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HomeMy WebLinkAboutAP200700006 Staff Report 2007-11-02STAFF PERSON: Amelia G. McCulley PUBLIC HEARING: November 13, 2007 STAFF REPORT AP 2007 -005 and AP 2007 -006 Rio Truck Repair Site Plan APPLICANTS / APPELLANTS: AP 2007 -005 Marcia Joseph, Planning Commission member AP 2007 -006 William and Ann DeButts, Adjacent Property Owners The applicants appeal the Zoning Administrator's determination in accordance with Section 34.3 of the Albemarle County Zoning Ordinance. (For ease of discussion, the two appeals will be referred to as "the appeal" and the points of appeal will be considered together.) Description of Property: This property is known as Tax Map 61, Parcel 146. It is located at the end of a private road, Rio School Lane, about 370 feet east of its intersection with East Rio Road (Route 631). The property is zoned C1, Commercial with EC, Entrance Corridor overlay. The property consists of about 1.4 acres. It is currently vacant with no building improvements. The owner, Van der Linde Housing Incorporated (VDLH), is proposing development of a Truck Repair on the property. The site plan approval is pending this appeal. Rio School Lane is a 20 foot wide privately owned and maintained road not owned by the site plan applicant, VDLH. It currently serves the several surrounding properties. This includes several tenants in a,commercial building on the DeButt's property adjacent to Rio Road and the business, Associated Steel, at the end adjacent to the VDLH property. Background of Appeal: A brief history relevant to this appeal is as follows: The owner, VDLH, originally submitted a preliminary site plan (SDP 2005 -083) on August 9, 2005. The plan proposes construction of an 8,000 square foot building to be used for truck repair. The truck repair business is a by -right use within the C1 zoning district. Staff initially determined that Rio School Lane needed to be upgraded to include curb and gutter. Because curb and gutter and the required travelway improvements could not be accommodated within the existing 20 foot access easement and the curb and gutter improvements would need to be located outside of the easement on private property owned by others, AP- 2007 -005 2 November 13, 2007 AP- 2007 -006 the applicant requested a waiver of the curb and gutter requirement. Negotiations to obtain the additional easement from adjoining property owners to install the curb and gutter on their property had been unsuccessful. The site plan request for the curb and gutter waiver was discussed at several Planning Commission meetings including April 17th and most recently on July 24th. Immediately prior to the July 24th Commission meeting, staff re- evaluated the applicant's request for the waiver and determined that under the facts of this case a waiver was not required. This determination (Attachment A) was sent to the Planning Commission, the owner (VDLH) and owners along Rio School Lane and it is the subject of this appeal. Determination: (See Attachment A for the determination letter dated July 23, 2007.) The appellants appeal the Zoning Administrator's determination that the County can not require the applicant to improve Rio School Lane with off -site curb and gutter. The Zoning Administrator specifically found that: 1. The Albemarle County Zoning Ordinance does not require this improvement (specifically §32.7.2 and 32.7.3); 2. Even if the Ordinance did impose this requirement, there is no express State enabling authority for it in this case. 3. The installation of curb and gutter is not a necessary improvement for the provision of safe and access from Rio Road onto Rio School Lane. Grounds for Zoning Administrator's Decision: The Zoning Administrator determined that the installation of curb and gutter can not be required in this case. This was staff's conclusion based on legal limitations, after applying the unique facts of this case to the framework of State law and our Ordinance. Because the curb and gutter would be located off -site, staff was unable to require curb and gutter despite the fact that it better provides for drainage along the road and is consistent with the County's intended development principles such as are found within the Neighborhood Model. State Law/ Enabling Authority a. As the Board is aware, Virginia is a Dillon Rule state. The Dillon Rule applies "to determine in the first instance, from express words or by implication, whether a power exists at all. If the power cannot be found, the inquiry is at an end." [Commonwealth v. County Board of Arlington County, 217 Va. 558(1977)] The Virginia Code does not expressly state that localities can require off -site improvements under its ministerial (site plan and subdivision) AP- 2007 -005 3 November 13, 2007 AP- 2007 -006 review when property is zoned to permit the use. (A full description of the legal framework for State and Local (Albemarle) regulations by the County Attorney's office is Attachment C.) b. Case law has consistently found that localities are not enabled to require off -site road improvements as a condition of site plan or subdivision approval. The landmark case for this finding is Hylton Enterprises, Inc. v. Board of Supervisors of Prince William County, 220 Va. 435 (1979). In that case, the Virginia Supreme Court held that there was no authority either express or implied, that enabled the county to require a subdivider to construct improvements to existing roads, or to pay a pro rata share of the cost of those improvements. 2. The Countv's Site Plan Reaulations Can Not Require Off -Site Curb and Gutter Improvements The County's site plan regulations must be enabled under the Virginia Code and the requirement for off -site improvements is not enabled. Therefore, the specific language of the Ordinance can not independently authorize this requirement. Even if this regulation were enabled by the Virginia Code and it is not, the installation of curb and gutter is not expressly required under the Albemarle County Zoning Ordinance. The Ordinance sections which have been mentioned as relevant to this requirement will be discussed in the proceeding: A. Zoning Ordinance Section 32.7.3 Streets; Road In the case of any site plan involving multiple uses, including multiple dwelling units, the principal means of access thereto shall conform to the standards of the Virginia Department of Transportation, or, in the case of a private road, to the applicable standards for private roads set forth in the subdivision ordinance, whether or not the property is proposed to be subdivided. The commission may waive this requirement for access ways between adjoining properties and emergency access ways required pursuant to section 32.7.2. (Added 5 -1- 87) This regulation applies to "any site plan involving multiple uses." The proposed site plan proposes a single use, Rio Truck Repair. Furthermore, this Ordinance provision can only be applied as consistent with the State enabling authority. AP- 2007 -005 4 November 13, 2007 AP- 2007 -006 B. Zoning Ordinance Section 32.7.2 Safe and Convenient Access; Circulation; Pedestrian Ways; Parking and Loading Each development shall be provided with safe and convenient ingress from and egress to one (1) or more public roads designed to: reduce or prevent congestion in the public streets; minimize conflict and friction with vehicular traffic on the public street and on -site; minimize conflict with pedestrian traffic; and provide continuous and unobstructed access for emergency purposes such as police, fire and rescue vehicles. To these ends, the commission or the agent in the review of a site plan may specify the number, type, location and design of access points to a public street together with such measures as may be deemed appropriate to insure adequate functioning of such access points. (Added 5 -1 -87) This section relates to the provision of safe and convenient access as is stated in the leading language. While the installation of curb and gutter is preferable for several reasons, it is not necessary to the provision of safe and convenient access to this site. 3. The Installation of Curb and Gutter is Not a Necessary Improvement for the Provision of Safe Access on Rio School Lane As previously mentioned, curb and gutter can better accommodate drainage and can channelize and separate the main travelway from adjacent parking. (Because there is parking beside the travelway of Rio School Lane, the installation of curb and gutter would cause redesign of the parking area.) While the proposed use will add traffic to Rio School Lane, the road currently exists and serves several uses. In fact, Rio School Lane has existed for at least 30 years. One of the other current uses along the road, Associated Steel, also involves large trucks. The weight of authority is that for site plans and subdivision plats, the "substantially generated" test does not apply; it applies only to rezonings and other legislative /discretionary decisions. As to the question of safe access, Staff is not of the opinion that the installation of curb and gutter is necessary in order to provide safe access to this site. Issues Not Directly Subject to or Relevant to this Appeal: Because there may be some legitimate confusion about what is relevant to this appeal, staff wishes to provide some clarification and focus about the limits of the Zoning Administrator's determination and therefore the limits of the appeal. There are several very important concerns and issues which ARE NOT the AP- 2007 -005 5 November 13, 2007 AP- 2007 -006 subject of this appeal. Please see Attachment B for staff's letter to the appellants in which we attempt to clarify and focus the issues for this appeal. The determination was a single finding: that the County can not require off -site curb and gutter under the facts of this case. It WAS NOT a finding that the proposed site plan provides safe access to and from Rio Road. It is the County's position that the applicant will still need to demonstrate to staff that safe and convenient access can be provided to and from Rio Road to this property. This has not yet been demonstrated and is necessary prior to County approval of the site plan. It is very likely that the important issue of safe and convenient access is the real concern of the neighbors and appellants. However, that issue is not properly before the Board of Zoning Appeals. 2. Because the proposed use is a by -right use within this zoning district, a legislative action such as rezoning or special use permit, is not necessary to establish this use. Furthermore, because this use is permitted by- right, the County does not have the authority to deny the use provided that all applicable site plan requirements are satisfied. As a corollary, a site plan approval is not a legislative action finding that the proposed use is appropriate in this location. The County does not have the authority to exercise that discretion (whether this use should go in this location) at this stage of the development process where the. zoning is already established to permit the use by- right. 3. Because VDLH has an easement over Rio School Lane to provide access to its site from Rio Road, Rio School Lane is considered part of the site for the purposes of site plan review. Because the curb and gutter improvements would extend beyond and outside the easement for Rio School Lane onto property not owned by VDLH, those improvements would be considered off -site. The County's authority to require off -site improvements is limited to circumstances that do not exist in this case. (This was discussed in 1 b in the preceding section.) As previously stated, it is the County's position that safe and convenient access from Rio Road onto and along Rio School Lane to the VDLH property must be demonstrated by the applicant. Safe and convenient access remains a fundamental requirement and is related to objective standards pertaining to traffic volume and design. APPELLANT'S JUSTIFICATION FOR APPEAL: (See Attachments D and E for the two Appeal Applications.) The points of appeal will be considered together and will be numbered consecutively as listed on the appeal documents. Staff comment specific to each point will be raised in italics after that point. AP- 2007 -005 6 November 13, 2007 AP- 2007 -006 The appellants have the burden to establish that the County has the authority to require an applicant to construct off -site curb and gutter improvements as a condition of site plan approval. AP- 2007 -005 Marcia Joseph 1. The Zoning Administrator's decision did not include the reasoning that the easement serving the property must be considered part of the site that is subject to the improvements required upon any site to ensure the public health, safety and welfare. Therefore the improvements to the road within the access easement must be made to provide for the public health, safety and welfare. Staff wishes to again clarify that the Zoning Administrator's decision related only to the requirement of curb and gutter along Rio School Lane outside of the easement. With the exception of the necessity for the applicant to demonstrate that safe and convenient access can be provided from Rio Road to this site, the County is not authorized by Virginia Code or case law to require off -site improvements. 2. Section 32.7.2.8 states "On -site parking and circulation shall be designed and constructed in accordance with section 4.12, off - street parking and loading requirements, subject to county engineer approval in accordance with sound engineering practices, including but not limited to grade, drainage and paving specifications; and agent approval of the safe and convenient vehicular circulation patterns." This was not applied to SDP - 2005 -0083 Rio Truck Repair Site Plan. With the exception of the necessity for the applicant to demonstrate that safe and convenient access can be provided from Rio Road to this site, the County is not authorized by Virginia Code or case law to require off - site improvements. We do not dispute that this section applies to the VDLH property and to Rio School Lane. AP 2007 -006 William and Ann DeButts 3. Disagree with the conclusion that Section 32.7.3 does not apply in this case. They assert that the easement over Rio School Lane is a part of the site and that there are in fact multiple uses. The title to the VDLH property states that the easement is appurtenant to the property. With the exception of the necessity for the applicant to demonstrate that safe access can be provided from Rio Road to this site, the County is not authorized by Virginia Code or case law to require the applicant to make off -site improvements. With regards to that particular Ordinance section (32.7.3): even if this requirement were enabled by Virginia Code, the explicit language refers to site plan involving multiple uses and this site plan involves a single use. AP- 2007 -005 7 November 13, 2007 AP- 2007 -006 4. Disagree with the conclusion that Section 32.7.2 does not apply in this case. They specifically assert that the entrance to the site at Rio Road is NOT adequate for the use contemplated on parcel 146. The large trucks that currently utilize this entrance cannot do so without traveling outside of the 20 -foot easement of Rio School Lane and encroaching onto the parking areas for neighboring businesses. In support of this position, they have attached photographs of trucks, both entering and leaving Rio School Lane. In order to make the required turns these trucks must encroach on the DeButts property. Staff wishes to again clarify that the Zoning Administrator's decision related only to the requirement of curb and gutter along Rio School Lane. The appellant makes legitimate points relating to the concern about whether safe and convenient access can be provided. While legitimate and relevant to this site plan approval, that issue is not the subject of this appeal except as it relates to the requirement of curb and gutter. 5. Disagree with the conclusion that "the need for the curb and gutter improvements is not being substantially generated by" the proposed use. In point of fact, an unsafe condition already exists with the limited truck traffic on Rio School Lane. The Zoning Administrator's determination recites that an unsafe condition currently exists and uses the existence of the unsafe condition to erroneously justify allowing additional use to make the conditions even worse. Rio School Lane currently serves several different properties, including several different businesses. The appellant is making two different assertions within this point #5. First, he says that the need for curb and gutter is substantially generated by the proposed use. He does not include any evidence or basis for his assertion. While staff has not seen a traffic study, it is unlikely that the proposed site plan will generate more traffic than the existing uses. Staff is not aware of any evidence supporting the assertion that the proposed use will substantially generate the need for curb and gutter. Any drainage issues and need to channel and traffic from parking are an existing condition. The second assertion relates to the cumulative impacts of the proposed use making "conditions even worse." The Hylton case provides case law for the point that even an increased need for improvements resulting from the development does not authorize the requirement for off -site improvements. As stated in the grounds for the appeal, there is no enabling authority for the requirement of off -site improvements. 6. The Zoning Administrator analyzed, but did not specifically determine whether "improvements to Rio School Lane could be considered to be onsite improvements." The conclusion is merely that curbs and guttering AP- 2007 -005 8 November 13, 2007 AP- 2007 -006 on adjoining private property cannot be mandated. The Zoning Administrator has erroneously concluded that NO improvements, even WITHIN the easement, may be required. Since the easement is appurtenant to the subject property, improvements with the easement could be required. We agree with the appellant that improvements within the easement can be required. The requirement of improvements outside of the easement can not be required. 7. Under Zoning Ordinance Section 32.1, the County Planning Commission or the agent may refuse to approve "any development, use or plan, or any features thereof, which shall be found by the commission or agent to constitute a danger to the public health, safety or general welfare, or which shall be determined by the commission or agent to be a departure from or violation of sound engineering design or standards." (emphasis added) Clearly, in all of the reports prepared by staff, the proposed increase in the use of Rio School Lane creates an additional danger to the public health, safety or general welfare, and violates sound engineering designs or standards. As stated in the Deputy County Attorney's memo (Attachment C), this and other Ordinance sections must be applied within the state enabling authority. Because the County can not require off -site improvements in these circumstances under state enabling authority, we may not do so under Section 32.1. STAFF RESPONSE: The majority of the appellant's assertions that off -site improvements can be required are not supported by state enabling authority under Virginia Code or case law. Several assertions relating to safe and convenient access, except as they relate to the requirement of curb and gutter, are not part of the determination and therefore are not properly before the Board. The claims that curb and gutter ARE necessary for safe access and the need IS GENERATED by the proposed use are not substantiated and are not consistent with County Engineering staff's findings. SUMMARY: The Zoning Administrator asks that this Board appeal be limited to the July 23rd decision of whether or not curb and gutter may be required for this site plan approval. It is important to distinguish the decision about curb and gutter from a FINDING WHICH HAS NOT BEEN MADE: that safe and convenient access can be provided from Rio Road to this site. AP- 2007 -005 9 November 13, 2007 AP- 2007 -006 APPEAL LIST OF ATTACHMENTS Attachment A Zoning Administrator Determination Regarding Off - Site Improvements dated July 23, 2007 Attachment B Zoning Administrator Letter to Appellants dated October 9, 2007 Attachment C Memo from Greg Kamptner, Deputy County Attorney regarding Rio Truck Repair Appeal Attachment D Appeal 2007 -005 by Marcia Joseph Attachment E Appeal 2007 -006 by James Treakle for William and Ann DeButts July 23, 2007 Peter Van der Linde Van der Linde Housing, Inc. 2820 Hydraulic Road, Suite 1 Charlottesville VA 22901 RE: OFFICIAL DETERMINATION REGARDING OFF -SITE IMPROVEMENTS- SDP - 2005 -00083 RIO TRUCK REPAIR- TAX MAP 61, PARCEL 146 - RIO MAGISTERIAL DISTRICT- Section 32.7.3 Dear Mr. Van der Linde: This letter is in response to information provided to the County by your attorney, Corban Klug. As a result of his legal points, staff has revisited the applicable Zoning Ordinance regulations relating to off - site improvements for this proposed site development. In consultation with the County Attorney's office, staff has reversed our previous position and now find that off -site improvements are not required as a result of the unique facts in this case. This will be discussed more fully in the proceeding. Background The applicant requested preliminary site plan approval to allow the construction of an 8,000 square foot building to be used for a truck repair business on the property identified as Tax Map 61, Parcel 146 (hereinafter, the "parcel "). The parcel is approximately 1.428 acres in size and is zoned C -1, Commercial, and EC, Entrance Corridor. The truck repair business is a by -right use in the C -1 zoning district. The parcel is located at the end of Rio School Lane, which is a 20 foot wide privately owned and maintained access easement, approximately 370 feet east of its intersection with Rio Road (State Route 631). There is no existing use on the parcel, and County approval of a site plan is required before a permitted use in the C -1 zoning district may lawfully exist. In order to approve the applicant's preliminary site plan, Staff determined that Rio School Lane needed to be upgraded to include curb and gutter under Zoning Ordinance § 32.7.3. Because the curb and gutter and the minimum required travelway cannot fit within the existing 20 foot wide easement, the applicant requested a waiver of the curb and gutter requirement. Negotiations to obtain additional easement width between the applicant and landowners adjoining Rio School Lane were unsuccessful. Staff has re- evaluated the applicant's request for a waiver and has determined that under the facts of this case a waiver is not required because the County's site plan regulations do not require that Rio School Lane be upgraded as described above. AP- 2007 -005 - AP- 2007 -006 j ATTACHMENT A ,, tit�Cklt`�lA COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, Room 227 Charlottesville, Virginia 22902 -4.596 Phone (434) 296 -5832 Fax (434) 972 -4126 July 23, 2007 Peter Van der Linde Van der Linde Housing, Inc. 2820 Hydraulic Road, Suite 1 Charlottesville VA 22901 RE: OFFICIAL DETERMINATION REGARDING OFF -SITE IMPROVEMENTS- SDP - 2005 -00083 RIO TRUCK REPAIR- TAX MAP 61, PARCEL 146 - RIO MAGISTERIAL DISTRICT- Section 32.7.3 Dear Mr. Van der Linde: This letter is in response to information provided to the County by your attorney, Corban Klug. As a result of his legal points, staff has revisited the applicable Zoning Ordinance regulations relating to off - site improvements for this proposed site development. In consultation with the County Attorney's office, staff has reversed our previous position and now find that off -site improvements are not required as a result of the unique facts in this case. This will be discussed more fully in the proceeding. Background The applicant requested preliminary site plan approval to allow the construction of an 8,000 square foot building to be used for a truck repair business on the property identified as Tax Map 61, Parcel 146 (hereinafter, the "parcel "). The parcel is approximately 1.428 acres in size and is zoned C -1, Commercial, and EC, Entrance Corridor. The truck repair business is a by -right use in the C -1 zoning district. The parcel is located at the end of Rio School Lane, which is a 20 foot wide privately owned and maintained access easement, approximately 370 feet east of its intersection with Rio Road (State Route 631). There is no existing use on the parcel, and County approval of a site plan is required before a permitted use in the C -1 zoning district may lawfully exist. In order to approve the applicant's preliminary site plan, Staff determined that Rio School Lane needed to be upgraded to include curb and gutter under Zoning Ordinance § 32.7.3. Because the curb and gutter and the minimum required travelway cannot fit within the existing 20 foot wide easement, the applicant requested a waiver of the curb and gutter requirement. Negotiations to obtain additional easement width between the applicant and landowners adjoining Rio School Lane were unsuccessful. Staff has re- evaluated the applicant's request for a waiver and has determined that under the facts of this case a waiver is not required because the County's site plan regulations do not require that Rio School Lane be upgraded as described above. Peter Van der Linde July 23, 2007 Page 2 Discussion Both the parcel and the 20 foot access easement were created before the County had private street standards, so the access easement exists with no minimum standards for construction or maintenance. The County may require the installation of improvements in conjunction with a site plan if the Zoning Ordinance requires such improvements and those improvements are enabled by State law. In prior reports, Staff identified Zoning Ordinance § 32.7.3 as the authority to require the upgrading of Rio School Lane. Section 32.7.3 requires that the principal means of access to a site conform to VDOT standards, or in the case of a private road, to the applicable standards for private roads set forth in the Subdivision Ordinance. However, by its express language, the requirements of Section 32.7.3 apply only " ffln the case of any site plan involving multiple uses, including multiple dwelling units ..." Therefore, Section 32.7.3 does not apply in this case because the applicant's site plan involves a single use. Staff also has considered whether Zoning Ordinance § 32.7.2 might apply in this case, though it was not identified in prior reports. Section 32.7.2 requires in part that "[e}ach development shall be provided with safe and convenient ingress from and egress to one (1) or more public roads ..." and to these ends, "the commission or the agent in the review of a site plan may specify the number, type, location and design of access points to a public street together with such measures as may be deemed appropriate to insure adequate functioning of such access points." In this case, the access already exists in the form of Rio School Lane. Section 32.7.2 applies only to the point of ingress and egress to a public street. In this case, that point is where Rio School Lane intersects with Rio Road, and does not pertain to the condition of Rio School Lane itself. To the extent that Section 32.7.2 could apply to the applicant's preliminary site plan, VDOT determined that the entrance to the site (from Rio Road onto Rio School Lane) is adequate. Staff analyzed whether the improvements to Rio School Lane could be considered to be onsite improvements that would be required in conjunction with the site plan. The applicant's parcel is accompanied by "an unexclusive right of way or easement for ingress and egress over the 20 foot easement shown on the plat ..." The applicant has offered to make improvements within the existing easement. The issue in this case — which makes it unique — is that the curb and gutter improvements that might otherwise be required would have to be constructed outside of the easement, on private property outside of the ownership and control of the applicant. Finally, Staff considered whether the improvements described above could be required under the theory that their need was substantially generated by the applicant's proposal. Staff has confirmed that the conditions of Rio School Lane requiring the installation of curb and gutter already exist: Draina e: The April 17, 2007 staff report states: "The existing paved and gravel areas are in poor condition, particularly in areas adjacent to the parking lots along the roadway. This has created wash- out and erosion and impacted downstream channels between these parking areas and the subject property." Although the development of the parcel will increase the amount of impervious surface, only a small amount of the runoff from the parcel will flow toward Rio School Road. Safety concerns arising from parking: The April 17, 2007 staff report states: "There is also an overflow of parking along the street, including the travel lanes, creating an unsafe condition. This situation will likely be exacerbated by the large truck traffic that would be associated with the proposed use of this site." Although the development of the applicant's parcel may exacerbate these conditions, the need for the curb and gutter improvements is not being substantially generated by the applicant's project. In the absence of an express regulation requiring these improvements as a condition of preliminary site plan approval, these improvements may not be required. Peter Van der Linde July 23, 2007 Page 3 Conclusion Although it would be preferable that Rio School Lane be upgraded to include curb and gutter, on further analysis Staff has concluded that the County's zoning regulations do not require such improvements in order for the applicant's preliminary site plan to be approved. Neither Sections 32.7.2, 32.73 nor any other regulations apply to the unique facts in this case. For the foregoing reasons, a waiver from those provisions, is not required. If you are aggrieved by this determination, you have a right to appeal it within thirty days of the date notice of this determination is given, in accordance with Section 15.2 -2311 of the Code of Virginia. if you do not file a timely appeal, this determination shall be final and unappealabie. An appeal shall be taken only by filing with the Zoning Administrator and the Board of Zoning Appeals a notice of appeal which specifies the grounds for the appeal. An appeal application must be completed and filed along with the fee of $120. The date notice of this determination was given is the same as the date of this letter. If you have any questions, please contact me. Sincerely, Amelia G. McCulley, Zoning Administrator Copies: William J. or Ann P. Debutts 921 Rugby Road Charlottesville VA 22903 Corban A. K1ug Scott/Kroner, PLC P.O. Box 2737 Charlottesville VA 22902 James E. Treakle, Jr. 700 East Nigh Street Charlottesville, VA 22902 Katurah Roell Dominion Development Resources, LLC 172 S. Pantops Drive Charlottesville VA 22911 Church of Our Savior Grace Carpenter, Dennis Rooker, Charles Mason - Trustees 1165 E. Rio Road Charlottesville VA 22901 Rio Road Enterprises, LLC 2861 Duneshop Road Ruckersville VA 22968 Peter Van der Linde July 23, 2007 Page 4 Additional Copies: Betty W. Anderson P.O. Box 300 Fredericksburg VA 22404 Rio Road Laserwash, LLC 3406 Piperfife Ct. Keswick VA 22947 Greenbrier Service Center, LLC 1067 Gasoline Alley Charlottesville VA 22901 Belvedere Station Land Trust 2421 Ivy Road Charlottesville VA Covenant Church of God Ernesto V. Deomampo, et al - Trustees 1025 East Rio Road Charlottesville VA 22901 AP- 2007 -005 AP- 2007 -006 ATTACHMENT B COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902 -4596 Phone (434) 296 -5832 Fax (434) 972 -4126 October 9, 2007 James Treakle, Jr. Attorney at Law 700 East High Street Charlottesville, VA 22902 Marcia Joseph 481 Clarks Tract Keswick, VA 22947 Re: AP 2007 -005 and AP 2007 -006 Rio Truck Repair Site Plan (TM 61, Parcel 146) Dear Ms. Joseph and Mr. Treakle, This letter is to inform you that these appeals are scheduled with the Albemarle County Board of Zoning Appeals for Tuesday, November 13th at 2:00 p.m. This meeting will be held in the Auditorium, Second Floor, County Office Building, 401 McIntire Road, Charlottesville, Virginia. If you are unable to make this meeting, please let us know as soon as possible so we can reschedule. It is necessary for someone to be present to speak for the applications. Staff will recommend that the Board hear both appeals together. If you have further information to provide to the Board for their consideration, we suggest that you provide it prior to the meeting. Please provide any additional information no later than Monday, October 22 t You will receive a copy of the staff s report about a week in advance of the meeting. Because this is fairly complex and unique, I wanted to clarify and focus the issues under appeal. The Zoning Administrator's determination (dated July 23, 2007) which is the subject of this appeal does not include a finding that safe and convenient access is or can be provided to the above - referenced property. The determination is limited to whether the County can require off -site improvements to Rio School Lane, such as curb and gutter. That determination is limited to a finding under Zoning Ordinance Section 32.7.3. Staff will seek to focus the BZA's review of these appeals only to the question of whether the Zoning Ordinance (Section 32.7.3 in particular) requires off -site improvements to Rio School Lane. Staff has not yet made a positive finding that safe AP 2007 -005 and AP 2007 -006 Rio Truck Repair Site Plan (TM 61, Parcel 146) October 9, 2007 Page 2 and convenient access can be provided from Rio Road onto Rio School Lane and from Rio School Lane into this site. We are awaiting further information from the applicant relating to turning radii and the like, in order to find that safe and convenient access can be provided. If you have any further questions, please do not hesitate to contact me. Sincerely, 1 awl;t"' ./Y. Amelia G. McCulley, A.I.C.P. Zoning Administrator Cc: Corban Klug Greg Kamptner COUNTY OF ALBEMARLE of ALn„ �IRG1131P MEMORANDUM TO: Albemarle County Board of Zoning Appeals FROM: Greg Kamptner, Deputy County Attorney DATE: November 1, 2007 RE: Rio Truck Repair; Appeal Nos. 2007 -005 and 2007 -006 AP- 2007 -005 AP -2007 -006 ATTACHMENT C On behalf of the County, the County Attorney's Office submits the following summary of the issues associated with the appeal of the Notice of Official Determination issued by the Zoning Administrator on July 23, 2007 to Peter Van der Linde of Van der Linde Housing, Inc. (hereinafter, "VDLH ") Copies of the Official Determination were provided to the owners of 11 neighborhood properties. 1. Introduction The Board of Zoning Appeal's (`BZA ") decision on appeal is limited to the issue of whether the Zoning Administrator's determination was correct. Board of Zoning Appeals of James City County v. University Square Associates, 246 Va. 290 (1993). In her Official Determination, the Zoning Administrator determined that the County could not require VDLH to install curb and gutter improvements on private property that VDLH did not own and which were outside of the Rio School Lane easement (hereinafter, referred to as being "off- site "). This issue arose in the context of VDLH's site plan for "Rio Truck Repair," which is a commercial project located on VDLH's property (the "VDLH Parcel ") off of Rio Road. The VDLH Parcel is located in an old commercial subdivision and is accessed from Rio Road via Rio School Lane, a 20 foot wide private easement. In conjunction with the County's review of the site plan for the VDLH Parcel, staff requested that VDLH improve Rio School Lane as a 20 foot travelway, and install curb and gutter. Because an improved travelway would consume all of Rio School Lane's 20 foot easement width, the curb and gutter improvements would have to be located outside of the Rio School Lane easement and on abutting parcels not owned by VDLH. VDLH had sought, but was unable to obtain, easements from the owners of those abutting parcels in order to install the improvements. Because he could not construct the curb and gutter improvements within the Rio School Lane easement or off -site, VDLH sought a waiver from the curb and gutter requirement from the Planning Commission. VDLH's site plan and the request for a waiver from the curb and gutter requirement were before the Planning Commission several times. It was most recently scheduled for consideration and action by the Planning Commission on July 24, 2007. The Zoning Administrator's Official Determination obviated the need for that hearing. The parties to this appeal and the nature of the issue are atypical of the normal BZA appeal. One appellant is Marcia Joseph, a member of the Planning Commission. She has standing to appeal under Virginia Code § 15.2- 2311(A) as an officer of the County. The other appellants are William and Ann DeButts, the owners of two of the parcels along Rio School Lane, who claim they are aggrieved by the Zoning Administrator's determination. VDLH, to whom the official determination was issued, is not an appellant but, of course, is an interested party. In the very limited scope of this appeal, the appellants have the burden to establish that the Zoning Administrator's determination was incorrect. In other words, the appellants have the burden to establish that the County has the authority to require that VDLH construct off -site curb and gutter improvements as a condition of site plan approval. 2. The legal framework on which the Zoning Administrator's determination was based The General Assembly has not given the County the authority to require that every perceived problem be addressed in the development process. As it pertains to this appeal, the Dillon Rule and the relevant enabling authority given to localities in the site plan process delineate the County's very limited authority to require off - site improvements such as the curb and gutter improvements at issue in this case. A. The Dillon Rule generally limits the County to those powers expressly granted The Dillon Rule provides that governing bodies have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable. Board of Supervisors of Augusta County v. Countryside Investment Co., 258 Va. 497 (1999); City of Chesapeake v. Gardner Enterprises, Inc., 253 Va. 243 (1997). The Dillon rule applies "to determine in the first instance, from express words or by implication, whether a power exists at all. If the power cannot be found, the inquiry is at an end." Commonwealth v. County Board of Arlington County, 217 Va. 558 (1977). If there is a reasonable doubt as to whether a legislative power exists, the doubt must be resolved against the local governing body. Board of Supervisors v. Reed's Landing Corp., 250 Va. 397 (1995); Confrere Club of Richmond, supra. B. The County may not require off -site improvements in coniunction with a site plan absent express state enabling authority A locality is enabled to impose reasonable regulations that apply to each zoning district. However, the Virginia Supreme Court in Board of Supervisors of James City County v. Rowe, 216 Va. 128 (1975) held that a county may not require a landowner to dedicate land and make off -site road improvements through the zoning regulations applicable to the zoning district. In Hylton Enterprises, Inc. v. Board of Supervisors of Prince William County, 220 Va. 435 (1979), the Virginia Supreme Court considered whether the county could require a subdivider, as a condition of approval of a subdivision plat, to pay the cost of making certain improvements to widen two secondary roads abutting the property. With respect to one of the roads, the evidence showed that at the time of trial the traffic on the road was only 400 -900 vehicles per day; that by 1982 the subdivision would account for 45% to 47% of the more than 7,000 vehicles estimated to then be using the road. It was noted that "the need was established for the road improvements." The parties stipulated that the plat complied with all applicable statutes and ordinances, except for its failure to show that Hylton would pay the cost of improving the two roads that abutted the property. The Virginia Supreme Court held that there was no authority in the predecessors to Virginia Code § 15.2 -2241 and § 15.2 -2242, either express or necessarily implied, that enabled the county to require a subdivider to construct improvements to existing roads, or to pay a pro rata share of the cost of those improvements. Hylton remains controlling law in Virginia, and is commonly read to mean that a locality has no authority to require off -site improvements as a condition of site plan or subdivision plat approval, even if the need for the improvements is substantially generated by the project. Statutory authority pertaining to certain off -site improvements now exists, and that authority is discussed in subsection 2(C) below. 2 C. State enabling authority authorizes the County to provide for or require off -site improvements in coniunction with a subdivision plat or site plan only in very limited circumstances The exercise of powers under a site plan must be authorized by the subdivision - enabling statutes in Virginia Code § 15.2 -2240 et seq. See, National Realty Corp. v. Virginia Beach, 209 Va. 172 (1968). These statutes are made applicable to site plans by Virginia Code § 15.2 -2246. Virginia Code § 15.2 -2241 prescribes the mandatory provisions that must be included in a site plan ordinance and Virginia Code §§ 15.2 -2242, 15.2- 2243 and 15.2- 2244.1 prescribe the optional provisions that may be included in a site plan ordinance. A locality does not have the power to enact a site plan ordinance which is more expansive than the enumerated requisites contained in Virginia Code §§ 15.2 -2242, 15.2 -2243, 15.2 -2244 and 15.2- 2244.1. See, Board of Supervisors of Augusta County v. Countryside Investment Co., 258 Va. 497 (1999) (as applied to subdivision ordinance). The only provisions authorizing off -site improvements under the state enabling authority are the following: Voluntary finding of off -site street improvements: The voluntary funding of off -site street improvements and reimbursement of advances by the governing body. Virginia Code § 15.2- 2242(4). There is no express authority in the enabling authority for a locality to require a developer to construct off -site improvements or to make improvements to existing public roads. Hylton Enterprises, Inc. v. Board of Supervisors of Prince William County, 220 Va. 435 (1979). However, a developer may voluntarily agree to make improvements to existing access roads. Board of Supervisors of Prince William County v. Sie -Gray Developers, Inc., 230 Va. 24 (1985). Reimbursement for off -site street improvements. the need for which is substantiallv generated by the subdivision: If a developer makes an advance of payments for construction of reasonable and necessary street improvements located off -site, and the need for those improvements is substantially generated and reasonably required by the construction or improvement of the subdivision, the locality may agree to reimburse the subdivider under statutorily prescribed conditions. Virginia Code § 15.2- 2242(4). Payment by a developer of the pro rata share of certain facilities: Payment by a developer of the pro rata share of the cost of providing reasonable and necessary sewerage, water, and drainage facilities, located outside the property limits of the land owned or controlled by the developer but necessitated or required, at least in part, by the construction or improvement of the development. Virginia Code § 15.2 -2243. None of these provisions apply to this appeal. Therefore, the County is not enabled to require by ordinance the construction of off -site curb and gutter improvements. 3. The County's site plan regulations are not themselves a source of independent authority to require the construction of off -site curb and gutter improvements This section analyzes the two regulations identified and rejected as sources of authority for the County to require off -site curb and gutter improvements — Albemarle County Code §§ 18- 32.7.2 and 18- 32.7.3. Because section 18- 32.7.3 was the basis on which the County staff was requiring the curb and gutter improvements for the VDLH site plan — and was the primary basis for the Zoning Administrator's determination — it is addressed first. A. Albemarle County Code 4 18- 32.7.3 In its report to the Planning Commission on the curb and gutter waiver, County staff based its recommendation to require the off -site curb and gutter improvements on Albemarle County Code § 18- 32.7.3, which provides in relevant part: In the case of any site plan involving multiple uses, including multiple dwelling units, the principal means of access thereto shall conform to the standards of the Virginia Department of Transportation, or, in the case of a private road, to the applicable standards for private roads set forth in the subdivision ordinance, whether or not the property is proposed to be subdivided. (emphasis added) The Zoning Administrator correctly determined that Albemarle County Code § 18- 32.7.3 does not apply to the VDLH site plan because it is not a "site plan involving multiple uses, including multiple dwelling units . . ." There is no reasonable dispute that the VDLH site plan involves a single use. The fact that Rio School Lane serves multiple parcels is not equivalent to a site plan "involving multiple uses." The Zoning Administrator correctly determined that Albemarle County Code § 18- 32.7.3 could not be the basis to require the construction of off -site curb and gutter improvements. Except as delineated in subsection 2(C) above, there is no express or implied authority in the enabling legislation to authorize the County to require off -site road improvements as a condition of site plan approval. Section 18- 32.7.3 merely implements the state authority granted, and it can be interpreted and applied only in a manner that is materially consistent with the state enabling authority that has been granted. B. Albemarle County Code § 18- 32.7.2 In her official determination, the Zoning Administrator dismissed Albemarle County Code § 18- 32.7.2 as authority to require off -site curb and gutter improvements. Section 18- 32.7.2 provides in relevant part: Each development shall be provided with safe and convenient ingress from and egress to one (1) or more public roads designed to: reduce or prevent congestion in the public streets; minimize conflict and friction with vehicular traffic on the public street and on -site; minimize conflict with pedestrian traffic; and provide continuous and unobstructed access for emergency purposes such as police, fire and rescue vehicles. To these ends, the commission or the agent in the review of a site plan may specify the number, type, location and design of access points to a public street together with such measures as may be deemed appropriate to insure adequate functioning of such access points. The Zoning Administrator correctly determined that Albemarle County Code § 18- 32.7.2 did not authorize the County to require off -site curb and gutter improvements. Section 18- 32.7.2 pertains to safe and convenient access from a public street (Rio Road) to a site (the VDLH Parcel) and focuses primarily on the safety of those access points. The curb and gutter improvements were not a "safe and convenient access" issue. 4. Albemarle County Code 4 18 -32.1 does not authorize the County to require off -site curb and gutter improvements In their Notice of Appeal, the DeButts argue that the following excerpt from Albemarle County Code § 18 -32.1 is a source of authority for the County to rely upon: Nothing herein shall require the approval of any development, use or plan, or any feature thereof, which shall be found by the commission or the agent to constitute a danger to the public health, safety or general welfare, or which shall be determined by the commission or the agent to be a departure from or violation of sound engineering design or standards. Like Albemarle County Code §§ 18- 32 -7.2 and 18- 32.7.3 discussed in subsections 3(A) and (B), this regulation must be applied in the context of the state enabling authority and, since the County is not enabled to require off -site improvements in these circumstances by state law, it may not do so under section 18 -32.1. The Zoning Administrator confirmed in her determination that the curb and gutter improvements were sought by County staff primarily to address pre- existing drainage and parking conditions, not to address problems created by the development resulting from the VDLH site plan. 4 5. Conclusion Under state law, the County has very limited authority to require off -site improvements, and that authority exists in very limited circumstances that do not apply in this case. Albemarle County Code § 18- 32.7.3 allows the County to require certain street and access improvements in certain situations, but the authority is limited, and the Zoning Administrator correctly determined section 18- 32.7.3 does not authorize the County to require off -site curb and gutter improvements in conjunction with VDLH's site plan.. 5 .i Al Application for Appeal of Zonin Administrator's DetP' -m1ln atinn Appeal of Zoning Administrator's Determ AP- 2oo7 -ooAP- 2007 -005 (To be refunded if the decision of the Zoning Admini; ATTACHMENT D project Name: Appeal of July 23, 2007 Official Determination Regarding Off -site Improvements - SDP - 2005 -00083 Ta, map and parcel. TM 61 P 146 Magisterial Dietrich Rio Zoning: C -1 Physical Street Address (if assigned): not known Location of property if determination is made regarding a property (landmarks, intersections, or other): Located on Rlo School Lane, off Rio Road between Episcopal Church Thrift store and Realtor's office, between Gasoline Alley and Huntington Road Contact Person (Who should we call/write concerning this project ?): Marcia Joseph Address 481 Clarks Tract City Keswick State VA Zip 22947 a3•t 984- 3098 E-mail marcia481 ®earthlink.net Daytime Phone ( �) 984 -4199 Fax # (_) Owner of Record Peter Van der Linde Address 2820 Hydraulic Road Suite 1 City Charlottesville, State VA Zip 22947 Daytime Phone (_) Fax # (_� E -mail Applicant (Who is the Contact person representing ?): Marcia Joseph (same as contact person) Address City State Zip Daytime Phone L_--) Fax # L_-) E -mail AP- 2007 -005 (Sign #-6) Vanderlinde Housing Inc. (owner) / Marcia Joseph (appellant) and AP- 2007 -006 (Sign # 6) William and Ann Debutts (appellants). Appeal of the Zoning Administrator's determination (relating to Rio Truck Repair Site Plan) that off -site improvements such as curb and gutter can not be required on Rio School Lane under Ordinance Section 32.7.3. Appellants contend this position is incorrect. They specifically find that Rio School Lane is not considered off -site and that safe access can not be provided within the existing road easement. TM 61 Parcel 146 is zoned Commercial -1 and Entrance Corridor. Property is located at the end of Rio School Lane about 370 feet east of the intersection with Rio Road East. 910 FOR OFFICE USE ONLY 7 AP # c7�(.FJT t/E-'� ^k /1 Fee Amount Date Pai BY who? Ck# ✓� BY= County of Albemarle Department of Community Development 401 McIntire Road Charlottesville, VA 22902 Voice: (434) 296 -5832 Fax: (434) 9724126 511106 Page 1 of t following information shall be submitted with the application and is to be provided by the applicant: 1) Completed application including subject of appeal. 2) justification for applicant's position, including error in Zoning Administrators determination. You may use the space below to provide this information or submit an attached sheet. 3) if applicable, a copy of the latest deed for the property involved, and the approved and recorded plat. 4) if applicable, the appropriate drawings showing all existing and proposed improvements on the property and any special conditions fo the situation that may justify the appeal. 5) Reference to the relevant Zoning Ordinance section or other applicable regulations or case precedence to justify the appeal. 6) Appropriate fee made payable to the County of Albemarle. 7) Explanation of error in determination and justification of applicant's position: 2) R is the opinion of the applicant that the decision made by the zoning administrator did not include the reasoning that the easement serving the property must be considered part of the site that is subject to the improvements required upon any site to ensure the public health safety and welfare. Therefore the improvements to the road within the access easement must be made to provide for the public health safety and welfare. 7) In Section 32.7.2.8 the County Code states that "On -site parking and circulation shall be designed and constructed in accordance with section 4.12, off - street parking and loading requirements, subject to county engineer approval in accordance with sound engineering practices, including but not limited to grade, drainage and paving specifications; and agent approval of the safe and convenient vehicular circulation patters." And this was not applied to SDP - 2005 -00083 Rio Truck Repair Site Plan. ( wnor /Anntirant Mnat Rs%ari anvil .Clan I hereby certify that the information provided on this application and accompanying information is accurate, true and correct to the best of my knowledge and belief. ,�,,t Z 2�av Date V Daytime phone number of Signatory 5/1/06 Page 2 oft Application for Appeal of Zoning Administrator's Determination - Appeal of Zoning Administrator's Determ - AP- 2007 - 005 (To be refunded if the decision of the Zoning Admini; AP- 2007 -006 ATTACHMENT E Project Name: Rio TRUCK REPAIR Tax map and parcel: 61 -146 Physical Street Address (if assigned): Magisterial District: RIO Zoning: Cl —EC Location of property if determination is made regarding a property (landmarks, intersections, or other): RIO SCHOOL LANE ALBEMARLE COUNTY, VIRGINIA Contact Person (Who should we call/write concerning this project ?): JAMES E. TREAKLE, JR. Address 700 EAST HIGH STREET City CHARLOTTESVILLE State VA Zip 2290E Daytime Phone 9 7 9- 9 0 0 0 Fax # (A 3J 979-8186 E -mail Owner of Record VAN DER LIND HOUSING, IN Address 2820 HYDRAULIC ROAD City CHARLOTTESVILL State VA zip22901 Daytime Phone (___) Applicant (Who is the Contact person representing ?): Address 921 RLGBY ROAD Fax # (, E -mail WILL -LAM & ANN DEBUTTS - City CHARLOTTESVILLE State V`' zip 22903 Daytime Phone (__) Fax # (,_) E -mail AP- 2007 -005 (Sign # 6) Vanderlinde Housing Inc. (owner) / Marcia Joseph (appellant) and AP- 2007 -006 (Sign # 6) William and Ann Debutts (appellants). Appeal of the Zoning Administrator's determination (relating to Rio Truck Repair Site Plan) that off -site improvements such as curb and gutter can not be required on Rio School Lane under Ordinance Section 32.7.3. Appellants contend this position is incorrect. They specifically find that Rio School Lane is not considered off -site and that safe access can not be provided within the existing road easement. TM 61 Parcel 146 is zoned Commercial -1 and Entrance Corridor. Property is located at the end of Rio School Lane about 370 feet east of the intersection with Rio Road East. AUG P-.9 2007 FOR OFFICE USE gNLY , j AP # _ _ /� 4 / &A_Z1 J " Fee Amount $ / �lJ /(�l C _Date Paid '� who? G C r �"� BY: County of Albemarle Department of Community Development 401 McIntire Road Charlottesville, VA 22902 Voice: (434) 296 -5832 Fax: (434) 972 -4126 C 11 Inc The following information shall be submitted with the application and is to be provided by the applicant: L 1) Completed application including subject of appeal. 2) Justification for applicant's position, including error in Zoning Administrators determination. You may use the space below to provide this information or submit an attached sheet. 3) If applicable, a copy of the latest deed for the property involved, and the approved and recorded plat. 4) If applicable, the appropriate drawings showing all existing and proposed improvements on the property and any special conditions fc the situation that may justify the appeal. 5) Reference to the relevant Zoning Ordinance section or other applicable regulations or case precedence to justify the appeal. 6) Appropriate fee made payable to the County of Albemarle. 7) Explanation of error in determination and justification of applicant's position: :i,1,, V-. t rF 1 z, AUG 22 2007 MMi iT-lFT Owner /Applicant Must Read and Sign I hereby certify that the information provided on this application and accompanying information is accurate, true and correct to the best of my knowledge and belief. Si ature of Owner, on act Purchase A n Date 4060 Print Name Daytime phone number of Signatory 5/1/06 Page 2 of 2 J JAMES E. TREAKLE, JR. Attorney at Law 700 East High Street Charlottesville, Virginia 22902 e -mail: btreakle@earthlink.net Area Code 434 Telephone 979 -9000 Fax 979 -8186 August 22, 2007 County of Albemarle Department of Community Development 401 McIntire Road Charlottesville, Virginia 22902 RE: SDP - 2005 -00083 Rio Truck Repair Tax Map 61, Parcel 146 Rio School Lane 370 feet east of Rio Rd (SR 631) TO WHOM IT MAY CONCERN: I am filing the attached APPLICATION FOR APPEAL OF ZONING ADMINISTRATOR'S DETERMINATION on behalf of William J. Debutts and Ann P. Debutts, who are owners of the property adjoining Tax Map 61, Parcel 146, to the west and the owners of a portion of Rio School Lane over which the subject access easement passes. William J. Debutts and Ann P. Debutts are aggrieved by the Zoning Administrator's Determination dated July 23, 2007, and disagree with the Zoning Administrator's conclusions in the following particulars. . 1. They disagree with the conclusion that Albemarle County Zoning Ordinance § 32.7.3 does not apply in this case. They assert that the easement over Rio School Lane is a part of the site and that there are in fact multiple uses. If you review the tile to the property, the easement across Rio School Lane is an easement appurtenant to the property. As a part of the property, the appurtenant easement is a part of the "site" for the purposes of the application. 2. They disagree with the conclusion that Albemarle County Zoning Ordinance § 32.7.2 does not apply in this case. They specifically assert that the entrance to the site at Rio Road is NOT adequate for the use contemplated on parcel 146. The large trucks that currently utilize this entrance cannot do so without traveling outside of the 20 -foot easement of Rio School Lane and encroaching onto the parking areas for neighboring businesses. In support of this position, I have attached photographs of trucks, both entering and leaving Rio School Lane In order to make the required turns these trucks must encroach on the DeButts property. 3. They disagree with the conclusion that "the need for the curb and gutter improvements is not being substantially generated by" the proposed use. In point of fact, an unsafe condition already exists with the limited truck traffic on Rio School Lane. The ZONING ADMINISTRATOR'S DETERMINATION recites that an unsafe condition currently exists, and uses the existence of the unsafe condition to erroneously justify allowing additional use to make the conditions even worse. 4. The Zoning Administrator analyzed, but did not specifically determine whether "improvements to Rio School Lane could be considered to be onsite improvements". The conclusion is merely that curbs and guttering on adjoining private property cannot be mandated. The Zoning Administrator has erroneously concluded that NO improvements, even WITHIN the easement, may be required. Since the easement is appurtenant to the subject property, improvements within the easement could be required. S. Finally, I note that under Albemarle County Zoning Ordinance § 32.1, the County Planing Commission of the agent may refuse to approve "any development, use or plan, or any features thereof, which shall be found by the commission or agent to constitute a danger to the public health, safety or general welfare, or which shall be determined by the commission or agent to be a departure from or violation of sound engineering design or standards." (emphasis added) . Clearly, in all of the reports prepared by staff, the proposed increase in the use of Rio School Lane creates an additional danger to the public health, safety or general welfare, and violates sound engineering designs or standards. For the reasons stated above, we respectfully submit that the ZONING ADMINISTRATOR'S DETERMINATION is erroneous. Yours truly, ames E. TreakletJ( JET /rls Enclosures J ...- ..........r_'. ..........