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HomeMy WebLinkAboutAP202000003 Correspondence 2020-11-18 (2)Dear Board of Zoning Appeals members: My name is Stewart Wright. My wife and I live at 3540 Pritchett Lane, near the North Pointe development. I am the person appealing the Zoning Administrator's determination dated September 21,2020 that the North Pointe project is in compliance with the conditions of their Special Use permit (SP 2002-72). I've been retired since the end of August 2107. Before that I worked for the Albemarle County Zoning department for almost 14 years. I finished my career as a Senior Permit Planner. I feel that I am well versed in the Zoning Ordinance and Zoning processes and procedures. During my tenure at the County I did keep a close eye on the North Pointe project regarding what was being proposed by the developer and what was approved by the County. I did so because I live on Pritchett Lane which boarders the east side of North Pointe and I knew the project could negatively impact my neighborhood. My Pritchett Lane neighbors and I were very concerned about the potential of construction traffic on our road and also permanent public road connections from North Pointe to Pritchett Lane. We attended all relevant Planning Commission and Board of Supervisors meetings to voice our concerns about all types of traffic impacts on our street, especially construction traffic. Our street was never designed to accomodate very large and very heavy construction vehicles. Pritchett Lane is 1.2 miles long and is a dead end road. The posted speed limit is 35 miles per hour. It is very narrow in certain places. You need to excercise caution passing another oncoming car or truck in these places to avoid slapping your side view mirrors. I would suggest that every BZA member take a drive down the full length of Pritchett Lane prior to the December 1st meeting to see exactly what the road is like. There are around 45 homes and one church on Pritchett Lane. It's a nice, quiet, dead end country lane with no sidewalks where you used to be able to safely take a walk with your family and/or your pets, or go for a bike ride or a jog. Not anymore. North Pointe was officially rezoned (ZMA 2000-9) to be Planned Development Mixed Commercial (PDMC) on August 23rd, 2006. The developer wanted residential uses to be allowed also. That required them to apply for a special use permit to allow the residential uses. They did so and the special use permit (SP 2002-72) was also approved on August 23rd, 2006 based on 10 conditions. Please read condition 9, specifically 9 (A) regarding extensions to Pritchett Lane very carefully. This condition clearly spells out what type of extensions connecting Pritchett Lane to the North Pointe project are allowed. There is no gray area here. The approval of the special use permit was based on very specific conditions. Condition 9(A) clearly states that the only approved connections from Pritchett Lane to North Pointe property are 2 emergency access easements at this time. As you read condition 9(A) you will see that 9(A)(1) is applicable at this time, but 9(A)(2) and 9(A)(3) are not. They could be in the future if requested by the County and if an upzoning across the street occurs. So at this time the ONLY approved extensions to Pritchett Lane from North Pointe are the 2 emergency access easements as conditioned by the approval of the special use permit. So what is an emergency access easement? Unfortunately the Zoning Ordinance does not define it for us. It does define an easement as "a right to use the land of another in a particular manner and for a particular purpose". From my years working for Albemarle County Zoning I have always understood an emergency access easement to be a access point to a property or development for use by Fire and Rescue and the police only. This type of easement is blocked off from public use by bollards or a gate and Fire and Rescue and the police department are the only ones who have a master key to get in. It is for emergency access only, not public use. And it certainly isn't the same thing as a temporary construction easement or a construction entrance to a development. And we all know dump trucks and tractor trailers aren't emergency vehicles. As I am writing this the developer still has not constructed the 2 emergency access easements to standards accepted by Community Development or Fire and Rescue. There are no gates, bollards or or permant barriers with a lock and key installed. So they are not in compliance with condition 9(A) of the Special Use permit regarding the construction of the emergency access easements. Zoning staff seems to have interpreted this differently from what the conditions of special use permit actually says. It is my understanding, based on conversations with Zoning staff, that around the end of September, 2019 the developer met with Zoning staff to discuss the possibility of using the 2 emergency access easements on Pritchett Lane as construction entrances because he was getting ready to build the stream crossing over Flat Branch creek which is located on North Pointe property. This stream crossing also required a special use permit for fill in the floodplain. Special use permit 2007-3 was approved to allow this and makes no mention of acces from Pritchett Lane being allowed. It is also my understanding, based on conversations with Zoning staff, that staff told the developer they didn't see any reason why he couldn't use the emergency access easements for construction entrnaces. When I asked staff in early February how this intensification of an approved use could be allowed when doing so would be in direct conflict with the special use permit conditions of approval they stated "there is nothing in the special use permit that says they can't do it" and "we do this all the time". "We grant construction easements all the time". I don't remember Zoning ever allowing something that is in direct conflict with a condition of a special use permit. The special use permit spells out 10 conditions of approval. It's very clear. Zoning is not permitted to allow something that is in direct conflict with a condition of a special use permit. The special use permit does not spell out everything that is prohibited. It didn't need to. The words on the page clearly show what is allowed. So why does the special use permit only allow 2 emergency access easements right now and a possible future permanent connection if a neighboring property is upzoned? Why doesn't it allow other types of connections also? The ZMA application plan submitted by the developer only shows 2 emergency access easements. If the developer and County staff wanted these 2 emergency access easements to begin as construction entrances or temporary construction easements and later be converted to emergency access easements they could have worded condition 9(A) that way and also have shown that on the ZMA application plan and the special use permit application. The 10 conditions were all recommended by County staff as a condition of approval to the Planning Commission and the Board of Supervisors. When the rezoning (ZMA 2000-9) and the special use permit (SP 2002-72) were still under review County Planning staff, the Planning Commission and the Board of Supervisors all heard the concerns of my neighbors and I regarding construction traffic, permanent daily public traffic and the impact to our street and neighborhood. They clearly heard our concerns. No doubt about it. The Planning Commission sent it on to the Board of Supervisors recommending approval of condition 9(A) that the only approved connections allowed to Pritchett Lane from North Pointe were to be the 2 emergency access easements and a possible future permanent connection along with 9 other conditions. They clearly did this to limit the impact of traffic generated by the North Pointe development on the Pritchett Lane neighborhood. The Planning Commission heard from concerned citizens, heard from County staff, followed the guidance laid out by the Zoning Ordinance (Sec. 33.9 and 33.40), and sent it on to the Board of Supervisors for an action. On August 23, 2006 the Board of Supervisors approved SP 2002-72 with conditions after following the guidance of Chapter 18 Section 33.40. 1 was at that meeting too. County staff did their job very well. The Planning Commission did their job pefectly and the Board of Supervisors did their job by appproving the special use permit based on the conditions. My neighbors and I were greatly relieved by the condition limiting the type of approved connections to only 2 emergency access easements. We felt that our concerns were safely addressed and our fears had been alleviated. After the Board action in August of 2006 1 would still occassionally talk to senior Planning staff about these emergency access easements and future permanent connections. I was still worried that people in Community Development would forget about what the special use permit approval said. I was always worried about construction traffic. I was always told don't worry. "The only approval they have is for the 2 emergency access easements". They can't use Pritchett Lane for anything else. And I believed what I was told by senior staff. So after the North Pointe rezoning was approved in August of 2006 nothing happened at all until around 2018 and then it was a small amount of clearing off Route 29. It has now been over 12 years since the rezoning and Special Use permit were approved. Much of the County staff that had worked on ZMA 2000-9 and SP 2002-72 had retired or no longer worked for the County. The institutional knowledge about this project in the Community Development department was gone. It wasn't until the end of 2019 that I started noticing real activity on the North Pointe property. They bulldozed a cut in from Pritchett Lane which I assumed was going to be one of the emergency access easements. Then they cut down most of the trees on the property and hauled the logs out using Pritchett Lane for access. That's about the time my neighbors and I started complainig to theCommunity Development department about what was going on. The impact to the property was substantial, but except for the logging trucks the traffic impact wasn't that noticable yet. In late January/early February everything changed. Construction traffic showed up in full force. At first it was a few dump trucks and large tractor trailers hauling in bulldozers and other heavy equipment. Then we started seeing a lot more dump trucks rolling in. On February 6th, 2020 1 emailed the Zoning Administrator and told him about the construction traffic and that I didn't think that was allowed. I didn't feel the situation required me turning in a zoning violation yet. I just needed to speak to someone in Zoning about this. I heard back from Bart Svboda the next day by email and he said they would do some research and get back to me the following week. Bart didn't get back to me until March 9th and he said someone would be back in touch with me soon. It is now over a month since my first inquiry to Zoning. By now dump trucks are steadily rolling down Pritchett Lane at an unbelievable rate along with oversized load tractor trailers bringing in equipment and materials. Finally on March 22nd I got an email from Bart stating that they had looked into it and could find nothing in the Special Use permit that would prohibit a construction entrance on Pritchett Lane. It took 44 days to get an answer about how all this construction traffic was allowed when the Special Use permit makes no mention of allowable construction entrances or temporary construction easements connecting North Pointe to Pritchett Lane. The answer I got made no sense to me based on everything I had been taught in my 14 years in the Zoning department. I felt pretty defeated at this time and pretty much gave up fighting with Zoning about it. We were all more concerned about the Covid pandemic by then. But now I'm stuck at home with way too much time on my hands. Nothing to do but yardwork and watch dump trucks roll by. So I started timing the frequency of dump trucks passing by in front of my house for weeks. Literally. Im sitting there with a watch seeing how often one comes by and how many hours a day they were rolling in. The rate was astonishing to me. One dump truck every 45 seconds. I am not kidding. That translates to a round trip every 1.5 minutes. I did the math and that worked out to 320 round trips per 8 hour day. And they were rolling longer than 8 hour days. I ask all of you to please put yourself in my shoes. Imagine a dump truck roaring past your house every 45 seconds during the day for weeks on end when you were under the impression that no construction traffic was allowed on your street. This amount of construction traffic was far beyond anything my neighbors and I could have imagined. This went on all summer. I told County staff what I was observing, a dump truck almost every 45 seconds, and got no response out of them at all. It seemed like they thought I was making this up. I wasn't and my neighbors will vouch for that too. I reached my breaking point on August 27th when I was rudely awaken by 10large dump trucks roaring past my house at 6:30 a.m. as they began running dirt and gravel all day. I I turned in the zoning violaton for noncompliance with the conditions of Special Use permit 2002-72 that day. The emergency access easements were approved and required by the special use permit. A lot of what goes into reviewing a special use permit is thinking about what the use is and what the impact is (Chapter 18 Sec 33.40). The emergency access easements are the approved connections. So what is the use? Emergency access. If something bad happens on North Pointe property there are 2 additional ways emergency vehicles can access North Pointe besides the 3 approved entrances for general public use off of Route 29 or the approved entrance at the end of Leake Lane off Proffit Road. Now what is the impact of these 2 emergency access easements? Emergency vehicle traffic on Pritchett Lane. So realistically how many emergency vehicle round trips can be expected on Pritchett Lane when using the emergency access easements? I would say no more than 5 times a year and even that would be a high number. North Pointe would be having a really bad year for accidents. When Zoning decided to let the developer change and intensify the use of the emergency access easements to construction entrances what is the new use? Access to the North Pointe project for construction vehicles. What is the impact? Up to 320 vehicle trips a day for most of this year from what I saw with my own 2 eyes. Here is the very important part. When an approved use on a special use permit is intensified or changed to a more intensive use then the owner of the property must amend the special use permit. That is what the Zoning Ordinance says and what the consistent administrative practice of the Zoning department has always been. This requirement is found in the Zoning Ordinance in section 31.5. Sec. 31.5 - Zoning clearance. The zoning administrator shall review requests for zoning clearances as follows: a.When required. A zoning clearance shall be required in the following circumstances: 1.New use. Prior to establishing a new non-residential use, including those provided in subsections (a)(6) and (a)(7), or clean earth fill activity or inert waste fill activity, other than an agricultural use. 2.Change or intensification of existing use. Prior to changing or intensifying an existing non- residential use, including those provided in subsections (a)(6) and (a)(7), other than an agricultural use. A Zoning Clearance is an official approval by Zoning of a use. It is a written determination by the Zoning Administrator that a use is allowed. A special use permit is also an official approval of a use only allowed by special use permit in a particular district per the Zoning Ordinance. Therefore it is also an official Zoning approval. If the use in question was a by right use in the district then the applicant would be required to obtain a Zoning Clearance to change or intensify the use. Because the use was only permitted by special use permit in the district the applicant must amend the special use permit to change or intensify the use. That is what I was taught by my supervisors in Zoning and the County Attorney when I worked there. The approved use of the emergency access easement was changed and intensified to a far more intensive use. But don't believe me just yet. Please ask the Zoning Administrator when a special use permit must be amended at the December 1st meeting. Please ask him. I verified this when I called up the previous Zoning Administrator on August 28th, 2020. Since they were no longer the acting Zoning Administrator I asked her only 1 general question. My question was "if I have a use on a special use permit that generates 5 vehicle trips per year and I want to change that to a use that generates 300 vehicle trips per day do I need to amend my special use permit"? Her answer was she " could not imagine a situation where I would not have to amend that special use permit". I felt better after hearing that good honest answer. It confirmed what I remembered about when a special use permit must be amended. When the developer asked Zoning staff if he could use the emergency access easement as a construction entrance or temporary construction easement Zoning should have followed the Zoning Ordinance regulations and told him no, but he could if he amended the special use permit. Zoning has given that option to lots of people over the years. That would have been the correct thing to do here. If the County had rightly required the developer to amend the special use permit it would have required new analyzation by staff, public hearings and a legislative action. Most importantly, the residents of Pritchett Lane would have been given the opportunity to voice our concerns once again. Instead we were completely blindsided by the Zoning department and the developer. The Zoning Ordinance does not define what a construction entrance is. It also does not define what a temporary construction easement is or what temporary even means. There are no supplemental regulations in the Zoning Ordinance that set a time limit for how long temporary construction easements can be used. That means that there is no way for the Community Development department to require the developer to stop using the emergency access easements as construction access. There could be construction traffic using these access points for years and years. Until someone determines that what is going on here is not in compliance with the conditions of SP 2002-72 the developer and all the construction companies will have free use of the 2 emergency access easements for as long as they want. I feel like I have presented 3 very valid reasons as to why the North Pointe development is not in compliance with condition 9(A) in special use permit 2002-72. 1. The condition only allows 2 emergency access easements and a possible future permanent connection after an upzoning. It does not allow other types of connections, regardless if they are temporary or permanent 2. The 2 emergency access easements have not been constructed yet to any sort of acceptable standard normally imposed by Fire and Rescue or Community Development. Therefore they don't exist yet. 3. To change and intensify the approved use of an emergency access easement to a construction access easement or construction entrance the developer should have been required to amend the special use permit per the Zoning Ordinance and the consistent administrative practice of the Community Development Department. I appreciate you all taking the time to read all of this. I realize it got very lengthy, but I don't think I could have told you everything in the 15 minutes I am allowed to speak on December 1st. It's a lot of information. I encourage all of you to ask me plenty of questions and seek answers to why the public health, safety and welfare of our neighborhood have been blatanty dismissed. My neighbors and I are looking forward to speaking with you. Thank you very much !!! Stewart Wright / Pritchett Lane neighborhood Sec. 31.5 - Zoning clearance. The zoning administrator shall review requests for zoning clearances as follows: a.When required. A zoning clearance shall be required in the following circumstances 1.New use. Prior to establishing a new non-residential use, including those provided in subsections (a)(6) and (a)(7), or clean earth fill activity or inert waste fill activity, other than an agricultural use. 2.Change or intensification of existing use. Prior to changing or intensifying an existing non- residential use, including those provided in subsections (a)(6) and (a)(7), other than an agricultural use. 3.Change of occupant. Prior to a new occupant taking possession of an existing non-residential use, other than an agricultural use. 4.Specific buildings, structures or uses. Prior to establishing any building, structure, or use for which a zoning clearance is required under section 5 .5.Commencement of extraction activity. Prior to commencing any natural resource extraction activity within the natural resources overlay district. 6.Events and activities at farm wineries, farm breweries, farm distilleries, and agricultural operations. Prior to the first time that a specific class of event or activity is held at a farm winery, farm brewery, farm distillery, or agricultural operation, if a zoning clearance is required under sections 5.1.25(b), 5.1.57(b), 5.1.58(d), and 5.1.59(b). 7.Outdoor amplified music. Prior to the first time that outdoor amplified music is generated at an event or activity at a farm winery, farm brewery, or agricultural operation, as provided in sections 5.1.25, 5.1.57, and 5.1.58, respectively. b.Approval. If the proposed building, structure, improvements, and site, and the proposed use thereof, comply with this chapter, the zoning administrator shall issue the zoning clearance. c.Circumstance when zoning clearance shall not be issued. The zoning administrator shall not issue a zoning clearance if, after review of any site, the zoning administrator determines that additional improvements are necessary to protect the public health or safety, regardless of whether the improvements are shown on the site plan. d.Notice to the owner if the applicant is not the owner. Within ten days after receipt of a request for a zoning clearance by an applicant who is not the owner of the lot and/or structure to which the zoning clearance pertains, and prior to acting on the request, the zoning administrator or the applicant, at the zoning administrator's request, shall give written notice of the request to the owner. Written notice mailed to the owner's last known address as shown on the current real estate tax assessment records shall satisfy this notice requirement. If the zoning administrator requests that the applicant provide the written notice, the applicant shall provide satisfactory evidence to the zoning administrator that the notice has been given. e.Commercial and industrial uses defined. For the purposes of this section 31.5, production agriculture, production silviculture, and agricultural operations are neither commercial nor industrial uses; a home occupation is a commercial use. f.Effect of renumbering and renaming. Any other section of this chapter that refers to section 31.2.3.2 or to a zoning compliance clearance shall be deemed to be a reference to section 31.5 or a zoning clearance Sec. 33.39 - Recommendation by the Planning Commission. The Commission shall act on an application for a special use permit as follows: A. Recommendation. The Commission shall either recommend approval of the application as proposed, approval of the application with changes to be made prior to action on the application by the Board of Supervisors, or denial of the application. B. Factors to be considered. In making its recommendation, the Commission shall consider the same factors considered by the Board under Section 33.40. C. Conditions. The Commission's recommendation should include its recommendations on any proposed conditions, applying the same criteria applied by the Board under section 33.40. D. Time for recommendation. The Commission shall make its recommendation on the application within 90 days after the application is determined to be complete. The failure of the Commission to make a recommendation on the matter within the 90-day period shall be deemed to be a recommendation of approval. The 90-day period may be extended if the applicant requests a deferral pursuant to Section 33.52. State Law reference— Va. Code § 15.2-2286 . Sec. 33.40 - Action by the Board of Supervisors. The Board of Supervisors shall act on an application for a special use permit as follows: A.Action. The Board may either approve the special use permit, deny the application, or defer action to either allow changes to be made to the application or any proposed conditions prior to final action by the Board, or to refer the matter back to the Commission for further consideration and recommendation within the time for an action provided in subsection (D). B. Factors to be considered. In acting on a special use permit, the Board shall consider the following factors, provided that the Board is not required to make specific findings in support of its action: 1. No substantial detriment. Whether the proposed special use will be a substantial detriment to adjacent parcels. 2. Character of the nearby area is unchanged. Whether the character of the adjacent parcels and the nearby area will be changed by the proposed special use. 3. Harmony. Whether the proposed special use will be in harmony with the purpose and intent of this chapter, with the uses permitted by right in the district, with the regulations provided in Section 5 as applicable, and with the public health, safety, and general welfare. 4. Consistency with the Comprehensive Plan. Whether the proposed special use will be consistent with the Comprehensive Plan. C. Conditions. In approving a special use permit, the Board may impose reasonable conditions to address any possible impacts of the special use. Except as the Board may specify in a particular case, any condition imposed on a special use shall be deemed to be essential and nonseverable from the permit itself. Any condition determined to be unreasonable, invalid, void, or unlawful shall invalidate the special use permit. The conditions may pertain to, but are not limited to, the following: 1. Preventing or minimizing smoke, dust, noise, traffic congestion, flood, and other hazardous, deleterious or otherwise undesirable substances or conditions. 2. Providing adequate police and fire protection 3. Providing adequate improvements pertaining to transportation, water, sewage, drainage, recreation, landscaping, and screening or buffering. 4. Establishing special requirements relating to building setbacks, front, side, and rear yards, off- street parking, ingress and egress, hours of operation, outside storage of materials, duration and intensity of use, building heights, and other particular aspects of occupancy or use. 5. The period by which the use or the construction of any structure required for the use must begin. 6. The materials and methods of construction or specific design features; provided that any condition imposed in connection with a residential special use permit: (i) shall be consistent with the objective of providing affordable housing if the applicant proposes affordable housing; and (ii) shall consider the impact of the condition on the affordability of housing. D. Time for action. The Board shall act on an application for a special use permit within a reasonable period not to exceed nine months after the date the Commission made its recommendation on the application. The 12-month period may be extended if the applicant requests a deferral pursuant to Section 33.52.