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HomeMy WebLinkAboutAP202000001 Correspondence 2020-05-29 (2)Nqmlmm SmE W. BLAME (434)220-6831 sblaine@woodsrogers.com May 29, 2020 Sent Via E-mail Only Mr. John Shepherd, Chairman Board of Zoning Appeals 401 McIntire Road Charlottesville, Virginia 22902-4596 Re: AP 202000001 R.A. Yancey Lumber Corporation Dear Mr. Shepherd and Members of the Board of Zoning Appeals: ROGERS YS AT LAW This firm represents David and Lisa Swales who reside at 6259 Rockfish Gap Turnpike, Crozet, Virginia. Our clients are immediate neighbors to the Yancey Lumber Mill and object to a delay of the Appeal from the Applicant in AP202000001. The appeal stems from the Applicant's installation of mill equipment within set -back areas in a clear at violation of the Albemarle County Zoning Ordinance. The equipment includes a large lumber stacking devise and is being run on a regular basis only thirty-five feet from our clients' property. [The applicable set -back calls for at least 100 feet]. The noise and vibration from this equipment has destroyed the Swales enjoyment of their outdoor patio, garden and backyard at the residence where they have lived for more than 24 years. Rather than cease operating the equipment when the Applicant was issued a cease and desist order from the County, the Applicant has continued running the equipment in violation of the set -back -- pending this appeal. So, while the Applicant has not been impacted negatively by the delay of process due to the COVID-19 protocols, the Swales unfortunately have been. We understand that the BZA may under the appropriate circumstances defer a decision at an applicant's request and that the case of Tran v. Bd. of Zoning Appeals of Fairfax Cty. supports this proposition. We wish to point out that in that case the other parties in interest, the Trans did not object to the deferral request by the applicants to the BZA as have the Swales. In any event, the deferral request here is not appropriate as it does not meet the standards of BZA's Rules of Procedure for deferrals. 1. The deferral will not promote fairness in the process. The Applicant maintains that it should be given time to allow the process of its Special Exception request to conclude. First, the flagrant actions of the Applicant pending this appeal, demonstrate their presumption that the Special Exception, which a legislative act will be granted. Second, it lacks consideration that the running of the equipment in violation of the ordinance is only allowed because the appeal process (2724264-1, 121297-00001-03) P.O. Box 2496, Charlottesville, VA 22902 123 Fast Main Street, 5th Floor, Charlottesville VA 22902 P (434) 220-5685 . F (434) 220-6831 www.woodsrogers.com Charlottesville . Lynchburg . Richmond . Roanoke Mr. John Shepherd May 29, 2020 suspends a cease and desist pending the appeal. The only party to which this has been unfair is the Swales whom have had to endure the running of the equipment not only regularly on week days, but occasionally on weekends. 2. The deferral would be solely for the convenience or benefit of the applicant. The delay will allow the Applicant to continue to operate loud and noxious equipment in this location it could not otherwise under the current ordinances -- this to great disruption of the Swales enjoyment of their property. 3. A deferral would delay abatement of a violation that is clearly adversely affecting the abutting neighbors, the Swales. As the Staff report points out, this standard has not been met. The noise and vibration from only thirty some feet from their property is indeed annoying and disruptive and therefore adversely affecting them. 4. It does not yet appear that the deferral will allow the Applicant to resolve the underlying issues as the intrusion within the set -back area is quite unambiguous. While the Applicant and its representative have reached out to the Swales on several occasions, there has yet to be any meaningful offers of actions that address the Swales concerns. The Applicant has insisted that the equipment cannot be located anywhere else on its property. 5. The deferral will not allow the BZA to make its decision within ninety days of the filing of the appeal. The 90-day deadline has already long passed. It is interesting to note that the Staff report does not report on this standard. Our position is that the deferral may not be granted without violating the BZA's own internal standard, notwithstanding what the Tran case says. The Swales would like to continue their dialogue with the Applicant and are willing to do so if necessary through the balance of process for the Special Exception. In the interest of compromise and in good faith, the Swales could support a deferral of the BZA application if the Applicant will cease and desist from all operations within the current set -back area unless and until a resolution is reached and the Special Exception is granted. The Applicant would not have to remove the equipment now (which it would if the appeal is not granted), but the Swales could have some enjoyment of their property in the meantime. Respectfully, Steven W. Blaine Steven W. Blaine cc By email only: Mr. and Mrs. David Swales Mr. Bart Svoboda Mr. Bill Fritz f2724264-1, 121297-00001-03)