HomeMy WebLinkAboutSDP201800034 Correspondence 2019-05-18M. E. (DIcK) GmsoN, JR.
THOMAS E. ALBRO
MELISSA M. RITTER
THOMAS M. HENDELL
EvAN D. MAYo
LAW OFFICES
TREMBLAY & SMITH, PLLC
105 EAST HIGH STREET
CHARLOTTESVILLE, VIRGINIA 22902-5115
TELEPHONE: (434) 977-4455
FACSIMILE: (434) 979-1221
www.tremblaysmith.com
May 18, 2018
Via e=iriail. faaisaternye it albeiiiarte:or.:
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,
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(t), Effect 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
.a/
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A
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road
Charlottesville, Virginia 22902-4596
Phone (434).296-5832 Fax (434) 9724126
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.
Sincerely,
Amelia G. McCulley.A I.G `..
Zoning Administrator
cc, Gordon Sutton
200 Carlton Road
Charlottesville, VA 22902