), which may affect the timing of the final
site plan submittal.
The Department of Community Development shall not accept submittal of the final site plan for signature until
tentative approvals for the attached conditions from the following agencies/reviewers have been obtained:
SRC Members:
Albemarle County Planning Services (Planner) - 2 copies [Paty Saternye ext. 3250]
Albemarle County Planning Services (ARB) - 1 copy [Margaret Maliszewsld ext. 3276]
Albemarle County Engineering Services (Engineer) - 1 copy [Matthew Wentland ext. 3458]
Albemarle County Information Services (E911) -1 copy [Elise Kiewra ext. 3030]
Albemarle County Department of Fire Rescue - 1 copy [Robbie Gilmer 434-296-5833]
Virginia Department of Transportation - 2 copy [Adam Moore 434A22-9894]
Albemarle County Building inspections —1 copy [Michael Dellinger ext. 3228]
Albemarle County Planning Services (Zoning) —1 copy [Francis MacCall ext. 3418]
Virginia Department of Health (VDH) — 3 copy [Alan Mazurowsld 434-972-6219)
If you have any questions about these conditions or the submittal requirements please feel free to contact me at
Extension 3250, psaternye@albemarle.org.
i
. Oy-
1
County of Albemarle
Department of Community Development
401 McIntire Road,
Charlottesville, VA, 22902
Phone 434-296-5832 _ _ .- _- _ __ _ _ Fax.434-972-4.126
Memorandum
To: Justin Shim Qustinnfthinip t6inee_iin4.c6m)
From: Paty Saternye, Senior Planner
Division: Planning
Date: March 20, 2017 .
Subject: -SDP 201700009 Boyd Tavern Market_- Initial Site. Plan_
The County of Albemarle Planning Division will recommend conditional approval of the plan referenced,above
once the following corditionslcomments have been satisfactorily addressed (The following
conditionslcomments are those that have been Identified at this time. Additional comments or conditions may
be added or'eliminated based on further review.): [Each comment is preceded by the applicable reference,
which Is to the Subdivision/Zoning Ordinances unless otherwise specified.]
2. [17-403, 16-100, 32.5.2(k)] As specified in the engineering comments that have been attached, either a Tier
3 or Tier 4 groundwater assessment, and the associated fee, is required prior to approval of the Initial Site
Plan. The type of assessment required is determined by water use and the potential of a central water
supply. Once it is determined whether a Tier 3 or Tier 4 groundwater assessment is required submit a draft
Tier 3 or Tier 4 groundwater assessment, for evaluation by engineering. The Initial Site Plan cannot be
approved until this has been submitted. ;UPDAT E.-.,CoiiinieritsAddrbsserl_: The Tier 3 justification: fb_e
and draft Tier III GroUndwater Assessment have�been siilin�iit ii._See updated enyinee•r[n ..:
comments for more information..
3. A site plan meeting all the requirements of section 32.6 of Chapter 18 of the Code.
4. 132.7.2.11 Each entrance onto any public street shall be designed and constructed as required by the
standards of the Virginia Department of Transportation (VDOT). VDOT approval of the entrance to the site
shall be required prior to final site plan approval. See the attached VDOT comments.
5. 122.2.2.11] Provide data that shows the expected water consumption in "gallons per site acre per day". This
must be based only on the acreage of the C-1 zoned portion of the parcel. A special use permit is required
for uses permitted by right, not served by public water, and that involve water consumption exceeding four
hundred (400) gallons per site acre per day. If water usage is above that level. a.special use permit will be
required prior to final site plan approval. _UPDATE_: -Comment not vet fully addressed. See' new
comment number one above.
Page 1 of 4
6. [32.5.2(k) & 16-100] Provide information on the proposed water and septic systems, including the proposed
number of connections to each. Each physical connection to a system (water or septic) is counted,
including multiple connections serving one structure; any more than two connections requires approval by
the Board of Supervisors of a central water supply and/or central sewerage system. A Compliance with the
Comprehensive Plan review may also be required if central system(s) are necessary.1i'Lf'D'ATG :Comment;
[21.7(c)] No construction activity,including grading or clearing of vegetation shall occur closer than 20 feet
to any residential or rural areas district unless waived by special exception by the Board of Supervisors.
This applies not only to the adjoining parcels but also to the RA zoned area of the subject parcel. The
proposed stormwater pond location is shown within the buffer zone. Relocate the proposed stormwater
pond location such that the pond, and any grading or disturbance caused by its creation, do not impact the
buffer zone.
8. 132.5.2(p), 32.7.9.7(a)(1)&(2) & 32.7.9.7(d)] Provide a complete landscape plan that meets all
requirements of section 32.7.9 with the Final Site Plan. This includes, but is not limited to, screening
requirements to all adjacent Rural Area Districts as well as Residential uses. It is important to note that
disturbance of the buffer zone (21.7(c)) is not allowed even for the purpose of screening. Therefore,
required screening will need to be located elsewhere. If the screening Is accomplished by landscaping the
layout does not appear to include sufficient space for a 20' screening planting strip on the southwest side of
the property.
9. [5.1.20] In reference to petroleum products provide the:
Location of the storage tanks and loading facilities on the site plan. No storage tanks or loading
facilities shall be located closer than 100' from any lot line.
• Labels for the setback for the petroleum products storage tanks and loading facilities on the existing
conditions and site overview sheets
• Setback for the petroleum products storage tanks and loading facilities on the site overvieW sheet.
10. [32.5.2(n) & 4.12.13(c)] Provide the location and dimensions of the required loading space within the site
plan.
11. [4.12.15(g)] Provide curb and gutter in the parking area and along the travelways.
12. [32.5.1(c) & 32.5.2(a)] Revise the:
• Dimensions for the boundary (bearing and distances) of the parcel so that they are darker and more
visible. They need to be dark enough to be visible when scanned and copied.
6.60' boundary line bearing and distance near the south corner of the lot along Black Cat Road to
include the bearing.
• Setbacks on the coversheet to include the Front -Minimum setback, specify all districts that the side and
rear setback applies to, include Information on the side and rear setbacks abutting lots zoned
commercial or industrial, and expand the 10' Parking setback note to specify when it applies.
13. 132.5.1(c)] On the:
• Site plan and grading & utility plan sheets revise the label for the "20' Parking Setback and Buffer" to
more clearly specify what the "buffer" is for. As 21.7(c) species the buffer is for any construction
activity including grading or clearing of vegetation.
Existing conditions and site overview sheets label the setback and buffer lines to differentiate them.
14. [32.5.2(a)] Revise the:
"Abutting Parcel Information" so that TMP 94-40 shows the correct owner and most recent Deed Book
and page numbers. The parcel appears to have changed hands in 2015.
is "Abutting Parcel Information" of TMP 94-38 to include its zoning district.
• Departing lot lines so that they are dark enough to be visible when scanned and copied.
Page 2 of 4
15. [32.5.2(b)] Revise the Land Use Schedule to include the overall size of the parcel, how much is zoned RA
and how much is zoned C-1. "UPDATE: Ensure:that'the acreaQe:of C-1'zoned'6bitlori:of th6'bbtbeI'is.
16. [32.5.2(e)] Provide labels, on all plan view sheets, identifying whether the existing wooded areas are
composed of evergreen, deciduous or a mix of types of trees.
17. [32.5.2(1)] Provide the centerline of Black Cat Road.
18. [32.5.1(a)] 'Revise the vicinity map to be black and white and not color. Site plans are to be only black and
white.
19. [32.5.20)] If there are any existing water, wastewater or storm drainage systems on the property show the
location and size of each. Also provide the deed book and page references for any and all existing water,
wastewater or storm drainage systems easements that are located on the property.
20. [32.5.2(k)] Provide the proposed location of the waterlines leading from the well to the proposed structures
and facilities, UPDATE: Corm -hens Addressed. An exhibit was SUW1iitted'showing only one
21. [32.5.2(1)] Provide the location of any existing or proposed utilities and utility easements including
telephone, cable, electric and gas. Indicate the deed book and page reference for all exiting utility
easements located on the property. .
22. [32.5.2(n)] Provide:
Outdoor lighting information Including a photometric plan and location, description, and photograph or
diagram of each type of outdoor luminalre [Sec. 32.7.8 & Sec. 4.17]. If there will be any external lighting
fixtures a photometric plan will be required for Final Site Plan approval. In addition to meeting all
lighting requirements a standard lighting note will be required.
If there is to be a sign for the proposed use, on the final site plan depict and label the sign
location. (Depicting the 'sign on the final site plan is not approval of the sign location or type).
..: Information on the proposed paving material types for all walkways, access ways and parking lots.
22. [Comment] Recommendations in reference to the cemetery:
• No fence exists around the perimeter of the existing cemetery. It appeared during the site visit that the
graveyard may extend further to the north and south then shown on the site plan. It is recommended
that more information on the extents of the cemetery are acquired and a more accurate location of the -
cemetery be provided on the site plan so that it will not be disturbed by any of the proposed
improvements to the site.
• Because of the State requirement of access to graveyards, it is recommended that a path is provided as
part of the site plan for access to the cemetery and that the path be located in an area that is not steep
and hard for some people to utilize.
• Provide a note on the site plan that specifies the state requirement of right to access of the cemetery.
23. [Comment] This property is within the Monticello Viewshed. It is strongly encourage that you consult with
the Thomas Jefferson Foundation early in the site plan process about any potential visual impact of the
project.
24. [Comment] See the attached comments from the other SRC reviewers. UPDATE: The.attached,
comments included updated-comments'from zoning and en'gineeririg. Those'updated comments:,
Inolude'conditions in'reference_to wzter usage and .the onnoing'evaluatlon of whether a -special use
permit -will be Veguired- -
Page 3 of 4
25.
Please contact;Pat In the Planning Division by using psifernIfflAilbema 1e'.,org or 434-296-5832 ext.
3250 for further
a ion: tI6 _ ,
a
Page 4 of 4
I
�Fntry�..
County of Albemarle
Department of Community Development
Memorandum.
To: Patty Saternye, Senior Planner
From: Francis MacCall, Principal Planner
Division: Zoning
Date: May 9, 2017
Subject: SDP2017-00009 Boyd Tavern Market Initial — zoning comments
Please omit any comment that you have believe has already been made with your comments.
1. PAGE 1 - Remove reference to incorrect sign regulations and correct with
statement that "All signs will comply with Section 4.15 as applicable."
2. PAGE 1 - Under the "WATER & SANITARY SERVICES provide the following
calculation.
Water use permitted without Special Use Permit
1312 gallons per day is permitted for the 3.28ac zoned C-1
This acreage is calculated per the old rezoning applications and plats of survey.
3. Evaluation of the data by the Zoning Administrator and the County Engineer
regarding the proposed water usage is ongoing. A final decision whether the
water usage for this site will require a special use permit or is permitted by right
must be made prior to any final site plan submittal. If it is determined that a special
use permit is needed for the proposed use then the final site plan cannot be
approved until that special use permit is granted by the Board of Supervisors.
The plan appears to show a different number for the total area on C-1 zoning. If
there is confusion/disagreement of total acres of C-1 to be used for this use for this
calculation, then a new survey of the parcel can be done to identify the area per the
previous rezoning applications. The acerage should be resolved before the final
site plan is submitted.
4. Section 5.1.20 should be noted on the first page under the zoning designation on the final
plan. Both the underground gasoline storage tanks and the loading facility for those tanks
will need to be shown complying with the setback in Section 5.1.20.
County of Albemarle
Department of_Community Development
Memorandum
To: Paty Saternye
From: Matt Wentland
Date: 9 May 2017
Subject: Boyd Tavern Market — Initial Site Plan and Tier:III Draft Groundwater Assessment
(SDP201700009)
The Initial Site Plan and the Tier III Draft Groundwater Assessment for the Boyd Tavern Market submittal
has been reviewed by Engineering. The following comments will need to be addressed in the Tier III Final
Groundwater Assessment and in the Final Site Plan:
Initial Site Plant
1. All runoff from the fueling area will need to be directed to an oil/water separator before
going to the proposed pond.
2. To ensure continued compliance with the Zoning Ordinance, a flow -limiting device and
water meter are recommended to be installed on the well (and shown on the Final Site
Plan) to prevent the daily usage from surpassing the maximum allowable threshold. Usage
data should be retained and'made available at the request of the Zoning Official. In the
event demand should exceed the limit, a cistern or similar device should be used.
Tier III Draft Groundwater Assessment:
1. Provide the square footage (including a breakdown of individual areas such as the deli and
bathrooms) and number of fixture units of the existing and proposed buildings in the table
provided with the Assessment (the one that includes the AADT and number of pumps).
2. Include a revised water budget estimate that limits the acreage to only the C-1 zoned area
and if no special use permit is planned, the gallons per site acre per day usage to 400
gallons (I8.22.2.2(l 1)).
3. Revise the language in the reserve wellfield section to reflect that it only includes the C-1
zoned area.
%_•II i_.:ixj L-I, 11w,:1 Ine (,,,III r'::n1 .U:;- ;-I tint'
Charles A. Kilpatrick, P.E.
Commissioner
ti r
COMMONWEALTH of VIRGINIA
DEPARTMENT OF TRANSPORTATION
1601 Orange Road
Culpeper, lfirg!nla 2MI
February 14, 2017
County of Albemarle
Department of Community Development
401 McIntire Road
Charlottesville, VA 22902
Attn: Paty Saternye
Re: Boyd Tavern Market — Initial Site Plan
SDP-2017-00009
Review #1
Dear Ms. Saternye:
The Department of Transportation, Charlottesville Residency Transportation and Land Use
Section, has reviewed the above referenced plan as submitted by Shimp Engineering, ,dated 6
February 2017, and offers the following comments:
1. Show ADT and design/posted speed for Route 616 on plans.
2. The minimum required spacing for full access entrances on Route 616 (Collector, 45 mph
design speed) is 335 feet. The proposed spacing of 205 feet between the two entrances
will not be permitted. Additionally, it does not appear to be feasible to have 2 entrances
that are 335 feet apart while maintaining the required distance (750') from the I-64
interchange ramp.
3. Include a trip generation report and provide left and right turn lane warrant analyses on
the plans. Based on the plans it is not clear where the proposed entrance(s) are in relation
to the existing right turn lane; please provide more detail.
4. Provide entrance profiles, as well as sight distance profiles.
5. Please note that trees within the sight distance easements or right-of-way may have to be
removed if not pruned in such a way as to avoid becoming sight line obstructions,
6. Provide the VDOT WP-2 detail and note on plans the required area of mill and overlay in
accordance with the WP-2 standard.
7. The entrance curbing should be offset 12 feet from the edge of pavement, and extended
the required length of storage and taper if a right turn lane is warranted. See Figure 4-9,
Appendix F.
S. Please label all entrance radii; 45' minimum.
9. Provide a Traffic Maintenance Plan in accordance with the April 1, 2015 revision of the
Virginia Work Area Protection Manual.
10. Note that the final site plan must show conformance with the VDOT Road Design
Manual Appendices B(1) and F, as well as any other applicable standards, regulations or
other requirements.
VirginiaDOT.org
WE KEEP VIRGINIA MOVING
February 14, 2017
Paty Saternye
Page 2
Please provide two copies of the revised plan along with a comment response letter. If further
information is desired, please contact Justin Deel at 434-422-9894.
A VDOT Land Use Permit will be required prior to any work within the right-of-way. The
owner/developer must contact the Charlottesville Residency Transportation and Land Use
Section at (434) 422-9399 for information pertaining to this process.
Sincerely,
J4 l�✓�rl6lit/
Adam J. Moore, P.E.
Area Land Use Engineer
Charlottesville Residency
VirginiaDOT.org
WE KEEP VIRGINIA MOVING
Patricia Saternye __
From: Margaret Maliszewski
Sent: Monday, March 20, 2017 4:04 PM
To: Patricia Saternye
Subject: ARB action on Boyd Tavern Market
Motion: Mr. Missel moved to approve the consent agenda and forward the recommendations outlined in the staff reports
for the Initial Site Plans to the Agent for the Site Review Committee as follows.
a. ARB-2017-10: Boyd Tavern Market Initial Plan - Initial Site PIan (TM/Parcels 09400000003900)
Proposal: To construct a convenience store and fuel pump canopy with associated site improvements.
Location: At the southwest corner of the intersection of I64 and Black Cat Road
• Regarding requirements to satisfy the design guidelines as per § 18-30.6.4c(2), (3) and (5) and recommended
conditions of initial plan approval%
1. A Certificate of Appropriateness is required prior to final site plan approval.
Regarding rdc6mmendations,on the plan as it relates to the guidelines:
1. It is recommended that an expert be engaged to establish accurate cemetery boundaries prior to grading the site.
2. Consider reducing the length of the canopy to limit visual impacts.
Regarding conditions to be satisfied prior to issuance of a grading permit: None.
• Regarding the final site plan submittal:
1. Architecture and landscaping will be reviewed with a future submittal. A Certificate of Appropriateness is
required prior to final site plan approval.
2. Add the standard mechanical equipment note to the site plan and the architectural drawings. "Visibility of all
mechanical equipment from the Entrance Corridor shall be eliminated."
3. Illumination on site shall not exceed 20 fc at the ground.
4. Add staggered rows of mixed evergreen trees along the western and northwestern perimeters of the proposed
travelway, high on the slope, and at the north/northwest perimeter of the property, to reduce impacts of the
development on the EC.
5. Add the standard plant health note to the plan. "All site plantings of trees and shrubs shall be allowed to reach,
and be maintained at, mature height; the topping of trees is prohibited. Shrubs and trees shall be pruned
minimally and only to support the overall health of the plant."
Mr. Van Der Werf seconded the motion.
The motion carried by a vote of 5:0.
Margaret Maliszewski , Chief of Planning/Resource Management
Albemarle County Department of Community Development
401 McIntire Road
Charlottesville, VA 22902
434-296-5832 x3276
mmaliszewski@albemarle.org
Initial Site Plan Review Comments for SDP201700009
Project 'lVame'..,IBoyd -T-av-em Maiket Initial - DIGITAL
Me Completed:. Saturday, February 25, 2017 Review Stiat6s:
Pepartment/Division
__.o Requested ChiRng- e S*.;
Reviewe'r] L Robbie Gilmer— _ a� Fire Res - que....- o
Page: [i-- J. County of Albemarle Printed On:.I,0ARP/?017 - '
� r 1
COMMONWEALTH of 1V7(R(j1[NIA
In Cooperation with the Timmas .lefferson I-lealth District
Slate Departmenl of Health
1138 Rose Hill Drive
Phone (434) 972.6219 P. O. Box 7546
Fax (434) 972-4310
Charlottesville, Virginia 22906
March 20, 2017
Paty Saternye, Senior Planner
Albemarle County Community Development
401 McIntire Road
Charlottesville, VA 22902
RE: Boyd Tavern Market
Initial Site Development Plan
SDP20I 7-9
Ms..Saternye:
ALUrMANIa:., CHAIR( Ol I FSVII LU
FLUVANNA COUNT Y (I AI.MYRA)
GRF.FNI; COU147Y (SIANARI)SVI1.1 r)
I.001AA COUNTY (1,0615AI
NELSON COUNT Y (LOVING ION)
As requested, I've reviewed the Initial Site Development Plan (2/6/17) for the Boyd
Tavern Market, referenced above.
The plan indicates that the proposed convenience store will be served by a private onsite
septic system and well. In order to permit the construction of the septic system and well,
the developer must submit an application and 3 sets of designs prepared by a professional
engineer to the Charlottesville/Albemarle County Health Department. Be advised that
approval of the site plan by this office will be contingent upon review and approval of the
septic system and well designs. ,
If there are any questions or concerns, please do not hesitate to contact me.
Sincerely,
Alan Mazurowski
Environmental Health Supervisor
Thomas Jefferson Health District
Review Comments for SDP201700009
�Project Name` .156y-!d'ThVernMarket" Initial -.0-IGITAL-
Date.Complet6d-I!Feddaj, marcfi,.il, 2041 Review status:
Reviewer Ip..erek gpda F-911 4 No Objection
Page: F, County ofAlbemarle Prihted d PY2912017-
on.
Review Comments for :S®P20.170000.9: initial Site Plan _ �,�
'Project Name: 8oydTavern Market.lnitial -DIGITAL
Date Completed: Tuesday, February 14, 2017 DepartrnentlDtvlsionlAgency: Review Status_
Keith."Huckste C�DD,Inspections.: No Objection
`Reviewer.-- P I�
Page: I1 County of Albemarle Printed On: OR012017'
Patricia Saternye `
From: Alexander Morrison <amorrison@serviceauthority.org>
Sent: Wednesday, February 08, 2017 3:33 PM
To: Patricia Saternye
Subject: RE: SDP2017-9 Boyd Tavern Market - Initial Site Plan - Electronic Review
Patricia,
I have reviewed the initial site plan and the development is located in a no service area. The applicant is calling for
private well and septic. We have no facilities in the area so I have no comments.
No further review by the ACSA should be required on resubmittals or the final site plan.
Alexander J. Morrison, P.E.
Civil Engineer
Albemarle County Service Authority
168 Spotnap Road
Charlottesville, Virginia 22911
(0) 434-977-4511 Ext. 116
(C) 434-981-5577
(F) 434-979-0698
From: Patricia Saternye[mailto:psaternye@albemarle.org]
Sent: Wednesday, February 08, 2017 3:31 PM
To: Frank Pohl; Matthew Wentland; Margaret Maliszewskl; Robbie Gilmer; Adam.Moore@vdot.virginia.gov; Alexander
Morrison; MACCALL@albemarle.org; Derek Bedarf, Keith Huckstep; Josh Kirtley; vfort@rivanna.org
Subject: SDP2017-9 Boyd Tavern Market - Initial Site Plan - Electronic Review
All,
The above noted application was submitted this week for SRC review. It is an electronic submittal, so I have initiated a
Bluebeam session.
Bluebeam will have just sent you an email letting you know the session has been started and allowing you access to the
file.
Carla will send out the normal SRC notification letter, but I will also forward you the legal ad once it is written.
For those of you that don't want to use Bluebeam, you can access the file on laserfiche using the link in the legal ad
(either in the one I will send you or when Carla sends it).
Please provide your comments by March 20 h
Thanks,
Paty Saternye
Senior Planner
Community Development
3
'r �}�
,1 1 i4'
a4tRti1 •1'j.
Albemarle County
401 McIntire Road
Charlottesville, VA 22902
434-296-5832 ext.3250
psaternye@albema�le:or�
www.albemarle.org
Patricia Saternye
From: Victoria Fort <vfort@rivanna.org>
Sent: Wednesday, February 08, 2017 4:58 PM
To: Patricia Saternye
Cc: Alex Morrison
Subject: RE: SDP2017-9 Boyd Tavern Market - Initial Site Plan - Electronic Review
Paty,
RWSA does not anticipate any impacts from this development, so we do not need to be involved in future review.
Thanks a lot,
Victoria
Victoria Fort, P.E.
Rivanna Water and Sewer Authority
695 Moores Creek Lane
Charlottesville, VA 22902
(P): (434) 977-2970 ext. 205
(F): (434) 295-1146
From: Patricia Saternye [mailto:psaternye@albemarle.org]
Sent: Wednesday, February 8, 2017 3:31 PM
To: Frank Pohl <fpohl@albemarle.org>; Matthew Wentland <mwentiand@albemarle.org>; Margaret Maliszewski
<MMaliszewski@albemarle.org>; Robbie Gilmer <rgilmer@albemarle.org>; Adam.Moore@vdot.virginia.gov; Alex
Morrison <amorrison@serviceauthority.org>;. MACCALL@albemarle.org; Derek Bedarf <dbedarf@albemarle.org>; Keith
Huckstep <KHUCKSTE@albemarle.org>; Josh Kirtley <Joshua. kirtley@vd h.virgin ia.gov>; Victoria Fort
<vfort@rivanna.org>
Subject: SDP2017-9 Boyd Tavern Market - Initial Site Plan - Electronic Review
All,
The above noted application was submitted this week for SRC review. It is an electronic submittal, so I have initiated a
Bluebeam session.
Bluebeam will have just sent you an email letting you know the session has been started and allowing you access to the
file.
Carla will send out the normal SRC notification letter, but I will also forward you the legal ad once it is written.
For those of you that don't want to use Bluebeam, you can access the file on laserfiche using the link in the legal ad
(either in the one I will send you or when Carla sends it).
Please provide your comments by March 201h
Thanks,
Paty Saternye
Senior Planner
Community Development
Si O4 A �iC•
Albemarle County
401 McIntire Road
Charlottesville, VA 22902
434-296-5832 ext.3250
;psaterriVe@alLiemarle:oi'�'
wmim.,a bemarle:or
A +
COUNTY OF AL-BEMARLE
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 22902-4596
Phone (434) 296-5832 Fax-(434):972-4126.
October 9, 2017
Virginia Oil Company Incorporated
c/o Frayser White, South Creek Investments
1100 Harris Street
Charlottesville VA 22903
RE: LOD2017-00027 — FOR PARCEL ID 09400-00-00-03900 - A DETERMINATION OF
THE NEED FOR A SPECIAL USE PERMIT FOR WATER CONSUMPTION FOR THE
USE PROPOSED WITH SDP2017-00009 BOYD TAVERN MARKET.
Mr. White,
In association with the review of the application for Initial Site Plan SDP2017-00009 Boyd
Tavern Market (the "Site Plan") and in accordance with § 31.1 a (2) of Chapter 18 of the
Albemarle County Code (the "Zoning Ordinance"), the following determination is made:
The proposed development shown on the Site Plan will require a special use
permit for water consumption exceeding 400 gallons of water per site acre per day.
'The focus of this determination is on the use proposed with the development of the Site
Plan on Parcel ID 09400-00-00-03900 ("Parcel 39"). Parcel ID 09400-00-00-03800
("Parcel 38") is not part of this determination and is only mentioned in the context of the
previous Letter of Determination (LOD2017-00012) noted in the following paragraph.
As stated in LOD2017-00012 -A DETERMINATION OF 1) AREA ZONED C-1
COMMERCIAL, 2) THE AMOUNT OF WATER PERMITTED TO BE USED BY RIGHT
FOR PARCEL IDs 09400-00-00-03800 and 09400-00-00-03900, for uses permitted by
right not served by public water, the amount of water consumed shall not exceed 400
gallons of water per site acre per day. The following quantities of water for the noted
parcels are allowed by right; Parcel 38, 1.178 acres zoned C-1, can use 471.20 gallons of
water per day, and Parcel 39, 3.279 acres zoned C-1, can use 1,311.60 gallons of water
per day. For uses that are different from the proposal in the Site Plan, a separate
determination will be necessary. LOD2017-00012 states that "Prior to final approval of
any proposal for development, the applicant must provide information regarding the
proposed development's water usage. The Zoning Administrator in consultation with the
County Engineer will decide whether the proposed water consumption is allowed by right
or requires a special use permit."
October 9, 2017
LOD201700027
Page 2 of 2
The applicant for the Site Plan has provided the proposed development's water usage
data, and that analysis of the data is complete. After consulting with the County
Engineer, it is determined that there is enough uncertainty of the water consumption for
the proposed development that I am not able to determine that the proposed use will
consume no more than 1,311.60 gallons of water per day. Restricting the water flow from
any proposed well with mechanical measures has previously been determined not to be
permissible to allow the by -right water consumption. Thus, I am determining that the
proposed development shown on the Site Plan will require a special use permit for
water consumption exceeding 400 gallons of water per site acre per day.
If anyone is aggrieved by this determination, they shall have a right to appeal it within
thirty (30) days of this notice, in accordance with Virginia Code § 15.2-2311. If they do
not file a timely appeal, this determination shall be final and unappealable.
i
An appeal may be taken only by filing an appeal application with the Zoning Administrator
and the Board of Zoning Appeals, in accordance with § 34.3 of the Zoning Ordinance,
along with a fee of $240 plus the actual cost of advertising the appeal for 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 aIbdr►iarieorglcd'apps, This form applies to the appeal of
a decision of the zoning administrator or any other administrative officer pertaining to the
Zoning Ordinance.
Regulations pertaining to the filing of an appeal to the Board of Zoning Appeals are
located in Chapter 18, Section 34.3 of the Albemarle County Code. They may be
reviewed online at iivww'albemar!'e:ora';countycodebza..
Francis H. MacCall
Principal Planner
Cc: Amelia G. McCulley, Zoning Administrator
Frank Pohl, County Engineer
John Blair, Deputy County Attorney
.�� i, IEXI�IBITCOUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 22902-4596
-Phone (434).29675832 Fax (434) 972-4126
May 16, 2018
Justin Shimp
201 E. Main Street, Suite M
Charlottesville, VA 22902
RE: SDP2018-00034 Boyd Tavern Market — Final Site Plan
Mr. Shimp:
Pursuant to Section 32.4.3.1 of Chapter 18 of the Albemarle County Code, your application for Final Site Plan
review has been found to be incomplete thus has not been accepted for official submittal for the following reasons:
[each reason is preceded by the applicable ordinance section and compliance with such section shall correct the
insufficiency] .
1". [Albemarle County Code § 18-22.2.2.111 The required Special Use Permit was not requested and
approved prior to submittal of the final site plan. Condition #1 of the conditional initial site plan approval
for SDP2017-00009 Boyd Tavern Market dated May 10, 2017 stated, "... a Special Use Permit (SP) will be
required to allow water usage of more than 400 gallons per site acre per day. The SP will need to be
approved prior to submittal of the final site plan." Also, LOD2017-00027 dated October 9, 2017
determined the need for a SP for water consumption for the use proposed with SDP2017-00009 Boyd
Tavern Market. Since an SP for water usage for the use proposed with SDP2017-00009 has not been
approved the submission of SDP2018-00034 is incomplete.
You may obtain reinstatement of review as provided by Section 32.4.3.1(e) of Chapter 18 of the Albemarle County
Code. This section requires resubmittal within fifteen (15) days of this disapproval and the submittal of a
reinstatement fee of $258. The date of disapproval is the date of this letter. In the event the developer fails to
resubmit the plan and required fee within the fifteen (15) day period, the plan shall be deemed to be disapproved and
a new application and fee shall be required for submittal of the plan. Please contact me at your earliest convenience
if you have any questions or require additional information.
Sincerely,
Pat':.Satemye e --- fanner
File: SDP-2018-00034
Cc: Owner: Virginia Oil Company Inc.
1100 Hams Street
Charlottesville, VA 22903
Applicant: Tiger Fuel Company
200 Carlton Road
Charlottesville, VA 22902
r�
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
MOTION TO DISMISS
COMES NOW the Respondent Board of Supervisors of Albemarle County, Virginia (the
"County"), by counsel, and moves this Court to dismiss Petitioner Tiger Fuel Company's Petition
for Writ of Certiorari (the "Petition") on multiple grounds, namely:
A. The Petitioner failed to timely,join-all necessary parties.
B. The Petitioner lacks standing.
C. The underlying site plan approval has expired, rendering this Petition moot.
D. The Petitioner has failed to serve all necessary parties.
In further support of its Motion, the County states as follows:
.Bac ound
1. The subject of this appeal is a zoning determination by a County official regarding Parcel ID
09400-00-00-03900 (the "Property"), which the Petitioner claims to lease from Southcreek
Investments, LLC.
2. The zoning determination under appeal relates to a preliminary site plan approved on May
10, 2017 (Exhibit A), which approval noted, "This approval shall be valid for a period of five
(5) years from the date of this letter, provided that the developer submits a final site plan for
all or a portion of the site within one (1) year after that date of this letter as provided in section
32.3.4.3.1 of Chapter 18 of the Code of the County of Albemarle, and thereafter diligently
pursues approval of the final site plan." %
3. On February 5, 2018 (the "Appeal Date"), the Petitioner filed the present Petition, appealing
the Albemarle County Board of Zoning Appeals' affirmation on January 9, 2018 of a County
official's zoning determination.
4. The Petition (Q 2) named only three "necessary parties":
a. The' Board of Supervisors of Albemarle County,
1
b. ."the landowner, which is Virginia Oil Company Incorporated," and
c. Tiger Fuel Company.
5, The Petition identifiedJames L. Camblos, III as Registered Agent for Virginia Oil Company,
Inc.
.The Petitioner failed to_liinclv.:ioin ill necessarytwdcs:
6. Y!liXIM11t Code § 15.2-2314 provides in part: "The governing body,, ihe_laindi6wner; and the
applicant before the board of zoning appeals shall be necessary parties to the proceedings in
the circuit court" [emphasis added]
7. In response to the County's Requests for Admissions (Exhibit II), the Petitioner admitted:
"That as of February 5, 2018, Southcreek Investments, LLC was the owner of Albemarle
County Parcel ID 094-00-00-00-03900." (Admission #1)
8. Soulhcreek Investments, LLC was not ainong the parties that the Petitioner joined within the
30-day appeal period allowed by Kighun Code S 15.2-2314.
9. Following the expiration of the 30-day appeal period on February 8, 2018, it is too late to
join additional necessary parties. See Braddock._L.C. v. 13d. ol' Supervisors. 268 Va. 420,
2-(20't)J, (Petition was "a nullity that could not be resurrected by the
addition of parties after expiration of the 30-day statutory li nitation period.")
10. The Petitioner's failure to join the admitted landowner within the 30-day appeal period is an
incurable, jurisdictional defect that requires immediate dismissal of the Petition herein.
The Petitioner-lacksstaniliiitrc
11. In order to have standing to appeal, the Petitioner "must own or occupy'real property within
or in close proximity to the property that is the subject oP the land use determination, thus
establishing that it. has 'a direct, immediate, pecuniary, and substantial interest in the
decision.' Virg Pii;a-Much Beihililic`iiidii.Codiliin V110,b'l 61 7.iiniiia:'Yfipc:ils, 231 Va. 415,
420, 344S.E.2d 899, 902-03 (1986)."Ti•icnds�ol•the 13au6ahanji6ck v..Carolinc.Qtv..11d. cif`
S'110u•vikors; 246 7-43:S:12d 1i32,137,(,N13).
12. As the Petitioner has admitted, a "Ground Lease" between Southcreek Investments, LLC
and Tiger fuel 'Cornpany, dated July 30, 2016, is the sole instrument under which the
2
Petitioner held any right(s) or claim(s) to the subject Property as of the Appeal Date. (Exhibit
B, Admission #2.)
13. The Petitioner has further admitted that as of the Appeal Date, it had not paid any rent under
its "Ground Lease." (Exhibit B, Admission #6)
14. The Petitioner has further admitted that the Commencement Month of its "Ground Lease"
had not occurred as of the Appeal Date. (Exhibit B, Admission #8)
15. Therefore, as of the Appeal Date, the Petitioner neither owned nor occupied "real property .
within or in close proximi ty to the property that is the subject of" the land use determination,
and thus cannot establish that it has "a direct, immediate, pecuniary, and substantial interest
in the decision." Vira nia Beach of*Yxmirig Appeals; 231
Va. 415, 420, 344 S.E.2d 899, 902-03 (1986).
16. The Petitioner thus lacks standing to appeal a BZA decision on a Property that it neither
owned nor occupied as of the Appeal Date.
17: Albemarle County Code § 18-32.4.2.7(a) provides: "An initial site plan shall be valid for: (i)
a period of five (5) years from the date it. is approved pursuant to this chapter, provided that
the developer�suhniik,a final site plan for all or a portion -of the,site within one (1) year after
the approval as provided in section 32.4.3.1, and thereafter diligently pursues approval of the
final site plan; and (ii) any additional period as may be provided by state law." [emphasis
added]
18. Albemarle County Code § 18-32A.2.7 (c) further provides in part. "The failure of a developer
to .ellicialli,.siiliiiit'- a final site plan as provided in section 32.4.3.1 within one (1) year after
approval of the initial site plan shall render the approval of the initial site plan null aiid void."
[emphasis added]
19. Albem�u-le County Code § 18-32.4.3.1(a) further provides in part: "A final site plan shall not
be submiltecf unless:... (iii) the final site plan satisfies all of the conditions delineated in the
letter provided under section 32.4.2.5(c) required to be satisfied prior to submitting the final
site plan." [emphasis added]
3
20. Albemarle Cowity Code § 18-32.4.3.1(d) further provides in part: "A final site plan not
satisfying the requirements of subsection (a) shall be deemed to be incomplete and shall not
be accepted for official . tuhiiuftiil by the agent." lemphasis added]
21. As noted above, County staff conditionally approved the preliminary site plan application
underlying the subject appeal on May 10, 2017 (Exhibit A).
22. The Petitioner subsequently filed an application for final site plan approval with the County.
23. However, because the Petitioner had failed to satisfy all of the conditions delineated in the
initial site plan approval letter, the Petitioner's final site plan filing was not accepted for official
submittal, pursuant to Albemarle County Code § 18-32.4.3. 1.
24. As of May 10, 2018, one year after conditional approval of the Petitioner's preliminary site
plan application, no final site plan application for the subject Property had been officially
"submitted," as that term is defined in the applicable ordinance.
25. As a result, the Petitioner's preliminary site plan, on which the subject appeal is based, has
expired and is no longer valid, rendering this Petition moot.
The Petitioner has failed to ser%i Qic-P66tion bg all ncecSsary,parties.
26. By information and belief, as of this writing, the Petitioner has failed to have the Petition
served on the Registered Agent for Virginia Oil Company Incorporated, whom the Petition
identified as the landowner.
27. Though the Petitioner subsequently admitted that..,a different entity wiL9 the owner of the
Property, the Petitioner has failed to serve the Registered Agent: of a party that its own Petition
identified as "necessary."
,Conclusion
28. Each of these reasons, by itself, is sufficient to dismiss the pending Petition:
a. The Petitioner failed to timely join all necessary parties.
b. The Petitioner lacks standing.
c. The underlying site plan approval has expired, rendering this Petition moot.
d. The Petitioner has failed to serve the Petition on all necessary parties.
4
WHEREFORE, the County moves that Petitioners' Petition for Writ of Certiorari be
dismissed with prejudice, with costs awarded to the County in its behalf expended.
Respectfully Submitted,
BOARD OF SUPERVISORS
OF ALBEMARLE COUNTY
By Counsel
_ i''.)
Greg Kamptner VSB #33788
vmjll
Andrew H. Herrick, VSB #37236
ALBEMARLE COUNTY ATTORNEY'S OFFICE
401 McIntire Road, Suite 325
Charlottesville, VA 22902-4596
(434) 972-4067
FAX; (434) 972-4068
CERTIFICATE OF SERVICE
I hereby certify drat on this 14—day of Vie _, 2018, a true copy of the foregoing
Motion was sent by first-class mail, postage prepaid, to: Thomas E. Albro, Esq. and Evan D. Mayo,
Esq.,.Tremblay & Smith, PLLC, 105-109 East High Street, Charlottesville, Virginia 22902; and to
James L. Camblos, III, Esq., Registered Agrent for Virginia Oil. Company, Inc., at 410 EastJefTerson
Street, Charlottesville, VA 22901.
LL �Lj
Andrew H. Herrick
5
Exhibit A
J � N
1 �
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 22902-4596
Phone (434) 296-9832 _. _ . _ Fax (434) 972-4126
May 10, 2017
Justin Shimp, Shimp Engineering
201 E. Main Street, Suite M
Charlottesville VA 22902
SDP2017-9 Boyd Tavern Market — Initial Site Plan
Mr. Shirnp,
The Agent for the Board of Supervisors hereby grants administrative conditional approval to the above referenced
site plan. This approval shall be valid for a period of five (5) years from the date of this letter, provided that the
developer submits a final site plan for all or a portion of the site within one (1) year after the date of this letter as
provided in section 32.4.3.1 of Chapter 18 of the Code of the County of Albemarle, and thereafter diligently pursues
approval of the final site plan.
In accordance with Chapter 18 Section 32.4.2.8 Early or Mass Grading may be permitted after the following
approvals are received:
1. Engineering approval of a VSMP plan meeting the requirements of Chapter 17 of the Code of the County,
of Albemarle.
2. Approval of all easements for facilities for stormwater management and drainage control.
3. ARB recommends that an expert be engaged to establish accurate cemetery boundaries prior to grading the
site.
The final site plan will not be considered to have been officially submitted until the following items are received:
1. A final site plan that satisfies all of the requirements of section 32.6 of Chapter 18 of the Code.
2. A fee of $1,613.
Please submit 13 copies of the final plans to the Community Development Department. The assigned Lead
Reviewer will then distribute the plans to all reviewing agencies. Once you receive the first set of continents on the
final site plan, please work with each reviewer individually to satisfy their requirements.
Please review condition/comment ##1 from the Planning Division (Paty S.), which may affect the timing of the final
site plan submittal.
Exhibit A
The Department of Community Development shall not accept submttal of the final site plan for signature until
tentative approvals for the attached conditions from the following ageneies/reviewers have been obtained:
SRC Members:,
Albemarle County Planning Services (Planner) - 2 copies [Paty Sateinye ext. 3250]
Albemarle County Planning Services (ARB) - 1 copy [Margaret Matiszewslo ext. 32761
Albemarle County Engineering Services (Engineer) - 1 copy [Matthew Wcntland ext. 3458]
Albemarle County Information Services (E911) -1 copy [Elise Kiewra ext, 3030]
Albemarle County Department of Fire Rescue - 1 copy [Robbie Gilmer 434-296-5833)
Virginia Department of Transportation - 2 copy [Adam Moore 434-422-9894]
Albemarle County Building inspections —1 copy [Michael Dellinger ext. 32281
Albemarle County Planning Services (Zoning) —1 copy [Francis MacCall ext. 3418]
Virginia Department of Health (VDI3) — 3 copy [Alan Mazurowski 434-972-62191
If you have any questions about these conditions or the submittal requirements please feel free to contact me at
Extension 3250, psaternye@albemarle.org.
Sincerely,.,.
J
:i iiiyr 1'1Htmerr y/
"'ems Exhibit A
County of Albemarle
Department of Community Development
401 McIntire Road,
Charlottesville, VA, 22902
Phone 434-296-5832 _ -_Fax 434-9.7.24126
Memorandum -
To: Justin Shimp(justinsn�stiimp=enirieerin4."coni)
From: Paty Saternye, Senior Planner
Division: Planning
Date: March 20, 2017
Ulidated: .May 1t)', 201T:
Subject: SDP 201700009 Boyd Tavern Market— Initial Site Plan
The County of Albemarle. Planning Division will recommend conditional .approval of the plan referenced above
once the following:conditionslcomments have been satisfactorily addressed (The following
,conditions/comments are those that have been identified at this time. Additional comments or conditions may
be added or eliminated based on further review.): [Each comment is preceded by the applicable reference,
which is to the Subdivision/Zoning Ordinances unless otherwise specified.]
2. [17-403, 16-100, 32.6.2(k)] A9 specified in the engineering comments that have been attached, either a! ier
3 or 'rier 4 groundwater assessment, eu+d I.he associated fee, is required prior to approval of the Initial Site
Flan. 1 he Type of assessrnent required is determined by wafer use and the potential of a cer'+iral water
supply. Once it is determined whether a Pier 3 or 'Tier 4 groundwater assessment is required submit a draft
'Tier 3 or T ier 4 graundwaler assessment for evaluation by engineering. The Initial Sile. Ilan cannot be
�ipproved until this it;s heen srrtimiitea. Ui'r.)A;rE-: comment Addrreysed. 'I Inc Tier 3 (t_+r:�tiiicntinn�fec;
j nd� rai.-U-er ill Giot+ndtyaterw'ssassirrent haVO bVerr submitted. SOO u_pcSaC4?d.ongincerinci
comrnehts for more information,
3. A site plan meeting all the requirements of section 32.6 of Chapter 18 of the Code.
4. [32.7.2.1] Each entrance onto any public street shall be designed and constructed as required by the
standards of the Virginia Department of Transportation (VDOT). VDOT approval of the entrance to the site
shall be required prior to final site plan approval. See the attached VDOT comments.
5. 122.2.2.111 Provide data that shows the expected water consumption in "gallons per site acre per day". This
must be based only on the acreage of the C-1 zoned portion of the parcel. A special use permit is required
for uses permitted by right, not served by public water, and that involve water consumption exceeding four
hundred (400) gallons per site acre per day. If water usage is above that level a special use permit will be
required prior to final site plan approval. UPDATE: Comment not vet fully addressed. See Flew
comment number one above.
Page 7 of 4
Exhibit A
6. 132.5.2(k) & 16-1001 Provide information on the proposed water and septic systems, including the proposed
number of connections to each. Each physical connection to a system (water or septic) is counted,
including'multiple connections serving one structure, any more than two connections requires approval by
the Board of Supervisors of a central water supply and/or central sewerage system. A. Compliance with the
Comprehensive Plan review may also be required If central systems) are necessary- JhD'AT—E:-,'Zamment;
;ad'ri�A�r Aii eihiliit w is s�rb'.rniftedsiiovvind''arih� one cuniiectitii� from the well,.g rid'one
7. [21.7(c)] No construction activity Including grading or clearing, of vegetation shall occur closer than 20 feet
'town : re"sidential :or'rural areas district:unless; waived t y spe�'ial;exceptlori byu.`the.;Board:oi:_Superviso -
y
this applies h6vorily�to the; adjoining parcels.`but also #o the i3A zoned area of the subject `panel The
proposed siormv►�ateCpondIocation is shown wilhin:the,;buf er,zone::. iRblocate the proposed siormwaier
pond location such that the pond, and any grading or.dlsturbbade caused by its creation, do not.irripaclahe
buffer zone.
8. 132':5 2(p); 32.7.9:7{a)(1.)&(2) ;&;32:7.9.7(d)] ;';i?rovide_ ;a;complete landscape,plao ttiat'meeis all
requlrements'of sectiioti;32.7;9with the FinafSlte Plar1 This'Includes, but is,nol (imlted'to; screening
requirements to all adjacent Rural Area Districts as;wellr,as`Resitlential.'uses. it islmportant to Iiotethet
disturbance of the buffer zone (21.7(c)) is not allowed even for the purpose of screening. Therefore,
required screening will need to be located elsewhere. If the screening is accomplished by landscaping the
layout does not appear to include sufficient space for a 20' screening planting strip on the southwest side of
the property.
8. [5.1.20] In reference to petroleum products provide the:
4: Location of the storage tanks and loading facilities on the site plan. No storage tanks or loading
facilities shall be located closer than 100' from any lot line.
• Labels for the setback for the petroleum products storage tanks and loading facilities on the existing
conditions and site overview sheets
Setback for the petroleum products storage tanks and loading facilities on the site overview sheet.
10. [32.5.2(n) & 4.12.13(e)] Provide the location and dimensions of the required loading space within the site
plan.
11. 14.12.15(g)] Provide curb and gutter in the parking area and along the travelways.
12. [32.5.1(c) & 32.5.2(a)] Revise the:
• Dimensions for the boundary (bearing and distances) of the parcel so that they are darker and more
visible. They need to be dark enough to be visible when scanned and copied.
• 6.60' boundary line bearing and distance near the south corner of the lot along Black Cat Road to
Include the bearing.
Setbacks on the coversheet to include the Front -Minimum setback, specify all districts that the side and
rear setback applies to, Include information on the side and rear setbacks abutting lots zoned
commercial or Industrial, and expand the 10' Parking setback note to specify when it applies.
13. 132.6.1(c)] On the:
Site plan and 'grading & utility planaheets revise the label for the "20'!,Parking Setback and' $ufter" to
more clearly'specify what the "tiuffe�" is for. As 21 7(c)'specffies the bgffer;is for any construction
activity Including grading or clearing of vegetation.
., Existing conditions and site overview sheets label the setback and buffer lines to differentiate them.
14. [32.5.2(a)] Revise the:
• "Abutting Parcel Information" so that TMP 94-40 shows the correct owner and most recent Deed Book
and page numbers. The parcel appears to have changed hands in 2015.
• "Abutting Parcel Information" of TMP 94-38 to include Its zoning district.
.i Departing lot lines so that they are dark enough to be visible when scanned and copied.
Page 2 of 4
Exhibit A
15. [32.5.2(b)] Revise the Land Use Schedule to include the overall size of the parcel, how much Is zoned' RA
and how much is zoned CA. UPDATE: Ensure that.the.acreape of C-1 zoned pbrtlon'ofthe 06rael1s:
16. [32.6.2(s)] Provide labels, on all plan view sheets, Identifying whether the existing wooded areas are
composed of evergreen, deciduous or a mix of types of trees.
17. [32.5.2(i)] Provide the centerline of Black Cat Road.
18. 132.6.1(a)] Revise the vicinity map to be black and white and not color. Site plans are to be only black and
white.
19. [32.5.20)] If there are any existing water, wastewater or storm drainage systems on the property show the
location and size of each. Also provide the deed book and page references for any and all existing water,
wastewater or storm drainage systems easements that are located on the property.
20. 132.5.2(k)j Provide the proposed location of the waterlil!es leading from.the well to the proposed structures
and eXh.Ibit was "klInrrlflcicJ- 1ic.+w1h(A-o►ilv'.0.1-+0,
connection febiri the well wind erne c6nnectioh to the engineered svollc stern.. Since only one
rotInticti+irr^ice sliw!!4i.io c:an i'tli Sysii`ms _.re riot c onsidz!rc�l:'ta�iYri;il sV�`ietr!s ;;iid'.'tlictefore.cfc,_iiria
reguire.<iiroval't�y__tl-e.B,aa!tl.of Su got rvisars:
21. [32.5.2(1)] Provide the location of any existing or proposed utilities and utility easements including
telephone, cable, electric and gas. Indicate the deed book and page reference for all exiting utility
easements located on the property.
22. [32.5.2(n)] Provide:
•. Outdoor lighting information including a photometric plan and location, description, and photograph or
diagram of each type of outdoor luminalre [Sec. 32.7.8 & Seo. 4,17]. If there will be any external lighting
fixtures a photometric plan will be required for Final Site Plan approval. In addition to meeting all
lighting requirements a standard lighting note will be required.
If there is to be a sign for the proposed use, on the final site plan depict and label the sign
location. (Depicting the sign on the final site plan is not approval of the sign location or type).
Information on the proposed paving material types for all walkways, access ways and parking lots.
22, [Comment] Recommendations In reference to the cemetery:
• No fence exists around the perimeter of the existing cemetery. It appeared during the site visit that the
graveyard may extend further to the north and south then shown on the site plan. It is recommended
that,more, Ihforn ai6h'on the ezfents of the cemetery are acquired and a more accufate Iodation of the
cemetery be provided on the site plan so that It will not be dlstutlled by arfiof i46-proposed
improvements to the site.
• Because of the State requirement of access to graveyards, it is recommended that a path is provided as
part of the site plan for access to the cemetery and that the path be located in an area that Is not steep
and hard for some people to utilize.
• Provide a note on the site plan that specifies the state requirement of right to access of the cemetery.
23. [Comment] This property is within the Monticello Viewshed. It Is strongly encourage that you consult with
the Thomas Jefferson Foundation early in the site plan process about any potential visual impact of the
project.
24. [Comment] See the attached comments from the other SRC reviewers. UPDATE: The attached
Page 3 of 4
Exhibit A
25.
26.
' ft e-In the Planning Division by using j)s�i6rnvc0'Abemade-.om or 434-2 832 ex .
Please contact:Pat'( hy, t
3250 for further' !n. qpon
Page 4 of 4
Exhibit B
VIRGINIA:
IN THE CIRCUIT COURT OF THE COUNTY OF ALBEMARLE
In Re: January 9, 2018 Decision of the
Board of Zoning Appeals of Albemarle. Case No. CL18006232-00
County .
'I'E'I'ITloNl+,R?S ANSWERS,-Ol1JEG17ONSr AND'.RESIIONSES 'CO SL?COND
RGOU> S'1?S I+OR>AU117Y�SSl:ON; INTCIiI20GATO"RICS':A'ND-111 _Ui'sS'T.. POW
PRODUCTION OF DOCUMENTS.
COMES NOW the Petitioner, Tiger Fuel Company, a Virginia corporation, by counsel,
pursuant to Rules 4:8, 4:9, and 4:11 of the Supreme Court of Virginia, and gives the following as
its Answers and Responses to the Second Requests for Admission, Interrogatories, and Requests
for Production of Documents propounded by the Board of Supervisors of Albemarle County.
AN9WLI2;S:''1'O:R1+UULSTS FOR ADMISSION:
1. That as of February 5, 2018, Southcreek Investments, LLC was the owner of Albemarle
County Parcel ID 09400-00-00-03900 (hereinafter, the "Property").
ANSWER:
Admitted.
2. That certain "Ground Lease" between Southcreek Investments, LLC and Tiger Fuel
Company, dated July 30, 2016, and previously produced as pages TFC-00097 through
TFC-00127 (inclusive) (hereinafter, the "Lease"), is the sole instrument under which you
held any right(s) or claim(s) to the subject Property as of February 5, 2018.
OBJECTION:
This request for admission is vague and ambiguous to the extent that it requires Petitioner to
f interpret the meaning of the words "instrument," "rights," and "claims."
i
II ,
Exhibit B
ij ANSWER:
Admitted.
3. That the copy of the Lease previously produced as pages TFC-0097 through TFC-00127
(inclusive) is (a) a true and correct copy of the original, and (b) admissible in evidence.
.ANSWER:.,.
Admitted.
4. That as of February 5, 2018, you had not received final site plan approval as to the subject
Property.
ANSWER:
Admitted.
5. That as of February 5, 2018, you had not been able to secure approvals and permits for
your proposed use of the subject Property upon terms satisfactory to you.
AiNSWR:
Admitted.
6. That as of February 5, 2018, you had not paid any rent under the Lease.
ANSWER:
Admitted.
2
Exhibit B
7. That as of February 5, 2018, Southcreek Investments, LLC had not received a bona fide
offer to buy, lease or trade all or any part of the subject Property which Southcreek
Investments, LLC desired to accept.
ANSWER:
Admitted.
8. That the Commencement Month of the Lease had not occurred as of February 5, 2018.
ANSWER:
Admitted.
9. That as of February 5, 2018, the Lease had not commenced.
ANSWER:
Denied. The "Lease," which is used in the Request for Admission to refer to the entire
contract between South Creek Investments LLC and Tiger Fuel Company,
commenced on July 30, 2016. See TFC-00097. The "lease agreement" referred to in
§§ 2-3 is one part of the entire contract; the lease agreement commences in the
Commencement Month as it is defined on TFC-00098. The contract specifically
assigns numerous responsibilities to Tiger Fuel Company and South Creek
Investments LLC that are to be performed prior to the Commencement Month of the
lease. See § 5 CIPREBUSES: CONSTRUCTION ACTVITIES, INITIAL PERMITS,
LANDLORD'S APPROVAL OF SITE PLAN REQUIRED"), TFC-00101 through -
104. Tiger Fuel Company or its agents have entered the property to take soil samples,
water samples, conduct surveys, measure topography, and perform measurements
related to the production of site plans and drawings associated with the permitting
3
Exhibit B
process. Tiger Fuel Company has also entered the property and placed "No
Trespassing" signs in ten locations. Tiger Fuel Company possesses (and has exercised)
the right to allow or exclude third parties from the property. Tiger Fuel Company
undertook these efforts based on the entire contract, which contemplated and called
for them. The contract also specifies a means by which the contract can be terminated
by either party during the site plan and construction drawing stage, which necessarily
predates the "Commencement Month." TFC-00102. The Commencement Month
begins on the first day of the sixth month following final site plan approval by all
appropriate governmental and utility authorities. TFC-00102. A contract that has not
yet commenced obviously cannot be terminated.
4
Exhibit B
ANSW M TO M- 1CRRnGATORY
I. To the extent that your response to the above request for admission is anything other
than an unqualified admission, please state with specificity the facts upon which you
base your failure to admit.
ANSWER:
Please see Tiger Fuel Company's Answer to Request for Admission No. 9, which includes the
factual support for its denial of Request for Admission No. 9.
5
Exhibit B
RESPONSES -AND OBJGC'['IONS'IFOR PRODUCTION OF
DOCUMENTS
1. All documents that you have referred or relied upon in preparing your responses to the
foregoing interrogatory and request for admission.
RESPONSE:
None that have not already been produced.
Counsel and as to Objections:
Thomas E. Albro (VSB 'i/l2'812)
Evan D. Mayo (VSB #89383)
TREMBLAY & SMITH, PLLC
105-109 East High Street
Charlottesville, Virginia 22902
Telephone: (434) 977-4455
Facsimile: (434) 979-1221
tom.albro@tremblaysmith.com
evan.mayo@tremblaysmith.com
M
Respectfully Submitted,
11ger Fuel Company
By Counsel
1
Exhibit B
As to Interrogatory Answers:
.ZZA7
Gordon Sutton
President
Tiger Fuel Company
200 Carlton Road
Charlottesville, VA 22902
COMMONWEALTH OF VIRGINIA
AT LARGE, to wit:
Subscribed and sworn to before me by Gordon Sutton, acting in his capacity as President of Tiger
Fuel Company, who gave oath that the foregoing statements are true and correct to the best of his
knowledge and belief, this 20th day of 2018.
Notary Public
Notary Identification No. �.. jOr . f�asoui,Hamrnonds
Guinm�iiwuollh:ol Vlrglnlo
Noi6ry, -011C -
GomnussI nNo.7yW239
My Commission expires: L1-30 - 30 ono - my 00T91 0.Enpiro3 a
7
MT-ST1.
CERTIFICATE
I hereby certify that on May 14, 2018, a true copy of the foregoing was transmitted via first-class
mail to the following counsel of record:
Greg Kamptner, VSB #33788
Andrew H. Herrick, VSB #37236
ALBEMARLE COUNTY ATTORNEY'S OFFICE
401 McIntire Road, Suite 325
Charlottesville, VA 22902-4596
Phone: (434) 9724067
Fax: (434) 972-4068
Counsel for Board of Supervisors of Albemarle County
- - Evan D. Mayo - -
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road
Charlottesville, Virginia 22902-4596
Phone (434) 296-5832 Fax (434) 972-4126
January 17, 2018
Virginia Oil Company Incorporated CIO Frayser White, South Creek Inv
1100 Harris Street
Charlottesville VA 22903
Re: AP201700003 Boyd Tavern Market
To Whom It May Concern:
At their meeting on January 9, 2017, the Board of Zoning Appeals voted 3-2 to uphold the Deputy
Zoning Administrator's determination.
If you are aggrieved by this decision, you have the right to appeal it within thirty (30) days
of the date of the decision, in accordance with Section 15.2-2314 of the Code of Virginia. If
you do not file a timely appeal, this decision shall be final and unappealable. An appeal
shall be taken only by filing a petition specifying the grounds on which you are aggrieved
with the Circuit Court of Albemarle County within the prescribed thirty (30) days.
If you have any questions, please feel free to contact our office.
Sincere_ ly'
Zoning Administrator
cc: Gordon Sutton
200 Carlton Road
Charlottesville, VA 22902
_ LAW OFFICES
M. E. (Dick) GIBSON, JR.
TREMBLAY & SMITH, PLLC
THOMAS E. ALBRO
105 EAST HIGH STREET
MELISSA M. RITTER
CHARLOTTESVILLE, VIRGINIA 22902-5115
THOMAS M. HENDELL
-
EvAN D. MAYO
TELEPHONE: (434) 977-4455
FACSIMILE: (434) 979-1221
www.tromblaysmith.com
May 18, 2018
Via"&- affia.iimafernvea,Alhemarle ora
Paty Saternye
Senior Planner
County of Albemarle
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 22902-4596
RE: SDP2018-00034 Boyd Tavern Market — Final Site Plan
Dear Ms. Saternye,
i
OF COUNSEL
JOHN K. TAGGART, III
E. GERALD TREMBLAY
1922-2003
RETIRED
LLOYD T. SMITH, JR.
This firm represents Tiger Fuel Company with respect to SDP2017-00009 and SDP2018-
00034. Your letter of May 16, 2018 informs Tiger Fuel Company that its final site plan approval
has been denied as incomplete. This determination is premature and was issued in violation of
Albemarle County Code § 34.3(f), Eject of Filing an Appeal.
Summary of the Facts
As you know, Tiger Fuel Company appealed the conditional initial site plan approval for
SDP2017-00009, which required a Special Use Permit for water usage exceeding 400 gallons per
site acre per day. Tiger Fuel Company submitted its appeal to the Board of Zoning Appeals
("BZA') within thirty days of October 9, 2017, as required by Va. Code § 15.2-2311. The BZA
voted to uphold the Deputy Zoning Administrator's determination on January 9, 2018. In Amelia
McCulley's letter of January 17, 2018, attached as Exhibit A, she writes with respect to the
January 9, 2018 decision:
If you are aggrieved by this decision, you have the right to appeal it within
thirty (30) days of the date of the decision, in accordance with Section 15.2-
2314 of the Code of Virginia. If you do not file a timely appeal, this decision
shall be final and unappealable.
Exhibit A, p. 1. Tiger Fuel Company subsequently petitioned and was granted a writ of certiorari
in Albemarle Circuit Court for review of the BZA decision. That case is pending today under
case number CL18-232.
Arguments
First, the decision to disapprove the final site plan is premature. The decision issued by
the BZA on January 9, 2018 that Tiger Fuel Company requires a Special Use Permit is not
"final" because the appellate process concerning that decision has not yet run its course. As Ms.
McCulley's January 17, 2018 letter suggests, the decision of the BZA only becomes final when
the Circuit Court reviewing it upholds that decision. It is premature to disapprove the final site
plan based on its completeness when the question of what the final site plan must include has not
been answered by the court.
Second, the decision to disapprove the final site plan violates Albemarle County Code §
34.3(f), Effect of Filing an Appeal. Section 34.3(f) reads: .
An appeal shall stay all proceedings in furtherance of the action appealed
from unless the zoning administrator certifies to the board that, by reason
of the facts stated in the certificate, a stay would in his opinion cause
imminent peril to life or property. If the zoning administrator makes such a
certification, the proceeding shall not be stayed unless either the board or
the Albemarle County Circuit Court grants a restraining order on
application and on notice to the zoning administrator and for good cause
shown.
The action appealed from was the determination by Francis MacCall that SDP2017-00009
required a Special Use Permit. No Zoning Administrator made a certification to the board that a
stay would cause "imminent peril to life or,property." Consequently, the County's proceeding
that led to the determination that the final site plan was incomplete was improper.
The appeal of the BZA decision is set for trial on June 22, 2018 at 10:00am. My client
respectfully requests that the County stay any proceedings dependent on the appealed -from
determination until the appeal is resolved.
Please contact me if you have any questions relating to this letter.
With best regards, I am
Very truly yours,
Evan D. Mayo
EDM
Enclosure