HomeMy WebLinkAbout2013-5-08Tentative
BOARD OF SUPERVISORS
T E N T A T I V E
MAY 8, 2013
6:00 P.M. - AUDITORIUM
COUNTY OFFICE BUILDING
1. Call to Order.
2. Pledge of Allegiance.
3. Moment of Silence.
4. Adoption of Final Agenda.
5. Brief Announcements by Board Members.
6. Recognitions.
7. From the Public: Matters Not Listed for Public Hearing on the Agenda.
8. Consent Agenda (on next sheet).
9. Appeal: ARB-2013-10. New Hope Church Initial Plan.
PUBLIC HEARINGS:
10. PROJECT: SP-2012-00030. The Peabody School (Sign #51). PROPOSAL:
Amend Special Use Permit (SP1996-046) to expand enrollment of a private school, to increase
maximum number of children in facility from 140 to 210 (70 additional students) within Peabody
School. No residential units proposed. ZONING CATEGORY/GENERAL USAGE: PUD- Planned
Unit Development-residential (3-34 units per acre), mixed with commercial, service and industrial
uses. SECTION: 20.4.2 and 23.2.2 School of Special Instruction. COMPREHENSIVE PLAN LAND
USE/DENSITY: Industrial Service- warehousing, light industry, heavy industry, research, office
uses, regional scale research, limited production and marketing activities, supporting commercial,
lodging and conference facilities, and residential (6.01-34 units/acre). ENTRANCE CORRIDOR: No.
LOCATION: 1232 Stony Ridge Road, at the intersection of Stony Ridge Road and Southern
Parkway. TAX MAP/PARCEL: 076M1000001500. MAGISTERIAL DISTRICT: Scottsville
MAGISTERIAL DISTRICT: Rio.
11. PROJECT: ZMA-2012-00006. Church of Our Saviour. PROPOSAL: Rezone
0.487 acres from R-2 Residential, which allows residential uses at a density of two units per acre, to
C-1 Commercial which allows commercial-retail sales and service; residential by special use permit
uses at a density of 15 units/acre in order to allow an existing building or a replacement building to
meet a 50-foot setback requirement of the C-1 zoning for buildings adjacent to residential zoning
districts. No dwellings proposed. ENTRANCE CORRIDOR: Yes. AIRPORT IMPACT AREA: Yes.
PROFFERS: Yes. COMPREHENSIVE PLAN: Neighborhood Density Residential – residential (3 – 6
units/acre) supporting uses such as religious institutions, schools and other small-scale non-
residential uses and Urban Mixed Use (in areas around Centers) – commercial and retail uses that
are not accommodated in Centers in Neighborhood 2 - Places 29. LOCATION: 1165 Rio Road East
and 2412 Huntington Road. TAX MAP/PARCEL: 06100000014400 and 061000000146D0.
MAGISTERIAL DISTRICT: Rio.
12. ZTA-2013-00001. Wireless Phase 1. Amend Secs. 3.1, Definitions, and 5.1.40,
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Tentative
Personal wireless service facilities, of Chapter 18, Zoning, of the Albemarle County Code. This
ordinance would amend the regulations pertaining to personal wireless service facilities by
amending Sec. 3.1, by adding and amending definitions pertaining to personal wireless service
facilities, and Sec. 5.1.40, by allowing equipment to be collocated and replaced by right if it does not
result in a substantial change to the facility; allowing Tier II facilities to be up to 10 feet taller than the
reference tree and to be approved administratively; requiring balloon tests at the request of the
agent, rather than in all cases; eliminating the requirement that service providers submit annual
reports; codifying the times by which applications shall be acted upon; eliminating certain design
requirements for equipment located entirely within a structure; codifying the procedures and
standards for changes to facilities approved prior to the adoption of Sec. 5.1.40 on October 13,
2004; and making other minor clarifications.
13. An ordinance to amend Chapter 6, Fire Protection, Article III, Fireworks, of the
Albemarle County Code. The proposed ordinance, authorized by Virginia Code § 15.2-974, would
clarify who may be granted permits for displays of fireworks.
14. An ordinance to amend Chapter 7, Health and Safety, Article I, Noise, of the
Albemarle County Code. The proposed ordinance would clarify that fireworks displays for which a
permit is issued, pursuant to chapter 6 of the County Code, are exempt from the noise ordinance.
15. From the Board: Committee Reports and Matters Not Listed on the Agenda.
16. From the County Executive: Report on Matters Not Listed on the Agenda.
17. Adjourn.
CONSENT AGENDA
FOR APPROVAL:
8.1 Resolution of Intent to amend County Code § 18-4.12, Parking, Stacking and Loading; and
set a public hearing to consider an ordinance to amend County Code Chapter 9, Motor Vehicles and
Traffic.
NEW: CLICK HERE TO SIGN UP TO SPEAK AT PUBLIC HEARINGS ONLY
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COUNTY OF ALBEMARLE
EXECUTIVE SUMMARY
AGENDA TITLE:
Keeping of Inoperable Motor Vehicles (Chapter 18,
Zoning and Chapter 9, Motor Vehicles and Traffic)
SUBJECT/PROPOSAL/REQUEST:
Adopt a Resolution of Intent to amend County Code § 18-
4.12.3, Prohibited activities in parking, stacking and
loading areas; and set a public hearing to consider an
ordinance to amend County Code Chapter 9, Motor
Vehicles and Traffic
STAFF CONTACT(S):
Messrs. Foley, Davis, Kamptner and Major Lantz; and
Ms. McCulley and Ms. Burbage
LEGAL REVIEW: Yes
AGENDA DATE:
May 8, 2013
ACTION: INFORMATION:
CONSENT AGENDA:
ACTION: X INFORMATION:
ATTACHMENTS: Yes
REVIEWED BY:
BACKGROUND:
An inoperable vehicle is any motor vehicle, trailer or semitrailer which: (1) is not in operating condition; (2) has been
partially or totally disassembled for a period of sixty (60) days or longer by the removal of tires and wheels, the
engine, or other essential parts required for the operation of the vehicle; or (3) does not display either valid license
plates or a valid inspection decal. Certain licensed businesses, such as automobile dealers and scrap dealers, are
exempt.
The County regulates the storage of inoperable vehicles on property zoned or used for residential purposes, and on
property zoned commercial and agricultural under County Code § 9-500 (police powers) and County Code
§ 18-4.12.3 (zoning). The enabling authority under which the County currently reg ulates inoperable vehicles under its
police powers is Virginia Code § 15.2-904. Section 15.2-904 allows an unlimited number of inoperable vehicles to be
stored on private property outside of a fully enclosed building or structure provided that the vehicles are shielded or
screened from view. Section 15.2-904 also allows localities to limit the number of inoperable vehicles stored ou tside
that are shielded or screened from view by covers.
Virginia Code § 15.2-905 provides broader enabling authority to 17 localities (12 cities and 5 counties). Section 15.2-
905 enables localities to “limit the number of inoperable motor vehicles which any person may keep outside of a fully
enclosed building or structure,” even if the vehicles are shielded or screened from vi ew by covers or any other means.
In response to concerns raised by neighborhood watch groups and homeowners associations in the County’s urban
and suburban neighborhoods regarding the impacts arising from storing inoperable vehicles outside, the Board soug ht
and obtained enabling authority for Albemarle County to regulate inoperable vehicles under Virginia Code § 15.2-905.
The new enabling authority becomes effective on July 1, 2013.
STRATEGIC PLAN:
Goal 3. Encourage a diverse and vibrant local economy.
Goal 5. Ensure the health and safety of the community.
DISCUSSION:
Citizen complaints from neighborhood watch groups and homeowners associations informed staff that storing
inoperable vehicles outside, whether they are shielded or screened from view or not, is a source of conflict in urban
and suburban neighborhoods where lot sizes are small. Although an inoperable vehicle stored out side may not be
visible by someone standing at ground level, the vehicles may be nonetheless visible from nearby properties and
homes. In addition, staff has found situations where storing inoperable vehicles outside on small lots has caused
owners to park their operable vehicles on the public street because there was no room to park on-site. Sometimes
these public streets are not designed for on-street parking, creating further conflict. Lastly, because vehicles are not
subject to setback requirements under the Zoning Ordinance, inoperable vehicles can be stored very close to the lot
line and close to the abutting lot’s improvements or active outdoor areas.
The proposed ordinance amendments would implement Virginia Code § 15.2 -905 by limiting the number of inoperable
vehicles that may be kept outside of an enclosed building or structure, clarify the existing regulations, and ensure that
County Code § 9-500 and County Code § 18-4.12.3 are consistent with one another. It is staff’s opinion that these
AGENDA TITLE: Keeping of Inoperable Motor Vehicles (Chapter 18, Zoning and Chapter 9, Motor Vehicles
and Traffic)
May 8, 2013
Page 2
proposed amendments will allow the County to more effectively address the potential adverse impacts from storing
inoperable vehicle outside, particularly in neighborhoods having small lots. Violations of County Code § 9-500 are
enforced by either pursuing a criminal penalty or by the County’s removal of the vehicle after reasonable notice is
provided to the owner. Violations of County Code § 18-4.12.3 are enforced by pursuing either a civil penalty or
injunctive relief. In its development of the proposed regulations, staff will examine the effectiveness of its current
enforcement tools.
BUDGET IMPACT:
A reduction in the number of inoperable vehicles allowed would cause an increase in the number of zoning violations.
However, staff expects the impact to be of such a low level that it can be accommodated with existing staffing levels.
Implementation of a towing program would save time and therefore tax dollars spent enforcing continuing inoperable
vehicle violations.
RECOMMENDATIONS:
Staff recommends that the Board adopt the attached resolution of intent to consider amending County Code
§ 18-4.12.3, prohibiting activities in parking, stacking and loading areas, and any other related sections determined to
be necessary for amendment. Staff also recommends that the Board set the proposed ordinance amending County
Code § 9-500, which will be developed concurrently with the zoning text amendment for County Code § 18 -4.12.3, for
a public hearing to be held concurrent with the zoning text amendment.
ATTACHMENTS
A – Resolution of Intent
Return to consent agenda
Return to regular agenda
RESOLUTION OF INTENT
WHEREAS, County Code § 18-4.12.3, which is part of the Albemarle County Zoning
Ordinance, includes regulations pertaining to keeping inoperable motor vehicles (“inoperable vehicles”)
on private property; and
WHEREAS, County Code § 9-500, which is not part of the Zoning Ordinance, also includes
regulations pertaining to keeping inoperable vehicles on private property; and
WHEREAS, County Code § 9-500 and County Code § 18-4.12.3 currently establish generally
similar standards for keeping inoperable vehicles on private property, including the number of inoperable
vehicles that may be kept on private property, how they are to be shielded or screened from view, and that
shielding or screening may include vehicle covers under Virginia Code § 15.2-904; and
WHEREAS, effective July 1, 2013, Albemarle County will be among those localities enabled to
regulate inoperable vehicles under Virginia Code § 15.2-905, rather than Virginia Code § 15.2-904; and
WHEREAS, under Virginia Code § 15.2-905, localities may limit the number of inoperable
vehicles that may be stored outside of a fully enclosed building, regardless of whether they are shielded or
screened from view; and
WHEREAS, in order to promote the efficient and effective administration of the County’s
regulations, it is desirable to have County Code §§ 9-500 and 18-4.12.3 be consistent with one another
and to implement, as appropriate, the enabling authority in Virginia Code § 15.2-905 in order to address
the impacts resulting from the accumulation of inoperable vehicles, particularly those on small lots in the
County’s urban neighborhoods.
NOW, THEREFORE, BE IT RESOLVED THAT for purposes of public necessity,
convenience, general welfare and good zoning practices, the Albemarle County Board of Supervisors
hereby adopts a resolution of intent to consider amending the regulations pertaining to inoperable
vehicles in Albemarle County Code § 18-4.12.3, and to consider amending any other sections of the
Zoning Ordinance deemed to be appropriate, to achieve the purposes described herein; and
BE IT FURTHER RESOLVED THAT the Planning Commission shall hold a public hearing
on the zoning text amendment proposed pursuant to this resolution of intent, and make its
recommendations to the Board of Supervisors at the earliest possible date.
* * * * *
I, Ella W. Jordan, do hereby certify that the foregoing writing is a true, correct copy of a
Resolution duly adopted by the Board of Supervisors of Albemarle County, Virginia, by a vote of _____
to _____, as recorded below, at a regular meeting held on _________________________.
Return to exec summary
COUNTY OF ALBEMARLE
EXECUTIVE SUMMARY
AGENDA TITLE:
Appeal of Architectural Review Board Decision on New
Hope Church
SUBJECT/PROPOSAL/REQUEST:
Appeal of ARB-2013-10: New Hope Church Initial Site
Plan
STAFF CONTACT(S):
Messrs. Foley, Davis, Kamptner, Graham, and Cilimberg,
and Ms. Maliszewski
PRESENTER (S): Margaret Maliszewski
LEGAL REVIEW: Yes
AGENDA DATE:
May 8, 2013
ACTION: X INFORMATION:
CONSENT AGENDA:
ACTION: INFORMATION:
ATTACHMENTS: Yes
REVIEWED BY:
BACKGROUND:
On March 18, 2013 the Architectural Review Board (ARB) reviewed an initial site plan (ARB-2013-10) for the New Hope
Church at the intersection of Dickerson Road and Dickerson Lane. The proposal is to construct a church with associated
site improvements, including an entrance off of Dickerson Road. The New Hope Church parcel is located approximately
350 feet west of the Route 29 North entrance corridor. Therefore, only the easternmost 150 feet of the parcel, a strip at the
southeast corner of the site parallel to Dickerson Road and Route 29 North, is within the EC Overlay District. The entrance
drive to the church will be located within this area. The visibility of the site from the Route 29 North EC is limited. A map
showing the New Hope Church parcel in relation to the EC Overlay District is included as Attachment D. A photograph
taken from the Route 29 North EC and showing the site is included as Attachment E.
Under the County’s new site plan regulations, the ARB’s review of New Hope Church’s initial site plan was governed by
County Code § 18-32.4.2.2(b), which limited the ARB’s review at this stage of the site plan process for consistency with the
applicable design guidelines to the following: (i) the size, location and configuration of structures; (ii) the location and
configuration of parking areas and the location of landscaped areas; and (iii) identifying existing trees, wooded areas and
natural features that should be preserved.
After consideration of the matter, including the staff report that provided staff’s recommendations on the proposal
(Attachment A) and comments by the New Hope Church representatives and the appellant, the ARB voted to transmit its
recommendations on the initial site plan to the agent, as provided in County Code § 18-32.4.2.2(b)(3). The ARB will review
the New Hope plan again at the final site plan stage because a Certificate of Appropriateness is required prior to final site
plan approval.
STRATEGIC PLAN:
Goal 3. Encourage a diverse and vibrant local economy.
DISCUSSION:
ARB Review of the Plan
During the March 18, 2013 review, the ARB discussed the proposed entrance location, the character of the existing
trees that are proposed to be removed, the steepness of the slope along the entrance drive relative to the amount of
trees to be removed, and the degree to which a natural appearance would be achieved with re-planting slopes of
varying degrees. The ARB considered in its discussion sensitivity to the existing natural landscape and the need to
blend into the surrounding landscape, as provided by Guideline #6, and maintaining visual order within the EC, as
provided by Guideline #7 (Attachment F). The ARB concluded that no requirements were needed to satisfy the
guidelines at the initial site plan stage of review. The ARB agreed with staff’s recommendation that planting along the
entrance drive and re-planting the graded slope with a mix of trees to re-integrate the development into the
surroundings to meet Guideline #7 would be required to be shown on the final site plan stage. The ARB did not require
that the details of that planting be provided with the initial site plan (See Attachment G for the minutes of this item at
the March 18, 2013 ARB meeting).
AGENDA TITLE: Appeal of Architectural Review Board Decision on New Hope Church
May 8, 2013
Page 2
Information regarding the grounds for appeal
In a letter of appeal, the appellant identified four grounds for appeal (Attachment H). The grounds are listed below in
italics. Staff’s response to each item follows in standard text.
1. The appellant states that no requirements were imposed to satisfy the design guidelines under County Code
§ 18-30.6.4(c)(2), Size and arrangement of structures; County Code § 18-30.6.4(c)(3), Location and
configuration of parking areas and landscaping; and County Code § 18-30.6.4(c)(5), Preservation of existing
vegetation and natural features.
a. County Code § 18-30.6.4(c)(2) does not apply in this case because the proposed structures are
located outside of the EC overlay district.
b. County Code § 18-30.6.4(c)(3) applies, and the ARB determined that trees would be required along
the entrance drive and on the slope adjacent to the drive. However, sufficient area was shown on the
plan for the required planting, and the ARB did not require that the details of the planting be provided
with the initial site plan. Consequently, no requirement was necessary with the initial site plan, but the
ARB made these requirements of the final site plan.
c. County Code § 18-30.6.4(c)(5) applies; however, the ARB did not find the trees in question to be
significant, so their preservation was not made a requirement of the initial plan.
2. The appellant states that the entrance is not in keeping with the rural character of the area. There is no EC
guideline specific to entrances and rural character. The guideline that most closely relates to this statement is
Guideline #6, which reads in part: “Site development should be sensitive to the existing natural landscape and
should contribute to the creation of an organized development plan. This may be accomplished, to the extent
practical, by preserving the trees and rolling terrain typical of the area; planting new trees along streets and
pedestrian ways and choosing species that reflect native forest elements…” The ARB did not find the trees
that were proposed to be removed for the entrance drive to be significant, nor did the ARB find it practical to
retain those trees. The ARB found that planting trees along the entrance drive and adding trees to the graded
slope would be sufficient to re-integrate the site into the surrounding environment. This planting was made a
requirement of the final site plan.
3. The appellant states that alternate entrance locations were not considered. The applicant and the appellant
both informed the ARB of alternate entrance locations that had been considered or attempted, or that might be
available. The ARB discussed these alternate locations in detail, noting that shifting the location within the
relatively small area available wouldn’t change the view considerably, but that it wasn’t really possible to review
an entrance location not drawn on the plan. The ARB also noted that the goal of the ARB’s review was to
determine whether the proposal meets the guidelines, not to determine all possible options. Because no
guidelines were identified as being deficient with the entrance location that was proposed, the ARB did not
require an alternate location.
4. The appellant states that continuity of the Entrance Corridor is not being preserved by the ARB’s action. The
EC guideline that most closely relates to this statement is Guideline #7, which reads: “Landscaping should
promote visual order within the Entrance Corridor and help to integrate buildings into the existing environment of
the corridor.” The ARB did not find that the trees to be removed for the entrance drive were significant. Instead,
the ARB found that trees along the entrance drive and trees added to the graded slope would be required to
re-integrate the site into the surrounding environment. Continuity would be maintained with the planting of
those trees, and this planting was made a requirement of the final site plan.
BUDGET IMPACT:
This item has no budget impact.
RECOMMENDATIONS:
Staff recommends that the Board affirm the ARB’s decision.
ATTACHMENTS:
A – Staff memo to the ARB
B – ARB action letter
C – New Hope Initial Site Development Plan sheets 2 and 3
D – Vicinity maps showing the New Hope Church site and the Entrance Corridor
E – Photo of the New Hope Church site taken from the Entrance Corridor
F – Text of applicable Entrance Corridor Design Guidelines
G – March 18, 2013 ARB meeting minutes
H – Letter requesting appeal
Return to agenda
1
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 22902-4596
Phone (434) 296-5832 Fax (434) 972-4126
MEMORANDUM
TO: Architectural Review Board
FROM: Margaret Maliszewski, Principal Planner
RE: SDP-2013-08 and ARB-2013-10: New Hope Church Initial Plan
DATE: March 1, 2013
Background and Requirements
SDP-2013-08: New Hope Church has been submitted for review as an initial site development plan. As a
result of a Zoning Ordinance amendment that became effective on January 1, 2013, the ARB, as a
member of the Site Review Committee, is required to review and comment on this plan (32.3.3 and
32.4.2.2). The purpose of this ARB review is to determine consistency of the plan with the EC design
guidelines pertaining to 1) size and arrangement of structures, 2) location and configuration of parking
areas and landscaping, and 3) preservation of existing vegetation and natural features (30.6.4(c)(2) and (3)
and (5)). This ARB review is limited to the information provided in the initial plan under Sections 32.5.2-
5. As a result of this review, the ARB shall transmit to the agent 1) its requirements to satisfy the design
guidelines, 2) recommendations regarding the plan as it relates to the guidelines, and 3) recommended
conditions of initial plan approval, including conditions to be satisfied prior to issuance of a grading
permit.
Review and Recommendations
The subject parcel is a wooded lot located approximately 350’ west of the Route 29 Entrance Corridor. It
is located west of a partly wooded parcel that includes a billboard on the north side of the intersection of
Rt. 29 and Dickerson Lane. On the south side of Dickerson Lane is a substation of the Rappahannock
Electric Company. An overhead utility line and its cut through the trees cross the southern end of the
subject parcel.
Only the easternmost 150’ of the subject parcel, a strip at the southeast corner of the site parallel to
Dickerson Road and Route 29, is included within the Entrance Corridor Overlay District. Proposed in this
strip is a portion of the entrance drive and the grading and tree removal required to construct the drive.
None of the proposed buildings or parking areas is located within this strip.
This area has limited visibility from the Route 29 Entrance Corridor due to its distance from the EC, and
due to off-site evergreen trees that narrow the view to an approximate 70’ width across Dickerson Lane.
EC Guidelines require that trees be planted along the entrance drive (#33). The Guidelines also call for
site development that is sensitive to the existing natural landscape, accomplished through the preservation
ATTACHMENT A
2
of trees and rolling terrain typical of the region, to the extent practical (#6), and for significant natural
features, including significant trees, to be reflected in the site layout, to the extent practical (#39).
The trees proposed to be removed for the entrance drive are primarily Virginia Pine. Preserving these
trees seems impractical; no individual tree in the group appears to have any special significance and the
group of trees, likewise, does not appear to have any special significance. However, a bare slope would
not promote continuity within the corridor. Providing trees along the entrance drive and replanting the
hillside with a mix of trees would mitigate the loss of wooded area and help the site blend back into the
surrounding landscape.
The EC Guidelines state that no grading should occur within the drip line of trees designated for
preservation (#41), and areas designated for preservation should be clearly delineated and protected (#42).
Tree protection is not shown on the plan, but is required.
Staff recommends that the details of the planting be reviewed with the final site plan submittal and that
tree protection be addressed prior to issuance of a grading permit. Staff recommends that the ARB
forward the following recommendations to the agent:
Regarding requirements to satisfy the design guidelines as per 30.6.4(2), (3) and (5):
None.
Regarding recommendations on the plan as it relates to the guidelines:
None.
Regarding recommended conditions of initial site plan approval:
ARB approval of a Certificate of Appropriateness is required prior to final site plan approval. The
final site plan shall show 2½” caliper trees at 40’ on center (or the equivalent thereof), at a
minimum, along the entrance drive; and a mix of additional trees, located and spaced to achieve a
natural appearance, on the slope adjacent to the entrance drive to compensate for lost wooded
area.
Regarding conditions to be satisfied prior to issuance of a grading permit:
Provide a tree conservation plan. Show tree protection fencing along all tree lines to remain, in
particular along the entrance drive. Add the installation of tree protection fencing to the sequence
of grading and erosion control work.
ATTACHMENT A
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 22902-4596
Phone (434) 296-5832 Fax (434) 972-4126
March 19, 2013
New Hope Church
C/O Michael Henderson, Trustee and Pastor
3445 Seminole Trail, Suite 300
Charlottesville, Va 22911
RE: ARB-2013-010: New Hope Church
021000000012C1
Dear Mr. Henderson:
At its meeting on Monday, March 18, 2013, the Albemarle County Architectural Review Board, by a vote of
3:0, voted to forward the following recommendations on the above-noted Initial Site Development Plan to
the agent for the Site Review Committee:
Regarding requirements to satisfy the design guidelines as per 30.6.4(2), (3) and (5):
None.
Regarding recommendations on the plan as it relates to the guidelines:
None.
Regarding recommended conditions of initial site plan approval:
ARB approval of a Certificate of Appropriateness is required prior to final site plan approval. The
final site plan shall show 2½” caliper trees at 40’ on center (or the equivalent thereof), at a
minimum, along the entrance drive; and a mix of additional trees, located and spaced to achieve a
natural appearance, on the slope adjacent to the entrance drive to compensate for lost wooded
area.
Regarding conditions to be satisfied prior to issuance of a grading permit:
Provide a tree conservation plan. Show tree protection fencing along all tree lines to remain, in
particular along the entrance drive. Add the installation of tree protection fencing to the sequence
of grading and erosion control work.
You may submit your application for continued ARB review at your earliest convenience. Application forms,
checklists and schedules are available on-line at www.albemarle.org/ARB. Please be certain that your ARB
submittal addresses the above-noted issues.
If you have any questions concerning any of the above, please feel free to call me.
Sincerely,
Margaret Maliszewski
Principal Planner
cc: Edmond H. Blackwell, P.E., Blackwell Engineering, PLC
566 East Market Street
Harrisonburg, Va 22801
File
ATTACHMENT B
47C
65C
65C
94C
65C
94C
94C
47C
The New Hope Church parcel
(21-12C1) is not located
adjacent to the Route 29
Entrance Corridor.
Only that portion of the parcel
that falls within 500’ of the
Route 29 right-of-way is
included in the Entrance
Corridor overlay district.
View of New Hope Church site from Route 29 facing northwest.
SITE
Entrance Corridor Design Guidelines Applicable to the New Hope Church Proposal
6. Site development should be sensitive to the existing natural landscape and should contribute to
the creation of an organized development plan. This may be accomplished, to the extent
practical, by preserving the trees and rolling terrain typical of the area; planting new trees along
streets and pedestrian ways and choosing species that reflect native forest elements; insuring
that any grading will blend into the surrounding topography thereby creating a continuous
landscape; preserving, to the extent practical, existing significant river and stream valleys which
may be located on the site and integrating these features into the design of surrounding
development; and limiting the building mass and height to a scale that does not overpower the
natural settings of the site, or the Entrance Corridor.
7. The requirements of the Guidelines regarding landscaping are intended to reflect the landscaping
characteristic of many of the area’s significant historic sites which is characterized by large shade
trees and lawns. Landscaping should promote visual order within the Entrance Corridor and help to
integrate buildings into the existing environment of the corridor.
33. Landscaping along interior roads: Large trees should be planted parallel to all interior roads. Such
trees should be at least 2½” caliper and should be of a plant species common to the area. Such
trees should be located at least every 40’ on center.
39. The relationship of buildings and other structures to the Entrance Corridor street and to other
development within the corridor should be as follows:
e.If significant natural features exist on the site (including creek valleys, steep slopes, significant
trees or rock outcroppings), to the extent practical, then such natural features should be reflected in
the site layout. If the provisions of Section 32.5.6.n of the Albemarle County Zoning Ordinance
apply, then improvements required by that section should be located so as to maximize the use of
existing features in screening such improvements from Entrance Corridor streets.
ATTACHMENT F
ALBEMARLE COUNTY ARCHITECTURAL REVIEW BOARD - PAGE 1
FINAL MINUTES – March 18, 2013
ARCHITECTURAL REVIEW BOARD MINUTES
MARCH 18, 2013
The Albemarle County Architectural Review Board met on Monday, March 18, 2013, 1:00 p.m., Room
241, Second Floor, County Office Building, Charlottesville, Virginia. Those members present were
Bruce Wardell, John Quale, and Charles T. Lebo, Vice Chair. Mr. Wardell arrived at 1:12 p.m. Marcia
Joseph and Fred Missel, Chairman were absent.
Staff members present were Margaret Maliszewski, Design Planner and Sharon C. Taylor, Clerk.
CALL TO ORDER
Mr. Lebo called the meeting to order at 1:12 p.m. and established a quorum.
PUBLIC COMMENT
Mr. Lebo invited public comment.
Chuck Boldt requested that ARB-2013-10, New Hope Church be pulled from the consent agenda for
discussion.
There being no further public comment, the meeting proceeded.
STAFF PRESENTATION: Initial Site Plan Review Process
Margaret Maliszewski reviewed the initial site plan review process being implemented and what it means
for the ARB process.
Last year the ARB had some work sessions on improvements to the site plan review process. A Zoning
Ordinance amendment was the result of those discussions. The ordinance changes became effective on
January 1. Those changes do affect ARB reviews. Now, the ARB, as a member of the Site Review
Committee, is required to review and comment on Initial Site Development Plans, and Major site plan
amendments (which follow the same process).
This ARB review is limited to the information provided in the initial plan on the following items:
a) Size and arrangement of structures
b) Location and configuration of parking and landscaping
c) Preservation of existing vegetation and natural features
This means the ARB is not reviewing architectural design at this stage. The purpose of the ARB review
is still to determine consistency of the plan with the Entrance Corridor design guidelines, but just
pertaining to those three areas.
The ARB member notebooks have been updated to highlight which guidelines can be applied to initial
plan reviews. When the ARB completes the review, the comments/action will be transmitted to the
agent. Practically speaking, the comments are forwarded to the lead planner assigned to the project, just
as all the comments of all site review committee members are. The comments need to take a particular
form, which is outlined on the form in the notebook called “comment content, format and examples for
ARB review of initial site development plans and major site plan amendments”.
There are four things the ARB will need to specify:
ATTACHMENT G
ALBEMARLE COUNTY ARCHITECTURAL REVIEW BOARD - PAGE 2
FINAL MINUTES – March 18, 2013
Requirements needed to satisfy the Design Guidelines. If there are things in the plan that have to be
changed for the plan to meet the Guidelines, there are three things to do:
Specify requirements to satisfy the design guidelines. (If things have to change to meet the
guidelines) If there are requirements:
1. Identify the deficiency that makes the proposal not meet the guidelines. For example, significant trees
aren’t being saved. Or, the building isn’t parallel to the EC.
2. Site the specific guideline that hasn’t been met. In the tree save example, the relevant guidelines would
be #6 and #39e. In the parallel building example, the relevant guideline is #39b.
3. Site the specific ordinance section that applies (either 30.6.4(c)(2), or (3) or (5))
In the tree save example, the ordinance section that applies is 30.6.4(c)(5).
In the parallel building example, the ordinance section that applies is 30.6.4(c)(2).
Specify recommendations regarding the plan as it relates to the guidelines.
Identify any changes that could be made but won’t be ARB requirements. In the tree example, if the
trees have some limited value, you might say that it would be preferred to save the trees, but it isn’t
required. In the parallel building example, the topography and layout of the site might be such that a
slightly non-parallel building wouldn’t have a significant impact, so you might say that it would be
preferred to orient the building parallel, but it won’t be required.
Specify recommended conditions of plan approval.
If requirements were identified in #1, identify the specific condition that will overcome the deficiency.
In the tree example, you might say, “Move the proposed building to save the significant trees.” (You
should also specifically identify the tree save area.) In the parallel building example, you would say,
“Re-orient the building so that it is parallel to the Entrance Corridor.” A standard condition of initial
site plan approval will be the approval of a Certificate of Appropriateness prior to final site plan
approval.
Specify conditions to be satisfied prior to issuance of a grading permit.
Identify specific conditions for the grading permit. For example, provide a tree conservation plan, and
show tree protection fencing on the plan prior to issuance of a grading permit.
When this process was discussed last year it was decided that the initial plans would go on the consent
agenda. The ARB hasn’t been using a consent agenda process until today with two initial plans on the
consent agenda. Any ARB member can ask to have items pulled from the consent agenda and reviewed
more like a regular item. The ARB may also find that applicants or members of the public ask to pull a
particular item from the consent agenda.
Mr. Lebo noted the ARB would move to the Consent Agenda.
CONSENT AGENDA
a) ARB-2013-10: New Hope Church
b) ARB-2013-18: Old Trail 2B Rutherfoord Hotel
Ms. Maliszewski pointed out the ARB had already had a request from the public to take one of the items
off the consent agenda.
Motion to Pull From Consent Agenda:
Mr. Quale moved to pull item (a) ARB-2013-10: New Hope Church from the consent agenda for further
discussion and review.
ATTACHMENT G
ALBEMARLE COUNTY ARCHITECTURAL REVIEW BOARD - PAGE 3
FINAL MINUTES – March 18, 2013
Mr. Wardell seconded the motion.
The motion carried by a vote of 3:0. (Missel and Joseph absent)
Motion to Approve Consent Agenda:
Mr. Quale moved to approve the consent agenda and forward the recommendations outlined in the staff
report to the agent for the Site Review Committee, as follows:
Regarding ARB-2013-18: Old Trail 2B Rutherfoord Hotel
Regarding requirements to satisfy the design guidelines as per 30.6.4(2), (3) and (5):
None.
Regarding recommendations on the plan as it relates to the guidelines:
None.
Regarding recommended conditions of initial site plan approval:
ARB approval of a Certificate of Appropriateness is required prior to final site plan approval. The
applicant shall submit an application for a Countywide Certificate of Appropriateness for a
structure located 750’ or more from the Entrance Corridor. The applicant is advised that 1)
building mass, roof form, building materials/colors, blank walls, equipment, and landscaping will
be the focus of review of the Countywide Certificate of Appropriateness, and 2) there are
discrepancies between the plant schedule and the landscape plan that require correction.
Regarding conditions to be satisfied prior to issuance of a grading permit:
None.
Mr. Wardell seconded the motion.
The motion carried by a vote of 3:0. (Missel and Joseph absent)
DISCUSSION OF CONSENT AGENDA ITEM
Mr. Lebo noted that the ARB would discuss ARB-2013-10, New Hope Church.
a) ARB-2013-10: New Hope Church
Ms. Maliszewski presented some photos of the site and summarized the request.
This is a proposal to construct a church and related features on a wooded lot located approximately 350’
west of the Route 29 Entrance Corridor. Only the easternmost part of the parcel is included in the
Entrance Corridor Overlay District because the parcel is not adjacent to the Corridor. Proposed in that
strip is a portion of the entrance drive and the grading and the tree removal that is required to construct
that drive. None of the proposed buildings, parking or any other features proposed are within the strip
within the Entrance Corridor. The area does have limited visibility from Route 29 due to its distance
from the EC and off-site evergreen trees that narrow that view to about a 70’ width across Dickerson
Lane.
The Entrance Corridor Guidelines do require that trees be planted along that proposed entrance drive. The
Guidelines also call for development that is sensitive to the existing natural landscape accomplished
through the preservation of trees and rolling terrain as practical, and the significant natural features,
including significant trees, to be reflected in the site layout, again to the extent practical.
ATTACHMENT G
ALBEMARLE COUNTY ARCHITECTURAL REVIEW BOARD - PAGE 4
FINAL MINUTES – March 18, 2013
The trees to be removed for the entrance drive are primarily Virginia Pine. Preserving these trees does
not really seem practical. There is no individual tree in the group that appears to have any special
significance and the group of trees likewise does not appear to have significance. However, a bare slope
would not promote continuity within the Corridor. So providing trees along the entrance drive and
replanting the hillside with a mix of trees would mitigate the loss of the wooded area and help the site
blend back into the surrounding landscape. The Entrance Corridor Guidelines do state that no grading
should occur within the dripline of trees designated for preservation and the areas designated for
preservation should be clearly delineated and protected. The tree protection in that area was not shown on
the plan, but it should be.
Staff recommends that the details of that planting be reviewed with the final site plan submittal and the
tree protection be addressed prior to the issuance of the grading permit. Staff did not identify any
requirements to satisfy the guidelines at this time. The applicant understands that trees are required along
the entrance drive and they have agreed to replant that hillside.
Applicant Presentation
Ed Blackwell, with Blackwell Engineering acting as agent for the owner, pointed out the Pastor of New
Hope Church was present to answer questions. The entrance location was approved as part of the special
use permit. There were three proposed entrance locations that did not work. They feel the proposed
entrance is the best location and they are open to heavily landscape it. It will be a paved drive.
- One of the problems they have had during the past three years is finding an entrance. They
started the site plan almost three years ago and went to the Board to get a special use permit. At
that time their entrance was across from the substation. They worked with VDOT, but needed a
special exception from VDOT. The bottom line is that was not the preferred location.
- They looked at potentially coming off Piney Mountain Road and that was not acceptable to
numerous neighbors. However, that was a request the county asked them to look into. The only
other entrance location was off Dickerson Road where other churches are located up the road.
The entrance off Dickerson Road did not have sight distance and would have required removal of
an embankment. Heading to the north on Dickerson Road the embankment gets pretty steep. So
to cut an entrance in they would have to grade the bank back to get the sight distance.
- Meeting with two VDOT officials they came up with the entrance location as shown on the plan.
It is close to the intersection, but they felt they could get the sight distance and get the entrance
cut in without cutting too many trees. They have been working back and forth with VDOT,
county staff and the county engineer. They feel the proposed entrance location will work. They
will heavily landscape it as required by the county or any other additional measures they deem
appropriate. They have no problem planting back numerous trees to meet county guidelines as
requested with the spacing of 40’, size and caliper requested for whatever is needed to get the
entrance location.
Public Comment:
Chuck Boldt, resident of 5260 Piney Mountain Road, noted the proposed entrance location is where the
church would like it to be. However, VDOT also stated that is not the only location for the entrance. Ann
Mallek, the Supervisor, is not really happy about where the entrance is and the amount of woods they are
taking to do it. The process of getting the entrance is kind of quirky because VDOT says it can be
anywhere but here. However, it is the building permit that allows construction. A fair portion of that
corner is on state land and not owned by the church. Ms. Mallek and he have attempted to find a different
location for the entrance. There are some different locations including one within the stream buffer.
Unfortunately it is County policy that the way they approach it is the stream buffer is the last thing looked
ATTACHMENT G
ALBEMARLE COUNTY ARCHITECTURAL REVIEW BOARD - PAGE 5
FINAL MINUTES – March 18, 2013
at. The Code talks about stream restoration. The way this church is sited there is a sufficient amount of
fill. It does encroach. That is beyond their purview. However, there are some issues with constructing
this building. It is about 270’ to the corner. There is a fair amount of this exposed. The presumption is
they are buffered from 29, but that presumes the landowner on the other side of the street does not cut the
trees down. The trees are of small diameter. There is nothing preventing that land to be cleared and
therefore that corner becomes exposed.
Mr. Quale asked if that is his primary concern.
Mr. Boldt replied his primary concern is the rural character in what he is looking at. Driving by on Route
29 he would like to see rural woods on that corner. The proposed church is going to heavily impact that
corner and take a significant amount of trees and shrubs away. There is nothing in the recommendation
that suggests that there is any obligation to maintain the trees. The biggest issue is the idea that the
church will be seen from Route 29. Everything about this plan seems to be the minimum requirement so
they can have the maximum impact on that corner. The proposed plan does not have a lot of shielding.
He thinks a different plan might resolve this. There is a more appropriate approach. Ann Mallek
attempted that negotiation with the church. There are other problems with this plan beyond what the
ARB reviews. But many of those other problems are going to continue to have impacts on this entrance.
For example, the fire department wants a wider road going in. That means it will be a bigger expanse of
roadway. When the plan came before the Planning Commission the roadway was very small. It was sold
to the Board of Supervisors on the basis that it would be buffered from the road. That is not what is going
to happen.
Mr. Quale said he found it difficult to pass judgment on this compared to another strategy without
actually seeing the other strategy. The difficulty is that he looks at the site plan and sees pretty tight
contours the further north that you go.
Mr. Boldt pointed out with the 100’ stream buffer they don’t have the contours. It is not appropriate since
the proposal destroys the rural character. The church being 60’ to 65’ above the road makes it very
visible.
ARB DISCUSSION
The ARB discussed the proposal with staff and the applicant, noting the issues and concerns raised by
staff and the public and provided comments included in the following summary.
- It is a coin toss whether a steeper slopes takes out less trees now. A steeper slope fits in less
naturally with the existing topography, but it takes out fewer trees. That does not rise to the level
of the ARB making a recommendation that they pull the slope back at 4:1 or 5:1 and take out
more trees because in the short term that makes the building more visible, it makes the slope bare,
and it creates a scenario that they are trying to replant some natural landscape. The ARB did not
see another option for the entry given what has been taken away as the boundary of this property.
- The ARB can’t respond to a whole section that is theoretically critical slope that the engineer has
not shown. It is difficult to evaluate with no documentation.
- The fact that another option was available was not relevant and not in front of the ARB.
- In terms of location, given the information on the drawing, the ARB felt there was no other
location or strategy available. The ARB would not make a recommendation to pull the slope
back since it would make a bare slope and create a scenario of trying to replant natural landscape.
- Based on the Guidelines the ARB had no option except to approve the request due to the limited
visibility and distance of the proposed church from the Entrance Corridor.
ATTACHMENT G
ALBEMARLE COUNTY ARCHITECTURAL REVIEW BOARD - PAGE 6
FINAL MINUTES – March 18, 2013
- The applicant can work with staff to provide landscaping along the entrance drive to meet the
Guidelines for the final site plan.
Motion: Mr. Wardell moved to forward the recommendations outlined by staff to the agent for the Site
Review Committee, as follows:
Regarding requirements to satisfy the design guidelines as per 30.6.4(2), (3) and (5):
None.
Regarding recommendations on the plan as it relates to the guidelines:
None.
Regarding recommended conditions of initial site plan approval:
ARB approval of a Certificate of Appropriateness is required prior to final site plan approval. The
final site plan shall show 2½” caliper trees at 40’ on center (or the equivalent thereof), at a
minimum, along the entrance drive; and a mix of additional trees, located and spaced to achieve a
natural appearance, on the slope adjacent to the entrance drive to compensate for lost wooded
area.
Regarding conditions to be satisfied prior to issuance of a grading permit:
Provide a tree conservation plan. Show tree protection fencing along all tree lines to remain, in
particular along the entrance drive. Add the installation of tree protection fencing to the sequence
of grading and erosion control work.
Mr. Quale seconded the motion.
The motion carried by a vote of 3:0. (Missel and Joseph absent)
OTHER BUSINESS
Stonefield: Building C1-3 Rooftop Equipment
Applicant Presentation:
Chris Haines, with Edens as Planning & Development Manager; and Tom Gallagher, Vice President of
Development, were present to update the ARB on the RTU screening on building C1-3, which is the
building visible from Hydraulic just north of Regal Cinema. Mr. Haines made a presentation and
explained the process of providing some measure to ensure the RTUs were not visible on the significantly
sized roof from Hydraulic Road. He explained the analysis, conducted specifically from the highest
points in the vicinity on the Entrance Corridor, and described the screen wall heights and structural
implications. They will keep the ARB abreast of the solution in the plan before implementation.
Hyatt at Stonefield: Copper panels
The ARB revisited the subject of copper panels for the Hyatt at Stonefield. Following a brief discussion it
was the consensus of the ARB that the copper panels will be appropriate if real copper that patinas
naturally is used. The copper does not need to be pre-patinized.
BMW at Pantops: Building colors
The ARB discussed the BMW Phase 2 building colors and took the following action:
Motion: Mr. Wardell moved that the color palette of the Phase 2 BMW building shall match the color of
the Phase 1 building as previously approved by the ARB.
ATTACHMENT G
ALBEMARLE COUNTY ARCHITECTURAL REVIEW BOARD - PAGE 7
FINAL MINUTES – March 18, 2013
Mr. Quale seconded the motion.
The motion carried by a vote of 3:0. (Missel and Joseph absent)
Jarman’s Sportcycles Building: Proposed renovation
The ARB discussed the proposed renovation of the Jarman’s Sportcycles building and indicated that the
enclosure of the porch is moving in the right direction. Areas for improvement might include: the
repetition of elements (more doors and windows), the proportions of the barn doors, alternate barn door
design, and possibly other features.
Approval of Minutes:
Motion: Mr. Quale moved to approve the January 7, 2013 ARB minutes.
Mr. Wardell seconded the motion.
The motion carried by a vote of 3:0. (Missel and Joseph absent)
New Business:
Ms. Maliszewski noted the following matter coming up in April:
- The plan for the 5th Street Station was distributed for the next meeting. The ARB was requested
to drive by the site to check visibility before the next meeting.
Next ARB Meeting: Monday, April 1, 2013
ADJOURNMENT
The meeting was adjourned at 2:45 p.m. to the next ARB meeting on Monday, April 1, 2013 in Room
241, Second Floor, County Office Building at 1:00 p.m.
Fred Missel, Chair
(Recorded and transcribed by Sharon C. Taylor, Clerk to Planning Commission & Planning Boards)
ATTACHMENT G
ATTACHMENT H
ATTACHMENT H
Peabody School Special Use Permit and Variation
May 8, 2013 BOS
1
COUNTY OF ALBEMARLE
EXECUTIVE SUMMARY
AGENDA TITLE:
SP2012-030 Peabody School and Variation Request
from ZMA1996-021
SUBJECT/PROPOSAL/REQUEST:
Updated Conditions from Planning Commission and
Approval of the following sections of the Zoning
Ordinance:
1. Section 8.5.5.3 Variations From Approved
Plans, Codes, And Standards Of
Developments
STAFF CONTACT(S):
Mr. Benish, Ms. Yaniglos
LEGAL REVIEW: No
AGENDA DATE: May 8, 2013
ACTION: X INFORMATION: X
CONSENT AGENDA:
ACTION: INFORMATION:
ATTACHMENTS: Yes
REVIEWED BY:
BACKGROUND:
The purpose of this Executive Summary is twofold. 1.) To update and explain how the plan and conditions changed
during the Planning Commission meeting. 2.) Approve a variation request that must be processed in order for the plan to
be approved as shown.
1.) The Planning Commission heard this request at their March 19th, 2013 meeting. The applicant presented a plan at
the meeting that showed the proposed building to be closer than the required 30’ setback per the ordinance, to
the property line [Attachment A]. This plan was different than that provided in the staff report. The Planning
Commission then discussed this changed and made a recommendation for approval of the request and the
revised application plan that shows the proposed multipurpose building ten feet from the property line. Staff stated
at that meeting that there wasn’t a material difference between the building located 30 feet or ten feet from the
property line, and that a variation request would need to be approved for this change to occur. Condition number
one has been revised to reflect the revised date on the application plan. Revised conditions are provided in
Attachment B.
2.) As noted above, placing the building ten feet from the property line requires a variation. Peabody School is within
the Mill Creek Industrial Park and was rezoned to PUD-Commercial C1 with ZMA1996-021. This zoning uses
setback requirements in accordance with Commercial zoning, which requires that buildings be located thirty feet
from the property line. However, Section 8.5.5.3(a) allows a special exception to vary the yard requirements
shown on an application plan [Attachment A]. The applicant has provided a variation request to allow the
proposed multipurpose building be located ten feet from the property line [Attachment C]. The analysis of the
variation is discussed below.
DISCUSSION:
VARIATION FROM APPROVED PLANS, CODES, AND STANDARDS OF DEVELOPMENT
The variation request has been reviewed for Zoning and Planning aspects of the regulations. Section 8.5.5.3(a) authorizes
the Director of Planning to grant variations from the approved application plan and/ or code of development. However,
due to a recent State Supreme Court decision, these variations must now be approved by the Board of Supervisors as a
Special Exception under Chapter 18 Section 33.5.
The applicant submitted the following [Attachment C]: The requested reduction in the building setback from 30 to ten feet
will enable the Peabody School to construct a proposed building addition closer to the Southern Parkway, to preserve its
scarce recreational field space. Other areas are either dedicated open space or parking areas. Staff analysis of the
variation request is provided below:
Peabody School Special Use Permit and Variation
May 8, 2013 BOS
2
1) The variation is consistent with the goals and objectives of the comprehensive plan.
The proposal is consistent with the goals and objectives of the comprehensive plan by moving the building closer
to the street. The comprehensive plan encourages buildings to be close to the street and provide relegated
parking to the rear or side of the building, which this plan is showing.
2) The variation does not increase the approved development density or intensity of development.
Density is not increased.
3) The variation does not adversely affect the timing and phasing of development of any other development
in the zoning district.
The timing and phasing of the development is unaffected.
4) The variation does not require a special use permit.
A special use permit is not required for this variation. The special use permit is for the additional students for the
school.
5) The variation is in general accord with the purpose and intent of the approved rezoning application.
This variation is in general accord with the approved rezoning application while also providing relegated parking to
the side of the proposed multi-purpose building. Also, the building will not be any closer to the street than what is
allowable per the ordinance for parking.
RECOMMENDATION:
1. Staff recommends approval of the special use permit with the revised application plan and conditions as
shown in the attachments.
2. Staff recommends approval of the variation request for the building setback.
ATTACHMENTS:
A. Revised application plan.
B. Revised conditions of approval for SP2012-030
C. Applicant variation request.
View PC actions letter and attachments
Return to agenda
Attachment B:
SP-2012-00030 The Peabody School - Recommended Conditions of Approval
1. Development of the use shall be in general accord with the conceptual plan titled “Peabody
School Application Plan for Special Use Permit,” prepared by Collins Engineering, with the
latest revision date of March 18, 2013, as determined by the Director of Planning and the
Zoning Administrator. To be in general accord with the Conceptual Plan, development shall
reflect the following major elements within the development essential to the design of the
development:
• Location of parking areas and turn arounds
• Open Space
• Landscape Buffer
• Location of multi-purpose building addition
as shown on the plan.
Minor modifications to the plan which do not conflict with the elements above may be made to
ensure compliance with the Zoning Ordinance.
2. The maximum enrollment shall not exceed 210 children.
3. Landscape buffer adjacent to the Southern Parkway shall include screening in accordance
with Section 32.7.9 of the Zoning Ordinance for the parking, turn around, and the multi-
purpose building.
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 22902-4596
Phone (434) 296-5832 Fax (434) 972-4126 April 10, 2013
Valerie Long, Williams Mullen
321 E. Main St., Suite 400
Charlottesville, Va. 22902
RE: SP201200030 - The Peabody School
TAX MAP PARCEL: 076M1000001500
Dear Ms. Long:
The Albemarle County Planning Commission, at its meeting on March 19, 2013, by a vote of 7:0,
recommended approval of the above-noted petition to the Board of Supervisors.
Please note that this approval is subject to the following conditions:
1. Development of the use shall be in general accord with the conceptual plan titled “Peabody School
Application Plan for Special Use Permit,” prepared by Collins Engineering, with the latest revision date
of March, 7, 2013 (or as amended between now and the Board of Supervisors meeting), as
determined by the Director of Planning and the Zoning Administrator. To be in general accord with the
Conceptual Plan, development shall reflect the following major elements within the development
essential to the design of the development:
• Location of parking areas and turn arounds
• Open Space
• Landscape Buffer
• Location of multi-purpose building addition as shown on the plan.
Minor modifications to the plan which do not conflict with the elements above may be made to ensure
compliance with the Zoning Ordinance.
2. The maximum enrollment shall not exceed 210 children.
3. Landscape buffer adjacent to the Southern Parkway shall include screening in accordance with Section
32.7.9 of the Zoning Ordinance for the parking, turn around, and the multi-purpose building.
Note: As part of the motion the Commission recommended the school can be adjusted to be no closer than
10 feet to the property line.
Please be advised that the Albemarle County Board of Supervisors will review this petition and receive
public comment at their meeting on May 8, 2013.
View staff report and attachments
View PC minutes
Return to exec summary
If you should have any questions or comments regarding the above noted action, please do not hesitate to
contact me at (434) 296-5832.
Sincerely,
Megan Yaniglos
Senior Planner
Planning Division
Cc: The Peabody School
1232 Stoney Ridge Rd
Charlottesville, VA. 22902
SP-2012-030 – Peabody School
Planning Commission: March 19, 2013
ALBEMARLE COUNTY PLANNING
STAFF REPORT SUMMARY
Proposal: SP 2012-30 Peabody School Staff: Megan Yaniglos
Planning Commission Public Hearing:
March 19, 2013
Board of Supervisors Hearing:
TBD
Owner: Peabody School Applicant: Valerie Long, Williams Mullen
Acreage: 5.09 acres Special Use Permit for:
Request for expansion of private school facility
in accordance with Sections 20.4.2 and 23.2.2
of the Zoning ordinance
TMP: 076M1000001500
Location: 1232 Stoney Ridge Road, at the
intersection of Stoney Ridge Road and
Southern Parkway
By-right use: PUD- Planned Unit
Development-residential (3-34 units per acre),
mixed with commercial, service and industrial
uses. By special use permit, this facility may
have up to 140 students.
Magisterial District: Scottsville Conditions: Yes EC: No
Proposal: Request for special use permit
amendment to increase maximum number of
students from 140 to 210 in and existing
private school.
Requested # of Dwelling Units: 0
DA: X RA: Comp. Plan Designation:
Industrial Service- warehousing, light industry,
heavy industry, research, office uses, regional
scale research, limited production and
marketing activities, supporting commercial,
lodging and conference facilities, and
residential (6.01-34 units/acre).
Character of Property: Peabody School
currently consists of a school building,
parking, and playground area. There is also a
large open space buffer in the west side of the
property.
Use of Surrounding Properties: single-family
residential and industrial. There is also an
adjacent daycare facility across the street.
Factors Favorable:
1. The proposal provides more
educational opportunities for children
in the community.
2. No detrimental impacts to adjoining
properties are anticipated.
Factors Unfavorable:
1. None identified
RECOMMENDATION: Staff recommends approval of SP201200030, Peabody School with
conditions.
SP-2012-030 – Peabody School
Planning Commission: March 19, 2013
STAFF PERSON: Megan Yaniglos
PLANNING COMMISSION: March 19, 2013
BOARD OF SUPERVISORS: TBD
SP201200030: Peabody School
PETITION:
PROJECT: SP201200030 Peabody School
PROPOSED: Amend Special Use Permit (SP1996-046) to expand enrollment of a private school, to
increase maximum number of children in facility from 140 to 210 (70 additional students) within
Peabody School. No residential units proposed.
ZONING CATEGORY/GENERAL USAGE: PUD- Planned Unit Development-residential (3-34 units per
acre), mixed with commercial, service and industrial uses.
SECTION: 20.4.2 and 23.2.2 School of Special Instruction
COMPREHENSIVE PLAN LAND USE/DENSITY: Industrial Service- warehousing, light industry, heavy
industry, research, office uses, regional scale research, limited production and marketing activities,
supporting commercial, lodging and conference facilities, and residential (6.01-34 units/acre)
ENTRANCE CORRIDOR: No
LOCATION: 1232 Stoney Ridge Road, at the intersection of Stoney Ridge Road and Southern Parkway
TAX MAP/PARCEL: 076M1000001500
MAGISTERIAL DISTRICT: Scottsville
CHARACTER OF SURROUNDING AREA:
The subject property is located at the corner of the Southern Parkway and Stoney Ridge Road
[Attachment A]. Most of Stoney Ridge Road contains industrial uses, and there is another childcare
center, Bright Beginnings. Across from the school, along Southern Parkway, is the Mill Creek
neighborhood. Behind the school, to the west of the site, is Fox Chase neighborhood, which contains
single family units, and a clubhouse.
PLANNING AND ZONING HISTORY:
ZMA1985-029- Mill Creek Industrial Land Trust- Approved rezoning for PUD Planned Unit
Development.
ZMA1996-021- Mill Creek Industrial Land Trust- Approved rezoning to amend the development plan for
Mill Creek PUD to change the property from Industrial to Commercial to allow a private school.
SP1996-046 Mill Creek Industrial Land Trust/Peabody School- Approved special use permit to establish
a private school with 140 students.
DETAILS OF THE PROPOSAL:
In response to the school’s recent and projected growth, the applicant has requested an increase in
students from 140 to 210 [Attachment C]. A multi-purpose building and additional parking are proposed
with the request. [Attachment B].
The attached plan notes the vacation of a 60 foot undisturbed buffer. This buffer was “voluntarily”
established by prior reviews of the property and is not a requirement of the zoning or prior legislative
approval. Staff does not find any significant purpose for the 60 foot buffer in this location. The proposed
10 foot landscape buffer will adequately address potential impacts from the proposed multi-purpose
building and parking lot.
CONFORMITY WITH THE COMPREHENSIVE PLAN:
The Comprehensive Plan designates this property as Industrial Service which allows for warehousing,
light industry, heavy industry, research, office uses, regional scale research, limited production and
SP-2012-030 – Peabody School
Planning Commission: March 19, 2013
marketing activities, supporting commercial, lodging and conference facilities, and residential (6.01-34
units/acre). This property was previously reviewed and approved under a prior rezoning and special
use permit to allow this use on the property.
STAFF COMMENT:
31.2.4.1: Special Use Permits provided for in this ordinance may be issued upon a finding by
the Board of Supervisors that such use will not be of substantial detriment to adjacent property,
In evaluating whether a use will be a detriment to adjacent properties, the intensity of the use and other
impacts are evaluated. Comments and concerns of neighboring properties are also considered. One
measure of intensity of the use in relation to nearby and adjoining properties is the traffic impacts of the
proposal. A closely related measure of intensity is scale of the use in relation to the neighborhood the
use is located.
Stoney Ridge Road contains mainly industrial uses, as well as a daycare across the street from the
school. Both VDOT and engineering determined that with the anticipated traffic volume occurring during
staggered times, a traffic study was not needed. They further found that the traffic impacts of the
additional students would be minimal.
The proposed additional students will require more parking for parents and staff. Currently, there is
insufficient parking on site during peak drop off and pick up times. The applicant provided a parking
analysis for current and future needs that was reviewed and approved by the Zoning Administrator
[Attachment D]. The applicant has moved some staff parking off site through parking agreements with
adjacent owners to alleviate the current condition [Attachment E]. To address the lack of parking long
term, the application plan added an additional parking area and turn around. The new parking lot will
accommodate the additional students requested.
The school is also proposing to add a multipurpose building to the property. This building does not
affect the request for additional students, but is located along Southern Parkway, across from single
family residential area. The new parking lot and turnaround is also located in this area. During site plan
review, a buffer will be required to screen the parking to meet screening and landscape requirements of
the zoning ordinance, however Staff is also recommending that the applicant provide additional
screening for the multi-purpose building to buffer it from the adjacent residential across from the
Southern Parkway.
With the additional landscaping for the building, Staff finds that the use will not be a detriment to
adjacent property.
that the character of the district will not be changed thereby,
Peabody School has been operating at this location since 1997. The additional students will not change
the character of the district.
that such use will be in harmony with the purpose and intent of this ordinance,
The purpose and intent of the PUD is to provide for a mixture of uses and housing types. Commercial
uses are intended to be limited to a scale appropriate to the support of the residential uses within the
PUD. A special use permit was approved in 1996 for this property to contain a private school use. The
additional students being requested does not change the use, and therefore, this use is in harmony with
the purpose and intent of the district. The increase in enrollment will not significantly change the impact
of the use (with the recommended conditions) or its consistency with the purpose and intent of the
SP-2012-030 – Peabody School
Planning Commission: March 19, 2013
ordinance.
with uses permitted by right in the district,
The additional students will not restrict the current uses or other by-right uses available at this property
or adjacent properties.
with the additional regulations provided in section 5.0 of this ordinance,
No supplementary regulations apply for this use.
and with the public health, safety and general welfare.
The proposed increase in students will allow families in the community an opportunity for a
private school education for academically advanced children of all backgrounds. This can be
seen as promoting the public health safety and general welfare of the community.
SUMMARY:
Staff finds the following factors favorable to this request:
1. The proposal provides more educational opportunities for children in the community.
2. No detrimental impacts to adjoining properties are anticipated.
Staff finds the following factor(s) unfavorable to this request: None identified
RECOMMENDED ACTION:
Staff recommends approval of SP-2012-030, Peabody School with the following conditions:
1. Development of the use shall be in general accord with the conceptual plan titled “Peabody
School Application Plan for Special Use Permit,” prepared by Collins Engineering, with the latest
revision date of December 17, 2012, as determined by the Director of Planning and the Zoning
Administrator. To be in general accord with the Conceptual Plan, development shall reflect the
following major elements within the development essential to the design of the development:
• Location of parking areas and turn arounds
• Open Space
• Landscape Buffer
• Location of multi-purpose building addition
as shown on the plan.
Minor modifications to the plan which do not conflict with the elements above may be made to
ensure compliance with the Zoning Ordinance.
2. The maximum enrollment shall not exceed 210 children.
3. Landscape buffer adjacent to the Southern Parkway shall include screening in accordance with
Section 32.7.9 of the Zoning Ordinance for the parking, turn around, and the multi-purpose
building.
SP-2012-030 – Peabody School
Planning Commission: March 19, 2013
MOTION:
A. Should the Planning Commission choose to recommend approval of this special use permit:
Move to recommend approval of SP-2012-030, Peabody School, with conditions as stated in the
staff report.
B. Should the Planning Commission choose to recommend denial of this special use permit:
Move to recommend denial of SP-2012-030, Peabody School. Should a commissioner
motion to recommend denial, he or she should state the reason(s) for recommending denial.
ATTACHMENTS
Attachment A – Vicinity Map
Attachment B – Conceptual Plan, dated October 15.2012 and amended March 7, 2013
Attachment C – Applicant Justification
Attachment D – Applicant Parking Analysis
Attachment E – Offsite Parking Agreements
Return to PC actions letter
Points of Interest
AIRPORT
COLLEGE/UNIVERSITY
COMMUNITY
FIRE/RESCUE STATION
GOVERNMENT
HOSPITAL
LIBRARY
POLICE STATION
POST OFFICE
RECREATION/TOURISM
SCHOOL
Parcel Info
Parcels
SP2012-030 Peabody School
Map is for Display Purposes Only • Aerial Imagery from the Commonwealth of Virginia and Other Sources March 11, 2013
GIS-Web
Geographic Data Services
www.albemarle.org
(434) 296-5832
Legend
(Note: Some items on map may not appear in legend)
162 ft
ATTACHMENT A
ATTACHMENT A
ATTACHMENT B
ATTACHMENT C
ATTACHMENT C
ATTACHMENT C
ATTACHMENT D
ATTACHMENT D
ATTACHMENT D
ATTACHMENT D
ATTACHMENT D
ATTACHMENT E
ATTACHMENT E
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Albemarle County Planning Commission
March 19, 2013
The Albemarle County Planning Commission held a public hearing on Tuesday, March 19, 2013, at 6:00
p.m., at the County Office Building, Auditorium, Second Floor, 401 McIntire Road, Charlottesville,
Virginia.
Members attending were Ed Smith, Bruce Dotson, Don Franco, Richard Randolph, Thomas Loach,
Russell (Mac) Lafferty, Vice Chairman, and Calvin Morris, Chairman. Julia Monteith, AICP, Senior Land
Use Planner for the University of Virginia was absent.
Other officials present were Claudette Grant, Senior Planner; Megan Yaniglos, Senior Planner; Wayne
Cilimberg, Director of Planning; Sharon Taylor, Clerk to Planning Commission; and Greg Kamptner,
Deputy County Attorney.
Call to Order and Establish Quorum:
Mr. Morris, Chair, called the regular meeting to order at 6:00 p.m. and established a quorum.
Public Hearing Items:
SP-2012-00030 The Peabody School
PROPOSED: Amend Special Use Permit (SP1996-046) to expand enrollment of a private school, to
increase maximum number of children in facility from 140 to 210 (70 additional students) within Peabody
School. No residential units proposed.
ZONING CATEGORY/GENERAL USAGE: PUD- Planned Unit Development-residential (3-34 units
per acre), mixed with commercial, service and industrial uses.
SECTION: 20.4.2 and 23.2.2 School of Special Instruction
COMPREHENSIVE PLAN LAND USE/DENSITY: Industrial Service- warehousing, light industry,
heavy industry, research, office uses, regional scale research, limited production and marketing activities,
supporting commercial, lodging and conference facilities, and residential (6.01-34 units/acre)
ENTRANCE CORRIDOR: No
LOCATION: 1232 Stony Ridge Road, at the intersection of Stony Ridge Road and Southern Parkway
TAX MAP/PARCEL: 076M1000001500
MAGISTERIAL DISTRICT: Scottsville
(Megan Yaniglos)
Ms. Yaniglos presented a PowerPoint presentation and summarized the staff report.
Proposal:
This is a request for a special use permit amendment to increase the maximum number of students
from 140 to 210 within the existing Peabody School
A multi-purpose building and additional parking are proposed with the request.
Background: The property is located on the corner of the Southern Parkway and Stony Ridge Road next
to Fox Croft to the west. Bright Beginnings and Fed X are along Stony Ridge Road. It is north of Mill
Creek Subdivision.
Staff reviewed existing site photographs and the proposal. Concerns about parking on the site were
found. The plan was updated to add an additional parking lot along with the multi-purpose building. Staff
has found that adequate to resolve the parking concerns. VDOT and engineering staff reviewed the traffic
along Stony Ridge Road and the Southern Parkway and found that no parking analysis was needed.
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The photographs show the location of the proposed addition just past the red barn. There is a large
vegetative buffer with some currently within the right-of-way and on the Peabody’s property. Staff
recommends screening to be provided along the parking lot, which is required by the ordinance. It would
also screen the proposed multi-purpose building.
Staff’s Recommendation:
Favorable Factors:
1. The proposal provides more educational opportunities for children in the community.
2. No detrimental impacts to adjoining properties are anticipated.
Staff did not hear from any adjacent owners with big concerns. However, staff did hear from Bright
Beginnings about the students and parking concerns they had along Stony Ridge Road. However, they
seemed to be resolved with this plan.
The applicant contacted staff and pointed out they will be showing a plan that moves the multi-purpose
building closer. The applicant will request a reduction in setback, which can be a variation that is
approved by the Board. Staff thinks conceptually this will work, but has not analyzed it because the plan
was just received this afternoon. Staff wanted to make the Commission aware of it. If the Commission is
comfortable recommending approval with the change and the building, staff is recommending approval.
One error in the conditions listed in the staff report was the revision date should have been listed as
March 7, 2013, which may also change between now and the Board meeting depending on the revised
plan that is anticipated to be submitted. Staff recommends approval of SP-2012-030 Peabody School with
the conditions as amended.
Mr. Morris invited questions for staff. There being no questions for staff, Mr. Morris opened the public
hearing and invited the applicant to address the Commission.
Mr. Morris opened public hearing for applicant and public comment. He invited the applicant to address
the Commission
Valerie Long, with the law firm of Williams Mullen, represented the applicant, Peabody School. There
are a number of representatives of the school present tonight that she will introduce who will talk a little
bit more about the specifics and the building concept plan. First is Renee Henslee, Head of Peabody
School. Diane Crameyer and Charles Lunsford, parent volunteers, have been working very closely with
the applicant over the last year preparing the application and working through some of the issues they
have been discussing. She presented a brief PowerPoint presentation, which would serve as a visual aid.
Renee Hensley, Head of School, provided more details on Peabody School, as follows:
Peabody School was basically founded to serve the often overlooked needs of academically
advanced children. They do this through different curriculum and maintaining small class sizes.
Currently, they serve more than 155 students in pre-K through 8th grade. They were founded
in1994 and moved to the current Stony Ridge location in 1997. Since that time they have added a
middle school wing, a lower school wing, and most recently they added a pre-K program in 2008.
They are here tonight because they would like to add a multi-purpose space. In her opinion, this
space is desperately needed. When they want a whole school gathering they either meet in the
foyer or outside in the parking lot, neither of which is ideal. Our students are what make Peabody
School so special. Basically these are students that often will struggle when in traditional
educational settings. When students struggle this will often lead to them shutting down or it
could lead to social and or an emotional issues.
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Research shows that 25 percent of academically advanced children, particularly those of lower
social economic status, wash out of main street education, Peabody School was founded to
prevent that and to provide a foundation for these children to have a successful future beyond
Peabody School. Our make-up of our school is 33 percent of our families receive financial aid.
They believe strongly in economic diversity and think it makes sense that they are. Many of our
parents, whether they are paying full tuition or reduced tuition, struggle to make ends meet. If
you were to ask them she thinks many of them would say for them Peabody School is not a
choice but rather it is a necessity. We serve Charlot tesville, Albemarle, and the surrounding
areas. In her opinion, Peabody School is a local solution to a national problem.
Diane Crameyer pointed out on the screen is their current multi-purpose space. It is a trailer and
approximately 15 years old. It is about 20’ X 50’. Anything that they could imagine that would
happen at a school that requires a gathering, whether that is a play, a musical performance, an athletic
event, graduation, or speakers, has to occur in this space. The only other options are to be outside at
the mercy of the weather; or they could be in a hallway which is actually a smaller space; or they
have to transport the children off site to a rental location. The slides show their vision to where they
want to be. The architect’s rendering shows their multiple story gymnasium and multi-purpose
space, which is running flush with the rest of the school. The picture shows the approximate location
of the space. They currently have an outdoor basket board space, which they basically would be
building on top of that. This is their vision and what they hope to have for their students. She
thanked the Commission for giving them the opportunity to present their request tonight. If there
were no questions, she would pass it over to Ms. Long.
Ms. Long noted the proposed plan is very similar to the one in their packet. As Ms. Yaniglos indicated
they have gone a little bit back and forth on the building location. She explained the location of the
purposed building addition and the entrance. The proposal is to add the new parking area with 29 spaces
and also the new multi-purpose addition. There is a playground and existing soccer field. The goal is to
preserve as much of the soccer field as possible. There is a large area of the parcel that is off limits to
development. It is the shaded area, which is designated open space. There are utility easements, steep
slopes that basically run down to a creek that roughly corresponds with the property line. Therefore, this
entire area is off limits to development. They are very limited in the areas where they can build their
addition. That is why this area works well. She explained the history of the site and the specifics of the
proposal, as follows.
Prior history indicates that long before the school was envisioned to locate here this was part of
the industrial park. There was a 60’ vegetated undisturbed buffer in this area. They spent a lot of
time researching the purpose of that buffer and why it was there. It was ultimately determin ed
that it was voluntarily put on the subdivision plat by the industrial park developer because the
residential subdivisions in this area as best they could tell was to buffer the future industrial park
from the residential developments nearby. Then the school decided to locate here. It worked
very well and they built as close as they could to that buffer line. But now that they have their
addition to build they originally came forward and asked for the ability to encroach into that
buffer by about 40’ and reduce it 20’ so they could preserve as much of this area for the soccer
field as possible.
As the school representatives have worked with their architects, engineers, and others on the
design of the addition they realized that it would be very helpfu l to have this be a detached
building. It opened up the area a little bit for some court yard space. It just made it a better
space. Frankly, it was easier for them to build the building while school was in session when it is
not attached to the existing school building. That caused us to look at our plan a little bit more to
see if they had a little bit more flexibility in terms of the location of the building relative to the
property lines.
Continuing, Ms. Long pointed out that there was a very wide VDOT right-of-way here. They are
maintaining a 10’ landscape buffer. She noted the original 60’ buffer. They don’t know exactly
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where the building will be in relation to the property line. It will be somewhere between 10’ and
20’. The engineer working on the site plan is still looking at that. There are some easements
along the way. They may or may not be able to encroach into that utility easement. But, they
think about 20’, which is right now shown as 15’ back, will be pretty close. They would like the
flexibility to have the Commission, if they are inclined to support the plan tonight, to bless that
concept. She has hard copies if the Commission would like to see them. However, the plans are
essentially what they have in their packet, which is just 15’ closer to the property line. That is the
main issue and really the only area of confusion.
The second slide was the same slide showing the building setback 30’ from the property line. It
encroaches into the green space. This is the plan they have in their packet. It may not look like a
big difference, but basically the one corner of the building encroaches into their current soccer
field. It has to be a certain distance from the soccer field to make it work. The revised plan
moves it such that it is 15’ from the property line and maintains the green space just enough for
the soccer field. It is still going to be very tight back there, but they will have enough room.
The Commission has already heard a little bit about the school’s space needs and how they have
their Physical Education classes in the trailers and they want to have a better gym. Some of the
things they are proposing as part of the building components includes community gathering
places and additional classroom space to support the additional enrollment, They discussed a
little bit that they added the additional parking spaces to address the need for additional parking
that would be generated by the increased enrollment. Safety is always a concern. The goal, if
possible, is to commence construction early in the summer so that as much as possible can begin
while the students are not there.
Mr. Morris invited questions for applicant.
Mr. Randolph asked what was on the site prior to the school.
Ms. Long replied that it was vacant. The site was platted as part of the industrial park in roughly the late
‘80’s or early ‘90’s. There may have been something there long before that, but essentially the industrial
park was created with some of the first buildings in the park built. This was added in 1997.
Mr. Randolph asked if the existing berm preceded the arrival of the school.
Ms. Long replied so long as she knows. However, she could not speak specifically about the berm.
Mr. Randolph asked what the approximate angle is of the Southern Parkway as it descends in front of the
school. It has to be at least 12 percent, and sections of it look like at least 15 percent. He was a cyclist
and asked if that seemed to be a reasonable estimate.
Ms. Long asked if he meant the grade of the road.
Mr. Randolph replied yes, the elevation or the grade of the road.
Ms. Long replied that she did not know. She asked to look at staff’s aerial photo shown at the very
beginning. That was really helpful. She noted that she did not know the grade o f that. It is a VDOT
public road. So she would expect that it would conform to their standards with regard to grade, which she
was not an expert on. She suggested that maybe one of the planners could help. She believed that
typically they don’t want their public roads to exceed 10 percent.
Mr. Cilimberg pointed out it depends on the classification of the road. However, he did not think it would
be as much as 12 to 15 percent. That is really steep and not likely in this case.
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Mr. Smith pointed out what he thought Mr. Randolph was talking about is from the intersection going up
to Avon Road and not down by the school.
Mr. Randolph agreed he was talking about the intersection up to Avon Road Extended.
Ms. Long noted as you turn off of Avon onto Southern Parkway it certainly does go downhill.
Mr. Randolph felt it has to be somewhere around 15 percent in there.
Mr. Cilimberg noted it was probably more on the order of 8 percent.
Mr. Franco pointed out basically there is going to be a landing area as you turn on to Avon Street. So it is
going to be 4 percent or flatter for about the first 40’. He believed that the maximum slope or grade on
the road would be 10 percent. However, 12 percent and 16 percent is allowed on private roads, with
exceptions. He was not really aware of any exceptions to the public roads that have been made to allow it
to be steeper in those areas.
Mr. Cilimberg pointed out those kinds of grades are mountainous terrain standards, which they don’t
typically have here. They are an exception.
Mr. Franco said they have been allowed in some places. But, it is very exceptional that it allowed.
Mr. Randolph said if it is 10 percent he was feeling a little bit more confident. As he expressed last week,
his concern was that if there was a runaway truck and the brakes failed that it would put students and staff
in danger with this gym facility located as it is much closer to the road. He would certainly feel that
anxiety on his part is perhaps somewhat alleviated. He would feel a little more comfortable, however, if
there was a bit more of a wrap of the trees that are shown here in the plan from Collins Engineering for
the special use permit. He thinks the likelihood for a vehicle with the brakes failing and coming down
that grade posing the threat is very low, but since some of the berm would be coming out as discussed he
would feel more comfortable if the tree design wrapped a little bit more to that side of the building. It is
just a suggestion.
Ms. Long said she did not know if they have gotten that far yet. She would expect there would be some
landscaping proposed there as part of the site plan perhaps under the site plan regulations. But, certainly
they can look into that and factor that suggestion into the site pla n design, which is underway right now.
It is proceeding on a consecutive track with the special use permit. So they certainly appreciate that input.
Certainly the school shares your concerns for the safety of the children. That is partly why, as she
mentioned, they want to commence construction during the summer and get as much done during the
summer time. That is also part of why they decided to have this building be detached from the existing
building so there is minimized risk with any conflicts with the students. There is some of that vegetation
existing in the VDOT right-of-way as Ms. Yaniglos mentioned, that is still quite wide. So they are only
encroaching in the buffer on the property side of the line. She is not sure exactly how much of the
existing vegetation is in the right-of-way, but it should help as well.
Mr. Randolph said if they were dealing with wet conditions or during the summer the earth itself would
slow a vehicle down. His concern was that they would have wintery conditions a nd a vehicle could lose
its brakes, go out of control and just continue to slide right across. So the more there is a natural buffer
there to prevent that and any potential injury to students, faculty and staff is all to the better.
There being no further questions for the applicant, Mr. Morris invited public comment.
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Lisa Martin said her family has been a part of the Peabody community for the past 9 years and counting
with two boys attending Peabody School. It would be hard to overstate how much Peabody means to
them and how much impact it has had on their family. It has helped by teaching them how to learn,
setting up our children for a lifetime of learning, loving to learn, and really loving school. Sometimes it is
hard to get them to stay home for a sick day since they love to go to school. Of course, the beauty and
uniqueness of Peabody School is driven and manifested everyday by the teachers, their creativity and
tenacity, experience and wisdom, which makes it just an incredible place. They feel so lucky to have
found it. They are really sad that they have to go off to high school at some point.
Ms. Martin continued that there have been many times around the dinner table that they have talked about
the kind of opportunities that an expansion like this could provide. Her youngest is a lover of drama and
he is has always dreamt of having the play where everyone could come see it at one time and bring in
people from the outside. Her oldest has been part of the student government and they have always talked
about inviting other middle schools when it is time to have a school dance. However, they have never
had the capacity or ability of a facility to be able to do that. They both play on the basketball team. There
really is a home court advantage that would be a joy to have. She herself has coordinated large all school
events where they can make it work throughout the halls. However, having a large place to meet would be
so wonderful in terms of interaction and community. Then they are starting to expand the events where
they invite the public in a lot of whom have gifted children and questions that the knowledge base in the
school can really address. Therefore, she feels that an addition like this would help our students and
parents connect to each other and to the larger community in a way that they have not really been able to
before. So it makes them larger in square footage, but also in spirit.
Hunter McCardle, parent at Peabody School, said he was a landscape architect. He would speak to Mr.
Randolph’s point by noting he was on the building committee as well and has been working closely with
Scott Collins on the landscaping. He assured them that the grade separation is such that it would be
almost nearly impossible for a rig to get into the school facility site along with the existing trees that will
remain. However, they could not underestimate his point in maintaining the safety for the children. He
thanked him for the comment noting that they certainly will take it into consideration. However, to the
board in general they would definitely appreciate the flexibility to be able to maneuver this building
closer to the property line. As they can see through Ms. Long’s presentation they are very hemmed in and
could use as much green space for the children to explore and play soccer and to utilize the site to its
fullest potential. He thanked the Commission for their consideration this evening.
Lisa Colton, parent at Peabody School with a kindergartener and third grader, said they have been a part
of the Peabody community for a few years. One of the t hings that she appreciates most about this school
is its deep sense of values and community. Very intentionally in the curriculum the children are engaging
with one another and have a shared sense of responsibility as an extended family. She thinks it is really a
powerful value and experience for young children to learn that also extends to the parent community.
Many of her co-parents are here tonight. She really feels like the Peabody community is an extended
family in a very powerful way. These values also extend outside of those who are part of Peabody
School. The children are very engaged in society learning about our community, doing community
service and getting outside of the building to connect throughout Charlottesville and Albemarle. She
thinks this home base in the multi-purpose building proposed is not only functional space. It is about
values and an extended family feeling giving these children a very powerful foundation that when they
grow up they might be involved in community service in representing their community in the way that
many of the Commissioners are doing today. This is very much one of the reasons why she chose
Peabody School. She knows her kids will learn how to read, write and do arithmetic in elementary school
and anywhere that they go. But, it is really this feeling and being part of something greater than
themselves, our family, and the school. It is very important. This building represents that and gives us
the opportunity to live out those values in a much more grand way.
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Sarah Daniel, a parent at Peabody School, said she also has done some substitute teaching and helping in
the aftercare program. She is approaching it from a very practical standpoint of just having experienced
some of the discomforts of packing children into their Physical Education box is what they call it. When
those middle school bodies are in there it is difficult having kids run around in such a small enclosed
space. It is the same for the aftercare in having to separate the ages so much and not have a space for them
to really move during the cold wintery months. She was ecstatic when hearing about the plans for
expanding the building and having a space for their performances and music concerns. It would attract
great arts to Peabody School and give the art teacher, the drama teacher and the music teacher the space to
really let the kids shine. It is going to be thrilling. She thanked the Commission for their consideration.
Mr. Morris invited further public comment. There being no further public comment, the public hearing
closed and the matter before the Planning Commission for discussion and action.
Mr. Franco asked to simply react to the suggestion about the landscaping. As long as they keep it with
the suggestion he was happy with that. However, in looking at the plan it is still going to be something
like 67’ from the edge of the existing roadway. He was really not concerned about that. Unless somebody
wants to discuss that further he would make the following motion.
Motion: Mr. Franco moved and Mr. Smith seconded to recommend approval of SP-2012-00030,
Peabody School, with the conditions as stated in the staff report, as amended, for condition 1 to say
March 7, 2013 or as amended between now and the Board of Supervisors meeting and also to note that
the location of the school can be adjusted to be no closer than 10 feet to the property line.
The motion passed by a vote of 7:0.
Mr. Morris noted that a recommendation for approval would be forwarded to the Board of Supervisors for
SP-2012-00030, Peabody School, at a time to be determined with the following conditions.
1. Development of the use shall be in general accord with the conceptual plan titled “Peabody School
Application Plan for Special Use Permit,” prepared by Collins Engineering, with the latest revision
date of March, 7, 2013 (or as amended between now and the Board of Supervisors meeting), as
determined by the Director of Planning and the Zoning Administrator. To be in general accord with
the Conceptual Plan, development shall reflect the following major elements within the development
essential to the design of the development:
• Location of parking areas and turn arounds
• Open Space
• Landscape Buffer
• Location of multi-purpose building addition
as shown on the plan.
Minor modifications to the plan which do not conflict with the elements above may be made to ensure
compliance with the Zoning Ordinance.
2. The maximum enrollment shall not exceed 210 children.
3. Landscape buffer adjacent to the Southern Parkway shall include screening in accordance with
Section 32.7.9 of the Zoning Ordinance for the parking, turn around, and the multi-purpose building.
Note: As part of the motion the Commission recommended the school can be adjusted to be no closer
than 10 feet to the property line.
Return to PC actions letter
ZMA 201200006
BOS May 8, 2013
Executive Summary Page 1
COUNTY OF ALBEMARLE
EXECUTIVE SUMMARY
AGENDA TITLE:
ZMA201200006, Church of Our Saviour
SUBJECT/PROPOSAL/REQUEST:
Request to rezone 0.487 acres from R-2 zoning
district to C-1 zoning district to allow an existing
building or a replacement building to meet a 50-
foot setback requirement of the C-1 zoning for
buildings adjacent to residential zoning districts.
No dwellings proposed.
STAFF CONTACT(S):
Cilimberg, Benish, Grant
LEGAL REVIEW: NO
AGENDA DATE:
May 8, 2013
ACTION: X INFORMATION:
CONSENT AGENDA:
ACTION: INFORMATION:
ATTACHMENTS: YES
BACKGROUND:
On March 19, 2013, the Planning Commission held a public hearing for the Church of Our Saviour rezoning
request. The Commission, by a vote of 6:0, recommended approval of ZMA201200006 with proffers as
recommended by staff and with the following Planning Commission comment:
• In the site plan process make sure the undersigned or non -conforming road to the back serving three
parcels is cleaned up to make it useable . It is not an addendum because a site plan is not available for
review.
After the public hearing, the County Attorney suggested revisions to the text for proffer 1 for clarity.
DISCUSSION:
The applicant provided the following proffer, which was recomme nded for approval by staff and the
Planning Commission: 1.That part of the Property which is presently being used as a cemetery (the
“Cemetery Property”) will not be sold or transferred to a third party and then used as a commercial
cemetery. This will not restrict continuation of the current use of the Cemetery Property by the Church. The
County Attorney suggested this proffer statement be revised to state “Any cemetery on the Property shall be
accessory to the church use ” in order to eliminate confusing language that is not clear regarding the
location of the cemetery, conveyance to a third party and the definition of a commercial cemetery . Staff and
the applicant find the proposed revision to be satisfactory. The attached proffer has been revised to refl ect
this change. (See Attachment II)
RECOMMENDATIONS:
Staff and the Planning Commission recommend approval of ZMA201 200006 with the attached, revised proffers,
based on the information provided, as described above. (See Attachment II)
ATTACHMENTS:
Attachment I: Planning Commission staff report, dated March 19, 2013
Attachment II: Proffers, dated April 24, 2013
Return to agenda
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 22902-4596
Phone (434) 296-5832 Fax (434) 972-4126
April 23, 2013
Geoffrey Kilmer - Church of Our Saviour
1165 Rio Road E.
Charlottesville, Va. 22901
RE: ZMA201200006 Church of Our Saviour
TAX MAP PARCEL: 06100000014400, 061000000146D0
Dear Mr. Kilmer:
The Albemarle County Planning Commission, at its meeting on March 19, 2013, by a vote of 6:0,
recommended approval, with proffers of the above-noted petition to the Board of Supervisors.
Please note that this approval is subject to the following conditions:
1. That part of the Property which is presently being used as a cemetery (the “Cemetery Property”) will
not be sold or transferred to a third party and then used as a commercial cemetery. This will not
restrict continuation of the current use of the Cemetery Property by the Church.
Please be advised that the Albemarle County Board of Supervisors will review this petition and receive
public comment at their meeting on May 8, 2013.
View staff report and attachments
View PC minutes
Return to exec summary
If you should have any questions or comments regarding the above noted action, please do not hesitate to
contact me at (434) 296-5832.
Sincerely,
Claudette Grant
Senior Planner
Planning Division
1 Church of Our Saviour
PC Public Hearing 3/19/2013
COUNTY OF ALBEMARLE
PLANNING STAFF REPORT SUMMARY
Project Name: ZMA 201200006 Church of Our
Saviour
Staff: Claudette Grant
Planning Commission Public Hearing:
March19, 2013
Board of Supervisors Public Hearing: To Be
Determined
Owners: Church of Our Saviour c/o Geoffrey
Kilmer
Applicant: Church of Our Saviour c/o Geoffrey
Kilmer
Acreage: Approximately 0.487 acres
Rezone from: R-2 residential to C-1 commercial
with proffers.
TMP: Tax Map Parcel(s) 06100-00-00-14400
(See Attachments A and B)
Location: 1165 Rio Road East/2412
Huntington Road
By-right use: The R-2 district allows residential
uses at a density of (2 units/acre).
Magisterial District: Rio Proffers: Yes
Proposal: Rezone 0.487 acres from R-2 zoning
district to C-1 zoning district to accommodate
building and meet 50-foot setback. (See
Attachment C)
Requested # of Dwelling Units: – None
DA (Development Area): Neighborhood 2 in
Places 29
Comp. Plan Designation: Neighborhood
Density Residential – residential (3 – 6
units/acre) supporting uses such as religious
institutions, schools and other small-scale non-
residential uses and Urban Mixed Use (in areas
around Centers) – commercial and retail uses
that are not accommodated in Centers in Places
29.
Character of Property: The parcel is developed
with a church, associated buildings and parking
areas, a cemetery, and a former residence that
is now used for church activities.
Use of Surrounding Properties: There is a
small strip development with retail and office
uses located east of the subject site. There is
also some vacant undeveloped, wooded land
located east of the church property. Adjacent to
the church and to the north is the Norfolk
Southern railroad track. There is a mix of
various residential uses located in the
neighborhoods, north, south and west of the
subject property.
Factors Favorable:
1. The rezoning request would be
consistent with the Comprehensive Plan.
2. The use is consistent with the uses
permitted under the existing C-1 zoning
district.
3. This rezoning request would correct the
Factors Unfavorable:
1. None
2 Church of Our Saviour
PC Public Hearing 3/19/2013
issue of the non-conforming use being in
the required 50 foot buffer required from
the R-2 district.
4. This rezoning request would allow the
church to continue to provide a service in
the local community.
RECOMMENDATION: Staff recommends approval with proffers.
3 Church of Our Saviour
PC Public Hearing 3/19/2013
STAFF PERSON: Claudette Grant
PLANNING COMMISSION: March 19, 2013
BOARD OF SUPERVISORS: To Be Determined
ZMA 201200006 Church of Our Saviour
PETITION
PROJECT: ZMA201200006/Church of Our Saviour
PROPOSAL: Rezone 0.487 acres from R-2 Residential, which allows residential uses at a density of
two units per acre, to C-1 Commercial which allows commercial - retail sales and service; residential by
special use permit uses at a density of 15 units/acre in order to allow an existing building or a
replacement building to meet a 50-foot setback requirement of the C-1 zoning for buildings adjacent to
residential zoning districts. No dwellings proposed.
ENTRANCE CORRIDOR: Yes
AIRPORT IMPACT AREA: Yes
PROFFERS: Yes
COMPREHENSIVE PLAN: Neighborhood Density Residential – residential (3 – 6 units/acre) supporting
uses such as religious institutions, schools and other small-scale non-residential uses and
Urban Mixed Use (in areas around Centers) – commercial and retail uses that are not accommodated
in Centers in Neighborhood 2 - Places 29.
LOCATION: 1165 Rio Road East and 2412 Huntington Road
TAX MAP/PARCEL: 06100000014400 and 061000000146D0
MAGISTERIAL DISTRICT: Rio
CHARACTER OF THE AREA
The subject site has a somewhat low rolling terrain and there are several trees on the property. The
Norfolk Southern railroad line is located to the north along with a residential neighborhood. A small
commercial /retail shopping strip is located to the east of the property and the church also has a thrift
store nearby. The metal building now owned by the church was previously part of a metal fabrication
company. The land around the metal building is gravel and roughly graded. It was used for parking and
material storage. The church still uses the area for parking. This area has a mix of residential uses and
small scale commercial uses.
SPECIFICS OF THE PROPOSAL
The existing church, cemetery and most of the parking associated with the church use is located on a
parcel zoned R-2. (TMP06100000014400). The adjacent parcel (TMP061000000146D0) is also owned
by the church, and is zoned C-1, and contains an existing metal shell building. The site with the metal
building is currently being used for church activities and overflow parking for church activities. The
church is proposing to expand a youth center on the C-1 zoned parcel, either within the existing metal
building or a new building in the same location. The applicant originally requested a site plan to
demolish the existing metal building and rebuild a building of similar size on the C-1 property for the
purpose a of a youth center. Upon discovering that the existing metal building does not meet a 50-foot
setback requirement for a building located in a C-1 district from a residential district, the applicant
submitted this zoning request to rectify this non-compliance with the existing structure/site for a new
structure (the church is currently unsure whether they will continue to use the existing metal building or
a new building for the youth center). This rezoning request rezones 0.487 acres of the church parcel
(TMP 06100000014400 from R-2 to C-1. This moves the boundary of the C-1 zoning far enough onto
the “church parcel to allow the metal building/buildingsite to be in compliance with the Zoning
Ordinance and will provide the required 50 foot buffer between the proposed structure in the C-1 district
from the R-2 district.
4 Church of Our Saviour
PC Public Hearing 3/19/2013
APPLICANT’S JUSTIFICATION FOR THE REQUEST
The applicant wishes to remedy a non compliance with the Zoning Ordinance by providing the metal
building/building site on the adjacent property with the required 50 foot setback from the R-2 district
property, which is the site of the church.
PLANNING AND ZONING HISTORY
Portions of this site, for example, the house, have no planning or zoning history. The original site
preceded site plan requirements, which explains how the metal building was placed in the 50 foot
setback. Over the years, there have been subdivision and site plan approvals relating to this church
property. The following highlights the focal site plan and special use permit requests for the property:
On January 13, 1987, the Planning Commission approved a site plan to construct a new parish hall and
expand its parking (SDP 87-004). At that time, the expansion of existing churches was not seen as an
expansion of a non-conforming use. As a result, the church met all the requirements set forth by the
development departments and was not required to apply for a special use permit.
In 1991, The Church of Our Saviour received Planning Commission approval to share seven (7)
parking spaces (on the R-2 zoned church property) for a thrift shop it wanted to start on another
adjacent property the church owns (SDP 91-021). At that time, VDOT required the church to close the
entrances off of Rio Road into the proposed thrift shop, which the church has done.
SP00-060 was approved by the Board of Supervisors on February 21, 2001 for the use of the adjacent
home for supervised Christian education activities. The approval of this special use permit, inclusive of
the house, expanded the area of the church along with the expansion of a non-conforming use.
SDP2012-00049 is a preliminary site plan request for the demolition of the metal building and
construction of a new building on the same site for church activities. This site plan request was deferred
in September 20012, pending the resolution of this rezoning request.
COMPREHENSIVE PLAN
Land Use Plan:
With the adoption of Places 29, the land use plan now designates the subject property as Urban Mixed
Use (in areas around Centers) in Neighborhood 2. The purpose/intent of the Urban Mixed Use (in areas
around Centers) designation is to provide space for uses that do not fit within a Center because the use
requires more land for larger buildings and/or parking lots. The subject property is also designated as
Neighborhood Density Residential in the land use plan. This designation is used in areas around
Centers where single-family detached and attached housing with a gross density range between 3 – 6
units per acre is desired. This designation is also applied to existing residential areas with densities
within or below this range. Churches are viewed as supportive to residential uses in the County and are
considered an acceptable use within the Mixed Use land use designation.
The County’s Open Space Plan shows a historic site (old church building) and cemetery on this site
and does not show any significant environmental features on this property. The historic site will not be
impacted by this request.
The amendment would also allow for the potential reuse of the existing metal building. The metal
building is primarily hidden at the rear of the church and this property will barely be seen from the
surrounding public streets. The use of the metal building (or replacement building) as an activity center
for the church is ancillary to the church use and is currently permitted in the C-1 zoning district.
5 Church of Our Saviour
PC Public Hearing 3/19/2013
Staff believes the proposed rezoning is consistent with the Comprehensive Plan designation for this
area. The character of the surrounding neighborhood provides a variety of mixed uses. A building
associated with a church use would not be out of character in this location or the recommendation of
the Comprehensive Plan for this area.
The Neighborhood Model: Staff’s analysis below indicates how well the proposed development
meets the 12 principles of the Neighborhood Model:
Pedestrian Orientation Sidewalks connect the main building to the parking areas and
there are walkways throughout the property that connect to
the auxiliary buildings on the property. This principle is
addressed.
Neighborhood Friendly
Streets and Paths
This facility has driveways from the street leading to parking
areas on the property. There are trees and walkways
throughout the property. This principle is not applicable.
Interconnected Streets and
Transportation Networks
Access for this property is from Huntington Road. Although
there is also a 20 foot wide access easement along the
eastern boundary of this site, which also provides access to
the subject portion of the property. This easement goes
across adjacent properties and is not up to public or private
road standards. The condition of the access easement is not
good for major public use, as the road is a combination gravel
and dirt pathway. This easement is not proposed to be used
to access this site/building. This principle is not applicable.
Relegated Parking The existing parking areas provide parking for the property.
Parking also occurs within the gravel areas around the
building. At this time parking is not proposed to change. This
principle is not applicable.
Parks and Open Space This is the site of an existing church. If the existing metal
building on the site is demolished and rebuilt, staff considers
this a small redevelopment of an existing church. At this time
the future of the metal building is unknown. This principle is
not applicable.
Neighborhood Centers Although there are a number of churches located in the
vicinity, this church could be a neighborhood center for the
area. This principle is met.
Buildings and Spaces of
Human Scale
Since the future of the metal building is unknown, and there
are no definite plans for redevelopment, staff believes this
can be addressed during the site plan process with the ARB
staff. This principle is not applicable at this time.
Mixture of Uses This site is part of an existing church, which is adjacent to a
residential neighborhood and a variety of commercial uses,
creating an acceptable mix of uses in this area.
Mixture of Housing Types
and Affordability
This is not applicable, given the existing nature and type of
facility.
Redevelopment It is unknown if the existing metal building will be
redeveloped. This principle is not applicable at this time.
Site Planning that Respects
Terrain
It is unknown if the existing metal building will be replaced
with a new building or reused. This site has been previously
rough graded and used for parking and storage associated
6 Church of Our Saviour
PC Public Hearing 3/19/2013
with the previous use (metal fabricating business). If
disturbance to the site occurs, minimal disturbance to the
terrain is suggested. This principle is not applicable at this
time.
Clear Boundaries with the
Rural Areas
This principle is not applicable.
Economic Vitality Action Plan
The primary goal of the County’s Economic Vitality Action Plan is to:
Increase the County’s economic vitality and future revenues through economic development by
expanding the commercial tax base and supporting the creation of quality jobs for local residents.
This Plan is developed for the benefit and economic well being, first, of current local residents and
existing local businesses.
The proposed Church of Our Saviour amendment (commercial/service use) would support the Plan by
providing services for the local community.
Relationship between the application and the purpose and intent of the requested zoning
district
The C-1 districts are intended to permit more retail sales, service and public use establishments but not
as many as Highway Commercial. It is intended that C-1 districts be established only within the urban
area, communities and villages in the comprehensive plan. The C-1 district allows for churches and
cemetery uses by right.
This property subject to the rezoning is currently zoned R-2, which allows residential uses at a density
of 2 units per acre. Churches and cemeteries are allowed in the R-2 district by special use permit.
Staff believes the proposal is consistent with the intent of the district..
Anticipated impact on public facilities and services
Streets:
There are no major proposed changes to the property at this time. It is not anticipated that there will be
any more added impacts to this already high impacted area. (See Attachment D)
Schools:
No residential units are proposed, so no impacts are expected on the schools.
Fire and Rescue:
The Seminole Fire Station on Berkmar Drive near Fashion Square Mall is the nearest station and is
located within close proximity of this site. Fire/Rescue has no objection with this development as
proposed.
Utilities:
The site is serviced by public water and sewer. No immediate or significant service capacity issues
have been identified by Rivanna Water and Sewer Authority (RWSA). See Attachment E for comments,
which can be resolved during the site plan process.
Albemarle County Service Authority (ACSA) comments are attached. (See Attachment F)
7 Church of Our Saviour
PC Public Hearing 3/19/2013
Anticipated impact on environmental, cultural and historic resources
There is no anticipated impact on cultural or historic resources. There are no significant environmental
features impacted by this rezoning request.
Anticipated impact on nearby and surrounding properties
No major anticipated impact is expected on nearby and surrounding properties with this rezoning
request.
Public need and justification for the change
The proposed rezoning will rectify the non-conforming use of the metal building not meeting the
required 50 foot buffer between the building located in the C-1 district from the R-2 district.
PROFFERS
As requested by zoning, the applicant has provided a proffer that restricts the use of the existing
cemetery as a commercial cemetery only. A portion of the existing cemetery will be rezoned to the C-1
district in order for the metal building to have a 50 foot setback. This proffer restricts the cemetery for
the church’s use only. Zoning was concerned that if the church property should ever be sold in the
future, the cemetery would not be allowed to become a commercial cemetery because of the zoning
district it is located in. This proffer does not preclude the current use of the cemetery for the church use.
(See Attachment G)
SUMMARY
Staff has identified the following factors, which are favorable to this request:
1. The rezoning request would be consistent with the Comprehensive Plan.
2. The use is consistent with the uses permitted under the existing C-1 zoning district.
3. This rezoning request would correct the issue of the non-conforming use being in the
required 50 foot buffer required from the R-2 district.
4. This rezoning request would allow the church to continue to provide a service in the local
community.
Staff has identified the following factors which are unfavorable to this request:
1. None
RECOMMENDATION
Staff recommends approval of rezoning ZMA201200006, Church of Our Saviour with
proffers.
ATTACHMENTS
ATTACHMENT A – Tax Map
ATTACHMENT B – Vicinity Map
ATTACHMENT C – Boundary Line Adjustment Plat, dated October 12, 2012 and revised January 3,
2013
ATTACHMENT D – Electronic Mail from Megan Oleynik, dated February 1, 2013
ATTACHMENT E – Electronic Mail from Victoria Fort, dated January 22, 2013
ATTACHMENT F – Electronic Mail from Alex Morrison, dated November 27, 2012
ATTACHMENT G – Proffers, dated February 25, 2013
Return to PC actions letter
8 Church of Our Saviour
PC Public Hearing 3/19/2013
PLANNING COMMISSION MOTION:
A. If the ZMA is recommended for approval: Move to recommend approval of ZMA201200006 Church
of Our Saviour as recommended by staff with proffers.
B. If the ZMA is recommended for denial: Move to recommend denial of ZMA201200006 Church of
Our Saviour with the reasons for denial.
ALBEMARLE COUNTY PLANNING COMMISSION – MARCH 19, 2013
DRAFT PARTIAL MINUTES – ZMA-2012-6 Church of Our Savious - SUBMITTED TO BOS
1
Albemarle County Planning Commission
March 19, 2013
The Albemarle County Planning Commission held a public hearing on Tuesday, March 19, 2013, at 6:00
p.m., at the County Office Building, Auditorium, Second Floor, 401 McIntire Road, Charlottesville,
Virginia.
Members attending were Ed Smith, Bruce Dotson, Don Franco, Richard Randolph, Thomas Loach,
Russell (Mac) Lafferty, Vice Chairman, and Calvin Morris, Chairman. Julia Monteith, AICP, Senior Land
Use Planner for the University of Virginia was absent.
Other officials present were Claudette Grant, Senior Planner; Megan Yaniglos, Senior Planner; Wayne
Cilimberg, Director of Planning; Sharon Taylor, Clerk to Planning Commission; and Greg Kamptner,
Deputy County Attorney.
Call to Order and Establish Quorum:
Mr. Morris, Chair, called the regular meeting to order at 6:00 p.m. and established a quorum.
Public Hearing Items:
ZMA-2012-00006 Church of our Saviour
PROPOSAL: Rezone 0.487 acres from R-2 zoning district for which allows residential uses at a density
of two units per acre to C-1 zoning district which allows commercial - retail sales and service; residential
by special use permit uses at a density of 15 units/acre to accommodate building and meet 50 -foot
setback. No dwellings proposed.
ENTRANCE CORRIDOR: Yes
AIRPORT IMPACT AREA: Yes
PROFFERS: Yes
COMPREHENSIVE PLAN: Neighborhood Density Residential – residential (3 – 6 units/acre) supporting
uses such as religious institutions, schools and other small-scale non-residential uses and
Urban Mixed Use (in areas around Centers) – commercial and retail uses that are not accommodated in
Centers in Neighborhood 2 - Places 29.
LOCATION: 1165 Rio Road East and 2412 Huntington Road
TAX MAP/PARCEL: 06100000014400 and 061000000146D0
MAGISTERIAL DISTRICT: Rio
(Claudette Grant)
Mr. Dotson acknowledged that he was a member of the Church of Our Saviour and while he does not
have as what is legally defined as a conflict of interest he will abstain from the discussion and voting
because he feels that is what he should do. He did not leave the room.
Ms. Grant presented a PowerPoint presentation and summarized the staff report.
Purpose of Request: The applicant is requesting to rezone 0.487 acres from R-2 zoning district to C-1
zoning district to accommodate a building and meet a 50-foot setback. No dwellings are proposed with
this request.
The application plan shows the area being requested to be rezoned. The existing building in question is
not meeting the current setbacks that are needed.
Favorable Factors:
ALBEMARLE COUNTY PLANNING COMMISSION – MARCH 19, 2013
DRAFT PARTIAL MINUTES – ZMA-2012-6 Church of Our Savious - SUBMITTED TO BOS
2
• The rezoning request would be consistent with the Comprehensive Plan.
• The uses are consistent with the uses permitted under the existing C-1 zoning district.
• This rezoning request would correct the issue of the non-conforming use being in the required 50
foot buffer required from the R-2 district.
• This rezoning request would allow the church to continue to provide a service in the local
community.
Unfavorable Factors: None
Staff Recommendation:
Staff recommends approval of rezoning ZMA-2012-00006, Church of Our Saviour with proffers.
Mr. Morris invited questions for staff. There being no questions for staff, Mr. Morris opened the public
hearing and invited the applicant to address the Planning Commission.
Jeff Kilmer, member of the Church of Our Saviour and Co-Chair of the Renovation Committee
overseeing this project, pointed out the church bought a lot next door that is zoned C-1. It is the old
Associated Steel property. The Associated Steel building does not conform to current setback
requirements from the R-2. Their plan is to demolish the building and put up a building of a very similar
size in the same place and keep its relative location to the church because they are building a covered
walkway connecting them. There will be Sunday school rooms, youth group rooms, a multi-purpose
room, and an outreach facility for maintaining the food closet. It turned out to be the simplest way to
keep the building in its same place and conform to Codes. They have actually joined the lots. The
property line has been removed, but the zoning line remains the same. This is actually in a commercial
district separating it from the residential district. The Church of Our Saviour was approved in a special
use permit for its operation. A chunk of this rezoning tips into the cemetery. They included a proffer to
say that they are not going to do any more commercial use of the cemetery than they are doing right now.
Mr. Morris invited questions for the applicant.
Mr. Franco said he was unaware that two parcels have been combined at this point.
Mr. Kilmer replied that is in the plan and may not have been facilitated yet.
Ms. Grant pointed out that it had not been done yet.
Mr. Kilmer pointed out the site plan is moving beside the rezoning request. It is their intent to combine
the parcels and what they are showing on the site plan being worked on right now. The site plan has not
been approved.
Mr. Franco asked if the access to this building will continue to be through the existing gravel road.
Mr. Kilmer replied the gravel road is another complication with the site plan they really did not want to
get involved with in the zoning hearing. The gravel road, Rio School Lane, is required to be brought up to
VDOT standards. It does not meet VDOT’s standards right now. They are working on engineering the
gravel road and working a way through to be able to do that. However, the a ctual access to the lot has
been approved from another site plan amendment on the church property about two years ago when they
started using the building. They have been using the building for over two years for Sunday school. The
primary access is from Huntington Road behind the church and will remain the primarily access to this
lot. This building and lot is an accessory use to the church facility and parking.
Mr. Morris asked does that road go between the church and the house.
ALBEMARLE COUNTY PLANNING COMMISSION – MARCH 19, 2013
DRAFT PARTIAL MINUTES – ZMA-2012-6 Church of Our Savious - SUBMITTED TO BOS
3
Mr. Kilmer replied no, it was on the other side of the house and goes between the Rio School House
Thrift Shop and the DeButts’ strip center next door. It runs in between that area. It services the old
Associated Steel lot, which is now the church’s lot, as well as another lot in the back a nd the DeButts’
strip center. The access services three lots. However, it is non -conforming. On the original site the
building was put up in the early 60’s and never had a site plan on it. This is first site plan. Therefore,
they are doing bio-filters and everything that is needed to bring the site up to current standards.
Mr. Franco pointed out he was contacted by the adjacent property owner and there is some concern about
access to his parcel as well. His access is through the shared easement and also comes through a portion
of the church property. He really remains a little concerned that because the Comprehensive Plan calls
for some kind of coordinated development taking place in there. He did not have the advantage of having
seen the site plan, but hopefully they are working that out with the adjacent property owners.
Mr. Kilmer said he was in communication with both of the property owners, Mr. DeButts and Mr.
VanderLinde who has been before this Commission four or five years ago about this specific problem.
He essentially has a landlocked lot back there because the entrance is nonconforming and the turning
radius is non-conforming. He has no way out and no way to access the lot. It is like a dead lot back there
right now. It is the church’s intent to work with him in order to help to fund this improved entrance. He
is in conversation with him about that right now.
Mr. Morris agreed that was a problem. He invited further comments. There being no further comments,
he invited public comment.
Bud Treakle, an attorney that practices law in this town, was present on behalf of Bill DeButts who owns
the strip center on Rio Road. The DeButts could not attend tonight and asked him to attend on their
behalf. He wanted to compliment everything that the church has tried to do. He also complimented Ms.
Grant. The church has a nonconforming use with the existing Associated Steel Building being too close
to the property line. This is simply an adjustment of the property lines so that they can rebuild on the
same site and utilize the site. On behalf of the DeButts they are happy to see what they are doing at the
site. They have also spoken with them about the improvements necessary to School Lane. He was certain
they will continue to work with them on that. However, the DeButts encourages the Commission to
approve this because they think it is an appropriate decision for the Board to make.
There being no further public comment, Mr. Morris closed the public hearing to bring the matter before
the Planning Commission for discussion and action.
Motion: Mr. Randolph moved and Mr. Loach seconded to recommend approval of ZMA-2012-00006
Church of Our Saviour as recommended by staff with proffers.
Mr. Morris invited further discussion.
Mr. Franco said his only concern is there are three parcels that share this underdesigned or
nonconforming road to the back is that if is going to continue to develop back there that there be
improvements to bring that up to standards. It was the same as three residential lots sharing a road and
wanted to make sure that is useable. He is not necessarily saying that is an ad dendum because he has not
seen the site plan. However, he wanted to stress that should be part of the site plan process to make sure
that cleans up that road to make it something that is useable.
Mr. Morris agreed that was a good point.
The motion passed by a vote of 6:0. (Mr. Dotson abstained)
ALBEMARLE COUNTY PLANNING COMMISSION – MARCH 19, 2013
DRAFT PARTIAL MINUTES – ZMA-2012-6 Church of Our Savious - SUBMITTED TO BOS
4
Mr. Morris noted ZMA-2012-00006 Church of Our Saviour would go to the Board of Supervisors at a
time to be determined with a recommendation for approval.
Return to PC actions letter
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road
Charlottesville, Virginia 22902-4596
Phone (434) 296-5832 Fax (434) 972-4126
MEMORANDUM
TO: File
FROM: William D. Fritz, Chief of Current Development
DATE: April 29, 2013
RE: ZTA201300002 Wireless Phase I
The Albemarle County Planning Commission, at its meeting on April 9, 2013, by a vote of 6:0,
recommended approval by staff with one correction.
ZTA-2013-00001 Wireless Phase I – Recommendation
The Planning Commission recommended approval of ZTA-2013-00001 Wireless Phase I with one
correction on page 8 about the height of the monopole to be 10’ by-right.
View staff report and attachments
View PC minutes
Return to agenda
COUNTY OF ALBEMARLE
EXECUTIVE SUMMARY
AGENDA TITLE:
ZTA-2013-01 Phase I Wireless
SUBJECT/PROPOSAL/REQUEST:
Zoning Text Amendment on Phase I changes to the
wireless regulations to address changes in Federal and
State laws and FCC rulings that have occurred since
2004.
STAFF CONTACT(S):
Mr Fritz; and Ms. Baldwin
PRESENTER (S): Ms. Baldwin
LEGAL REVIEW: No
AGENDA DATE:
April 9, 2013
ACTION: X INFORMATION:
CONSENT AGENDA:
ACTION: INFORMATION:
ATTACHMENTS: Yes
REVIEWED BY:
BACKGROUND:
On October 3, 2012, the Board adopted resolutions of intent to amend the wireless regulations in the Zoning
Ordinance in two phases. The Phase 1 zoning text amendment (ZTA) will amend the wireless regulations to ensure
that the County’s regulations are consistent with the recent changes in federal law, add relevant definitions related to
those changes in federal law, and delete those requirements that are no longer necessary. The resolution of intent for
the Phase 1 ZTA is attached (Attachment A). The Phase 2 ZTA will amend the wireless regulations to change certain
application requirements, procedures and standards for reviewing and approving personal wireless facilities, standards
for monopoles and the equipment attached to monopoles, and certain definitions and district regulations.
The purpose of this public hearing is to review the proposed Phase 1 ZTA and provide a recommendation to the Board
of Supervisors. The Phase 2 ZTA will proceed after the Phase 1 ZTA is adopted and implemented.
The Board of Supervisors held a worksession on the proposed Zoning Text Amendment on March 13, 2013 and
directed staff to proceed to public hearing.
STRATEGIC PLAN:
Goal 3: Encourage a diverse and vibrant local economy.
DISCUSSION:
Staff held a roundtable on January 17, 2013 with wireless industry representatives and interested members of the
public to discuss the Phase 1 changes. Two primary issues for the roundtable were implementing the requirements of
Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 (Section 6409) and the Federal
Communications Commission’s “shot clock” ruling.
A copy of the proposed Phase 1 ZTA is attached (Attachment B). The significant provisions of the proposed ZTA are:
- Adds and amends definitions.
- Allows collocating and replacing equipment by-right if it does not result in a substantial change to the facility.
- Allows Tier II applications to be approved administratively.
- Requires balloon tests at the request of the agent, instead of in all cases.
- Eliminates the automatic annual reporting requirement.
- Clarifies the procedures and requirements for making changes to wireless facilities and sites previously
approved.
- Codifies review times consistent with the FCC “shot clock” ruling.
Adds and clarifies definitions.
The proposed ordinance defines some new terminology resulting from Section 6409 and the FCC’s shot clock ruling.
The proposed ordinance also clarifies some existing definitions.
Allows collocating and replacing equipment by-right if it does not result in a substantial change to the facility.
Section 6409 requires that localities approve applications to collocate and replace equipment on an existing “tower” if
the modification does not result in a substantial change to the physical dimensions of the facility. The proposed
ordinance delineates several classes of changes that would not result in a substantial change to the physical
dimensions of a facility and, therefore, would have to be approved by the agent:
- Adding one or more antennas.
- Replacing a tower at an equal or lesser height.
- Replacing a treetop tower with one that is not more than 10 feet taller than the reference tree.
- Strengthening a tower without the use of guy wires.
- Expanding the lease area up to two times the original lease area.
- Adding ground equipment.
These changes would be considered substantial changes if the facility is located in an avoidance area, an entrance
corridor district overlay, or within 500 feet of a dwelling on adjacent property. A change that results in additional tree
clearing for the access would also be considered a substantial change.
At the January 17, 2013 roundtable, staff received the following additional suggestions about changes that should not
be considered substantial:
- A requirement that if a treetop facility is increased to 10 feet above the reference tree, the setback to the
property line must equal to or exceed the height of the tower.
- Allowing an increase in the height of any facility provided that its backdrop is maintained.
- Allowing an increase in tower height of 20 feet or the off-set of additional antenna by 20 feet from the face of
the tower (from the FCC’s shot clock ruling).
- Adding cables or other measures to strengthen a tower which results in the design standards for the width
being exceeded.
- Allowing an increase in facility height if it satisfies “facility height to property line” setback requirements (e.g., a
facility could be increased in height to 150 feet if it was set back from the property line at least 150 feet).
Staff’s opinion is that these changes are substantial and they have not been included in the proposed ordinance. For
example, increases in tower height of up to 20 feet or antenna off -sets of up to 20 feet from the face of the tower will
be substantial changes to tree top facilities having flush-mounted antennas under Section 6409. These 20-foot
thresholds are derived from the Programmatic Agreement (Attachment C) which establishes a definition of a
“substantial increase”. The Programmatic Agreement was developed to streamline federal review of applications to
collocate wireless antennas on properties under Section 106 of the National Historic Preservation Act. The
Programmatic Agreement lists a limited number of collocations that are exempt from certain Federal requirements for
review. The FCC’s Wireless Bureau recently issued a public notice suggesting that “substantial change” should be
interpreted to mean “substantial increase” as used in the FCC’s shot clock ruling.
Staff cannot recommend that the concepts of the FCC’s shot clock ruling or the Programmatic Agreement be applied
to the County’s implementation of Section 6409. Simply put, the FCC’s shot clock ruling addresses merely the time
within which two broad classes of wireless classifications should be acted upon (either within 90 days or 150 days).
Section 6409, on the other hand, is a federal divestiture of state and local zoning authority, and one that Congress
intentionally left open for interpretation. Although it could have, Congress did not use the term “substantial increase” in
Section 6409, which was the term used in the FCC’s shot clock ruling.
Section 6409 is implemented in proposed subsection 5.1.40(f), and it requires that the County approve equipment
collocations and replacement if they do not substantially change the physical dimensions of the facility. The FCC’s shot
clock ruling is implemented in proposed subsection 5.1.40(h), and it requires that the County act on applications for
certain modifications that do not “substantially increase” the size of the facility” within 90 days. Any other wireless
application must be acted on within 150 days. For the purpose of deciding whether an application needs to be
processed within 90 or 150 days, the 20 foot increase in height or antenna off-sets may be reasonable. However,
applying those same thresholds to proposed subsection 5.1.40(f), particularly where multiple modifications to the same
facility could be sought over time, would establish a class of facilities essentially exempt from any zoning review, and
would significantly reduce the County’s zoning authority over wireless facilities.
Allows Tier II applications to be approved administratively.
Under current regulations, Tier II facilities are not more than seven (7) feet taller than the reference tree and the facility
is not located in an avoidance area. Tier II facility review is primarily a ministerial task to confirm that the facility meets
the regulations for a Tier II facility. Discretion is limited to deciding whether to allow the facility to be up to ten (10) feet
taller than the reference tree, instead of the seven (7) feet allowed by right. Before the Sinclair decision, Tier II
facilities were acted on by the Planning Commission. After Sinclair, they are acted on by the Board by special
exception. The proposed ordinance will make Tier II applications subject to review and action by the agent and allow
facilities to be up to ten (10) feet taller than the reference tree by right. If the facility meets the requirements of the
ordinance, it will be approved. If the application is disapproved or requires a special exception to modify a design
standard, it will be acted on by the Board of Supervisors.
Requires balloon tests at the request of the agent.
Currently balloon tests are required for all applications unless a waiver is granted. For many applications, balloon tests
are unnecessary or impracticable. For example, balloons cannot be flown when the proposal is to attach to a power
line and the tests are unnecessary when the proposal is to modify or add equipment to an existing tower. Revising the
ordinance to require balloon tests only at the request of the agent will remove the burden on the applicant and the
County to process waivers. Balloon tests will still be required for new facilities where it is possible to fly a balloon.
Eliminates the automatic annual reporting requirement.
Currently the owner of a wireless facility is required to submit an annual report stating that the facility is still in use.
Monitoring this condition is a substantial burden on the Zoning Administrator. The proposed ordinance requires the
submittal of a report verifying the status of a facility only at the request of the Zoning Administrator. The proposed
ordinance does require that a service provider notify the County if a facility is discontinued.
Allows collocation and replacing equipment by-right if it does not result in a substantial change to the facility.
The proposed ordinance would allow for administrative approval of the collocation and replacement of equipment that
does not result in a substantial change to the facility. This revision is necessary in order to comply with the
requirements of Section 6409.
Clarifies the process for revisions to wireless facilities and sites previously approved.
Before the current wireless regulations were adopted in 2004, wireless facilities were allowed only by special use
permit. Some wireless facilities precede the requirement for a special use permit and are nonconforming. Processing
requested changes to these older facilities has proven to be administratively difficult, cumbersome and expensive for
both the applicant and the County. The proposed ordinance would allow changes to these older facilities and sites to
be processed under the proposed regulations. This will make applications easier to process. This revision was one of
the industry’s most requested amendments. The proposed ordinance also clarifies how the conditions of approval for
these older facilities will apply in several circumstances.
Codifies review times consistent with the FCC shot clock.
The FCC released a Declaratory Ruling in November 2009 which established time frames for acting on applications to
collocate and for new facilities, generally referred to as the shot clock ruling. The ruling requires locality action within
90 days on an application for a collocation and within 150 days for a new facility. The proposed ordinance will codify
these review timelines. A challenge to the FCC’s authority to issue the shot clock ruling is currently pending in the
United States Supreme Court.
BUDGET IMPACT:
No budget impact is anticipated.
RECOMMENDATIONS:
Staff recommends that the Planning Commission recommend approval of ZTA 2013-01 to the Board of Supervisors.
ATTACHMENTS:
Attachment A – Resolution of Intent to Amend the Ordinance
Attachment B – Proposed Ordinance
Attachment C – Programmatic Agreement
Attachment D – FCC Public Notice of January 25, 2013
Return to PC actions memo
RESOLUTION OF INTENT
WHEREAS, County Code § 18-5.1.40, which is part of the Albemarle County Zoning Ordinance,
establishes regulations pertaining to personal wireless service facilities; and
WHEREAS, County Code § 18-3.1 defines a number of the terms used in County Code
§ 18-5.1.40; and
WHEREAS, recent changes in the law, including the Federal Communications Commission’s “Shot
Clock” declaratory ruling, and the enactment of Section 6409 of the Middle Class Tax Relief Act of 2012,
affect the time within which the County must act on certain applications for personal wireless service
facilities, and compel the County to approve certain qualifying applications for the collocation,
replacement or removal of equipment on existing wireless “towers”; and
WHEREAS, practical experience resulting from administering County Code § 18-5.1.40 since it was
adopted in 2004 has allowed the County to identify several requirements of that section that are no longer
necessary; and
WHEREAS, in order to promote the efficient and effective administration of the County’s regulations, it
may be desirable to amend County Code §§ 18-3.1 and 18-5.1.40 to expressly incorporate recent changes
in the law, amend and add definitions related to those recent changes in the law, and to delete those
requirements that are no longer necessary.
NOW, THEREFORE, BE IT RESOLVED THAT for purposes of public necessity, convenience,
general welfare and good zoning practices, the Albemarle County Board of Supervisors hereby adopts a
resolution of intent to consider amending Albemarle County Code §§ 18-3.1 and
18-5.1.40 and any other sections of the Zoning Ordinance deemed to be appropriate, to achieve the
purposes described herein; and
BE IT FURTHER RESOLVED THAT the Planning Commission shall hold a public hearing on the
zoning text amendment proposed pursuant to this resolution of intent, and make its recommendations to
the Board of Supervisors at the earliest possible date.
* * * * *
I, Ella W. Jordan, do hereby certify that the foregoing writing is a true, correct copy of a Resolution duly
adopted by the Board of Supervisors of Albemarle County, Virginia, by a vote of _____ to _____, as
recorded below, at a regular meeting held on _________________________.
ATTACHMENT A
Attachment B
Draft: 04/10/13
1
ORDINANCE NO. 13-18( )
AN ORDINANCE TO AMEND CHAPTER 18, ZONING, ARTICLE I, GENERAL PROVISIONS, AND
ARTICLE II, BASIC REGULATIONS, OF THE CODE OF THE COUNTY OF ALBEMARLE, VIRGINIA
BE IT ORDAINED By the Board of Supervisors of the County of Albemarle, Virginia, that Chapter 18, Zoning,
Article I, General Provisions, and Article II, Basic Regulations, are hereby amended and reordained as follows:
By Amending:
Sec. 3.1 Definitions
Sec. 5.1.40 Personal wireless service facilities
Chapter 18. Zoning
Article I. General Provisions
Sec. 3.1 Definitions
. . .
Collocation: As used in section 5.1.40 and any definitions pertaining to personal wireless service facilities, the
mounting or installation of one or more antennas for the purpose of providing personal wireless services on an
existing personal wireless service facility, the addition of related cables, wiring, supporting brackets and other
structural equipment, and the addition of transmission equipment.
. . .
Existing building: As used in section 5.1.40 and any definitions pertaining to personal wireless service facilities, a
building that was lawfully constructed or established and complies with the minimum applicable bulk, height,
setback, floor area, and other structure requirements of the district in which the building is located.
Existing structure: As used in section 5.1.40 and any definitions pertaining to personal wireless service facilities, a
structure, other than a flagpole or an existing personal wireless service facility, that was lawfully constructed or
established and complies with the minimum applicable bulk, height, setback, floor area or other structure
requirements of the district in which the structure is located.
Existing personal wireless service facility or existing facility: As used in section 5.1.40 and any definitions
pertaining to personal wireless service facilities, a personal wireless service facility that was approved under section
5.1.40 or by special use permit prior to October 13, 2004, was thereafter established, and has continued in existence
since being established, and which provides personal wireless services.
. . .
Personal wireless services: Commercial mobile services, unlicensed wireless services, common carrier wireless
exchange access services, as those services are defined by federal law and, for the purposes of this chapter,
unlicensed wireless broadband internet access services.
Personal wireless service facility: A facility for the provision of personal wireless services, as defined by 47 U.S.C.
§ 332 (Section 704 of the Telecommunications Act of 1996), including those Federal Communications Commission
licensed commercial wireless telecommunications services such as cellular, personal communications services
Attachment B
Draft: 04/10/13
2
(PCS), specialized mobile radio (SMR), enhanced specialized mobile radio (ESMR), common carrier wireless
exchange access services, unlicensed wireless services and, for the purposes of this chapter, unlicensed wireless
broadband internet access and which may be composed of antennas, cables, wiring, supporting brackets and other
structural equipment, grounding rods, transmission equipment, one or more ground equipment shelters, and a self-
supporting monopole or tower. (Added 10-17-01; Amended 10-13-04; Amended 6-1-11)
. . .
Replacement: As used in section 5.1.40 and any definitions pertaining to personal wireless service facilities, the
replacement of one or more antennas, cables, wiring, supporting brackets and other structural equipment,
transmission equipment, and ground equipment shelter, all of which is for the purpose of providing personal
wireless services on an existing personal wireless service facility.
. . .
Tier I personal wireless service facility or Tier I facility: A personal wireless service facility that: (i) is located
entirely within an existing building but which may include a self-contained ground equipment shelter or cabinet not
exceeding one hundred fifty (150) square feet that is not within the building or a whip antenna that satisfy satisfies
the requirements of subsection 5.1.40(c); (ii) consists of one or more antennas, other than a microwave dish,
attached to an existing conforming structure other than a flag pole that do not exceed the height of the structure, and
are flush mounted to the structure, together with associated personal wireless service equipment; or (iii) is located
within or camouflaged by an addition to an existing structure determined by the agent to be in character with the
structure and the surrounding district; (iv) is a collocation or a replacement that does not substantially change the
physical dimensions of an existing personal wireless service facility as that phrase is used in subsection 5.1.40(f); or
(v) is the replacement of a wooden monopole with a metal monopole that does not exceed the maximum dimensions
permitted under subsection 5.1.40(d)(5). (Added 10-13-04)
Article II. Basic Regulations
Sec. 5.1.40 Personal wireless service facilities
(Amended 10-13-04)
The purpose of this section 5.1.40 is to implement the personal wireless service facilities policy, adopted as part of
the comprehensive plan. Each personal wireless service facility (hereinafter “facility”) shall be subject to following,
as applicable:
a. Application for approval: Each request for approval of a facility shall include the following information:
1. Application form and signatures. A completed application form, signed by the parcel owner, the
parcel owner’s agent or the contract purchaser, and the proposed facility’s owner. If the owner’s
agent signs the application, he shall also submit written evidence of the existence and scope of the
agency. If the contract purchaser signs the application, he shall also submit the owner’s written
consent to the application.
2. Plat or survey of the parcel. A recorded plat or recorded boundary survey of the parcel on which
the facility will be located; provided, if neither a recorded plat nor boundary survey exists, a copy
of the legal description of the parcel and the Albemarle County Circuit Court deed book and page
number.
3. Ownership. The identity of the owner of the parcel and, if the owner is other than a real person, the
complete legal name of the entity, a description of the type of entity, and written documentation
Attachment B
Draft: 04/10/13
3
that the person signing on behalf of the entity is authorized to do so.
4. Plans and supporting drawings, calculations and documentation. Except where the facility will be
located entirely within an existing structure or an existing building, a scaled plan and a scaled
elevation view and other supporting drawings, calculations, and other documentation required by
the agent, signed and sealed by an appropriate licensed professional. The plans and supporting
drawings, calculations and documentation shall show:
(a) Existing and proposed improvements. The location and dimensions of all existing and
proposed improvements on the parcel including access roads and structures, the location
and dimensions of significant natural features, and the maximum height above ground of
the facility (also identified in height above sea level).
(b) Elevation. The benchmarks and datum used for elevations. The datum shall coincide with
the Virginia State Plane Coordinate System, South Zone, North American Datum of 1983
(NAD83), United States Survey Feet North American Vertical Datum of 1988 (NAVD88),
and the benchmarks shall be acceptable to the county engineer.
(c) Design. The design of the facility, including the specific type of support structure and the
design, type, location, size, height and configuration of all existing and proposed antennas
and other equipment.
(d) Color. Identification of each paint color on the facility, by manufacturer color name and
color number. A paint chip or sample shall be provided for each color.
(e) Topography. Except where the facility would be attached to an existing structure or an
existing building, the topography within two thousand (2,000) feet of the proposed facility,
in contour intervals not to exceed ten (10) feet for all lands within Albemarle County and,
in contour intervals shown on United States Geological Survey topographic survey maps or
the best topographic data available, for lands not within Albemarle County.
(f) Trees. The height, caliper and species of all trees where the dripline is located within fifty
(50) feet of the facility that are relied upon to establish the proposed height and/or or
screening, or both, of the monopole or tower. All trees that will be adversely impacted or
removed during installation or maintenance of the facility shall be noted, regardless of their
distances to the facility.
(g) Setbacks, parking, fencing, and landscaping. All existing and proposed setbacks, parking,
fencing and landscaping.
(h) Location of accessways. The location of all existing accessways and the location and design
of all proposed accessways.
(i) Location of certain structures and district boundaries. Except where the facility would be
attached to an existing structure or an existing building, residential and commercial
structures, and residential and rural areas zoning district boundaries.
(j) Proximity to airports. If the proposed monopole or tower will be taller than one hundred
fifty (150) feet, the proximity of the facility to commercial and private airports.
5. Photographs. Photographs, where possible, or perspective drawings of the facility site and all
Attachment B
Draft: 04/10/13
4
existing facilities within two hundred (200) feet of the site, if any, and the area surrounding the site.
6. Balloon tests. For any proposed monopole or tower, photographs taken of a balloon test, which
shall be conducted, if requested by the agent, as follows:
(a) Scheduling. The applicant shall contact the agent within ten (10) days after the date the
application was submitted to schedule a date and time when the balloon test will be
conducted. The test shall be conducted within forty (40) days after the date the application
was submitted, and the applicant shall provide the agent with at least seven (7) days prior
notice; provided that this deadline may be extended due to inclement weather or by the
agreement of the applicant and the agent.
(b) Marking key boundaries and locations. Prior to the balloon test, the locations of the access
road, the lease area, the tower site, the reference tree and the tallest tree within twenty five
(25) feet of the proposed monopole shall be surveyed and staked or flagged in the field.
(c) Balloon height. The test shall consist of raising one or more balloons from the site to a
height equal to the proposed facility.
(d) Balloon color or material. The balloons shall be of a color or material that provides
maximum visibility.
(e) Photographing balloon test. The photographs of the balloon test shall be taken from the
nearest residence and from appropriate locations on abutting properties, along each publicly
used road from which the ballocon is visible, and other properties and locations as deemed
appropriate by the agent. The applicant shall identify the camera type, film size, and focal
length of the lens for each photograph.
7. Additions of antennas. If antennas are proposed to be added to an existing structure, existing
building or an existing facility, all existing antennas and other equipment on the structure, building
or facility, as well as all ground equipment, shall be identified by owner, type and size. The
method(s) by which the antennas will be attached to the mounting structure shall be depicted.
8. Site under conservation or open space easement. If the proposed facility would be located on lands
subject to a conservation easement or an open space easement, a copy of the recorded deed of
easement and the express written consent of all easement holders to the proposed facility.
b. Exemption from regulations otherwise applicable: Except as otherwise exempted in this paragraph
subsection, each facility shall be subject to all applicable regulations in this chapter.
1. Building site. Notwithstanding section 4.2.3.1 of this chapter, a facility may be located in an area on
a lot or parcel other than is not required to be located within a building site.
2. Setbacks. Notwithstanding section 4.10.3.1(b) of this chapter, the agent may authorize a facility to
be located closer in distance than the height of the tower or other mounting structure to any lot line
if the applicant obtains an easement or other recordable document showing agreement between the
lot owners, acceptable to the county attorney addressing development on the part of the abutting
parcel sharing the common lot line that is within the facility’s fall zone (e.g., the setback of an
eighty (80) foot-tall facility could be reduced to thirty (30) feet if an easement is established
prohibiting development on the abutting lot within a fifty (50) foot fall zone). If the right-of-way for
a public street is within the fall zone, the Virginia Department of Transportation shall be included in
Attachment B
Draft: 04/10/13
5
the staff review, in lieu of recording an easement or other document.
3. Area, bulk and minimum yards.The area and bulk regulations or minimum yard requirements of the
zoning district in which the facility will be located shall not apply. Notwithstanding the
requirements of the district in which the facility will be located, the area and bulk regulations, and
the minimum yard requirements of the district shall not apply.
4. Required yards. Notwithstanding section 4.11 of this chapter, a facility may be located in a required
yard.
5. Site plan. Notwithstanding section 32.2 of this chapter, a site plan shall not be required for a
facility, but the facility shall be subject to the requirements of section 32 and the applicant shall
submit all schematics, plans, calculations, drawings and other information required by the agent to
determine whether the facility complies with section 32. In making this determination, the agent
may impose reasonable conditions authorized by section 32 in order to assure ensure compliance.
c. Tier I facilities. Each Tier I facility may be established upon approval by the agent of an application
satisfying the requirements of subsection 5.1.40(a) by the agent, demonstrating that the facility will be
installed and operated in compliance with all applicable provisions of this chapter, satisfying all conditions
of the architectural review board, and meeting satisfying the following conditions:
1. Compliance with subsection 5.1.40(b). The facility shall comply with the applicable requirements
of subsection 5.1.40(b).
2. General design. The facility shall be designed, constructed installed and maintained as follows: (i)
guy wires shall not be permitted; (ii) outdoor lighting for the facility shall be permitted only during
maintenance periods; regardless of the lumens emitted, each outdoor luminaire shall be fully
shielded as required by section 4.17 of this chapter; provided that these restrictions shall not apply
to any outdoor lighting required by federal law; (iii) any ground equipment cabinet shelter not
located within the an existing structure or an existing building shall be screened from all lot lines
either by terrain, existing structures, existing vegetation, or by added vegetation approved by the
county’s landscape planner agent; (iv) a whip antenna less than six (6) inches in diameter may
exceed the height of the existing structure or the existing building; (v) a grounding rod, whose
height shall not exceed two (2) feet and whose width shall not exceed one (1) inch in diameter at
the base and tapering to a point, may be installed at the top of the facility, or the existing structure
or the existing building; and (vi) within one month thirty (30) days after the completion of the
installation of the facility, the applicant shall provide a statement to the agent certifying that the
height of all components of the facility complies with this regulation.
3. Antennas and associated equipment. Equipment shall be Antennas and associated equipment that
are attached to the exterior of structure only as follows not entirely within a proposed facility, an
existing facility, an existing structure, or an existing building shall be subject to the following: (i)
the total number of arrays of antennas attached to the existing structure shall not exceed three (3),
and each antenna proposed to be attached under the pending application shall not exceed the size
shown on the application, which size shall not exceed one thousand one hundred fifty two (1152)
square inches; (ii) no antenna shall project from the facility, structure or building beyond the
minimum required by the mounting equipment, and in no case shall any point on the face of an
antenna project more than twelve (12) inches from the existing structure facility, structure or
building; and (iii) each antenna and associated equipment shall be a color that matches the existing
structure facility, structure or building. For purposes of this section, all types of antennas and
dishes, regardless of their use, shall be counted toward the limit of three arrays.
Attachment B
Draft: 04/10/13
6
4. Tree conservation plan; content. Prior to issuance of a building permit Before the building official
issues a building permit for the facility, the applicant shall submit a tree conservation plan prepared
by a certified arborist. The plan shall be submitted to the agent for review and approval to assure
ensure that all applicable requirements have been satisfied. The plan shall specify tree protection
methods and procedures, and identify all existing trees to be removed on the parcel for the
installation, operation and maintenance of the facility, and identify all dead and dying trees that are
recommended to be removed. Except for the tree removal expressly authorized by the agent, the
applicant shall not remove existing trees within the lease area or within one hundred (100) feet in
all directions surrounding the lease area of any part of the facility. In addition approving the plan,
the agent may identify additional trees or lands up to two hundred (200) feet from the lease area to
be included in the plan.
5. Tree conservation plan; compliance; amendment. The installation, operation and maintenance of
the facility shall be conducted in accordance with the tree conservation plan. Dead and dying trees
identified by the arborist’s report may be removed if so noted on the tree conservation plan. The
applicant shall not remove existing trees within the lease area or within one hundred (100) feet in
all directions surrounding the lease area of any part of the facility except for those trees identified
on the plan to be removed for the installation, operation and maintenance of the facility and dead
and dying trees. If tree removal is later requested that was not approved by the agent when the tree
conservation plan was approved Before the applicant removes any tree not designated for removal
on the approved plan, the applicant shall submit and obtain approval of an amended plan. The agent
may approve the amended plan if the proposed tree removal will not adversely affect the visibility
of the facility from any location off of the parcel. The agent may impose reasonable conditions to
assure ensure that the purposes of this paragraph are achieved.
6. Discontinuance of use; notice thereof; removal; surety. Within thirty (30) days after a facility’s use
for personal wireless service purposes is discontinued, the owner of the facility shall notify the
zoning administrator in writing that the facility’s use has discontinued. The facility shall be
disassembled and removed from the site within ninety (90) days of after the date its use for personal
wireless service purposes is discontinued. If the agent determines at any time that surety is required
to guarantee that the facility will be removed as required, the agent may require that the parcel
owner or the owner of the facility submit a certified check, a bond with surety, or a letter of credit,
in an amount sufficient for, and conditioned upon, the removal of the facility. The type and form of
the surety guarantee shall be to the satisfaction of the agent and the county attorney. In determining
whether surety should be required, the agent shall consider the following: (i) the annual report
states that the tower or pole is no longer being used for personal wireless service facilities; (ii) the
annual report was not filed; (iii) whether there is a change in technology that makes it likely that the
monopole or tower or pole will be unnecessary in the near future; (ivii) the permittee fails to
comply with applicable regulations or conditions; (viii) the permittee fails to timely remove another
monopole or tower or pole within the county; and (viv) whenever otherwise deemed necessary by
the agent.
7. The owner of the facility shall submit a report to the agent by no earlier than May or and no later
than July 1 of each year. The report shall identify each user of the existing structure, and include a
drawing, photograph or other illustration identifying which equipment is owned and/or operated by
each personal wireless service provider. Multiple users on a single tower or other mounting
structure may submit a single report, provided that the report includes a statement signed by a
representative from each user acquiescing in the report.
87. Creation of slopes steeper than 2:1. No slopes associated with the installation of the facility and its
Attachment B
Draft: 04/10/13
7
accessory uses shall be created that are steeper than 2:1 unless retaining walls, revetments, or other
stabilization measures acceptable to the county engineer are employed.
98. Ground equipment shelter; fencing. Any ground equipment cabinet shelter not located within an
existing building shall be fenced only with the approval of the agent upon finding that the fence: (i)
would protect the facility from trespass in areas of high volumes of vehicular or pedestrian traffic
or, in the rural areas, to protect the facility from livestock or wildlife; (ii) would not be detrimental
to the character of the area; and (iii) would not be detrimental to the public health, safety or general
welfare.
d. Tier II facilities. Each Tier II facility may be established upon commission approval by the agent of an
application satisfying the requirements of subsection 5.1.40(a) and demonstrating that the facility will be
installed and operated in compliance with all applicable provisions of this chapter, criteria (1) through (8)
below, and satisfying all conditions of the architectural review board. The commission shall act on each
application within the time periods established in section 32.4.2.6. The commission shall approve each
application, without conditions, once it determines that all of these requirements have been satisfied. If the
commission denies an application, it shall identify which requirements were not satisfied and inform the
applicant what needs to be done to satisfy each requirement. and demonstrating that the facility will be
installed and operated in compliance with all applicable provisions of this chapter, and satisfying the
following:
1. Compliance with subsections 5.1.40(b) and 5.1.40(c). The facility shall comply with the applicable
requirements of subsection 5.1.40(b) and with the requirements of subsections 5.1.40(c)(2) through
(98).
2. Screening and siting to minimize visibility. The site shall provide adequate opportunities for
screening and the facility shall be sited to minimize its visibility from adjacent parcels and streets,
regardless of their distance from the facility. If the facility would be visible from a state scenic river
or a national park or national forest, regardless of whether the site is adjacent thereto, tThe facility
also shall be sited to minimize its visibility from such river, park or forest any state scenic river,
national park or national forest, regardless of whether the site is adjacent to the river, park or forest.
If the facility would be located on lands subject to a conservation easement or an open space
easement, or adjacent to a conservation easement or open space easement, the facility shall be sited
so that it is not visible from any resources specifically identified for protection in the deed of
easement.
3. Open space plan resources. The facility shall not adversely impact resources identified in the
county’s open space plan.
4. Horizontal separation of multiple facilities. The facility shall not be located so that it and three (3)
or more existing or approved personal wireless service facilities would be within an area comprised
of a circle centered anywhere on the ground having a radius of two hundred (200) feet.
5. Diameter of monopole. The maximum base diameter of the monopole shall be thirty (30) inches
and the maximum diameter at the top of the monopole shall be eighteen (18) inches.
6. Height of monopole. The top of the monopole, measured in elevation above mean sea level, shall
not exceed the height approved by the commission. The approved height shall not be more than
seven (7) ten (10) feet taller than the tallest tree within twenty-five (25) feet of the monopole, and
shall include any base, foundation or grading that raises the monopole above the pre-existing
natural ground elevation; provided that the height approved by the commission may be up to ten
Attachment B
Draft: 04/10/13
8
(10) feet taller than the tallest tree if the owner of the facility demonstrates to the satisfaction of the
commission that there is not a material difference in the visibility of the monopole at the proposed
height, rather than at a height seven (7) feet taller than the tallest tree; and there is not a material
difference in adverse impacts to resources identified in the county’s open space plan caused by the
monopole at the proposed height, rather than at a height seven (7) feet taller than the tallest tree.
The applicant may appeal the commissioner’s denial of a modification to the board of supervisors
as provided in subsection 5.1.40(d)(12).
7. Color of monopole, antennas and equipment. Each wood monopole shall be a dark brown natural or
painted wood color; each metal or concrete monopole shall be painted a brown wood color to that
blends into the surrounding trees. The antennas, supporting brackets, and all other equipment
attached to the monopole shall be a color that closely matches that of the monopole. The ground
equipment, the ground equipment cabinet shelter, and the concrete pad shall also be a color that
closely matches that of the monopole, provided that the ground equipment and the concrete pad
need not be of such a closely match the color of the monopole if they are enclosed within a ground
equipment shelter or within or behind an approved structure, façade or fencing that: (i) is a color
that closely matches that of the monopole; (ii) is consistent with the character of the area; and (iii)
makes the ground equipment, ground equipment shelter, and the concrete pad invisible at any time
of year from any other parcel or a public or private street.
8. Placement of cables, wiring and similar attachments. Each wood or concrete monopole shall be
constructed so that all cables, wiring and similar attachments that run vertically from the ground
equipment to the antennas are placed on the monopole to face the interior of the property site and
away from public view, as determined by the agent. Metal monopoles shall be constructed so that
vertical cables, wiring and similar attachments are contained within the monopole’s structure.
9. Building permit application; submitting certification of monopole height and revised plans. The
following shall be submitted with the building permit application: (i) certification by a registered
surveyor stating the height of the reference tree that is used to determine the permissible height of
the monopole; and (ii) a final revised set of plans for the construction of the facility. The agent shall
review the surveyor’s certificate and the plans to assure ensure that all applicable requirements have
been satisfied.
10. Completion of installation; submitting certifications of monopole and lightning rod height. The
following shall be submitted to the agent after installation of the monopole is completed and prior
to issuance of a certificate of occupancy: (i) certification by a registered surveyor stating the height
of the monopole, measured both in feet above ground level and in elevation above mean sea level,
using the benchmarks or reference datum identified in the application; and (ii) certification stating
that the lightning rod’s height does not exceed two (2) feet above the top of the monopole and
width does not exceed a diameter of one (1) inch.
11. Notice. Notice of the commission’s agent’s consideration of an application for a Tier II facility shall
be sent by the agent to the owner of each lot parcel abutting the lot parcel on which the proposed
facility will be located. The notice shall describe the nature of the facility, its proposed location on
the lot, its proposed height, and the appropriate county office where the complete Tier II facility
application may be viewed, and the date, time and location where the commission will consider the
application. The notice shall be mailed by first class mail or hand delivered at least ten (10) days
prior to before the commission meeting agent acts on the application. Mailed notice shall be mailed
to the last known address of the owner, and mailing the notice to the address shown on the current
real estate tax assessment records of the county shall be deemed compliance with this requirement.
Attachment B
Draft: 04/10/13
9
The failure of an owner to receive the notice as provided herein shall not affect the validity of an
approved Tier II facility and shall not be the basis for an appeal.
12. Disapproval of application; appeal. If the agent disapproves an application, he shall identify which
requirements were not satisfied and inform the applicant what needs to be done to satisfy each
requirement. The applicant may appeal the disapproval of an application to the board of
supervisors. The board of supervisors may consider an application for a Tier II facility only upon an
appeal of the denial of the application by the commission. An appeal shall be submitted in writing
and be received in the office of the agent clerk of the board of supervisors within ten (10) calendar
days after the date of the denial disapproval by the commission agent. In considering an appeal, the
board may affirm, reverse, or modify in whole or in part, the decision of the commission agent, and
its decision shall be based upon the requirements delineated in this subsection (d).
13. Agent approval of increase in height of monopole based on increase in height of reference tree.
Upon the written request of the applicant, the agent may authorize the height of an existing Tier II
facility’s monopole to be increased above its originally approved height upon finding that the
reference tree has grown to a height that is relative to the requested increase in height of the
monopole. The application shall include a certified survey of the reference tree’s new height, as
well as the heights of other trees to be considered by the agent. The agent shall not grant such a
request if the increase in height would cause the facility to be skylighted or would increase the
extent to which it is skylighted.
e. Tier III facilities. Each Tier III facility may be established upon approval of a special use permit issued
pursuant to section 31.2.4 of this chapter by the board of supervisors, initiated upon an application
satisfying the requirements of subsection 5.1.40(a) and section 31.2.4 33.4, and it shall be installed and
operated in compliance with all applicable provisions of this chapter and the following:
1. The facility shall comply with the applicable requirements of subsections 5.1.40(b), the
requirements of subsections 5.1.40(c)(2) through (98), and the requirements of subsections
5.1.40(d)(2), (3) and (7), unless modified by the board of supervisors during special use permit
review.
2. The facility shall comply with all conditions of approval of the special use permit.
f. Collocation, replacement or removal. Any collocation, replacement or removal of antennas or equipment
is subject to the following:
1. Collocation or replacement that would not substantially change the physical dimensions of a
facility approved as a Tier I, II or III facility. Upon receipt by the agent of an application satisfying
the requirements of subsections 5.1.40(a)(1), (3), (4) and (7), any collocation or replacement that
would not substantially change the physical dimensions of an existing facility approved as a Tier I,
II or III facility shall be approved by the agent. The agent shall approve the application regardless
of whether the proposed antennas or equipment are different from those shown on, or were not
shown on, the previously approved application under subsection 5.1.40(a)(4)(c) or any condition
imposed in conjunction with a special use permit for a Tier III facility.
2. Collocation or replacement that would substantially change the physical dimensions of a facility
approved as a Tier I, II or III facility. Any collocation or replacement that would substantially
change the physical dimensions of an existing facility approved as a Tier I, II or III facility shall
be reviewed and acted upon as a Tier I, II or III facility, as applicable.
Attachment B
Draft: 04/10/13
10
3. Collocation or replacement that would not substantially change the physical dimensions of a
facility approved by special use permit prior to October 13, 2004 or a facility that is a
nonconforming structure. Upon receipt by the agent of an application satisfying the requirements of
subsections 5.1.40(a)(1), (3), (4) and (7), any collocation or replacement that would not
substantially change the physical dimensions of an existing facility approved by special use permit
prior to October 13, 2004 or that is a nonconforming structure shall be approved by the agent. The
agent shall approve the application regardless of whether the proposed antennas or equipment are
different from those shown on any plans approved or condition imposed in conjunction with a
special use permit.
4. Collocation or replacement that would substantially change the physical dimensions of a facility
approved by special use permit prior to October 13, 2004 or a facility that is a nonconforming
structure. Any collocation or replacement that would substantially change the physical
dimensions of an existing facility approved by special use permit prior to October 13, 2004 or
that is a nonconforming structure shall be subject to, reviewed and acted upon as a Tier I, II or III
facility, as provided in subsection 5.1.40(g)(2).
5. Removal of antennas or equipment on any Tier I, II or III facility, any facility approved by special
use permit prior to October 13, 2004 or any facility that is a nonconforming structure. Any
antennas or equipment on any existing Tier I, II or III facility, any existing facility approved by
special use permit prior to October 13, 2004 or that is a nonconforming structure may be removed
as a matter of right and regardless of any special use permit condition providing otherwise.
6. Meaning of “collocation or replacement that would not substantially change the physical
dimensions of an existing facility.” A collocation or replacement that would not substantially
change the physical dimensions of an existing facility is any change to the physical dimensions of
an existing facility that is not within either an avoidance area or an entrance corridor overlay district
(section 30.6), and not within five hundred (500) feet of a dwelling unit located on a parcel under
different ownership than the parcel on which the facility is located, that would: (i) add one or more
antennas to the facility provided that the requirements of subsections 5.1.40(c)(1), (2), (3), (6) and
(8) are satisfied; (ii) replace an existing monopole or tower with a monopole or tower of an equal or
lesser height, provided that the requirements of subsection 5.1.40(d) (1), (5), (7), (8) and (10) are
satisfied; (iii) replace an existing treetop facility with a monopole that is not more than ten (10) feet
taller than the reference tree, provided that the requirements of subsection 5.1.40(d) (1), (5), (7), (8)
and (10) are satisfied; (iv) strengthen an existing monopole or tower without the use of guy wires,
provided that the requirements of subsection 5.1.40(d)(5), (7) and (8) are satisfied; or (v) expand
the lease area or add ground equipment either within or outside of a ground equipment shelter,
provided that the expanded lease area does not exceed twice the square footage of the original lease
area, and further provided that the requirements of subsections 5.1.40(c)(7) and 5.1.40(d) (2), (4),
(5), (8) and (9) are satisfied. Any change to the access to the facility that results in the removal of
any tree shall be deemed to be a substantial change to the physical dimensions of an existing
facility.
g. Administration of special use permits for facilities approved prior to October 13, 2004. The following
applies to the administration of any special use permit for an existing facility approved prior to October 13,
2004:
1. Conditions. If any condition of the special use permit is more restrictive than a corresponding
standard in subsection 5.1.40(c) or (d), the corresponding standard in subsection 5.1.40(c) or (d)
shall apply. If any condition of the special use permit is less restrictive than a corresponding
Attachment B
Draft: 04/10/13
11
standard in subsection 5.1.40(c) or (d) and the applicant establishes that vested rights have attached
to the approved facility, the special use permit conditions shall apply.
2. Change to a facility that would substantially change the physical dimensions of a facility approved
by special use permit prior to October 13, 2004. Any proposed change to a facility that would
substantially change the physical dimensions of the facility approved by special use permit prior to
October 13, 2004 under subsection 5.1.40(f)(4) shall be subject to the procedures and standards for
a Tier II facility if the facility would qualify as a Tier II facility, or a Tier III facility if the facility
would not qualify as a Tier II facility.
3. Effect of changes. Any change to a facility by collocation or replacement under subsection
5.1.40(f)(3) shall not reclassify the facility as a Tier I, II or III facility. Any change to a facility by
collocation or replacement under subsection 5.1.40(g)(2) shall reclassify the facility as a Tier II or
Tier III facility, as applicable. If the facility is approved as a Tier II facility, the prior special use
permit conditions shall have no further force or effect.
h. Time for action. Each action on an application for a Tier I, II or III facility shall be taken within the
following periods:
1. Applications for Tier I and Tier II facilities and applications for existing Tier III facilities that
would not substantially increase the size of an existing tower or monopole. Any application for a
Tier I or Tier II facility, and any application for an existing Tier III facility that would not
substantially increase the size of the existing monopole or tower, shall be approved or
disapproved within ninety (90) days, as calculated under subsection 5.1.40(h)(3).
2. Applications for new Tier III facilities and applications for existing Tier III facilities that would
substantially increase the size of an existing monopole or tower. Any application for a Tier III
facility, and any application for an existing Tier III facility that would substantially increase the
size of an existing monopole or tower, shall be approved or disapproved within one hundred fifty
(150) days, as calculated under subsection 5.1.40(h)(3).
3. Calculating the time for action. The time for action on an application shall be calculated as
follows:
(a) Commencement. The time for action under subsection 5.1.40(h)(1) or (h)(2) shall begin
on the date the application is received in the department of community development.
(b) Determination of completeness. Within thirty (30) days after the application is received,
the department of community development shall determine whether the application
includes all of the applicable information required under subsections 5.1.40(a) through
(e). If any required information was not provided, the department shall inform the
applicant within the thirty (30) day period about which information must be submitted in
order for the application to be determined to be complete.
(c) Tolling. The running of the time for action under subsection 5.1.40(h)(1) or (h)(2) shall
be tolled between the date that the department informs the applicant that its application is
incomplete under subsection 5.1.40(h)(3)(b) and the date on which the department
receives all of the required information from the applicant.
Attachment B
Draft: 04/10/13
12
(d) Extension of running of time for action. The time by which action must be taken under
subsection 5.1.40(h)(1) or (h)(2) may be extended upon request by, or with the consent
of, the applicant.
4. Effect of failure to approve or disapprove within time for action. The failure to approve or
disapprove an application within the time for action shall not be deemed to be approval of the
application but, instead, shall only create a rebuttable presumption that the failure to timely act
was not reasonable under 47 U.S.C. § 332(c)(7)(B)(ii).
5. Meaning of “substantially increase the size of a monopole or tower”. The phrase “substantially
increase the size of a monopole or tower” means: (i) the mounting of the proposed antenna would
increase the height of the monopole or tower by more than ten (10) percent, or by the height of one
additional antenna array with separation from the nearest existing antenna not to exceed twenty (20)
feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size
limits set forth herein if necessary to avoid interference with existing antennas; (ii) the mounting of
the proposed antenna would include installing more than the standard number of new equipment
cabinets for the technology involved, not to exceed four (4), or more than one new ground
equipment shelter; (iii) the mounting of the proposed antenna would involve adding an
appurtenance to the body of the monopole or tower that would protrude from the edge of the
monopole or tower more than twenty (20) feet, or more than the width of the monopole or tower
structure at the level of the appurtenance, whichever is greater, except that the mounting of the
proposed antenna may exceed the size limits set forth herein if necessary to shelter the antenna
from inclement weather or to connect the antenna to the monopole or tower by cable; or (iv) the
mounting of the proposed antenna would involve excavation outside the current boundaries of the
leased or owned property surrounding the monopole or tower and any access or utility easements
currently related to the site.
(§ 5.1.40, Ord. 01-18(9), 10-17-01; Ord. 04-18(2), 10-13-04)
I, Ella W. Jordan, do hereby certify that the foregoing writing is a true, correct copy of an Ordinance duly adopted
by the Board of Supervisors of Albemarle County, Virginia, by a vote of _____ to _____, as recorded below, at a
regular meeting held on _________________________.
__________________________________
Clerk, Board of County Supervisors
Aye Nay
Mr. Boyd ____ ____
Mr. Dumler ____ ____
Ms. Mallek ____ ____
Mr. Rooker ____ ____
Mr. Snow ____ ____
Mr. Thomas ____ ____
FCC Programmatic Agreement Definition of “Substantial increase in the
size of the tower”
“Substantial increase in the size of the tower” means:
1) The mounting of the proposed antenna on the tower would increase the existing height of the tower
by more than 10%, or by the height of one additional antenna array with separation from the nearest
existing antenna not to exceed twenty feet, whichever is greater, except that the mounting of the
proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid
interference with existing antennas; or
2) The mounting of the proposed antenna would involve the installation of more than the standard
number of new equipment cabinets for the technology involved, not to exceed four, or more than one
new equipment shelter; or
3) The mounting of the proposed antenna would involve adding an appurtenance to the body of the
tower that would protrude from the edge of the tower more than twenty feet, or more than the width
of the tower structure at the level of the appurtenance, whichever is greater, except that the mounting
of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter
the antenna from inclement weather or to connect the antenna to the tower via cable; or
4) The mounting of the proposed antenna would involve excavation outside the current tower site,
defined as the current boundaries of the leased or owned property surrounding the tower and any
access or utility easements currently related to the site.
ATTACHMENT C
PUBLIC NOTICE
Federal Communications Commission
445 12th St., S.W.
Washington, D.C. 20554
News Media Information 202 / 418-0500
Internet: http://www.fcc.gov
TTY: 1-888-835-5322
WIRELESS TELECOMMUNICATIONS BUREAU OFFERS GUIDANCE ON
INTERPRETATION OF SECTION 6409(a) OF THE MIDDLE CLASS TAX RELIEF AND
JOB CREATION ACT OF 2012
DA 12-2047
January 25, 2013
On February 22, 2012, the Middle Class Tax Relief and Job Creation Act of 2012 (Tax Act)1 became law.
Section 6409(a) of the Tax Act provides that a state or local government “may not deny, and shall
approve” any request for collocation, removal, or replacement of transmission equipment on an existing
wireless tower or base station, provided this action does not substantially change the physical dimensions
of the tower or base station.2 The full text of Section 6409(a) is reproduced in the Appendix to this Public
Notice.
To date, the Commission has not received any formal petition to interpret or apply the provisions of
Section 6409(a). We also are unaware of any judicial precedent interpreting or applying its terms. The
Wireless Telecommunications Bureau has, however, received informal inquiries from service providers,
facilities owners, and state and local governments seeking guidance as to how Section 6409(a) should be
applied. In order to assist interested parties, this Public Notice summarizes the Bureau’s understanding of
Section 6409(a) in response to several of the most frequently asked questions.3
What does it mean to “substantially change the physical dimensions” of a tower or base station?
Section 6409(a) does not define what constitutes a “substantial[] change” in the dimensions of a tower or
base station. In a similar context, under the Nationwide Collocation Agreement with the Advisory
Council on Historic Preservation and the National Conference of State Historic Preservation Officers, the
Commission has applied a four-prong test to determine whether a collocation will effect a “substantial
increase in the size of [a] tower.”4 A proposed collocation that does not involve a substantial increase in
1 Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, H.R. 3630, 126 Stat. 156 (enacted Feb. 22,
2012)(Tax Act).
2 Id., § 6409(a).
3 Although we offer this interpretive guidance to assist parties in understanding their obligations under Section
6409(c), see, e.g., Truckers United for Safety v. Federal Highway Administration, 139 F.3d 934 (D.C.Cir. 1998), the
Commission remains free to exercise its discretion to interpret Section 6409(a) either by exercising its rulemaking
authority or through adjudication. With two exceptions not relevant here, the Tax Act expressly grants the
Commission authority to “implement and enforce” this and other provisions of Title VI of that Act “as if this title is
a part of the Communications Act of 1934 (47 U.S.C. 151 et seq.).” Tax Act § 6003.
4 47 C.F.R. Part 1, App. B, Nationwide Programmatic Agreement for the Collocation of Wireless Antennas, § I.C
(Nationwide Collocation Agreement).
ATTACHMENT D
2
size is ordinarily excluded from the Commission’s required historic preservation review under Section
106 of the National Historic Preservation Act (NHPA).5 The Commission later adopted the same
definition in the 2009 Declaratory Ruling to determine whether an application will be treated as a
collocation when applying Section 332(c)(7) of the Communications Act of 1934.6 The Commission has
also applied a similar definition to determine whether a modification of an existing registered tower
requires public notice for purposes of environmental review.7
Under Section I.C of the Nationwide Collocation Agreement, a “substantial increase in the size of the
tower” occurs if:
1)[t]he mounting of the proposed antenna on the tower would increase the existing height of
the tower by more than 10%, or by the height of one additional antenna array with separation
from the nearest existing antenna not to exceed twenty feet, whichever is greater, except that
the mounting of the proposed antenna may exceed the size limits set forth in this paragraph
if necessary to avoid interference with existing antennas; or
2) [t]he mounting of the proposed antenna would involve the installation of more than the
standard number of new equipment cabinets for the technology involved, not to exceed four,
or more than one new equipment shelter; or
3) [t]he mounting of the proposed antenna would involve adding an appurtenance to the
body of the tower that would protrude from the edge of the tower more than twenty feet, or
more than the width of the tower structure at the level of the appurtenance, whichever is
greater, except that the mounting of the proposed antenna may exceed the size limits set
forth in this paragraph if necessary to shelter the antenna from inclement weather or to
connect the antenna to the tower via cable; or
4) [t]he mounting of the proposed antenna would involve excavation outside the current
tower site, defined as the current boundaries of the leased or owned property surrounding the
tower and any access or utility easements currently related to the site.
Although Congress did not adopt the Commission’s terminology of “substantial increase in size” in
Section 6409(a), we believe that the policy reasons for excluding from Section 6409(a) collocations that
substantially change the physical dimensions of a structure are closely analogous to those that animated
the Commission in the Nationwide Collocation Agreement and subsequent proceedings. In light of the
Commission’s prior findings, the Bureau believes it is appropriate to look to the existing definition of
“substantial increase in size” to determine whether the collocation, removal, or replacement of equipment
5 See 16 U.S.C. §470f, see also 47 C.F.R.§ 1.1307(a)(4) (requiring applicants to determine whether proposed
facilities may affect properties that are listed, or are eligible for listing, in the National Register of Historic Places).
6 See Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review
and to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as
Requiring a Variance, WT Docket No. 08-165, Declaratory Ruling, 24 FCC Rcd. 13994, 14012, para. 46 & n.146
(2009) (2009 Declaratory Ruling), recon. denied, 25 FCC Rcd. 11157 (2010), pet. for review denied sub nom. City
of Arlington, Texas v. FCC, 668 F.3d 229 (5th Cir.), cert. granted, 113 S.Ct. 524 (2012); 47 U.S.C. § 332(c)(7).
7 See 47 C.F.R. § 17.4(c)(1)(B); National Environmental Policy Act Compliance for Proposed Tower Registrations,
WT Docket No. 08-61, Order on Remand, 26 FCC Rcd. 16700, 16720-21, para. 53 (2011).
ATTACHMENT D
3
on a wireless tower or base station substantially changes the physical dimensions of the underlying
structure within the meaning of Section 6409(a).
What is a “wireless tower or base station”?
A “tower” is defined in the Nationwide Collocation Agreement as “any structure built for the sole or
primary purpose of supporting FCC-licensed antennas and their associated facilities.”8 The Commission
has described a “base station” as consisting of “radio transceivers, antennas, coaxial cable, a regular and
backup power supply, and other associated electronics.”9 Section 6409(a) applies to the collocation,
removal, or replacement of equipment on a wireless tower or base station. In this context, we believe it is
reasonable to interpret a “base station” to include a structure that currently supports or houses an antenna,
transceiver, or other associated equipment that constitutes part of a base station.10 Moreover, given the
absence of any limiting statutory language, we believe a “base station” encompasses such equipment in
any technological configuration, including distributed antenna systems and small cells.
Section 6409(a) by its terms applies to any “wireless” tower or base station. By contrast, the scope of
Section 332(c)(7) extends only to facilities used for “personal wireless services” as defined in that
section.11 Given Congress’s decision not to use the pre-existing definition from another statutory
provision relating to wireless siting, we believe the scope of a “wireless” tower or base station under
Section 6409(a) is not intended to be limited to facilities that support “personal wireless services” under
Section 332(c)(7).
May a state or local government require an application for an action covered under Section
6409(a)?
Section 6409(a) states that a state or local government “may not deny, and shall approve, any eligible
facilities request….” It does not say that a state or local government may not require an application to be
filed. The provision that a state or local government must approve and may not deny a request to take a
covered action, in the Bureau’s view, implies that the relevant government entity may require the filing of
an application for administrative approval.
8 See Nationwide Collocation Agreement, § I.B.
9 See Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993, WT Docket No. 10-
133, Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including
Commercial Mobile Services, Fifteenth Report, 26 FCC Rcd. 9664, 9481, para. 308 (2011).
10 See also 47 C.F.R. Part 1, App. C, Nationwide Programmatic Agreement Regarding the Section 106 National
Historic Preservation Act Review Process, § II.A.14 (defining “tower” to include “the on-site fencing, equipment,
switches, wiring, cabling, power sources, shelters, or cabinets associated with that Tower but not installed as part of
an Antenna as defined herein”).
11 47 U.S.C. § 332(c)(7)(A). “Personal wireless services” is in turn defined to mean “commercial mobile services,
unlicensed wireless services, and common carrier wireless exchange access services.” Id. § 332(c)(7)(C)(1).
ATTACHMENT D
4
Is there a time limit within which an application must be approved?
Section 6409(a) does not specify any period of time for approving an application. However, the statute
clearly contemplates an administrative process that invariably ends in approval of a covered application.
We believe the time period for processing these applications should be commensurate with the nature of
the review.
In the 2009 Declaratory Ruling, the Commission found that 90 days is a presumptively reasonable period
of time to process collocation applications.12 In light of the requirement of Section 6409(a) that the
reviewing authority “may not deny, and shall approve” a covered request, we believe that 90 days should
be the maximum presumptively reasonable period of time for reviewing such applications, whether for
“personal wireless services” or other wireless facilities.
Wireless Telecommunications Bureau contact: Maria Kirby at (202) 418-1476 or by email:
Maria.Kirby@fcc.gov.
-FCC-
For more news and information about the Federal Communications Commission
please visit: www.fcc.gov
12 See 2009 Declaratory Ruling, 24 FCC Rcd. at 14012-13, paras. 46-47.
ATTACHMENT D
5
APPENDIX
SEC. 6409. WIRELESS FACILITIES DEPLOYMENT.
(a) FACILITY MODIFICATIONS.
(1) IN GENERAL. Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law
104–104) or any other provision of law, a State or local government may not deny, and shall approve, any
eligible facilities request for a modification of an existing wireless tower or base station that does not
substantially change the physical dimensions of such tower or base station.
(2) ELIGIBLE FACILITIES REQUEST. For purposes of this subsection, the term ‘‘eligible facilities
request’’ means any request for modification of an existing wireless tower or base station that involves —
(A) collocation of new transmission equipment;
(B) removal of transmission equipment; or
(C)replacement of transmission equipment.
(3) APPLICABILITY OF ENVIRONMENTAL LAWS. Nothing in paragraph (1) shall be construed to
relieve the Commission from the requirements of the National Historic Preservation Act or the National
Environmental Policy Act of 1969.
ATTACHMENT D
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Albemarle County Planning Commission
April 9, 2013
The Albemarle County Planning Commission held a public hearing on Tuesday, April 9,
2013, at 6:00 p.m., at the County Office Building, Auditorium, Second Floor, 401
McIntire Road, Charlottesville, Virginia.
Members attending were Ed Smith, Bruce Dotson, Don Franco, Richard Randolph,
Thomas Loach, and Russell (Mac) Lafferty, Vice Chairman. Absent were Calvin Morris,
Chairman and Julia Monteith, AICP, Senior Land Use Planner for the University of
Virginia.
Other officials present were Sarah Baldwin, Senior Planner; Ellie Ray, Engineer;
Claudette Grant, Senior Planner; Wayne Cilimberg, Director of Planning; Bill Fritz, Chief
of Special Projects; David Benish, Chief of Planning; Sharon Taylor, Clerk to Planning
Commission; Mark Graham, Director of Community Development; and Greg Kamptner,
Deputy County Attorney.
Call to Order and Establish Quorum:
Mr. Lafferty, Vice-Chair, called the regular meeting to order at 6:00 p.m. and established
a quorum.
ZTA-2013-00001 Wireless Phase I
Amend Secs. 3.1, Definitions, and 5.1.40, Personal wireless service facilities, of
Chapter 18, Zoning, of the Albemarle County Code. This ordinance would amend the
regulations pertaining to personal wireless service facilities by amending Sec. 3.1, by
adding and amending definitions pertaining to personal wireless service facilities, and
Sec. 5.1.40, by allowing equipment to be collocated and replaced by right if it does not
result in a substantial change to the facility; al lowing Tier II facilities to be up to 10 feet
taller than the reference tree and to be approved administratively; requiring balloon tests
at the request of the agent, rather than in all cases; eliminating the requirement that
service providers submit annual reports; codifying the times by which applications shall
be acted upon; eliminating certain design requirements for equipment located entirely
within a structure; codifying the procedures and standards for changes to facilities
approved prior to the adoption of Sec. 5.1.40 on October 13, 2004; and making other
minor clarifications. A copy of the full text of the ordinance is on file in the office of the
Clerk of the Board of Supervisors and in the Department of Community Development,
County Office Building, 401 McIntire Road, Charlottesville, Virginia. (Bill Fritz)
Sarah Baldwin in a PowerPoint presentation briefly reviewed some of the items
highlighted in the staff report.
What this ZTA Does
Adds and Amends Definitions
Revises Balloon Test Requirements
Eliminates Automatic Reporting
Establishes Procedures to Amend Existing Sites
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Establishes Reviews Times
Creates Administrative Review for Tier II Sites
By-Right Procedure for Collocation
Definitions are necessary to incorporate the collocation requirements and implement the
proposed process changes for previously approved/constructed sites. The ordinance
currently requires all sites to submit an annual report stating the site is still in use. This
is a time consuming venture for the Zoning Administrator to keep up with and serves no
purpose as no site has ever been abandoned. The proposed ordinance will still allow a
report to be required upon request. Amending existing sites has been time consuming
and difficult to administer. This proposal also brings all old sites into the Tier structure
and simplifies processing. This has been one of the most requested revisions from the
industry. Review times are brought into the ordinance. Currently review times are by
policy. These review times are consistent with the FCC recommended review times.
“Shot Clock” Currently is in the United States Supreme Court and is being considered if
the shot clock can be imposed on localities by the FCC.
What this ZTA does NOT do
Does not reduce design requirements
Does not change Tier concept
Does not eliminate public involvement except for certain collocation proposals.
This ZTA does not deal with the provision of either wireline or wireless broadband.
Revises Balloon Test Requirements
Balloons cannot be flown in cases like shown in the presentation due to power lines,
guide wires etc. The proposed ordinance simplifies processing by making balloon tests
required upon request of the agent. The agent will require balloon tests where the site
permits testing. Making this change eliminates the need to process any special
exceptions for balloon tests.
Creates Administrative Review for Tier II Sites
Staff has 9 years of experience processing these requests.
The height would be 10 feet above reference tree.
Public notice is maintained.
All design requirements are maintained.
Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012
“Local government may not deny, and shall approve, any eligible facilities request for a
modification of an existing wireless tower or base station that does not substantially
change the physical dimensions of such tower or base station.”
Section 6409 does not alter localities’ processes for approving an application for a
change that is not substantial; the statute only requires that the application be approved.
The law contains no definitions except for - Eligible facility is an existing wireless base
station or tower
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By-Right Procedure for Collocation
Site may not be in an avoidance area, an Entrance Corridor District or within 500 feet of
Dwelling.
Adding one or more antennas.
Replacing a tower at an equal or lesser height.
Replacing a treetop tower with one that is not more than 10 feet taller than the
reference tree.
Strengthening a tower without the use of guy wires.
Expanding the lease area up to two times the original lease area.
Adding ground equipment.
Section 6409 requires approval if the change to a site does not represent a substantial
change. It should be noted that some are questioning if the Federal L aw can mandate a
state or locality to approve changes to a site. Staff is not taking a position on the ability
of the Federal Law to mandate a local action. Staff does believe that by -right changes
to a site should be permitted if those changes are not s ubstantial. Therefore, we have
developed these standards which are not substantial changes. All of these changes
require that design requirements are met. Changes that exceed these limits, such as
adding lighting or changing color or not meeting any othe r design requirement, would be
considered a substantial change.
Nationwide Programmatic Agreement
- Existed prior to the adoption of the Middle Class Tax Relief and Job Creation Act
of 2012.
- Was an agreement between Federal Agencies designed to address re view of
impacts on Historic Resources.
Agreement exists that a definition of what “does not substantially change the physical
dimensions” is needed. Some belief that the “Nationwide Programmatic Agreement for
the Collocation of Wireless Antennas” should be used.
Comparison of the Act and Programmatic Agreement
Middle Class Tax Relief Act
“Does not substantially change the physical dimensions”
- No definition is contained in the law except for eligible facility as an existing wireless
base station or tower.
Programmatic Agreement - “substantial increase in the size of the tower”
1) The mounting of the proposed antenna on the tower would increase the existing
height of the tower by more than 10%, or by the height of one additional antenna array
with separation from the nearest existing antenna not to exceed twenty feet, whichever
is greater, except that the mounting of the proposed antenna may exceed the size limits
set forth in this paragraph if necessary to avoid interference with existing antennas; or
2) The mounting of the proposed antenna would involve the installation of more than the
standard number of new equipment cabinets for the technology involved, not to exceed
four, or more than one new equipment shelter; or
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3) The mounting of the proposed antenna would involve adding an appurtenance to the
body of the tower that would protrude from the edge of the tower more than twenty feet,
or more than the width of the tower structure at the level of the appurtenance, whichever
is greater, except that the mounting of the proposed antenna may exceed the size limits
set forth in this paragraph if necessary to shelter the antenna from inclement weather or
to connect the antenna to the tower via cable; or
4) The mounting of the proposed antenna would involve excavation outside the current
tower site, defined as the current boundaries of the leased or owned property
surrounding the tower and any access or utility easements currently related to the site.
The proposed by right procedure for location the site may still not be located in an
avoidance area or an Entrance Corridor District or within 500 feet of a dwelling unit.
Such other things as adding one or more antennas, replacing a tower at a equal or
lesser height, replacing a treetop tower with one that is n ot more than 10 feet taller than
the reference tree, strengthening the tower without the use of guide wires, expanding
the lease area up to two times the original lease area or adding ground equipment.
The premise exists that a definition of what does not substantially change the physical
dimensions is needed. Staff held a roundtable and there was no consensus about what
that definition should be. Some believe that the Nationwide Programmatic Agreement
for the co-location of wireless antennas should be used. However, the programmatic
agreement is not clear. The agreement allows existing facilities to be increased in
height. However, the term “existing facilities” is not defined. Would it be a facility as it
existed when the agreement was adopted in 2001; or is it when the act was adopted in
2012; or the time that the application was made? Also, how many extensions are
permitted? What is the standard number of new equipment cabinets?
Impact of Using Programmatic Agreement
The PowerPoint slide showed what could happen if the Programmatic Agreement was
used. Staff opinion is that the County can and should develop a definition for what
“does not substantially change the physical dimensions” means.
Recommendation
Staff recommends that the Planning Commission recommend approval of ZTA 2013-01.
Mr. Lafferty noted on page 2 where staff says dimensions of facility and therefore would
have to be approved by the agent adding one or more antennas, does that mean of a
different nature. In other words, if they were talking about adding a similar f lush
mounted antenna does that change the review.
Mr. Fritz replied staff was saying the addition of an antenna, provided that they meet the
design standards, would not substantially change the nature of the tower and would be
a permitted use provided that those antenna additions meet the design standards. An
example is if they have one array and want a second one.
Mr. Loach asked does it have to be similar to the existing array or a similar design.
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Mr. Fritz replied that it just has to meet the design standards. It has to be flush mounted
and meet the size and color. It may actually not meet the standards. The e xisting ones
may not meet the design standards currently. There may be an array that stands off
and may be an older site.
Mr. Loach said he assume when they talk about the facilities and setback requirements
for property lines that also includes any easements that also may be attached. He
asked if they have had these with fall zones where they h ave gotten easements on the
neighbors’ properties to allow it.
Ms. Baldwin replied that is correct.
Mr. Loach noted when they say setbacks that include those easement areas.
Mr. Fritz pointed out that was a design standard.
Mr. Randolph commended staff on a well done visual presentation and also a concise
one. He had a question on page 3 under eliminating the automatic annual reporting
requirement. The last sentence says the proposed ordinance does require that a
service provider notify the county if a facility is discontinued. What are the
consequences if a service provider does not notify the county that a facility is
discontinued? He asked are there any.
Ms. Baldwin replied that it would be considered as a zoning violation.
Mr. Loach asked is there rules and regulations now when they discontinue as far as the
equipment and handling the removal.
Ms. Baldwin replied yes.
Mr. Fritz commented that staff did not provide a full history. In a work session with the
Board of Supervisors that was a specific request to be added into the ordinance. It had
been mentioned in a staff report.
Mr. Dodson understood that this is phase one of a two phase set of amendments.
Phase one is more sort of process and definitions. However, at some point standards
come in, too, when they try to decide what is minimal impact or not. He was confused
about one thing. If he looks at attachment B on typed page 8 and hand numbered page
12 up at the top it talks about the height of the monopole. The new wording at the
bottom of the previous page is the Board of Supervisors may approve a special
exception allowing the height of the monopole to be up to 10’ taller than the tallest tree.
So he reads and understands that. However, in the staff report it seems to say about
Tier II applications that the 10’ taller would be handled administratively and be by right.
That is something he did not understand because it seems to be contradictory.
Mr. Fritz replied that needs to be corrected. It should not say Board of Supervisors. It
should say agent and remove reference to the 7’ and 10’ difference. They would just
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be reviewing it. It is either an appropriate site or it is not. They would have to work with
the applicant to say what the right height is in a particular case.
Mr. Dotson reiterated that it would be a correction to say the agent rather than the
Board. Now they are saying apparently that 10’ is henceforth if this is approved, it
would be by right.
Mr. Fritz replied that was correct.
Mr. Dotson asked if the whole thing about a special exception would no longer apply,
and Mr. Fritz replied that was correct.
Mr. Dotson said they are changing that standard in this process document. They are
not letting that carry over to when they are looking at all of the standards.
Mr. Fritz agreed that was correct. He noted that was done because obviously 10’ has
been permitted and what they did in working with the Board of Supervisors is they
looked at all the applications that had been approved and they were at 10’.
Summarizing what he thinks the Board was saying, the Board believed that they could
review those and that 10’ was appropriate. Then if in a particular case 10’ was not
appropriate they would not approve that and maybe it would be 9’, 8’, 3’ or whatever the
right number is. But, not having that 7’/10’ split and just saying it is 10’ and working
there.
Mr. Dotson questioned whether in this document it is the time to consider that standard
or whether they should consider it when they are considering all of the oth er standards.
Then they can see the combined effect of making those changes is what he is asking. It
is significant in terms of defining a substantial change because in the third bullet down
on page 2 it proposes to say “replacing a treetop with one that is not more than 10’
taller.” So again, they are using that to say if it is up to the 10’ it is not substantial. So it
is a significant change to define that.
Mr. Fritz noted they are proposing to go to 10’.
Mr. Dotson pointed out the second comment is on the balloon tests. He was confused
because it seems to say that the agent can require a balloon test when they feel it is
necessary. But, then the last line under that paragraph on page 3 of the staff report says
balloon tests will still be required for new facilities where it is possible to fly a balloon.
Mr. Fritz replied staff was saying whenever it is possible to fly a balloon that as policy
they will require the balloon test to be done.
Mr. Dotson suggested the ordinance should say that.
Mr. Fritz noted staff tried to craft it in such a way to say where possible and so forth and
because of the St. Clair case they could not write it in such a way that they still would
not need a special exception. This is an ease of processing it. They are using the other
side of the coin. Right now what happens is they have to process a special exception,
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which means they have to go through a finding that it is not necessary or can’t be done.
They have to go through all of that work to do that. It is much easier by flipping the coin
on its head and saying it is not required unless they ask for it. All they have to do is say
they have to do a balloon test. The processing is m uch easier on staff with less special
exceptions.
Mr. Dotson said he was raising a concern for two reasons. One, he finds a balloon test
very helpful on any matter that comes before the Commission. He would think the
Board would, too. One thought is to say if an item comes before the Commission there
will be a balloon test. That is very clear.
Mr. Fritz replied that staff can certainly look into that. If an item is normally scheduled
for a Tier III or anything with a significant change, staff can do that. He understands
what he is saying and can advise the Board of it.
Mr. Dotson asked if it is currently stated that the agent can waive a balloon test, and he
assumes they do that, and if there were 10 proposals may be they waive it 2 out of the
10 times and 8 times the balloon test is done. He is afraid if they change the language
to the staff or the agent can request or require it that it sort of changes the burden of the
decision. He fears that instead of having 8 balloon tests the staff will say this is sort of a
gray area and the applicant does not want to do it, so alright let’s not do it or require it.
So it puts the burden on the staff to require instead of which seems like it is pretty easy
to say let’s waive that.
Mr. Fritz said the burden is still on the staff under the current ordinance language when
the applicant says they don’t want to do a balloon test in a particular case. Staff has to
then analyze that. They are always in agreement. It is both because it is an existing
tower and they don’t need to do a balloon test because they can see it. Or, there are
power lines. Even in cases where they have had thick tree cover they have still done
balloon tests maybe not at the exact site, but moving it some distance so they can get a
rough idea of what it is going to look like. They would continue to do those things. They
are simply proposing to flip the coin here for processing. It makes it easier to process.
Balloon tests are important for staff to be able to analyze. They cannot analyze it most
of the time without a balloon test.
Mr. Dotson said his bottom line would just be he thinks balloon tests are useful.
Mr. Smith said balloon tests are important for the public.
Mr. Loach said on the balloon tests very often the applicant has brought a facsimile of
what the tower would look like. It is probably a technology question. But he wonders if
in lieu of the balloon test, even if they waive it, if they could still require a facsimile. He
finds the balloon test very useful because the full height of what the tower would look is
displayed if the technology provides true representations.
Mr. Fritz said staff agreed. The ordinance is written in such a way that staff can require
those things if they ever need them. Staff does the same thing. There are t imes when
staff simply says having a photo simulation would be really helpful. The default is going
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to be then to deny it. If they don’t know what the impact is going to be, they would deny
it. Staff would tell the applicant they don’t have the information to be able to approve
the request and therefore they go the other way. If staff cannot make the affirmative
findings, it would be denied. T he applicants are here in the audience and they have
been very good to work with to get that information.
There being no further questions, Mr. Lafferty opened the public hearing and invited
public comment.
Laurie Schweller, with LeClair Ryan, represented Verizon Wireless. She would like to
provide comments about the proposed ordinance amendments.
Verizon W ireless does support these amendments. They think it is very important
to bring the County’s ordinance into compliance with the FCC’s ruling, the “Shot
Clock”, and with Section 6409 The Middle Class Tax Relief and Job Creation Act
of 2012. They believe that this amendment does that to a l arge extent. They
are very happy to see that facilities approved prior to this current ordinance in
2004 will now be treated the same as facilities approved under the current
ordinance, the tiered facilities. That will help a lot with predictability and treating
like applications alike. That will help to effect these other changes.
She thinks for Verizon W ireless and maybe for some of the other carriers they
are particularly pleased to see this new administrative process for co -locations or
placements of existing towers, extensions of towers and even new towers. By
towers, she means monopoles up to 10’ above the reference tree. She thinks
they all know that the Albemarle County staff is well equipped and has plenty of
experience to evaluate these applications. They have been doing it a l ong time
and are very familiar with the ins and outs of them.
She thinks it will save everyone unnecessary time in hearing for the sites that
they have approved readily. In the past year and a half Verizon Wireless has had
seven Tier II requests that were approved without any controversy. They have
had a number of Tier III special use permits that were merely co -locations of new
antennas below the existing antennas and other things that under this new
ordinance could be approved as a Tier I administrative approval, which they do
believe is appropriate.
She just wanted to point out, however, that was with the carve outs, of anything
that is within 200 feet of a Scenic Byway, along the Entrance Corridor, or in the
Historic Districts, which cover about one-third of the County on the eastern side,
or within 200’ of three (3) other monopoles or within 500 feet of a dwelling off
site. There are so many carve outs that they can expect to see a large number
of our applications still coming up for public hearing . That is something they
hope to consider when they get to phase 2.
She introduced the next speaker Tim Dykstra, who is the Director in Network
Engineering with Verizon Wireless for the Virginia region. He can provide some
comments on technology matters.
Tim Dykstra, Director in Network Engineering with Verizon Wireless for the Virginia
region, commended staff and the Commission for working with them because it really is
a partnership between the wireless industry and the people who help govern and
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ensure that what they are trying to do that they are working together to supply their
customers a quality product that they are asking a lot for. He was here two -fold. First
was with what Verizon Wireless is seeing from a built perspective and where they are
going as technology continues to evolve. Secondly, he was open to any questions that
anyone might have with respect to anything he can answer on wireless with respect to
Verizon Wireless or any trends he sees at this point. He provided the additional
information, as follows.
That usage is growing faster now than it ever has before. It is partially voice, but
most of it is data. What they are seeing in the industry is the usage of data,
which is growing rapidly. To be able to handle that they have to continue to do
things like buy additional spectrums from the FCC. To be able to utilize that
spectrum they have to add different lines of antennas onto their sites. The
physics of the way that the radio frequencies work is they can combine some
frequencies but they cannot combine all frequencies. Otherwise, they start to
actually degrade themselves and they don’t get the performance out of the
network.
They are going to see more applications coming from Verizon Wireless. He
would assume other carriers would be coming down the pike to add antennas to
existing structures. They are going to need to add more lines and more antennas
to service those new products coming down the road. That is being driven or
fueled solely by the amount of usage that is being used on their network now as
it continues to grow. They are talking about areas of 7 to 13 times growth over
the next 4 or 5 years. That is a tremendous amount of growth.
The customers are driving the need for this. They are trying to service them and
give them everything they need. From a built perspective it is not just adding
existing equipment to the existing cell sites. It is building more new cell sites in
areas where they don’t provide good coverage. They are trying to enhance the
footprint that they have. People are using devices not just in their vehicles, but
in their homes. They are replacing their home phones with wireless devices.
They are using these devices to fuel their laptops and their I Pads at home so
that they don’t have to have hard connections inside their houses so they can
continue to be mobile and use their devices anywhere. That is where they are
seeing the huge amount of growth.
People want to be able to utilize their I Pad from their bedroom into their living
room into their vehicle on their way to work and anywhere else they want to go.
They see that and it continues to grow. Therefore, they are going to be building
more new sites and adding equipment to the existing sites at rates that they
might have never seen before just because of the amount of growth they are
seeing in the data world. Adding capacity to the existing network is the part
about adding lines and antennas to the network in order to add coverage so that
people can use these devices in other areas that they can’t presently use them
now.
Mr. Lafferty thanked him for his comments. He invited questions.
Valerie Long, an attorney with the firm of Williams Mullen, said she has been here on
many occasions representing Ntelos Wireless and AT&T. First, she would ask that they
feel free to ask them questions and let them serve as a resource to the Commission and
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staff. They have always served as a good resource or certainly have always tried to for
everyone. There is an exceptional amount of industry expertise here in the room. In
industry it includes both those working for particular carriers and those who have been
involved in the ordinance for many years. They are very familiar with it and use it every
day. They know certain parts of it by heart for better or worse. She offered the
following comments.
They were around before there was an ordinance and when there was not a
comprehensive plan that dealt with wireless. They have a lot of experience and
have been working with people like Bill Fritz and Sarah Baldwin for many years.
Stephen W aller is here tonight representing the industry. He was a planner for
many years. She probably worked on 15 or 20 special use permits for towers
with Mr. Waller when he worked with the county. Please take advantage of our
experience with this ordinance and with the technology and let us serve as a
resource so they can address concerns or questions that may be out there.
They are not looking to get any special treatment. They really are just asking for
flexibility to streamline the ordinance and not undermine the regulations that they
provide. As the staff presentation indicated this does not change the regulations.
It does not change the design standards. It really just streamlines things and
they support the ordinance. They have a couple of suggestions they think will
make it a little bit better. However, on the whole they very much support it. They
are very grateful for the time that Mr. Fritz and his team have put towards
working and soliciting their input generally in a partnership to get to where they
are now.
There was a significant change that she would ask to be considered, which Ms.
Schweller spoke to generally when she talked about the carve outs. One of the
best things this ordinance does is it takes a thousand little issues that right now
are not a by-right co-location and clarifies it is a by-right co-location that is
administrative. The easy example is if they have an old wood pole approved in
1999 and it needs to be replaced because the wood is deteriorated over time.
The carrier or owner of the tower wants to replace it with a steel pole. Right now
that is not necessarily a by-right situation. It could have been approved under an
old special use permit that says as a condition of approval this pole must be
made of wood. There were a number of them approved in that way in the early
days. She thinks staff now agrees and the Commission and the Board have all
come to the consensus that steel poles for a variety of reasons are far better than
wood poles.
This ordinance exception, among other things, would allow that pole to be
swapped out administratively. It is by-right, simple, quick, and fairly affordable.
Similarly, attaching an additional set of antennas below the first set, as Ver izon
and other carriers are doing, to accommodate those additional users would be an
administrative Tier I. That is all wonderful and they strongly support it. H owever,
the benefits of that provision she thinks are large gutted by the fact that this giant
couple of exclusions exist. It says all those things are by right unless the site is
along an Entrance Corridor or if it is in an avoidance area. An avoidance area is
defined in the ordinance to include among other things anything within an historic
district. For a long time that was not such a big deal because there was the
Southwest Mountains Rural Historic District, but not a lot of other historic districts
in town. Within the last ten years the County implemented the Southern Rural
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11
Albemarle Historic District, which covers roughly a quarter of the County
particularly in the Scottsville District. So all of the sites they have been working
on along the Route 20 Corridor the vast majority of them would have been a Tier
II tower, but they were a Tier III tower only because they were in the historic
district.
Any facility whether it was approved in 1999 or last week if the carrier that owned
the tower wanted to come along and put a second set of antennas on it lower
down if it was along an Entrance Corridor that is not a by-right co-location. It
could become a Tier III special use permit, which would require them to spend all
of the time and resources to bring it to staff for review and then come before the
Commission and Board. If they think about all of the Entrance Corridors, the vast
majority of the cell towers are along an Entrance Corridor because that is where
the vehicles are. It includes Route 20, Route 29, I -64, Route 250, and Route 53.
Towers on those routes would not get the benefit of the very positive revisions
that this ordinance provides. That is the significant change that she would ask to
be considered.
Mr. Lafferty invited further public comment. There being none, the public hearing was
closed to bring the matter before the Planning Commission for discussion and action.
Mr. Dotson asked to hear staff’s response to Ms. Long’s point about the “carve outs”.
Mr. Fritz noted staff does not disagree and has not hidden the fact that the “carve outs”,
as it is being referred to, does cover a significant portion of the County. The reason they
did not tackle that as part of this zoning text amendment is that was going to be
something that was investigated as part of the phase 2. They certainly can talk about it
now if they like, but staff has in the past expressed or at least his opinion is that
probably the rural historic districts probably can be removed as an avoidance area. He
made the recommendation by virtue of the history they have of approving applications in
the rural historic districts. He was not sure about carving them out as a separate
avoidance area. They are trying to follow the guidance that they received from the
Board and not tackle that as part of phase one. Staff is interested in hearing what the
Commission’s thoughts are either now or in the future. He agreed with the suggestions
made to use the knowledge of others in the industries to get technical advice when they
move into phase 2. He felt that would be very valuable and plans to set up work
sessions in the future with the Board and Commission.
Mr. Franco asked about the lower antenna comment. There was a comment made by
Ms. Long that going back and adding an antenna l ower on the pole than the existing
antennas takes it and creates a Tier III condition.
Mr. Fritz commented as an example in an avoidance area it would count as a
substantial change and would not be eligible for an administrative approval.
Mr. Franco asked if that was a requirement anywhere or is it just in an avoidance area.
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Mr. Fritz replied that it may be a Tier II or a Tier III depending on the nature of the
application as Section F wraps all of those different types together, but depends on how
the previous one was done.
Mr. Franco supported trying to streamline, especially Route 20, where they had spent a
lot of time on. The fact that it is a rural historic district has not stopped the Commission
from supporting the tower location there. Again, this had to meet the criteria of meeting
the visibility aspect of it. However, he would certain ly see that as a benefit to
streamlining. The other important comment made in the letter they received is to
provide some language in there or at least some understanding that a Tier III does not
mean that they should not have it. Tier III means that the y need to give closer scrutiny
to the proposal, but they should not simply say it is a Tier III and it does not fit in the Tier
II so they should just not allow it on principle. They have done that in the past. At least
some members of the Commission have simply voted against all Tier III’s saying they
were not Tier II’s.
Mr. Lafferty invited further comments. Sitting here with his I Pad after reading and
thinking about putting up these antennas he felt it was like the tragedies of the
commons where they have a common area and the sheep are feeding in it. Suddenly
somebody puts another sheep in there, one person benefits from that, and the rest of
the group suffers. What they are doing is changing our landscape by putting up all of
these antennas for basically the telephone company’s profit. He would like to see them
having to give something back to County. If it means like hooking up the schools or
something like that instead of the County just giving it all away. Again, he is a big user
of the internet. So he sits here and wants good connections in the room, on the
downtown mall, and at his house. However, it is always the county giving up something
such as the visual impact.
Mr. Loach hoped like other technologies it will be a self limiting type of thing as
technology gets better that the size gets smaller and the things that they have been
worried about as far as the visual disturbance will become less and less of an issue. He
still did not like the big Christmas tree.
Mr. Randolph said there was a lot in here that is really good in terms of expediting the
process for the applicant in terms of the technology evolution they are having. The
process previously has a lot of controls. They have a good working relationship
between the W ireless community and the Community Development Office as well as
the Planning Commission. He was not yet persuaded that means they need to suspend
everything in terms of the Entrance Corridors. He thought when they come back to this
they should really have more of a focused discussion about whether that is appropriate
or not. She thanked Ms. Long for bringing it up. It is a good question for us to look at.
He understands given the design that is here where it would be logical to make that next
step; however, he was also concerned about maybe in the future they will not have as
eager, committed and well versed of series of companies providing wireless services
here and the successors might not be quite as reputable and dependable. Therefore,
things might not occur the way they would like them to occur in the Entrance Corridor.
He thought it was a good question and he looked for ward to a robust discussion about
that when they get back together again. Certainly everything that is in here is really
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sensible and is consistent with the federal requirements now for us on the local level.
Therefore, he was enthusiastic about it.
Mr. Lafferty asked what action the Commission needs to take on this or does our
suggestion just go to the Board.
Mr. Kamptner replied that staff is looking for a recommendation for the Planning
Commission to take to the Board of Supervisors.
Motion: Mr. Dotson moved and Mr. Randolph seconded to recommend approval of
ZTA-2013-00001 Wireless Phase I.
Mr. Kamptner clarified the one typo pointed out on page 8 that Mr. Dotson raised about
the height of the monopole by right correcting that it would be 10’ by-right.
The motion was approved by a vote of 6:0.
Mr. Lafferty noted that a recommendation for approval would be forwarded to the Board
of Supervisors on ZTA-2013-00001 Wireless Phase I, which would be heard on a date
to be determined.
Return to PC actions memo
COUNTY OF ALBEMARLE
EXECUTIVE SUMMARY
AGENDA TITLE:
Ordinance to Amend County Code Chapter 6 – Fire
Protection, Article III, Fireworks, and Chapter 7 – Health
and Safety, Article I, Noise
SUBJECT/PROPOSAL/REQUEST:
Public hearing to consider ordinances to amend Chapter
6 – Fire Protection, Article III, Fireworks and Chapter 7 –
Health and Safety, Article I, Noise
STAFF CONTACT(S):
Messrs. Foley, Davis, Herrick, Eggleston, Oprandy, and
Lagomarsino
PRESENTER (S): Howard Lagomarsino
LEGAL REVIEW: Yes
AGENDA DATE:
May 8, 2013
ACTION: X INFORMATION:
CONSENT AGENDA:
ACTION: INFORMATION:
ATTACHMENTS: Yes
REVIEWED BY:
BACKGROUND:
Fireworks displays are allowed in Virginia subject to compliance with the provisions of the Virginia Statewide Fire
Prevention Code (SFPC). Virginia Code § 15.2-974 allows localities to further regulate these activities, provided that any
local enforcement provisions be as stringent as the Code of Virginia and the SFPC. Virginia Code § 15.2-974 specifically
enables localities to require a permit for fireworks displays.
Chapter 6, Article III of the County Code governs fireworks in the County. County Code § 6-303 (A) requires a permit for
fireworks displays. Other provisions within this section and article define exceptions to the permitting requirement and
permitting procedure.
Noise is regulated in County Code Chapter 7. County Code § 7-106 (H) exempts certain fireworks displays from the
provisions of the noise ordinance.
These proposed ordinance amendments are housekeeping matters to clarify the fireworks provisions and to eliminate any
ambiguity in how they are applied.
Drafts of the proposed ordinances are attached (Attachments A and B).
STRATEGIC PLAN:
Goal 5. Ensure the health and safety of the Community
DISCUSSION:
SFPC § 3302.1 defines fireworks displays as presentations of fireworks for public or private gatherings. The SFPC
requires adherence to safety measures, liability insurance, and Virginia licensing for the display
operator/pyrotechnician conducting the fireworks.
Virginia Code § 15.2-974 enables localities to issue permits for firework s displays. It allows permits to be issued to fair
associations, amusement parks or any organization or group of individuals requesting to have a fireworks display.
The County regulates fireworks within Chapter 6, Article III of the County Code. Except for “permissible fireworks”
(those that do not rise into the air or explode), all other fireworks require a permit from the County Fire Official. County
Code § 6-303 specifically provides that a permit is required for a fireworks display. County Code § 6-303 (A) provides
that public displays of fireworks may be given by fair associations, amusement parks or any organization or group of
individuals in accordance with a permit from the Fire Official. County Code § 6-303 (B) requires that fireworks displays
conform to the requirements of the SFPC.
The term “public displays of fireworks” in County Code § 6-303 has historically and consistently been interpreted to
mean fireworks displays by fair associations, amusement parks or any organization or group of people issued a permit
to do so by the Fire Official. For example, Farmington Country Club has a fireworks display every July 4th. Several of
AGENDA TITLE: Ordinance to Amend County Code Chapter 6 – Fire Protection, Article III, Fireworks, and Chapter 7
– Health and Safety, Article I, Noise
May 8, 2013
Page 2
the wineries that offer wedding services have fireworks displays as part of wedding celebrations. There were a total of
fifteen permits issued in 2012 (Attachment C) and all of those were for fireworks displays on private property.
Upon review of County Code § 6-303, it was found to exactly parallel enabling legislation in Virginia Code § 15.2-974,
except that the County Code provision uses the word “public” in its reference to fireworks displays. This creates a
possible unintended and unnecessary ambiguity in the County Code. The proposed ordinance (Attachment A) would
conform the County Code to the State enabling legislation and eliminate any arguable ambiguity by removing the term
“public.”
County Code Chapter 7, Article I is the County’s Noise Ordinance. County Code § 7-106 exempts certain noises from
the requirements of the ordinance. County Code § 7-106 (H) specifies that sounds produced by officially sanctioned
fireworks are exempt, but that “private” fireworks displays are not exempt from the noise ordinance. This ordinance
has historically and consistently been interpreted to mean fireworks displays that have been issued a permit by the
Fire Official are exempt from the noise ordinance. Because the term “private” fireworks displays is not used elsewhe re
in the County Code, the proposed amendment eliminates the use of that term and clarifies that only fireworks displays
that have been issued a permit by the Fire Official are exempt.
BUDGET IMPACT:
These proposed ordinances would have no budget impact.
RECOMMENDATIONS:
After the public hearing, staff recommends that the Board adopt the attached ordinances (Attachments A and B) to
amend County Code Chapter 6 – Fire Protection, Article III, Fireworks, and Chapter 7 – Health and Safety, Article I,
Noise.
ATTACHMENTS:
A-Proposed Ordinance to amend Chapter 6
B-Proposed Ordinance to amend Chapter 7
C-Fireworks Display Permits Issued in 2012
Return to agenda
ATTACHMENT A
Draft 4/15/13
1
ORDINANCE NO. 13-6(2)
AN ORDINANCE TO AMEND CHAPTER 6, FIRE PROTECTION, ARTICLE III, FIREWORKS, OF THE
CODE OF THE COUNTY OF ALBEMARLE, VIRGINIA
BE IT ORDAINED By the Board of Supervisors of the County of Albemarle, Virginia, that Chapter 6, Fire
Protection, Article III, Fireworks, is hereby amended and reordained as follows:
By Amending:
Sec. 6-303 Fireworks permits--Required
Sec. 6-309 Disposal of unused fireworks after public display
Chapter 6. Fire Protection
Article III. Fireworks
State law reference--As to fireworks generally, see Va. Code §§ 15.2-974 and 59.1-142 27-95 to 27-100.159.1-
148.
Sec. 6-303 Fireworks permits--Required.
A. Notwithstanding the other provisions of this article, public displays of fireworks may be given
by fair associations, amusement parks or by any organization or group of individuals in accordance with a
permit from the fire official. Except as provided in section 6-302, iIt shall be unlawful for any person to hold,
present or give any such public display of fireworks without first having obtained such a permit from the fire
official.
B. Except as provided in section 6-302, aAny person, business, organization or other entity
engaged in the sale, storage, distribution, manufacture or public display of fireworks anywhere in the County of
Albemarle must obtain a permit from the fire official and must comply with all terms and conditions imposed by
the fire official in connection with the permit prior to engaging in any sale, storage, distribution, manufacture or
public display of fireworks. The fee for such permit shall be as established in the fee schedule maintained by
the fire official, as may be amended from time to time.
(Code 1967, § 10-6; 4-13-88; Ord. No. 97-9(1), 1-8-97; Code 1988, § 9-12; Ord. 98-A(1), 8-5-98; Ord. 01-6(1),
6-6-01)
State law reference--For state law as to authority of county to adopt this section, see Va. Code § 15.2-974 § 27-98
and 59.1-144.
. . .
Sec. 6-309 Disposal of unused fireworks after public display.
Any fireworks remaining unfired at the end of any public display shall be immediately disposed of in a
manner safe for that particular type of fireworks.
(Code 1967, § 10-12; Ord. No. 97-9(1), 1-8-97; Code 1988, § 9-18; Ord. 98-(A), 8-5-98)
. . .
ATTACHMENT A
Draft 4/15/13
2
I, Ella W. Jordan, do hereby certify that the foregoing writing is a true, correct copy of an Ordinance duly
adopted by the Board of Supervisors of Albemarle County, Virginia, by a vote of _____ to _____, as recorded
below, at a regular meeting held on _________________________.
Return to exec summary
ATTACHMENT B
Draft 4/15/13
1
ORDINANCE NO. 13-7(1)
AN ORDINANCE TO AMEND CHAPTER 7, HEALTH AND SAFETY, ARTICLE I, NOISE, OF THE
CODE OF THE COUNTY OF ALBEMARLE, VIRGINIA
BE IT ORDAINED By the Board of Supervisors of the County of Albemarle, Virginia, that Chapter 7, Health
and Safety, Article I, Noise, is hereby amended and reordained as follows:
By Amending:
Sec. 7-106 Exempt Sounds
Chapter 7. Health and Safety
Article I. Noise
Sec. 7-106 Exempt sounds.
The following sounds are not prohibited by this article:
. . .
H. Parades, fireworks and similar officially sanctioned events. Sound produced by parades,
fireworks or other similar events which are officially sanctioned, if required. This exemption shall not apply
only to private fireworks displays duly issued a permit pursuant to chapter 6 of the Code.
. . .
I, Ella W. Jordan, do hereby certify that the foregoing writing is a true, correct copy of an Ordinance duly
adopted by the Board of Supervisors of Albemarle County, Virginia, by a vote of _____ to _____, as recorded
below, at a regular meeting held on _________________________.
Return to exec summary
ATTACHMENT C
Fireworks Display Permits Issued by the Albemarle County Fire Marshal’s Office in 2012
Name Address Parcel ID (Taxmap)
Keswick Country Club 701 Club Drive 08000-00-00-00900
Keswick Country Club 701 Club Drive 08000-00-00-00900
Keswick Country Club 701 Club Drive 08000-00-00-00900
Keswick Country Club 701 Club Drive 08000-00-00-00900
Claudius Crozet Park 1075 Claudius Crozet Park 056A2-01-00-07200
Collina Farm 3055 Collina Farm 07900-00-00-024B0
Trump Winery 100 Grand Cru Drive 10300-00-00-001E0
Whilton Farm 259 Yellow Mountain Road 07100-00-00-00100
Murcielago 6903 Blenheim Road 12300-00-00-00700
Murcielago 6903 Blenheim Road 12300-00-00-00700
Trump Winery 100 Winery Hill Lane 10200-00-00-035B0
Trump Winery 100 Winery Hill Lane 10200-00-00-035B0
Castle Hill Cidery 6065 Turkey Sag Road 04900-00-00-018B1
Pippin Hill Farm & Vineyards
LLC
522 Pippin Hill Lane 08600-00-00-08800
Farmington Country Club 1625 Country Club Drive 060E2-00-00-00100
Return to exec summary