HomeMy WebLinkAboutAP200900008 Correspondence 2009-10-30COUNTY OF A]LB EMARLE
SoVA
MEMORANDUM
TO: Albemarle County Board of Zoning Appeals
FROM: Andrew H. Herrick, Senior Assistant County Attorney
DATE: October 30, 2009
RE: Mahmood Pashazadeh; Appeal No. 2009 -8
On behalf of the County, the County Attorney's Office submits the following summary of
the issues associated with Mahmood Pashazadeh's appeal of the determination by the Zoning
Administrator on July 24, 2009.
1. Summary of Facts
Mahmood Pashazadeh ( "Mr. Pashazadeh ") is the occupant of Parcel ID 04600-00-00 -
028A1, which is located in the R -1 Residential zoning district. Code Enforcement Officers
visited the property on July 23, 2009 and found that a business had been established on the
parcel.
Albemarle County Code § 18 -13.2 lists the uses permitted in the R -1 Residential district.
A retail store is not permitted either by right or special use permit.
Based on the observations of the Code Enforcement Officers visiting the property, the
Zoning Administrator issued a Notice on July 24, 2009 that the property was in violation of the
zoning ordinance. Mr. Pashazadeh is appealing this determination.
2. Introduction
Virginia Code § 15.2- 2309(1) enables the Board of Zoning Appeals (BZA) to "hear and
decide appeals from any order, requirement, decision or determination made by an administrative
officer in the administration or enforcement of [the zoning ordinance]. The decision on such
appeal shall be based on the board's judgment of whether the administrative officer was correct."
See Board of Zoning Appeals of James City County v. University Square Associates, 246 Va. 290
1993).
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3. Mr. Pashazadeh's retail use is not "grandfathered" as a lel4al non - conformity.
Despite the current zoning ordinance, in his Notice of Appeal dated August 24, 2009, Mr.
Pashazadeh essentially asserts that his use of the property is less intensive than the restaurants
that last occupied this site over two years ago. However, a less intensive commercial use is still
a commercial use, which would be allowed in the R -1 Residential district, if at all, only as a
grandfathered" legal non - conformity.
As a general rule, uses or structures that exist prior to the zoning ordinance(s) they violate
are allowed to continue as legal non - conformities, provided they are not discontinued for a
defined period, generally two years. Virginia Code § 15.2 -2307 enables local zoning ordinances
to "provide that land, buildings, and structures and the uses thereof which do not conform to the
zoning prescribed for the district in which they are situated may be continued only so long as the
then existing or a more restricted use continues and such use is not discontinued for more than
two years, and so long as the buildings or structures are maintained in their then structural
condition." Albemarle County Code § 18- 6.2(G) adopts this standard locally: "A nonconforming
use and all uses accessory thereto shall be discontinued, and any use of the structure or lot shall
thereafter comply with the regulations set forth in this chapter applicable to the district in which
the use is located, if the nonconforming use is discontinued for more than two (2) years,
regardless of whether the use was continuous or seasonal." As noted in Albemarle County Code
18 -6.1, non - conforming uses are disfavored, and are allowed to continue only under limited
circumstances: "Nonconforming uses, structures and lots are declared to be incompatible with
the zoning districts in which they are located and, therefore, are authorized to continue only
under the circumstances provided herein until they are discontinued, removed, changed or action
is taken to conform to the zoning regulations applicable to the district in which the use, structure
or lot is located."
The County's best information is that the most recent use of the property was as a
restaurant last open to the public in April 2007. The County further understands that Mr.
Pashazadeh's lease did not commence until May 2009, over two years later. Since then, he has
apparently been operating a retail business without necessary permits, raising a question of
whether a recognized retail use has ever officially commenced. Regardless, because use of the
property was apparently discontinued for over two years, no non - conforming use may now
continue.
Even if restaurant use after April 2007 or retail use before May 2009 were somehow
demonstrated, so as to reduce the period of disuse to less than two years, it's not clear that the
current retail use is a true continuation of the prior restaurant use. Even in the C -1 Commercial
district, where these uses are allowed, they are recognized as different uses. (Albemarle County
Code § 18- 22.2.1(a) allows certain retail sales and service establishments in the C -1 district;
whereas "eating establishments" are named and listed separately in § 18- 22.2.1(b)(14).) While a
new "eating establishment" might be allowed within the two -year window as a legal non-
conformity, it's not clear that a retail store such as Mr. Pashazadeh's is a true continuation of the
prior restaurants that existed on the property.
4. Conclusion
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The County's zoning ordinance does not permit retail use in the R -1 Residential zoning
district. Because non - conforming use of the property was discontinued for a period of over two
years, the prior legal non - conforming use has been lost. Therefore, the Zoning Administrator's
Notice of Violation should be affirmed.
Cc: Amelia McCulley, Zoning Administrator