HomeMy WebLinkAboutSDP202000029 Review Comments Major Amendment, Final Site Plan 2020-09-11�y OF A
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COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 22902-4596
Phone (434) 296-5832 Fax (434) 972-4126
To: Tim Miller (tmillerkmeridianwbe.com)
From: Cameron Langille — Senior Planner II
Division: Planning Services
Date: May 1, 2020
First Revision: September 11, 2020
Subject: SDP202000029 — Woolen Mills Light Industrial Park — Major Site Plan Amendment
Albemarle County Planning Services (Planner) —Cameron Langille, blanigille@albemarle.org —Required changes:
1. [32.4.2.1 (f)] The mailing notification fee of $215.00 has not been paid. The fee must be paid prior to approval
of the major site plan amendment. Rev. 1: Comment not addressed, $215.00 fee has not been paid.
2. [32.5.21 Sheets C-101 and C-100 listed in the index were not included in the first submittal plan set. Please
provide these on the next submittal. Ensure that all information on existing conditions specified by Section 32.5.2
are included on the drawings. Rev. 1: Comment addressed.
3. [32.5.2 (a)] On Sheets C-203, C-205, C-206, and C-300, there is a callout referring to SDP1989-086. Please
explain what this is. Remove the note if necessary. Is this referring to SDP199900084? Rev. 1: Comment
addressed.
4. [32.5.2 (a)] Provide a list of all recorded plats and deeds that apply to the property on Sheet C-100, including
the new easement plat that will be recorded prior to approval of this major amendment. Rev. 1: Comment
addressed.
5. [32.5.2 (a)] Please state approved ZMA applications associated with this site in the Zoning note on Sheet C-
100. State that the Preserved Steep Slopes Overlay District was amended with ZMA201800017 as shown on its
application plan.
a. In the Steep Slopes notes on Sheet C-100, state that a 19, 645 sq. ft. area of the Preserved Steep Slopes
Overlay District was rezoned to Managed Steep Slopes with ZMA201800017. Rev. 1: Comment not
fullv addressed. State the ZMA application number. ZMA201800017, in the Managed Slopes note
#2.
b. Add the approved Application Plan as an exhibit to the site plan drawings. Rev. 1: Comment addressed.
6. [32.5.2 (b)] The "Purpose of this Amendment" and Sheet Index on Sheet C-100 mention that this is proposing
changes to SDP201600076. However, the most recently approved plan for this site was SDP201800065. Clarify
which sheets from SDP20160007 and SDP201800065 are being revised with this plan. Rev. 1: Comment
addressed.
7. [32.5.2 (a)] Please show and label all minimum and maximum building and parking setback lines on
Sheets C-200 through C-205. The setbacks should be shown in accordance with Section 4.20 of the
Zoning Ordinance. Rev. 1: Comment not fully addressed, please label the 10' front minimum
building setback alone Broadway Street on Sheets C-200 through C-205.
8. [32.5.1 (c)] On Sheet C-400, there are numerous easement labels that are overlapping and make the callouts
illegible. Please revise. Rev. 1: Comment addressed.
9. [32.5.2 (b) ] Please state the maximum lot coverage area for industrial uses proposed.
a. The Floor Area Ratio note on Sheet C-101 states that 125,205 sq. ft. of total floor area is proposed.
However, the total floor area proposed is 145,041 sq. ft. when building heights are factored in. Please
verify what the total floor area is and amend the plans as necessary. Rev. 1: Comment not fully
addressed. Staff is aware that building heights may chance once users/tenants are identified.
However, the site plan figures should be consistent across drawings. Based on building heights
shown, the total gross square footage proposed at this time is 144,603 sq. ft. The floor area ratio
calculation on Sheet C-100 should state "144,603 gross square foota2e/612,629 sg. ft. = 0.23 FAR"
Please revise.
10. [4.12.4 (a)] Please provide a parking calculation table on Sheet C-100. Revise the parking provided note so that
it also states "if additional parking is needed to comply with Section 4.12, approval of a site plan amendment
will be required to install additional parking." Rev. 1: Comment addressed.
a. State the total number of parking spaces, handicap spaces, and van accessible handicap spaces proposed
on the plan. Rev. 1: On Sheet C-200, please revise the label for parking spaces in front of Building
7. There are 23 spaces provided, but the label states 21.
11. [32.6.2 (i) and 32.7.3 (b)] No ADA accessible handicap ramps are shown at the sidewalks adjacent to the ADA
striping next to handicap parking spaces in front of buildings 3, 12, and 14. Please revise the drawings so
handicap ramps are provided. Rev. 1: Comment addressed.
12. [32.5.2 (d)] Please show the locations of all Managed and Preserved steep slopes on Sheets C-200, C-201, C-
204, C-205, C-206, C-207, and C-300. Rev. 1: Comment addressed.
a. Add a legend to each drawing where these features are visible and label each feature. Rev. 1: Comment
addressed.
13. [32.5.2 (n)] It appears no sidewalks are proposed in front of Building 6. Sidewalks should be provided so that a
full sidewalk connection is located along the western edge of the travel way. Rev. 1: Comment addressed.
14. 32.5.2 (n)] Please provide sidewalks along the travel ways along Fords Road and the new access aisles that lead
into TMP 77-40M. A fully connected sidewalk network should be provided throughout the site. Rev. 1:
Comment addressed.
15. [32.5.2 (r)] Provide a Legend on each drawing showing all symbols and abbreviations visible. Rev 1: Comment
addressed.
16. 132.5.2 (b)] Per section 18-4.12.13, this site requires loading spaces. Please address the following:
a. Add a required loading space calculation to Sheet C-100. State the exact calculation from the Ordinance:
"Loading spaces required: one space for the first 10,000 square feet of industrial floor area plus one
space for each additional 20,000 square feet of industrial floor area." Rev. 1: Comment addressed.
17. [4.12.18 (d)] Please show how the loading spaces will be delineated (i.e. signage, striping, etc.) on the plans.
Rev. 1: Loading dock detail is detail 6 on Sheet C-306. On Sheets C-200 and C-201, please add a label at
all loading spaces that states the detail number and page number.
18. [32.5.2 (b)] In accordance with Section 18-4.12.13 (e), please show the dimensions for the dumpster pad and
associated improvements on all applicable drawings. Rev. 1: Comment addressed.
a. [4.12.13 (e) and 4.12.15 (e)] It appears that the dumpster pads shown at the dumpsters adjacent to
buildings 13 and 7 extend into the vehicular drive aisles. The 8' pad should be located so that it does not
impeded drive aisles. Please revise. Rev. 1: Comment addressed.
19. [4.12.19 and 32.7.9.7 (a)(3)] Please provide a plan and profile view detail with dimensions and materials of the
dumpster pad and enclosures to verify compliance with the screening requirements contained in the Zoning
Ordinance. Please note that fences or other constructed screening measures must be a minimum of six feet (6')
in height, as specified in 32.7.9.7 (e). Rev. 1: On Sheets C-200 and C-201, add a label stating the sheet and
detail number for the dumpster pad construction detail (detail 2 Sheet C-306.
20. [32.7.3 (b)] Please show the locations of all proposed mechanical equipment and utility hardware. Please provide
information so that the agent can verify they will be screened from public view. Rev. 1: Comment addressed.
21. [32.5.2 (k)] Please label all existing and proposed sewer and drainage easements by type and include a
size/width measurement.
a. An easement plat application must be submitted, reviewed, approved and recorded prior to major
amendment approval for all proposed easements. Rev. 1: Comment stands, easement plat not
vet submitted for review.
b. Once the easement plat is recorded, the major amendment must be revised to show the recorded
instrument number for the easement plat (deed book and page number). The newly created
easements will need to be labeled with a dimensional width, easement type, and state whether it is
public or private. Rev. 1: Comment stands, easement plat not vet submitted for review.
22. 132.5.2 (n)] On Sheet C-303, a detail is provided for a wood fence. Where is this wood fence used on the site?
It did not appear to be visible on any drawings. Rev. 1: Comment addressed.
23. [32.5.2 (e)] Please provide more details about the existing landscape features as described in Section 18-
32.7.9.4(c).
a. The Albemarle County Conservation Plan Checklist and Chapter 3.38 of the Virginia Erosion and
Sediment Control handbook is not completed or signed on Sheet C-305. The Conservation Plan
Checklist will need to be completed and signed by the owners to approval. Rev. 1: Comment not fully
addressed. The checklist is not completely filled out, and all sections must be check/£dled out and
signed by the owner prior to approval of the site plan. Please revise.
b. [32.7.9.4 (b)(1) and 32.7.9.4 (c)] Identify all existing trees, groups of trees with a 6" caliper or greater
in Existing Canopy Area B on the landscape plan. State the common name for the trees in callout. Rev.
1: Applicant comment response letter states "Not required" for this comment. Per the previously
approved site plans, there are trees measuring between 8"-12" caliper in the canopy area that will
be preserved along Franklin/Broadway Streets, and existing trees measuring between 6"-12" in
the canopy area along Ford Road. Labels should be added stating the tree type and caliper in
diameter at breast height for existing vegetation that will be preserved.
24. [32.7.9.6 (a)] Some proposed planting areas do not include trees or shrubs. Each planting area must have some
sort of trees or shrubs provided in order to count toward meeting the minimum area required. Please revise
Sheets C-206 and C-207 as necessary. Rev. 1: Comment addressed.
25. [32.7.8 and 4.17] The major amendment does not include a lighting plan in accordance with the requirements
of Section 4.17 of the Zoning Ordinance. Please include a lighting plan on the next submittal and address the
following:
a. [4.17.4] The luminaire schedule and luminaire locations tables on Sheet C-403 state that 36 and 38 total
luminaires are proposed, respectively. Please verify the actual number of outdoor luminaires exceeding
3,000 lumens that are proposed and update the Lighting Plan as necessary. Rev. 1: Comment
addressed.
b. [4.17.4 (a)] Please provide documentation from the manufacturer such as manufacturer cut -sheets that
all proposed outdoor luminaries exceeding 3,000 lumens are full -cutoff fixtures. Rev. 1: Comment
addressed.
c. Please add a note to the lighting plan which states "Each outdoor luminaire equipped with a lamp that
emits 3,000 or more initial lumens shall be a full cutoff luminaire and shall be arranged or shielded to
reflect light away from adjoining residential districts and adjacent roads. The spillover of lighting from
luminaires onto public roads and property in residential or rural areas zoning districts shall not exceed
one-half footcandle." Rev. 1: Comment addressed.
26. [32.6.2 (d) and Chapter 14] Please submit an easement plat and application to the County that shows all new
easements proposed by the site plan. This includes all new drainage, stormwater, public access easements, etc.
The easement plat must be reviewed, approved, and recorded prior to approval of the final site plan. Detail 2 on
Sheet C-400 will need to be updated so that it states the recorded instrument number once the plat and associated
deeds are recorded. Rev. 1: Comment stands, easement plat not vet submitted for review. Once the
easement plat is approved and recorded, update the site plan as necessary. This includes revising note #2
under "Purpose of this Amendment" on Sheet C-100 so that it states that new easements were recorded
in DB pages . Update easement labels on Sheets C-400 through C-402 so that all easements are
"existing" and include the recorded instrument in the easement labels.
27. [General Comment] Prior to final site plan approval, a WPO plan must be submitted, reviewed, and approved
by the Engineering Division. Please see Engineering comments below for additional information. Rev. 1:
Comment stands. See Engineering comments.
28. [General Comment] This site lies in the Monticello Viewshed. Please contact Liz Russell at
Irussell@monticello.org to discuss design strategies that comply with the Voluntary Guidelines for Development
within Monticello's Viewshed. Rev. 1: Applicant acknowledges this comment.
29. [General Comment] The new vehicular travel way leading into the site extends into TMP 77-40M. Please see
the attached letter from that property owner. Rev. 1: Site layout has been revised and portions of this comment
are no longer applicable, see new comment #30 below.
a. There is an existing ingress/egress and temporary construction easement platted in DB 4797, pages 416-
427 which was recorded on August 1, 2016. Per the deed recorded in the instrument, all construction
work within the limits of disturbance as shown on the plat shall be completed within 4 years from
recordation. This means that unless an agreement is made between both property owners, that easement
is only valid until August 1, 2020. Rev. 1: Site layout has been revised and portions of this comment
are no longer applicable, see new comment #30 below.
b. The major amendment may not be approved by August 1, 2020. The applicant needs to work with the
owner of TMP 77-40M to come up with a solution to this issue, such as recording a new easement and
agreement regarding improvements on TMP 77-40M. The County cannot and will not assist in private
negotiations regarding this issue, as it is a private matter. Please provide documentation that a revised
agreement is being worked on between the property owners. Rev. 1: Site layout has been revised and
portions of this comment are no longer applicable, see new comment #30 below.
c. A new easement allowing grading and construction and access through TMP 77-40M will need to be
included on the easement plat mentioned in comment #24 above. Rev. 1: Site layout has been revised
and portions of this comment are no longer applicable, see new comment #30 below.
New Comments First Revision:
30. [General Comment] The site layout has been revised so that no "front road" travel way access is proposed
between TMP 77-40B and 77-40M. No further comments are necessary regarding the front road interconnection
shown on the first version of this major site plan amendment. However, there are still outstanding issues related
to the "side road" interconnection, see below:
a. Albemarle County staff were forwarded a letter from the Sixteenth Judicial Court, dated July 17, 2020,
concerning a preliminary injunction that has been imposed regarding the access easements recorded in
DB 4797, pages 416-427. Please address the following:
i. The letter states that the Court "GRANTS plaintiffs motion for temporary injunction enjoining
the defendant from developing the side road until further order of the Court." The plaintiffs are
the owners of TMP 77-40M. The revised site plan dated July 16, 2020 shows a side road being
provided through TMP 77-40M that will connect to the Ford's Road private travel way within
77-40B. Although the major amendment shows a steel gate at the end of the side road, the
County cannot approve the major amendment with any side roads until further documentation
and confirmation is provided that this legal matter has been resolved. Has further Court action
taken place allowing the owners of TMP 77-40B to construct the side road as proposed?
ii. The County is not a party to this dispute since this is a private easement between the owners of
TMP 77-40 M and 77-40B. However, it appears that there is a factual error or misunderstanding
between the plaintiffs and defendants in this matter that is reflected in the Court's letter. Under
"Likelihood of Success on the Merits" section of the letter, the Court states "The current plan
which has been approved by Albemarle County shows that it is possible to access the entirety of
the industrial park according to the testimony of Kevin O'Brien, He was the signatory for
Elemental EcoTech Inc. on the Deed of Easement. He agrees the approved plan allows for the
side road to access the entirety of the property because the roads physically interconnect."
Please be aware that none of the previously approved site plans for TMP 77-40B showed a side
access road that allowed access to the entirety of the site. The only plan approved by Albemarle
County that even showed the side access road was the original final site plan (SDP201600076).
The side road only provided vehicular access to a single building (identified as Building 12 on
that plan), and no further access was extended to other portions of the development. Please be
aware of this fact in future legal proceedings regarding the easement.
31. [General Comment] Please see the attached recommendation from the County's Historic Preservation reviewer.
Virginia Department of Historic Resources (VDHR) records indicate that archaeological resources have been
discovered on the southern portion of this property and there is potential that the site could contain significant
additional archaeological deposits, and potentially human remains. It is recommended that an archaeological
survey be completed prior to any ground disturbance south of Moore's Creek Lane to protect any buried
resources and the information they contain relative to our local history. Note that this is a County
recommendation, not a requirement. If this project requires any federal permits, however, VDHR review will be
required.
Please contact Cameron Langille at the Department of Community Development at blanig Ile@albemarle.org or 296-
5832 ext. 3432 for further information.
Comments From Other Reviewers:
Albemarle County Engineering Services (Engineer) — David James, diames@albemarle.org — Engineering review not
yet complete. Comments or approvals will be forwarded to the applicant upon receipt.
Albemarle County Building Inspections —Michael Dellinger, mdellinger(a albemarle.org —Inspections review not yet
complete. Comments or approvals will be forwarded to the applicant upon receipt.
Albemarle County Historic Preservation — Margaret Maliszewski, mmaliszewski@albemarle.org — See attached
recommendation.
Albemarle County Department of Fire Rescue — Shawn Maddox, smaddox@albemarle.org — Requested changes, see
attached.
Albemarle County Service Authority — Richard Nelson, melson@serviceauthority.org — ACSA review not yet
complete. Comments or approvals will be forwarded to the applicant upon receipt.
Virginia Department of Transportation —Max Greene, max. greene@vdot.vir ig nia.gov —No Objection, see attached.
Cameron Langille
From: Margaret Maliszewski
Sent: Thursday, September 3, 2020 5:26 PM
To: Cameron Langille
Subject: Planning Application Review for SDP202000029 Woolen Mills Industrial Park - Major.
The Review for the following application has been completed:
Application Number = SDP202000029
Reviewer= Margaret Maliszewski
Review Status = See Recommendations
Completed Date = 09/03/2020
This email was sent from County View Production.
Virginia Department of Historic Resources (VDHR) records indicate that archaeological resources have been discovered
on the southern portion of this property and there is potential that the site could contain significant additional
archaeological deposits, and potentially human remains. It is recommended that an archaeological survey be completed
prior to any ground disturbance south of Moore's Creek Lane to protect any buried resources and the information they
contain relative to our local history. Note that this is a County recommendation, not a requirement. If this project
requires any federal permits, however, VDHR review will be required. If survey will not be undertaken prior to
disturbance, great care should be taken during grading and construction. Work should stop and VDHR should be
contacted immediately if deposits are uncovered. If additional information is desired on the archaeological potential of
the site and its implications, we would be happy to provide contact information and help coordinate a site visit with
VDHR.
Review Comments for SDP202000029 Major Amendment �]
Project Name. Woolen Mills Industrial Park - Major
Date Completed: Tuesday, August 18, 2fY10 Department/DivisiordAgency: Review Status:
Reviewer: Shawn Maddox Fire Rescue Requested Changes
1. A Knox box will be required on each building. A note indicating this requirement will suffice.
2. Since the ISO fire flow cannot be provided by the applicant at this time a note should be added that each building must have
an ISO needed fire flow equal to or less than the fire flow currently available on site. No building permit should be issued until
ISO NFF is confirmed-
3- ACSA fire flow test results are pending and to be submitted prior to final approval.
Pager County of Albemarle Primed On: Og/11/2020
(Z)
COMMONWEALTH of VIRGINIA
DEPARTMENT OF TRANSPORTATION
Stephen C. Brich, P.E. 1401 East Broad Street (804) 786-2701
Commissioner Richmond, Virginia 23219 Fax: (804) 786,2940
August 27, 2020
Cameron Langille
County of Albemarle
Department of Community Development
401 McIntire Road
Charlottesville, VA 22902
Re: SDP-2020-00029 — Woolen Mills Industrial Park — Major Site Plan Amendment
Dear Mr. Langille:
The Department of Transportation, Charlottesville Residency Transportation and Land Use
Section, has reviewed the above referenced Woolen Mills Industrial Park — Major Site Plan
Amendment, as submitted by Meridian Planning Group, LLC, dated July 16, 2020 and find it to
be generally acceptable.
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 land Use Section at (434) 422-9399
for information pertaining to this process.
If you have further questions please contact Max Greene at (434) 422-9894.
Sincerely,
Adam J. Moore, P.E.
Area Land Use Engineer
Charlottesville Residency
VirginiaDOT.org
WE KEEP VIRGINIA MOVING
COMMONWEALTH OF VIRGINIA
Timothy K. Sanner
Dale B Durrer
Po Box 799
135 West Cameron Street
Louisa, Virginia 23093
Culpeper, Virginia 22701
(540) 967-5300
(540) 727-3440
(540) 967-5681 (fax)
(540) 727-7535 (fax)
Cheryl V. Higgins
Sixteenth Judicial Court
Claude V. Worrell. II
501 E. Jefferson St., 3rd Floor
PO. Box 386
Charlottesville, Virginia 22902
Stanardsville, Virginia 22973
(434) 972-4015
Albemarle Culpeper Fluvanna Goochland
(434) 985-1431
(434) 972-4071 (fax)
Greene Louisa Madison Orange Charlottesville
(434) 985-5243 (fax)
Richard E. Moore
David B Franzen
315 E High Street
July 17, 2020
P.O. Box 230
Charlottesville, Virginia 22902
Orange, Virginia 22960
(434) 970-3760
(540) 672-2433
(434) 970-3038 (fax)
(540) 672-2189 (lax)
E. Kyle McNew, Esquire
MichieHamlett
310 41h Street, N.E.
Charlottesville, Virginia 22902
William W. Tanner, Esquire
Payne & Hodous, LLP
414 E. Jefferson Street
Charlottesville, Virginia 22902
Re: H5, LLC v. Elemental EcoTech, Inc.
Case No.: CL20-1010
Dear Mr. McNew and Mr. Tanner:
This case came to be heard before the Court on Plaintiff's motion to issue a preliminary
injunction enjoining the Defendant from developing the Front Road or the Side Road contrary to
the uses permitted in the Deed of Easement. Defense counsel argues a temporary injunction
under Virginia law is considered an extraordinary remedy and cannot be granted where there is
no irreparable harm and no violation of the easement has yet to occur.
The Deed of Easement on the property of H5 LLC grants to Elemental EcoTech, Inc.: 1)
a limited non-exclusive easement along a portion of the front road and along a portion of the side
road; and 2) a non-exclusive temporary construction easement shown as "Limits of
Disturbance" on the plat attached to the deed.
Pursuant to the terms of the Deed of Easement ( Plaintiff's Exhibit 1), the easement along
the front road may only be used as a driveway to access the north end of the property of
Elemental EcoTech, Inc-; and, the easement along the side road may only be used as a driveway
to access the south end of the property of Elemental EcoTech. Neither road shall be used as
permitted access to both ends of the property.
The standard articulated in Winters v. Nat'l Res Def Council, Inc., 555 U.S. 7, 20 (2008),
and as interpreted by Real Truth about Obama, Inc. v. FEC, 575 F.3d 342 (41 i Cir. 2009)
provides a 4-part test to determine whether a temporary injunction should be awarded: (1) the
movant is likely to succeed on the merits; (2) the movant is likely to suffer irreparable harm; (3)
the balance of the equities tip in the movant's favor; and, (4) an injunction is in the public
interest.
Likelihood of Success on the Merits
The current plan which has been approved by Albemarle County shows that it is possible
to access the entirety of the industrial park according to the testimony of Kevin O'Brien, He was
the signatory for Elemental EcoTech Inc. on the Deed of Easement. He agrees the approved plan
allows for the side road to access the entirety of the property because the roads physically
interconnect.
It is a violation of the easement for the roads to grant such access but currently, the road
is in the early stages of construction. Mr. O'Brien testified they plan to prohibit the access, but
they do not know how that will be accomplished yet because the plan is progressive." Elemental
EcoTech, Inc. wants to leave the matter of how to limit the access open so they can get as much
square footage as possible for their proposed industrial park.
Where Albemarle County has approved a plan that allows Elemental EcoTech Inc. to
exceed the terms of the easement, and construction is underway with no plan limiting access
from the side or front road as required by the deed, the Court finds there is a likelihood that
plaintiffs would succeed on the merits under these circumstances.
The defense argued that when weighing the likelihood of success on the merits that the
plaintiff was required to follow the procedures in paragraph 7 in the Deed of Easement instead of
filing the injunction. The Court does not find this paragraph to be relevant on this issue. When
read in its entirety, paragraph 7 addresses disputes about the quality of the construction or
maintenance of the road. The paragraph requires if the parties cannot agree to the standard of
construction or maintenance needed, then the parties must submit the dispute to binding
arbitration. H5 LLC is not contesting the quality of the construction that has been done. It is
contesting the legal ability of Elemental EcoTech Inc. to access the property as represented on
the currently approved plans when they are in violation of the Deed of Easement.
Irreparable Harm
A party must show irreparable harm and lack of an adequate remedy at law to secure in
injunction. Preferred Sys. Solutions, Inc. v. G.P. Consulting LLC, 284 Va. 382, 401(2012).
"There is no cause for the entry of an injunction unless the alleged wrong is actually occurring
or is actually threatened or apprehended with reasonable probability."
cited in County of Chesterfield v. Windy Hill, Ltd., 263 Va. 197, 208 (2002).
An actual violation of the Deed of Easement is not the only way for the Court to find
irreparable harm. In the WTAR Radio case cited above, the Virginia Supreme Court distinguished
between a mandatory injunction and a prohibitory injunction. A mandatory injunction is granted
"to undo an existing wrongful condition." It is to be used only when it appears that if the
mandatory injunction is not granted, the wrongful condition is likely to continue. Id.
A "prohibitory injunction" is granted to "prevent the future commission of an anticipated
wrong," depending on the nature of the wrong and the likelihood that the wrong will be
committed. Id.
In this case, the Court finds while no actual violation of the Deed of Easement has yet
occurred, there is a reasonable probability of a future commission of an anticipated wrong where
the construction has commenced on a plan approved by Albemarle County that clearly violates
the terms of the Deed of Easement. H5 LLC is not required to wait and see at what point
Elemental EcoTech, Inc. will decide when and how to comply.
Further, irreparable harm does not mean that "there must be no physical possibility of
repairing the injury. What must be shown is that the injury would be a grievous or material one
and not adequately reparable in damages."
. Monetary damages would be insufficient to make the plaintiff whole again because
money cannot restore the real property of H5 LLC to its full integrity after the damage of the
construction to the land has been done.
Balance of Equities
In conjunction with the likelihood on the merits and irreparable harm, the Court must also
determine if the balance of equities weighs in favor of the movant. Winter v. NRDC, Inc. at 20.
The plaintiff seeks to enforce the same Deed of Easement that Mr. O'Brien signed and agreed to
in August of 2016. Elemental EcoTech Inc. has spent significant money on the construction of
the side road but they were aware of the constraints limiting the access of the road when they
designed their plans.
Public Interest
A Deed of Easement is a foundational aspect of real estate. For a Deed of Easement to be
of effect, it must be followed by those who agreed to it. If it is not followed, then it becomes
meaningless. Accordingly, the balance of equities weighs in favor of enforcing Deeds of
Easements.
For the reasons stated herein, the Court GRANTS plaintiffs motion for temporary
injunction enjoining the defendant from developing the side road until further order of the Court.
The Court DENIES plaintiffs motion for temporary injunction enjoining the defendant from
developing the front road. While the Albemarle County approved plans show a front road on the
property of H5 LLC, no construction of any nature has started to date, and Mr. O'Brien
represented the new plans show the front road will be built on Elemental EcoTech Inc.'s
property. These facts do not show irreparable harm that warrants a prohibitive injunction to be
awarded for the front road at this time.
The Court also questions whether construction on the front road can now begin in July of
2020. The language on page 2 paragraph (v) addresses construction within the easement or
within the Limits of Disturbance (emphasis added.) The Court interprets this language by
considering the document in its entirety. From the Court's understanding, all construction work
within the Limits of Disturbance" must be completed within four (4) years from the recordation.
This language requires all work within the easement to be completed by August of 2020 since
the deed was recorded in August of 2016. In addition, at that time, the temporary construction
easements shall expire, if they have not already expired.
The language on page 3 paragraph 5 addresses the temporary construction easement
"over areas shown as Limits of Disturbance as are immediately adiacent to the Easement
Boundaries during construction.... (emphasis added)." In the same paragraph, it states "all
temporary construction easements shall expire upon the earlier of .... (b) one (1) year following
the commencement of such construction work (or a building permit is issued for such
construction, whichever is earlier.)" Read together, the temporary construction easement would
then expire 1 year after the commencement of the work which the Court finds from the evidence
presented would be July 2020, which is one year after the construction began in July of 2019.
Accordingly, potentially, the temporary construction easement is anticipated to expire in July of
2020 and the construction within the easement will expire in August of 2020 if the Court is
understanding the Deed of Easement correctly.
i 1 4
Virginia Code § 8.01-631 requires the movant to give bond with security before the
temporary injunction shall take effect. It was difficult from the evidence presented for the Court
to determine the proper payment for the costs and damages that might be sustained by Elemental
EcoTech Inc, if it is found they are incorrectly enjoined. Counsel can either set the matter for a
short hearing to address only this issue or if there is an agreement, submit argument in a letter
memorandum and the Court will rule thereafter.
Mr. McNew, as counsel for the plaintiff, is directed to prepare and circulate an Order
consistent with the ruling in this opinion letter and submit it to the Court for entry within 21
days.
Sincerer//.
heryl V. 11' ns
Judge