HomeMy WebLinkAboutLOD202000019 Correspondence 2020-12-14 (3)SHIMP ENGINEERING, P.C.
Design Focused Engineering
Mr. Bart Svoboda, Zoning Administrator
Albemarle County Community Development
401 McIntire Road, North Wing
Charlottesville, VA 22902
December 14, 2020
RE: Zoning Determination I Sec. 30.3.11 Grading Activities
Dear Mr. Svoboda,
It is our request to have a determination made regarding the meaning of the terms "impacts" and "changes"
as it relates to Sec. 30.3.11 of the Albemarle County Zoning Ordinance. The owner, James A Dettor Jr of
TMP 07800-00-00-058KO seeks to create a playfield on the property, which would require grading along
the floodway fringe. While Sec. 30.3.11 allows this grading activity to be permitted by -right, a
determination is requested to clearly establish the distinction between "impacts" and "changes" on the
floodplain. Section 30.3.11 lists the following uses and the conditions whereby they are permitted (BR, SP,
or N) within the Flood Hazard Overlay district (FH) in the "Permitted and Prohibited Uses and Structures"
table:
Stream Crossings and Grading Activities*
Use or Structure
Regulatory
Floodway
Floodway
Fringe
Grading activities in compliance with the Water Protection Ordinance;
N
BR
provided that it is demonstrated, in a floodplain impact plan that the
grading will have no impact on the elevations or limits of the floodplain
and further provided that any cut or fill shall be only to level areas for
playfields, correct erosion problems, build trails, or other fine grading
activities which will have no impact on the floodplain. For purposes of this
provision, fine grading is defined as a balanced site (cut/fill) with no
changes to the base floodplain elevation or horizontal limits to the
floodplain.
This section (30.3.11) asserts that the permitted grading activities in the table above distinguish between
(1) "grading [that] will have no impact on the elevations or limits of the floodplain" which is permitted to
"level areas for playfields, correct erosion problems, [or] build trails" and (2) "grading [that] will have no
impact on the elevations or limits of the floodplain" which permits "fine grading [that] is defined as a
balanced site... with no changes to the base floodplain elevation or horizontal limits to the floodplain."
This portion of the table allows for grading activities within the floodway fringe by -right (BR) under the
following circumstances:
912 E. High St. Charlottesville, VA 22902 1434.227.5140 1 shimp-engineering.com
1. Grading activities for leveling areas for playfields, correcting erosion problems, building trails, or
other fine grading activities may be permitted so long as there is no impact on the elevations or
limits of the floodplain;
2. Fine grading activities may be permitted if there is no impact on the elevations or limits of the
floodplain nor if such activities change the base floodplain elevation or horizontal limits to the
floodplain;
3. Grading activities for leveling areas for playfields, correcting erosion problems, or building trails
may be permitted provided that there is no impact on the elevations or limits of the floodplain,
however, such grading activities may change the elevations or limits of the floodplain.
Due to the distinction between "impact" and "change" within Sec. 30.3.11 and given the lack of definitions
within the Albemarle County Zoning Ordinance, Subdivision of Land, and Water Protection Ordinance, the
meaning of these terms is taken in `plain language.' The Merriam -Webster dictionary defines "impact" as
"a forceful contact or onset" or "the force of impression of one thing on another: a significant or major
effect"; "change" is defined as "mak[ing] different in some particular: alter." Plain language indicates that
"impact" expresses a negative force, whereas "change" connotes a shifting or alteration. Although "impact"
could be used to convey positive agency, we contend that in plain language, impact must be qualified as
positive, or is otherwise perceived in the common negative sense. With the differentiation in Sec. 30.3.11
between "impact" and "change" and the lack of definitions provided by the ordinances, grading activities
for leveling areas for playfields, correcting erosion problems, or building trails must be permitted by -right
in the floodway fringe in the circumstance that grading activities do not cause a negative disturbance in the
floodplain; changing the floodplain is permissible in such instances provided the purpose and intent of Sec.
30.3 is maintained.
The established purpose and intent of Sec. 30.3 is to prevent public harm, regulate and restrict uses,
activities and development within the floodplain, protect allowed uses, activities, and development from
flood hazard, protect individuals from purchasing land that is unsuitable for intended uses due to floodplain
restrictions, and guide local National Flood Insurance Program needs. An "impact," implying a negative
disturbance, of a floodplain could increase risk of public harm and diminish floodplain protections, for
example, grading activities that would cause the floodplain to expand onto a neighboring property that was
not originally encompassed within the Floodplain Hazard Overlay District (FHOD). However, a "change"
of the floodplain could maintain the original intent of the FHOD while imparting an alteration to the
floodway fringe.
For the playfield on TMP 78-58K, grading along the floodway fringe could reduce the boundary of the
floodplain, however, no adverse impact to the FHOD nor neighboring properties would occur, thereby
`changing' the floodplain without `impact.'
In conclusion, based on the information provided herein, we ask that you confirm, by Letter of
Determination, the following from Section 30.3.11 of the Albemarle County Zoning Ordinance:
a. The definition of "impact" and "change" in relation to grading activities within the floodway
fringe, and
b. If grading activities for leveling playing fields, correcting erosion problems, or building trails
may occur if there is no "impact" to the floodplain, although the floodplain may be "changed"
as an effect of the described grading activities. In this instance, fill would be placed, causing
the floodplain area to be changed by way of a reduction, with no changes to the base flood
elevation.
Thank you for your review of this request and we look forward to hearing from you. Please feel free to call
or contact us if you wish to discuss our request further.
Regards,
Justin Shimp
Justin@shimp-en ing eering com 1 (434) 227-5140