Loading...
HomeMy WebLinkAboutAP200500004 Staff Report 2005-09-13M STAFF REPORT AP 2005-004 STAFF PERSON: Jan Sprinkle PUBLIC HEARING: September 13, 2005 APPLICANT / APPELLANT: Peter van der Linde for Van der Linde Housing Inc. The applicant appeals the Zoning Administrator's determination in accordance with Section 34.3 of the Albemarle County Zoning Ordinance. Description of the Property: This property is the site of the Woodbrook Shopping Center and is listed as Tax Map 45C, Parcels 3, 4, 4A and 413. It is zoned PD-SC, Planned Development -Shopping Center and EC, Entrance Corridor. It is located on the east side of Seminole Trail (Rt. 29) at its intersection with Woodbrook Drive. These parcels are improved with three commercial structures that aggregate approximately 31,000 square feet. Background of Appeal: A brief history relevant to the case is as follows: • The site plan for "Woodbrook Village for Shopping" (dated February 10, 1978) was originally approved in October 1978. • A complaint about a "trucking business" in the shopping center was received on January 10, 2005. • An onsite inspection made on January 20, 2005 showed the following: "existing white pine screening, two rows, 10' on center, 12' high" (that had been required by the Planning Commission in 1978) were missing and several sawn stumps were visible; the fenced dumpster area had been enlarged utilizing two parking spaces; two grease traps were blocking one parking space; - the parking lot was being used for a contractor's storage yard with temporary power poles/pedestal, mobile pump station, and other miscellaneous building materials; - multiple parking spaces were marked "RESERVED FOR VDLH"; and, - numerous large trucks (some labeled van der Linde Homes or van der Linde Container Rentals) were parked in parking spaces required for the shopping - center. • Additional onsite inspections were conducted on January 26th, February 4th and February 9th cm AP-2005-004 Staff Report Page 2 September 13, 2005 • A Notice of Violation (VIO 2005-021) dated February 18, 2005 was sent reflecting these issues. This NOV was based on the most recent inspection prior to the letter (February 9tn) • A second Notice of Violation dated April 18, 2005 was issued to correct (add) the parcel number 413. This notice of violation clearly stated that "all other information contained within this notification shall remain in effect without change." • This appeal, AP 2005-004, was filed March 18, 2005. • Appellant requested and BZA granted deferral of this appeal on June 7, 2005. Determination: [See Attachment A for the Notice of Violation letter (NOV) with correction date April 18, 2005.] The Board is reminded that the determination of violation before you is based on the condition and use of the property on the date of the notice of violation (February 18, 2005). Actions by the appellant to correct or abate the violation after that date are not relevant to the decision of whether a violation existed on that date. The first two violations cited relate to the site plan and the condition of the premises: 1. The changes that have taken place at this site are not shown on the approved site plan #SDP-419, Woodbrook Shopping Village dated 211011978. The landscaping for the indicated parcels does not meet the requirements of the above mentioned site plan [nor any amendment thereto]. The trees along the eastern border are no longer present. Furthermore, the Planning Commission approval dated 1012511978 requires that the existing trees at that time were not to be disturbed. 2. The changes that have taken place at this site are not shown on the approved site plan #SDP 97 008, Woodbrook Shopping Center dated 412911997. The dumpster pad located at the southeast corner of the above mentioned parcel has been modified. No dumpster was shown on the most recent site plan submitted (97-008). The new dumpster screening has extended past the area identified as the dumpster pad into two of the required parking spaces. The third violation cited relates to the use of the property as a contractor's office and equipment storage yard. 3. The accumulation of contractor's equipment, semi -trucks for hauling dumpsters, additional temporary power poles/pedestal, mobile pump AP-2005-004 Staff Report Page 3 September 13, 2005 station, soluble waste containers and other miscellaneous building materials related to the business of "van der Linde Housing Inc." located on these parcels constitutes a contractor's equipment storage yard. Grounds for Zoning Administrator's Decision: The most critical issue here is the (contractor's equipment storage yard) use violation. Although the PD-SC district does permit offices, it does not permit a contractor's equipment storage yard. That use category, "contractor's office and equipment storage yard," is permitted by -right in Light Industry and Heavy Industry districts and by special use permit in Highway Commercial and Planned Development - Mixed Commercial districts. Therefore, this use shall not exist on this site. Because "contractor" is not defined in the Albemarle County Zoning Ordinance, the Zoning Administrator has considered the following definitions of the word "contractor." Webster's Dictionary defines "contractor" as "one that contracts or is a party to a contract as (a) one that contracts to perform work or provides supplies on a large scale, (b) or that contracts to erect buildings." The Glossary of Zoning, Development and Planning Terms, a publication of the American Planning Association used as a reference for planning and zoning officials throughout the country, defines "contractor" to mean "General contractors and builders engaged in the construction of buildings, either residences or commercial structures as well as heavy construction contractors engaged in activities such as paving, highway construction and utility construction." The use category, "contractor's storage yard," is also not defined in the Zoning Ordinance. Therefore, the Zoning Administrator also considered the definition of "contractor's storage yard" contained in the Glossary of Zoning, Development and Plannin Terms: erms: "An unenclosed portion of the lot or parcel upon which a construction contractor maintains its principal office or a permanent business office. Designation of the lot or parcel as a contractor's storage yard would allow this area to be used to store and maintain construction equipment and other materials customarily used in the trade carried on by the construction contractor. If permitted to be used in this manner, the entire lot or parcel would then be classified as a 'contractor's storage yard' and will be required to conform to all applicable zoning district standards and other legislative regulations." The following information led to our determination that this use constitutes a "contractor's storage yard:" Van der Linde Housing, Inc. and Van der Linde Container Rentals are two different contracting companies that meet the definitions for "contractor." The first business is engaged in home construction. The second is engaged in rental of containers which are primarily used in the construction process. rm AP-2005-004 Staff Report Page 4 September 13, 2005 • Vehicles related to the two businesses were located on the property. These include: delivery trucks for hauling the containers, one panel truck with Van der Linde Home on the side and one large truck with a boom or lift. • Equipment located on the property included: temporary power pole / pedestal, mobile pumping station and 2 grease containers. • Materials located on the property included: lumber and scrap metal. The other two violations on this site relate to changes made to the site that differ from the approved site plan. Once a site plan is approved and constructed, it must also be maintained in compliance with the plan. Any other outcome would be absurd. If you could simply get a site plan approved that meets our zoning ordinance, build a building, plant the required landscaping, get your clearance and certificate of occupancy and then change everything to suit some other purpose, what would the point be of having a zoning ordinance? This requirement (for compliance with the approved site plan) is stated in § 36.1 of the Albemarle County Zoning Ordinance: 36.1 VIOLATIONS - GENERALLY Any building erected contrary to any of the provisions of this ordinance or contrary to any condition imposed upon any conditional rezoning, issuance of a special use permit or approval of a site plan, and any use of any building or land which is conducted, operated or maintained contr_ ary_to any of the provisions of this ordinance or any condition imposed upon any conditional rezoning, issuance of a special use permit or approval of a site plan, shall be a violation of this ordinance and the same is hereby declared to be unlawful. The zoning administrator may initiate injunction, mandamus, abatement, criminal warrant or any other appropriate action to prevent, enjoin, abate or remove such erection or use in violation of any provision of this ordinance. In this case, the Planning Commission approved the site plan with the condition, "None of the existing trees along the eastern border of the property shall be disturbed." (See Attachment C.) This is a plain, unambiguous condition of approval. Therefore, it must be maintained in perpetuity. If the owner would like to propose some other landscaping, he must request a site plan amendment and ask the Planning Commission to change the condition of approval. The same is true for the dumpster area —either maintain it as shown on the approved site plan or propose an amendment. The required parking is calculated on the uses in the buildings and must be maintained as long as the buildings and uses remain. Changes on the ground require site plan amendments. The missing landscaping was confirmed with a site visit on September 2nd. We have counted 14 pines removed with 16 inch stumps, 3 other trees removed with 6 inch stumps and 1 missing big tree where a hole remains. If this landscaping existed at the time of the site plan approval in 1978, trees that were 26 or more years old and with a mature canopy, have been removed. Mw AP-2005-004 Staff Report Page 5 September 13, 2005 M APPELLANT'S JUSTIFICATION FOR APPEAL: (Staff comments in italics) (See Attachment D, pages 1, 2, 3, and 4 for the Appeal Application and Explanation.) The appellant has informed staff that he will ask for deferral of this item. This appeal was deferred from the June meeting to the September 2005 meeting to allow the appellant time to find a new site. Due to the length of time involved in this case including the previous deferral, staff does not want to defer again. The Board has heard staff express concerns that appellants are "buying time" by obtaining deferrals from the BZA. This appears to be the case here. Mr. van der Linde has submitted a site plan for a truck repair shop which he intends to use to maintain his own trucks as well as to offer service to the general public. He therefore is biding time until site plan approval, construction and then his move. This is an indeterminate amount of time for which staff cannot wait. This violation needs to be addressed now. Staff asks the Board to hear this case now and not to defer the appeal against staffs objections. We further ask the Board to consider only the justification that was provided in writing for the appeal. An additional comment for the Board: You will hear the appellant speak of future actions, such as appealing to court any decision to support the Zoning Administrator. The determination before the Board today is regarding the conditions and use of the property as it existed on February 18, 2005. Future actions that change the situation "*iw are not relevant to whether there was a violation on that date. The appellant's appeal (dated March 18, 2005) states that only three trees (dead white pines) were removed. It also says that they will be replaced. Mr. van der Linde did replace the required white pine trees during the spring planting season with Nellie Stevens holly trees but submitted no site plan amendment. As shown on the approved site plan (noted "reed 7-21-78" and "approved, RWT') along the eastern property line, there should be as many as 16 pine trees in the first 180 feet adjacent to the Woodbrook Subdivision lots. Then from the boundary between Woodbrook lots 14 and 15 to the southern property line there should be another 34 pine trees. Mr. van der Linde's second item states that the dumpster pad has not been modified. He says that it is shown on an approved site plan amendment and that he has removed the dumpster screening that extended past the pad. He has also removed the "additional temporary power pole," the mobile pumping station, and the miscellaneous building materials. He states that the grease traps are industry standard for all area restaurants that use cooking grease. As illustrated in the photos taken 8-3-05 (Attachment B, page 2), there is still fencing running from the dumpster pad to the southern property line. This fencing encloses an RV that Mr. van der Linde uses as a field office when it is not being stored on this site. This is not depicted on the site plan. The grease traps are still on the site AP-2005-004 Staff Report Page 6 September 13, 2005 blocking required parking and not shown on the site plan. The other items have been removed. Mr. van der Linde's explanation for the large trucks is that they are for hauling dumpsters and are an entitlement as a tenant of Woodbrook Shopping Center. They leave at 6:00 a.m. every day and return at day's end after completing deliveries. Each vehicle fits within the confines of a single passenger car space length and width without overhanging into the parking area. He states further that this practice is consistent with hundreds of other area businesses that use service and delivery vehicles as a function of doing their business. The Deputy Zoning Administrator has determined that the tenant is a contractor and cannot use the parking lot as an equipment storage yard. The large trucks are equipment and they cannot be stored at this site any time, day or night. In addition, as illustrated in the photos, a number of these trucks are larger than the 9' x 18' parking spaces that are required to be provided. They extend into the travel aisles and over the vegetation adjoining the parking. The pine trees appear to have been removed to accommodate the truck beds that extend beyond the pavement. The rules of statutory construction guide the interpretation of a zoning ordinance. By these rules, if the ordinance is unambiguous, the plain meaning of the words must be applied and there is no need to construe it. Staff asks that the Board of Zoning Appeals find that the Deputy Zoning Administrator is correct and affirm the Determination of Violation. LIST OF ATTACHMENTS Attachment A Notice of Official Determination of Violation Letter dated April 18, 2005 Attachment B Photographs of site Attachment C Planning Commission Action Letter for Woodbrook Shopping Village Site Plan Attachment D Appeal Application and Explanation y- COUNTY OF ALBEMARLE err Community Development Department 401 McIntire Road, Room 227 Charlottesville, Virginia 22902-4596 FAX (434) 972-4126 April 18, 2005 ,ETTER OF CORRECTION: TELEPHONE (434) 296-5832 AP-2005-004 Attachment A Three pages TfD (434) 972-4012 [his letter is to inform you that the proceeding Notice of Determination reflects a modification for parcel number only. The )riginal parcel number was documented in error by duplication of parcel 4A. Consequently, it has been changed to the -orrect parcel number 4B. All violations and conditions of such said new parcel shall conform to the same conditions as set 'orth on the original date of determination, February 18, 2005. All other information contained within this notification shall •emain in effect without change. NOTICE OF OFFICIAL DETERMINATION OF VIOLATION The Date this Notice of Determination is given is February 18, 2005. No: VIO-2005-021 CERTIFIED MAIL # 7002 0860 00043676 5468 CERTIFIED MAIL # 7002 0860 0004 3676 5451 Woodbrook Shopping Center Van der linde Housing Incorporated C/O Van der linde Housing Inc. 2820 Hydraulic Road, Suite 1 1869 Seminole Trail Charlottesville, VA 22901 C,lottesville, VA 22901 Property: 045C0-02-00-00300, 00400, 004A0, 004BO Same As Above Tax Map and Parcel Numbers Owner of Record Zoning: Planned Development Shopping Center [PD-SC] District You are hereby notified that after an investigation of the above -described property, the Zoning Administrator has determined that the following constitutes a violation of the Albemarle County Zoning Ordinance. This conclusion is based on the following facts that were noted on February 4, 2005: 1. The changes that have taken place at this site are not shown on the approved site plan #,SDP-419, Woodbrook Shopping Village dated 211011978. The landscaping for the indicated parcels does not meet the requirements of the above mentioned site plan. The trees along the eastern border are no longer present. Furthermore, the Planning Commission approval dated 1012511978 requires that the existing trees at that time were not to be disturbed. cm 10-2005-021 Page 2 February 18, 2005 2. The changes that have taken place at this site are not shown on the approved site plan #SDP 97-008, Woodbrook Shopping Center dated 412911997. The dumpster pad located at the southeast corner of the above mentioned parcel has been modified. No dumpster was shown on the most recent site , plan submitted (97-008). The new dumpster screening has extended past the area identified as the dumpster pad into two of the required parking spaces. This represents a violation of the following section(s) of Albemarle County Zoning Ordinance: Section 32.2 Site Plan A site plan shall be required for any construction, use, and change in use or other development in all zoning districts... Site Plan: A plan satisfying the requirements of section 32 of this chapter that delineates the overall scheme of development of one or more lots including, but not limited to, grading, engineering design, construction details and survey data for existing and proposed improvements. The document identified in this chapter as a site development plan is a site plan. 3. The accumulation of contractor's equipment, semi -trucks for hauling dumpsters, additional temporary power poles/pedestal, mobile pump station, soluble waste containers and other miscellaneous building materials related to the business of "Van der linde Housing Inc. "located on these parcels constitutes a contractor's equipment storage yard. Section 25.2 Permitted Uses (in Planned Development -Shopping Centers District): A contractor's equipment storage yard is not a permitted use in the PD-SC district. Therefore, this use shall not exist on this site. This use, activity or condition is not a nonconforming use or structure. In other words, the use or structure did not exist prior to the zoning regulations that it violates. Section 36.1: "Any building erected contrary to any of the provisions of this ordinance or contrary to any condition imposed upon any conditional rezoning, issuance of a special use permit or approval of a " site plan, and any use of any building or land which is conducted, operated or maintained contrary to any of the provisions of this ordinance or any condition imposed upon any conditional rezoning, issuance of a special use permit or approval of a site plan, shall be a violation of this ordinance and the same is hereby declared to be unlawful. The zoning administrator may initiate injunction, mandamus, abatement, criminal warrant or any other appropriate action to prevent, enjoin, abate or remove such erection or use in violation of any provision of this ordinance." You are hereby ordered to take action to bring the site into compliance with the approved Site Development Plan or submit a revised plan March 18, 2005. You are hereby ordered to cease and desist from adding any contractor's equipment, semi -trucks for hauling dumpsters, additional temporary power poles/pedestals, mobile pump station, soluble waste Page 3 February 18, 2005 containers, and any other miscellaneous building materials immediately. Your failure to comply with this order may result in legal action being taken against you. You are also hereby ordered to remove the following contractor's equipment from the property; semi - ",,.,for hauling dumpsters from the property; the additional temporary power poles/pedestal, mobile pump station and soluble waste containers located adjacent to the dumpsterpad; the building materia'Is stored on the north side of the pump station and any other miscellaneous building materials on the property by March 18, 2005. Your timely compliance with this order does not excuse the violation cited herein and does not preclude the Countyfrom pursuing further legal action for these violations. If you are aggrieved by this determination, you have a right to appeal it within thirty (30) days of the date notice of this determination is given, in accordance with Section 15.2-2311 of the Code of Virginia. If you do not file a timely appeal, this determination shall be final and unappealable. An appeal shall be taken only by filing with the Zoning Administrator and the Board of Zoning Appeals a notice of appeal which specifies the grounds for the appeal. An appeal application must be completed and filed along with the fee of S 120. If you have any questions, please contact Sandra Johnson at 434-296-5832 Janice D. Sprinkle Deputy Zoning Administrator County of Albemarle, Virginia Cc: Reading File VIO-2005-021 n m m In V.IO] 2005-021 -SJ'j JtMP 045C0-02�0540306 `17, " W00bBROOK Slq--P. Vanderlinde Housing'-(nc; ..x A/19/2005 �. - r TA � � "•^�ea�y� rw!;r�TaF�s��,,.'C'.: .. ��i:�l'J �' � '!1 �- r''� �'�,< y� V,10 2005 021 J TMP 045CO-0 b0 M, OW �ty1d-- t ti v t 'A §[RO-2005-021 -SJ / Woodbrook S/C P: 045CO-02-00-00300 2/4/05 VIO-2005-021 -SJ /TM P I WODEBROOK S/C - P. VAN DE 8/3/05 4 2-00-00 .................. E (Housing Inc.) 11 OF ALB,�7/qgA Gp `pF At9F Q. GIS\ AP-2005-004 Attachment' C Planning Department One page 804/296.5823 414 EAST MARKET STREET CHARLOTTESVILLE. VIRGINIA 22901 ROBERT W. TUCKER. JR. I RONALD S. KEELER DIRECTOR OF PLANNING ASSISTANT DIRECTOR OF PLANNING October.25, 1978 DONALD A. GASTON SENIOR PLANNER Mr. Henry Javor N. MASON CAPERTON 611 Rugby Road PLANNER Charlottesville, Virginia 22903 Re: Woodbrook Shopping Village, Site Plan ( Amendment) Dear Mr. Javor: The Albemarle County Planning Commission, at its meeting on October 24, 978, gave condi- tional approval to the above referenced site plan subject to: i 1. None of the existing trees along the eastern border of the property shall be disturbed (Planning Commission approved condition, June 27, 1978). 09 NMC/sw cc: Robert Tucker Ronald Keeler Ben Dick A. Iachetta cm Sincerely, /, ---._ _ _ -- - _ N. Mason Caperton Planner 6. cm County Of Albemarle Department of Zoning 401 McIntire Road Charlottesville, VA 22902 (434) 296-5832 FAX (434) 972-4126 AP-2005-004 Fee: $120 �,y, S? $� / ( ) Attachment D Fourpages OWNER: (as Jcurrently Name: Jcan Clc�l ��✓�d� listed in ^basc'n Real Estate) Tn�. Phone: '17 3_ -r- �� Address: — D,-� lN� �'.Pto-T�Sv APPLICANT (if different from above): Name: s /3� `> Phone: Address: CONTACT PERSON (if different from above) : Name: Day Address:��� SUBJECT OF APPEAL: s �fe0J d10 L:?T, n'3 Zao S - vZ 1 Phone: Phone: EXPLANATION OF ERROR IN DETERMINATION AND JUSTIFICATION OF APPLICANT"S POSITION: I hereby certify that the information provided on this application and accompanying information is accurate, true and correct to the best 5"y knowledge and belief. igna ure ate Receipt# - Da e C LC4 62 S �/ V0,71 PU4 � A'ns 'FN C_ Property Information: /869-s,�F.v,i.JoGE �•zgiL C'�-rccoT: �s�lic�E .1/� 2290/ (site address) Tax Map/Parcel I Acreage 1 i C •Z S E T c, ..� O i= Z /v f •J O location from nearest street intersection ( ) is subject to, ( ) is -not subject to conditions (zoned) BZA ACTION: AP 2005-004 (Signs # 4 & 5) VanderLinde Housing, Inc. (owner/appellant) — Appeals Zoning Administrator's determinations of violation: 1) the site is not consistent with the site plan for Woodbrook Shopping Center and 2) the use, contractor's equipment storage yard, is not permitted. Appellant says he will replace dead trees later & dumpster pad is as shown on the plan and the contractor's trucks are allowed. Property, zoned Planned Development — Shopping Center, is tax map 45C, section 2, parcels 3, 4, 4A and 4B. Located on the east side of Rt 29 (Seminole Trail) at its intersection with Woodbrook Dr. FM van der Linde Homes 2820 Hydraulic Road - Charlottesville - Virginia - USA - 22901 (434) 973-0889 FAX . (434)973-7259 Date: Fri, Mar 18, 2005 To: Janice D. Sprinkle Albemarle County Zoning Dept. From: Peter van der Linde Memo: Ref. VIO-2005-021 Total # of pages including cover sheet: 2 Recipient Fax: 972-4126 Sender Fax: 434-973-7259 Sender E mail: vdlhl @earthlink.net Item #1: > Three trees (dead white pines) were removed along the eastern border. They will be be replaced as soon as any area nursery receives their first spring plant shipment. None available anywhere ` on this date. Item #2: > The dumpster pad located at the southeast corner of the parcel has not been modified. The dumpster pad is shown on the most recent plan submitted (97-008) and was constructed by the ACSA. > The new dumpster screening that extends past the pad has been removed. The two parking spaces invaded by the security gate that extends past the dumpster pad are unusable by the design location and size of the dumpster pad on the most recent approved site plan (97-008). R,,x• Fax• Fax• Fax• Fax• Fax• Fax* Fax* Fax* Fax• Fax FaxManiaTM, 01992 TAMaker Company. 3 Item #3: > The "additional temporary power pole" (approved temporary power pole subpanel) has been removed. > The mobile pumping station (sprinkler sytem backup pump) has been removed. > The miscellaneous building materials (being used for on site repairs) have been removed. > The "water soluable containers" (specialized grease containers used by two restaurant tenants at Woodbrook) are industry standard for all area restaurants that use cooking grease. > The delivery trucks (not "semi -trucks") for hauling dumpsters are an entitlement as a tenant of Woodbrook. They leave at 6:00 A.M. daily and return at day's end after completing deliveries. Each vehicle fits within the confines of a single passenger car space length and width without overhanging into the parking area. This practice is consistant with hundreds of other area businesses that use service and delivery vehicles as a function of doing their business. In consideration of the above actions taken I respectfully request that this notice of violation be deemed satisfied. If I do not receive written notification of satisfaction of VIO-2005-021 in its entirety by the appeal filing deadline of March 18, 2005 1 will file an official appeal with the Zoning Administrator and the Board of Zoning Appeals. cc: Fred Payne David Wyant Fax• Fax* Fax•Fax•Fax* Fax* Fax•Fax* Fax* Fax•Fa FaWanla'", 01992 TMlaker Company.