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HomeMy WebLinkAboutJune 1974June 3, 1974 This was a regular meeting of the Albemarle County Planning Commission held at 7:30 p.m. in the auditorium of Piedmont Virginia Community College, Charlottesville, Virginia. Those members present were: Mr. David Carr, Chairman; Mr. Clifton McClure, Vice -Chairman; Mr. Wilbur Tinsley, Mr. Jack Rinehart, Dr.James Sams, Mr. Louis Staley and Mr. Lloyd Wood, Supervisor. Mrs. Ellen Craddock and Mr. Peter Easter were absent. Mr. Carr called the meeting to order and established that a quorum was present. He advised the audience that SP-353 Wolverly Corporation had been withdrawn. Mr. Tucker pointed out the minor changes in the proposed Sign Amendment. Mr. Rinehart questioned whether this was the same amendment. Dr. Sams stated that he would like to move approval of the amendment as it was in the best interests of the general public, however, recognizing the people who had voiced opposition to the amendment. Mr. Tinsley seconded the motion which carried unanimously. Amendment - Special Mobile Home Permit - Section 11-14 Mr. Tucker pointed out some minor changes in the amendment to the Planning Commission. Mr. Tinsley moved approval of the proposed amendment, which was seconded by Dr. Sams and carried unanimously. It was noted that the amendment would be recommended to the Board of Supervisors as presented to them. Mr. Carr asked that the public be recognized, before they spoke to any of the public hearings. 1) 1) ZMP-302. Jessie and Genevieve Shiflett have petitioned the Albemarle County Board of Supervisors to rezone 1.5 acres from A-1 Agricultural to R-1 Residential. Property is situated on the north side of Route 674, about 2 miles north of White Hall. Property is further described as County Tax Map 26, Parcel 46A. White Hall Magisterial District. Mr. Tucker read the staff report commenting that the staff is in agreement with the comprehensive plan in that the subject property is an appropriate are for conservation, therefore, in the staff's opinion, this would be spot zoning and would probably set a precedent for the area, and therefore the staff recommended denial. Mr. Shiflett stated that he had built two houses in 1968 and that zoning had gone into effect before he could sell. It was noted that there were two separate wells. Mr. Rinehart was also of the:: opinion that any approval of this rezoning would set a precedent in the area. Dr. Sams moved for denial of the request, stating that allow the Commission would like to approve the request, any approval would set a precedent in the area.. Mr. Rinehart seconded the motion, which carried unanimously. 2) ZMP-303. George D. Yates, Jr., has petitioned the Albemarle County Board of Supervisors to rezone 2.25 acres from A-1 Agricultural to RS-1 Residential. Property is situated on the west side of Route 616, just north of its intersection with Route 250 East. Property is further described as County Tax Map 94, Parcel 34A. Rivanna Magisterial District. Mr. Tucker read the staff report commenting that due to the proximity of approximately 230 acres, which has set a precedent and since the Board has established policy for one acre development in the cluster areas, the staff recommends approval. Mr. Yates stated that he would like to subdivide the property so that his son could build a house on it. Upon questioning by Mr. Rinehart, it was noted that the prpperty was right on the edge of the proposed cluster. Mr. Tinsley moved approval of the request, since the property was on the border of the proposed cluster and since the request was recognized in the Comprehensive Plan. Mr. Staley seconded the motion. Mr. Rinehart stated that he thought that they should not recognize lot sizes less than 1.5 acres where public sewer and water was not available at this time. Mr. Tinsley's motion carried by a 4-1 vote, with Mr, Rinehart voting against the motion. 3)SP-352. H. H. Tiffany and Mr. Price Distributing Company have petitioned the Albemarle County Board of Supervisors to locate craft and gift shops on part of 31.88 acres zoned A-1 Agricultural. Property is situated on the north side of Route 250 West, and the south side of Interstate 64 near the Yancey's Mill interchange. Property is further described as County Tax Map 55, Parcel 19 (part thereof). White Hall Magisterial District. Mr. Tucker read the staff report commenting that if the Planning Commission and Board of Supervisors approve this petition, it should be conditioned upon the following: 1) Site Plan approval; 2) County Building Official approval; 3) Shops to be used exclusively for gift and craft activities; and 4) Removal of as few trees as possible. He stated however, that the owners of the subject property several years ago applied for,the zoning of this land to the B-1 cate- gory. The request for the rezoning was denied by the Board of Supervisors as not being compatible or in keeping with the immediate area. It would appear that through the special permit provision, the property owners are attempting to make commercial use of the entire tract over a period of time. Therefore, it is the staff's opinion that the same conditions for denying the original commercial rezoning would apply in the considera- tion of this special permit which is before you tonight. Mr. Tucker also noted that the special permit uses within the agricultural zone were not intended to be used to concentrate intensive commercial activity; rather they were designed for uses in providing needed services in the outlying rural areas. Mr. Rinehart stated that he was of the opinion that the Commission needed to presented with a landscape plan of this area. Mr. Tiffany stated that the property had been split to B-1 and A-1 zones in 1968 for some unknown reasons. Mr. Tiffany told the Commission that one of the shops would be occupied by Mr. Kenneth Wood, who would be selling fruits, etc. He stated that there would be four other buildings and was not sure at this time, who would be occupying them. Mr. Wendell Jackson, speaking for the Greenwood Citizens Council, stated that they were in opposition to the request because additional commercial development would change the character of the area and be cause the request was inconsistent with the Comprehensive Plan, because the exisint B-1 zone on the four quadrants of the interstate seemed to be adequate and because the present shop already had gas pumps which were undesirable. Mrs. Martha Seldon, of the Citizens for Albemarle, also voiced opposition to the request. She also noted that the conditions placed on the permit for the country store were revised with regard to the sign, at a meeting held by the Board of Supervisors, which was not advertized publicly. She stated that this request was inconsistent with the neighborhood. Mrs. Plummer, a neighbor of Mr. Tiffany's, showed picturesof the erosion of her property, which had been caused by the special permit now in existence. to Commission members. She noted that it continued along the road which led to the Country Store. She noted that she was only requesting that drainage and erosion onto her property from Mr. Tiffany's be stopped. Mr. Cornelius Gentry stated that from his standpoint, Mr. Tiffany' Country Store had greatly improved the area. Mr. Tiffany noted that while the grading was taking place, that barriers had been placed on the property. He stated that he had been told that the area was vastly improved, and had not heard anything since then. Mr. Tiffany told the Commission that he had told the County Attorney, that his store would contain reproductions, fruits, hams,etc., and that the County Attorney had put a label of "country store" on it. Mrs. Seldon stated that in her opinion, the structure did not resemble a country store at all. Mr. Tiffany stated that he hoped to have pottery, linen gifts, etc. At this time the public hearing was closed. Mr. Rinehart moved deferral of the request so that the Planning Commission members could look at the site. He stated that in their decision they would have to take into consideration respect for the neighbors, respect for the countryside, if the proposal would be an asset to the neighbors and surrounding area and to see what screening would be needed, if approved. Mr. Tinsley stated that he would like to review the conditions placed on the permit for the country store. Dr. Sams stated that he was concerned with whether the previous permit was an asset or detriment to the area and what they really intended for that area. He stated that he thought that Mrs. Seldon had made some good points as well as the staff. He stated that Mr. Tiffany said that he thought what they wanted in the County was business growth. He questioned the Commission if this was what they wanted to see. Mr. Tiffany asked the Commission to turn it down. Mr. Carr stated that he did not appreciate the preceding statement, and and Mr. Rinehart replied that if they did act on the request that that night, that it would probably be denied. Mr. Carr stated that the public had pointed out some very good points about the wisdom of the decision to approve the original permit for the country store. After further dicussion, Mr. Tinsley seconded Mr. Rinehart's motion, which carried unanimously. It was noted that this special permit would come before the Planning Commission again on the 17th of June. d) SP-353 Wolverly Corporation has petitioned the Albemarle County Board of Supervisors to locate three central wells on 69.20 acres zoned A-1 Agricultural. Property is situated at the end of Route 791, about four (4) miles south of Crozet. Property is further described as County Tax Map 72, Parcel 36 (part thereof). Samuel Miller Magisterial District. Mr. Tucker read Mr. Wolfe's request for withdrawal without prejudice. Mr. Rinehart moved to accept Mr. Wolfe's request for withdrawal without prejudice, which was seconded by Mr. Tinsley and carried unanimously. e) SP-355. Clark C. Stearns has petitioned the Albemarle County Board of Supervisors to locate a two-family dwelling on 41+- acres zoned A-1 Agricultural. Property is situated on the east side of Route 691, about 3 miles west of Batesville. Property is further described as County Tax Map 84, Parcels 36A and 35 part thereof. Samuel Miller Magisterial District. Mr. Tucker read the staff report commenting that if the Planning Commission and Board of Supervisors approve the petition, it should be conditioned upon the following: 1. C,ounty Building Official approval; 2. 100 foot setback from Route 691; 3. That only one unit be rented, as proposed by the applicant; and 4. That the structure containing the rental unit be located in such a manner as would meet zoning and subdivision regulations, in the event the structure was sold in the future, which would require a subdivision of parcel. However, he stated that the staff would suggest: that a duplex in this area is outside the general lines of the Batesville cluster and the granting would set and the granting would set a precedent for additional requests which would not be in keeping with the adopted guide for development. He noted that the Comprehensive Plan suggested the area for Conservation. Mr. Stearn noted that he intended to use the walk out basement as a guest house by eliminating the stairs ( would have separate kitchen). He stated that this would help make the payments on the house by renting the upstairs. Mr. Rinehart stated that he was concerned about setting a precedent in the area. After further discussion, Mr. Tinsley recommened denial of the request to the Board of Supervisors which was seconded by Mr.Rinehart and carried unanimously. f) SP-356 Ronnie G. Baber has petitioned the Albemarle County Board of Supervisors to locate a mobile home on part of 20 acres zoned A-1 Agricultural. Property is situated on the east side of Route 729, about 112 miles south of Nix. Property is further described as County Tax Map 105, Parcel 3 part thereof. Scottsville Magisterial District. Mr. Tucker read the staff report commenting that if the Planning Commission and Board of Supervisors approve this petition, it should be conditioned upon the following: 1. County Building Official approval; 2. Minimum setbacks of 100 feet from Route 729 and 30 feet from the adjacent access road; 3. Screening may be necessary depending upon the location of the mobile home; 4. Provide skirting around the mobile home from ground level to the base of the mobile home; 5. Time limit of 5 years; and 6. This permit be issued to the applicant only and is non-transferrable. Mr. Carr told the applicant that if the area was compatible for mobile homes, it would possibly be renewed at the end of five years. Mr. Baber told the Commission that there were three other mobile homes in the area. Dr. Sams moved approval of the petition, subject to the above mentioned 6 conditions. Mr. Staley seconded the motion which carried unanimously. Mr. Rinehart suggested that the setback be changed to 5001, but the suggestion did not carry. g) SP-357. I. J. Breeden, has petitioned the Albemarle County Board of Supervisors to locate a mobile home park and accessory uses on 170.4 acres zoned A-1 Agricultural. Property is situated between Route 20 South and Route 631, Old Lynchburg Road, adjacent Southwood Mobile Home Estates. Property is further described as County Tax Map 90, Parcels 16 part thereof, and 5A part thereof. Scottsville Magisterial District. Mr. Tucker read the staff report commenting on the impact of the park on the area, the student population (read a letter from Mr. Elwood Hall of the Education department), etc. Mr. Tucker also stated that in addition of this request for an expansion of Southwood Mobile Home Estates, the applicant is requesting accessory or convenience -type uses to serve the residents of the mobile home park. He noted that the proposed uses consisted of a convenience store, rental office, and laundromat. He stated that if the Planning Commission and Board of Super- visors approve the petition it should be conditioned upon the following: 9 1. Central water and sewer system, to be submitted under a separate special use permit; 2. Final site plan,approval (to including recreation areas) 3. County Building Official approval; 4. Skirting around all mobile homes from ground level to the base of the mobile home; 5. No connection to Hickory Street be allowed; 6. Accessory use be limited to a convenience store rental office and laundromat 7. Grading plan approval; 8. No construction of the proposed lake without prior approval by the Thomas Jefferson Soil and Water Conservation District in conjunction with the Soil Conservation Service. 9. Street light be provided 10. All electrical utilities be placed underground. Mr. Huffman told the Commission that there were plans to cluster the mobile homes which would be connected by walkways. He stated that they were proposing to use and central sewer an-&- -ten June 10, 1974 This was a work session of the Albemarle _,nty Planning Commission held on June 10, 1974 at 7:30 p.m. in the County Executive's Conference Room, 4th Floor, County Office Building. Those members present were: Mr. David Carr, Chairman, Mr. Clifton McClure, Vice -Chairman, Dr. James Sams, Mr. Wilbur Tinsley, Mrs. Ellen Craddock, Mr. Louis Staley, Dr. Avery Catlin, Mr. Jack Rinehart, and Mr. Lloyd Wood, Supervisor. Mr. Peter Easter was absent. Mr. Carr called the meeting to order and established that a quorum was present. Dr. Catlin made a motion which was seconded by Mr. Tinsley to hear legislation passed by the General Assembly as it relates to land use and zoning to be presented by Mr. Jim Murray. This was placed on the agenda after item 4C. The motion carried unanimously. Soil Amendment - Mr. Humphrey told the Commission that Mr. Smart of the Thomas Jefferson Soil and Water Conservation District stated that this amendment should be in uniformity with the recently passed state enabling legislation and therefore, asked the Commission if they wanted to wait to take action on this matterbefore they received this new legislation? It was noted that under 11-8a-2(6) Thomas Jefferson Soil and Water Conservation District should be inserted instead of "Area Conservationist". Mr. Humphrey noted that the amendment granted the right to agents to go on property. Mr. Rinehart noted that under 11-8A-2, #3 that possibly the location of trees was going to be a problem and might need to be more defined. Lx a Mr. Humphrey suggested possibly a diameter designation of trees would help. Mrs. Fran Martin, speaking for Citizens for Albemarle, expressed support of the ordinance. Mr. Smart stated that they should require from the developer a plan that shows all the soil erosion preventive measures. (such as size silt basin, size of pipe, where grade is greater than 2.1, etc. ). Mr. Roudabush stated that in his opinion the defintion of a tree needed to be clearly defined; such as statement of height or diameter. He stated that he thought the limit of grading at 8,000 square feet was going to be a burden to the residential property owner, and hoped that the Commission would consider the cost to owners. Mr. W. W. Stevenson stated that he would like to endorse Mr. Roudabush's statement, and thought scale for contours and tree size should be stated, etc. Mr. James Cosby representing 106 families of the Berkeley Community voiced their support of the amendment, and recommended that the Commission not delay a decision on this amendment. Mr. Cosby speaking as an individual stated that there should be some sort of measure for existing trees and suggested 3" or 4" in diameter. Mrs. Betty Scott, representing the League of Women Voters, stated that they agreed with the 45 day time limit mentioned in 11-8 a-5 and agreed with the 8,000 square foot minimum..... Mr. Calvin Moyer, representing 150 homeowners in Woodbrook, voiced their support of the ordinance. Mr. Wendell Wood thought there would be a serious error if the definition of a tree was 3" to 4" in diamater and suggested 16" to 24" if at all, Mr. Chuck Rotgin echoed sentiments for the need for scale of contours to be spelled out as well as definition of tree sizes. Mr. Craig gave examples of where discretion might be needed on a buffer drop off. Mr. McClure thought the discretion would be good, and that Vepco would be acting on 1, 2, 3, and 4. Mrs. Craddock suggested that 5 and 6 under 11-8A- 2 be separate sections. Mr. Iachetta suggested that the Commission look at the life cycle cost to the owner instead of the initial cost, and stated that he was in opposition to Mr. Wendell Wood's comments. Mr. Grant of Lant Realty stated that this seemed to be another way to keep the County from growing. He stated that this would add to the"red tape" and that this would completely eliminate any small developments. The public hearing on this amendment was closed. Mr. Carr commented that he was not sure whether they should act now on this amendment or wait until they coordinated it with the state enabling legislation. to Dr. Catlin stated that he would like/urge the Commission to go along with this ordinance. Mr. McClure stated that he would like for Mr. St. John, County Attorney, to review the amendment to see how the new law applies to this. Mrs. Craddock suggested that she would like to have another ,, short work session on this amendment to give Mr. St. John and Mr. Humphrey a chance to go over this and review their comments. Mr. McClure stated that he did not see how they could protect trees under this ordinance, unless it was a soil preventive measure. Condominiums - Mr. Humphrey told the Commission that this was what Mr. St. John felt appropriate. He staged that condominiums would be under all residential zones with a Special permit. Mr. Carr questioned whether they should be permitted by special permit only or by right in certain zones. Dr. Catlin stated that the Commission was concerned about the homeowner's agreement and thought that this was the reason the Commission asked that it be by special permit only. Mr. Humphrey stated that the legislation spelled out what was required in the agreements. Mr. McClure moved for deferral on the amendment until June 24, 1974 so that Mr. St. John's reasons for requiring a special permit could be defined. Mrs. Craddock seconded the motion which carried unanimously. b) Scottsville Shoppping Center- It was noted that in some instances occupants of the shopping center would own their land instead of leasing it. Mr. Sheffield, president of Scottsville Shopping Center, told the Commission that some of the occupants were dependant upon SRA loans, which required that the applicant own the real estate. area? Mr. McClure questioned who would pay for the upkeep of the parking Mr. Sheffield stated that the shopping center corporation would be responsible for the maintenance. He stated that they would still of own the site with the exclusion/the 3 or 4 parcels to be owned by the merchant . Mr. McClureasked how the Commission could be assured that the corporate chapter would not be dissolved? Mr. McClure asked how the pro rata share would be determined and what enforcement would be used if a merchant refused to pay? The applicant replied that all of the persons in the shopping center would hold a lien against the delinquent owner. Mr. McClure moved approval of the request subject to the County Planner and the County Attorney's approval of the parking area and the common area. Dr. Catlin seconded the motion which carried unanimously. c) Stonehenge waiver- It was noted that this was a 7" waiver for a corner lot requirement which is 40'. Dr. Catlin moved approval of the request which was seconded by Mr. Mc Clure and carried unani- mously. Upon questioning by Mr. Rotgin, Mr. Carr asked that the records show that the Commission did not wish to require that utility plan came back to the commission (to have staff approval and the County attorney's approval). It was noted that Jim Murray's talk regarding legislation of land use and zoning would come up at a later date. Work Session: a) Land around reservoir Mr. Humphrey told the Commission that he preferred a uniform setback line from the reservoir instead of a line based on contours. Mr. Carr reminded the public and Mr. Wendell Wood that the Commission was limiting this discussion to commission members at this time. Mr. McClure stated that the reasons for designating the area around the reservoir as conservation would have to meet with the intent of the conservation zone. He stated that the Commission should have more evidence than just their personal feelings that runoff, and what amount of runoff, would be detrimental to the life of the reservoir. What the Planning Commission really needs is some scientific data supporting this assumption. Dr. Catlin stated that he thought their reasons would be very difficult to defend on an arbitrary line but would stand a better chance by designating the"ridge" as the setback line, which could be better defended. Mr. McClure suggested that possibly they could approach the landowners with a possible deed restriction agreement. Mr. Rinehart suggested that the Commission try to obtain infor- mation from the State Water Control Board and/or State Health Dept. to use in the defense of their decision. Mr. Wood stated that he and the Commission would have to reach a compromise or either he would have no alternative but to go to court and find out what would be considered a pollutant to the reservoir. He stated that the property had been rezoned even though;.the reservoir was already there. Dr. Charles Hurt, Mr. James Flemming, Mr. Jason Eckford, Mr. John Stroud, Mr. Grant, Mr. James Nunnally and several others expressed their concern of citizens losing money, polluting the reservoir, etc. Mrs. Fran Martin stated that she would like to lodge a protest against the manner in which the discussion was being held. She stated that others had complied and had not discussed their individual parcels of land and felt that the people complying were being treated unfairly when the Commission allowed others to speak to the matters at this time. Mr. Carr stated that Mrs. Martin had made a good point, but thought when constructive material was being added, that it would help the Commission to come to a decision. Mr. John Stroud wanted to discuss item #6 "Discussion --Procedure for public hearing". Mr. Stroud questioned the procedure of the Commission in not allowing the citizens to speak to specific parcels, etc. Mr. Carr stated that he did not believe that they had time for a public discussion at this time. He stated that when they completed their (the Commission's)discussion on the map , then they would present it to the public, and request observations in written form, etc. He stated that they had not really set up a definite procedure at this time. Mr. Carr suggested that the other matters on the agenda be deferred which was in agreement with the Commission. There being no further busine the meeting was adjourned. Jo L. Humphrey, Secretary, r FJ June 24, 1974 This was a special work session of the Albemarle County Planning Commis- sion held at 4:00 p.m. on June 24, 1974, in the Board of Supervisor's meeting room, 3rd Floor, County Office Building, Charlottesville, Virginia. Those members present were Mr. David Carr, Chairman; Mr. Clifton McClure, Vice -Chairman; Dr. Avery Catlin; Mr. Peter Easter; Mr. Jack Rinehart; Mrs. Ellen Craddock; Dr. James Sams; Mr. Wilbur Tinsley; Mr. Louis Staley; and Mr. Lloyd Wood, Supervisor. Mr. George St. John, County Attorney, and Mr. Rosser Payne, consultant of the Master Plan for Albemarle County was also present. Mr. Carr established that a'quorum was present and called the meeting to order. Mr. Humphrey noted that possibly Mr. St. John wished to refresh the Com- mission's memory regarding vested interest and alluded to Supreme Court Case in the state of Virginia known as the "Snell case," and the affect that it would have on the Commission's work on the zoning map. Before Mr. St. John presented his information to the Commission, Mr. Humphrey told the Commission that a representative from the State Health Department would be visiting with him on the 27th of June regarding the condition of the reservoir and the ef- fect high density development would have on it. Mr. Carr told Mr. St. John that they desired to be reassured of the posi- tion the Commission should take with regard to down -zoning property. was Mr. St. John pointed out that the Commission/primarily concerned about down -zoning in three basic areas; the 29 North area recommended to be down - zoned from business to Rural Residential; another area from intense commer- cial to a less intense commercial zone; and the reservoir area from R-2 and A-1 to Conservation. Mr. St. John told the Commission that the Virginia Supreme Court was one of the conservation jurisdictions with regard to personal property rights, and only where there was an over-riding public interest to be served would the Planning Commission and the Board of Supervisors be able to erode this right. He noted that the "Snell case" and the "City Service" case were in- stances in which the court overturned the County's decision to down -zone property. He stated that the real meaning of "down -zoning" under today's value scale was to lessen the value of the land. Mr. St. John stated that the Supreme Court has never said that you cannot down -zone a piece of land, nor did he think they would ever do so. He stated what they have said is the following: that the "Snell case" was a case where Fairfax County had their property zoned for low residential, and then the enactment of the Master Plan raised the residential density. The Planning Commission and Board of Supervisors then suggested that the owner apply for higher density as the Master Plan so stated. The Master Plan being enacted over a pre-existing zoning ordinance raised the density of the land in ques- tion and made it more valuable. The said property was rezoned to higher den- sity at the landowner's application. Mr. St. John told the Commission that two years after this, a new Board of Supervisors came into power and on their own motion rezoned this developer's land below the density called for in the Master Plan. He stated that this was overturned in court as being com- pletely arbitrary and capricious. People have sited the "Snell case" saying that you cannot zone downward and they are incorrect in this. Mr. St. John said that the Supreme Court says when you down -zone property you are reducing the value of the property and therefore there had to be a valid and almost compelling reason for down -zoning in the state of Virginia. He stated that you had to have an overriding interest in order to justify down - zoning. Mr. St. John suggested that the land around the reservoir be looked at as an example and stated that the reasons for down -zoning had to take one of two forms: 1. Make a part of the record as to why the zoning of the property was a mistake in the beginning; 2. Or prove a substantial change of circumstance with respect to land which now justifies the down -zoning. He stated that Fairfax attempted to justify the property involved in the "Snell case" as being a material change in circumstance. He noted that the only change in circumstance was the election of a new Board of Supervisors. Mr. St. John commented that he could not emphasize enough the importancE to the Commission of placing on record the reasons and conclusions for down - zoning each particular parcel fo land and that land could be rezoned from commercial to conservation, etc. with one of the two above mentioned reasons and evidence to back it up. Mr. St. John told the Commission that a landowner did not have a vested interest in property simply because of the price paid for the property due to its zone. He stated that the law presumes that the citizen is responsi- ble for knowing that unless they have a vested right in this zoning, it is subject to legislative discretion of the Board of Supervisors or in other words, the zoning can be changed. He stated that one did not get a vested right by borrowing money from the bank, and certainly the bank did not have a vested right if the purchaser did not. He stated that a landowner would have a vested interest by substantial expenditures on property if it was done in good faith. (Not buying the pro- perty, but expenditures done toward the use of the property). Mr. St. John advised the Commission, also that the payment of taxes base( on zoning (if that were the case) was a little stronger case for a vested right, where the same governing body who is going to change your zoning has raised the taxes. He advised that the governing body in Virginia does not set the assessments. He stated that in Albemarle County, the land was not taxed on the basis of zoning and that the Commission should not be overly concerned with this. What they must be concerned with was a valid and com- pelling reason for down -zoning for the general welfare of the citizens. Mr. St. John read the following section from the "Snell case." "The Supreme Court says that land use as well as landownership in Virginia, as well as every place in the United States, is based on the profit and 3 the profit motive. The statutes recognize that public power over the pri- vate property rights can be exercised judiciously and equitably." He sug- gested that Commission members read the case. He noted that there was an additional aspect in favor of the Planning Commission's work. They were adopting a new zoning ordinance in its en- tirety and were not picking out an individual case such as the "Snell case" did. He noted that Albemarle County at present was using an interim zoning ordinance to be used until the Comprehensive Plan was enacted and then until a new zoning ordinance could be enacted to carry out the provisions of the Comprehensive Plan. Mr. Payne told the Commission that the most important word involved their consideration would probably be "reasonable." He stated that this word could be interpreted many different ways, and reiterated that "reasonable" was probably the most important word in the Virginia judicial system. Mr. Payne stated that he would like to expand on two points that Mr. St. John had made. Amendment in 1969 in which a large lot zoning was overturned even though it was based on the Master Plan, because it was thought to be unreasonable. If the Agricultural lot size was "10" acres and if they chose to adopt that lot size, he noted that it was going to have to be defended pretty tho- roughly. He stated that with regard to the vested interest principle, each parcel contemplated as being down -zoned should be looked at very carefully. If there had been an assessment and a tax levy on that property (depending on what was stated on that use card), and if zoned according to commercial and industrial prices and taxes have been paid at that rate, Mr. Payne would suggest from experience that that justified a complete vested interest. He stated that this was his own opinion and he did not have any Supreme Court cases on the matter. It was also Mr. Payne's opinion that the present Albemarle County Zoning Ordinance was not an interim ordinance at all. He stated that his rezoning was that in order for it to be an interim ordinance, it would have to be so stated and have an expiration date. The present ordinance was adopted over his strong objections because it was at the time the Comprehensive Plan work was beginning. He noted that they were the last County in Virginia given the legal right to have zoning, and consequently used a "shot gun ap- proach" to adopting a new zoning ordinance. He noted that without any vested interest the Commission had the perfect right to recommend down -zoning of property, provided that they do so based on a thoroughly prepared and accepted Comprehensive Plan. He stated that at this point they would have to carefully consider if their actions would be considered reasonable. Mr. Rinehart stated that he thought it would be a good idea to examine the zones down through rural residential and point out some of the reasons for the selection of the density and have Mr. Payne and Mr. St. John tell us whether in their opinion and experience they are reasonable or not. N Dr. Catlin stated that he would like to ask some questions first and made the following two statements regarding real estate taxes based on zoning: 1. The tax in Albemarle County is based on fair market value. (That is the law). 2. It is my opinion that fair market value in this county is based on zoning. That is, the fair market reflects the zoning. If I put those two statements together, that says in fact, that the tax is based on zoning. He asked Mr. Payne, regarding land reappraised since the 1968 zoning ordinance and taxes paid on that land, whether or not every single owner has a vested interest in zoning? Mr. Payne stated that his argument for vested interest would not apply if the assessment was an overall county assessment, since this would be a case where everybody's property would go up according to fair market value. He stated that what he was referring to, was the act of zoning a piece of land in which the land changes from agricultural to commercial, industrial, or a higher intensity use, and on the annual re -assessment card the land goes from for example 10G per square foot up to $4.00 per square foot. He noted that this was a material change based on the value put on it by the assessor. After the land has been rezoned, the County chooses to tax based on the commercial value of the land. When there is no real justification for the taxation other than its commercial value, the landowner has a vested interest, in my opinion. Dr. Catlin asked with regard to land that (assuming it has been reappraised since 1968), tax on that piece of land is based on zoning? has changed hands since 1968 is it fair to say that the Mr. Payne noted that with the normal increase in property values, the tax was going to increase across the board, but there was no vested interest in the question just asked. If there is a detailed change involving unusual assessment practices because of a rezoning, then vested interest occurs. He stated that this was a good example of having reasons for down -zoning each parcel. Mr. Carr stated that since zoning was adopted in 1968, there has been a complete reappraisal of property in Albemarle County; some of it has been reappraised twice. Mr. Carr asked Mr. Payne if he was saying then, that some of the parcels have been taxed according to their zone? Mr. Payne stated that there was an increase in the value of land annually He noted that what the Commission had to watch for in questionable parcel, was the sudden jump in any assessment in any given year because of a zone on that property. Then a vested interest would be established if the taxes were paid. Dr. Catlin stated that if the property had not been rezoned since 1968, then the only place the Commission could look for the sudden jump would be the year between 1967 and 1968. Mr. Carr said that he thought the property would have to be examined the year after it was rezoned, because they did not reassess the property right after the zoning map was adopted. Mr. Payne stated that if there was a disagreement at the assessment level and Planning did not have anything to do with it, the Commission would 5 go in to court to appeal it to get an assessment ruling. The appraiser might say the land was assessed because it was rezoned and the average value of property zoned for XYZ is so many dollars a square foot, which we are applying here. Then the Commission's attorney and appraiser may state that they have the fair market value for 26 pieces of property and this piece shows that the average market value based on the willing buyer, the willing seller, and disregarding the zoning was half the County's assessment. He stated that this was a hypothetical situation, but if a situation as this arose, then they would have a terrible time having the particular property down -zoned, when the owner had shown that in good faith he had paid his taxes based on zoning. Mr. Rinehart asked Mr. Payne if a differential tax refund would negate the vested interest? Mr. Payne replied that he did not know. Mr. St. John stated that when someone had a vested interest, you could not just arbitra- rily buy it. Mr. St. John informed Mr. Payne that sometimes there were many parcels, such as around the reservoir, that did not have a vested right and that to him, this meant the parcels were not anything but non -conforming uses. It was his opinion that the area could still be put into a conservation zone. He stated that it did not mean that the zoning ordinance could not be applied,, but that having a vested right meant one had a non -conforming use. Mr. Payne stated that in his opinion this was correct, but there was a- nother point to be watched in that if the zoning is changed creating anon - conforming use, if the land is used, that use can be continued for life. Mr. St. John wanted to know if the property owner had paid taxes and had a vested interest in unoccupied land by virtue of paying taxes based on zoning, whether said property still was not simply a non -conforming piece of land, rather than a piece of land that cannot be rezoned. Mr. Payne stated that he did not know of any cases like the above, but if the land was unoccupied, taxes had been paid on it as being a commercial zone, and the land was down -zoned, it was his opinion that a building permit would have to be issued on the previous, more intense zone. Dr. Sams questioned whether or not this negated zoning? Mr. Payne stated that it did not negate zoning on that particular parcel because there were extenutating circumstances. He stated that the purpose of zoning was pro- tection of the health first, safety second, and welfare of the public. Dr. Sams stated that the Commission had discussed the possible desira- bility of removing some of the strip zoning on Route 29 North. He stated that if the owner of some of these properties could show that they had been taxed as commercial zoning, then, if he understood Mr. Payne correctly, the Commission cannot, in fact, change the future use of these regardless of how we rezone. The precedent has been set by virtue of taxation. Mr. Payne stated that on the properties whose zoning the Commission chose to change, they would have to be able to show that the increase in value and the increased taxes which have been paid, were the result of the normal growth and value of the County. If that is the case, the zoning may be changed with no problem. Mr. Payne noted that if they were going to rezone and the Commission definitely had a right to do so comprehensively, then properties in the business and industrial categories that would be down -zoned should be looked at specifically. Also Mr. Payne stated that there were instances where the commercial zoning was not being taken away, only restrictions being added to it (such as CG and CL). Mr. Payne said that he did not think there was any question that this could be done. Mr. Carr wanted to know what justifications you had to have to rezone in the situation as described in the preceding paragraph. Mr. Payne stated that in this case you were not changing the zoning, but using planning criteria to place restrictions on it. This did not re- move the total value or the vested interest in the land. He stated that there should be sound planning objectives to accomplish this. The Commissiol could not just limit the zone because they wanted to, but because it was considered reasonable. Dr. Catlin stated that Mr. St. John had mentioned two major reasons for changing zoning. He asked Mr. St. John if the adoption of a Comprehensive Plan could be considered a change in circumstances. In other words, is there any legality in changing zoning to bring the land use into conformity with an adopted Comprehensive Plan? Mr. St. John stated that not per se, but there were reasons behind the adopted Comprehensive Plan which he hoped would be "reasonable." Mr. St. John, upon questioning by Mrs. Craddock, stated that there could be reasons which came to light after a rezoning, which could be con- sidered reasons for rezoning. In other words, the "mistake clause" could be used. Mr. Payne stated that after the present Zoning Ordinance was adopted a field investigation was made in connection with the Comprehensive Plan, and they found some land that had been given a 200' Business zone along a major highway, which had creeks running through it, etc. He stated that this could be considered an error, as it was entirely unusable. Mr. Rinehart asked if grading before any site plan had been approved represented a vested interest? Mr. St. John replied that grading did not constitute a vested right un- less the grading could not be used for anything else, and he could not imagine what this would be. Mr. Carr asked what would constitute a vested right in Virginia, short of construction? Mr. Payne told the Commission of a case called "Medical Structures, Inc. which had spent $10,000 in approval of a site plan. Mr. St. John stated that there was not a specific percentage or definite figure which would con- stitute a vested interest. He stated that it was really a question of good faith and a substantial change of position. N Mr. Humphrey went over the statement of intent and the reasoning of the proposed zones, and Mr. Payne made statements with reference to problems that might arise, etc. AGR Mr. Payne's primary question was the reasonableness of the 1 family dwelling unit per 10 acres. He stated that the Commission would have to prove that the 10 acre lot was reasonable and would within reason not pro- hibit anyone from building a home that desired to do so in a rural area. Mr. Payne stated that the subdivision statute spoke of 5 acres. AL Mr. Carr noted that the Commission recognized that this land was going to be used for purposes other than farming, and that this was a'hold- ing" zone . Mr. Payne stated that regardingthis zone: 1. the state law says that 5 acres is reasonable for conservation and agricultural 2. they were speaking of limited and fair soils only, so there would be a question as to whether there would be any other use 3. effective July 1, 1974, the State Health Department and Bureau of Sanitary Engineering is getting into larger requirements for septic tanks and drainfields. Mr. Payne stated that in his opinion, the Commission would not have any trouble with this zone. CVN Mr. Payne stated that he thought the conservation zone was an ex- tremely strong zone with a good definition, however, in his opinion, the Commission might have trouble distinguishing it from AL. RR Mr. Payne commented that this would conform with the State Health Department law. R-2 It was noted that this would replace the present RS-1 zone, and that the lots would either have public water or sewer. Mr. Payne saw no problem with this zone. R-3 Mr. Payne did not see any problem with this zone. RT Mr. Payne stated that the Commission should have a sound reason for the 6-dwelling units per acre. RTM Mr. Payne commented that he thought this was an excellent zone. RM (for so-called "garden" apartments) Mr. Payne stated that he saw no problem with this zone, however, he would like to stress more use of the pre- ceeding zone. RHM (medium high-rise) Mr. Payne expressed concern with the height limits of this zone (60'). He stated that there was a technical concern of too much building mass too low to the ground, which would be caused by the expense of building over 50'. He stated that he would recommend 80'. PUD Mr. Payne considered this zone to be one of the most important ones in the ordinance. He would not favor a PUD in high density zones because he did not think that it would be wise to have single family houses in these zones, which PUD's would allow. He stated that this zone should be re- quired to adhere to the .site plan ordinance. (This zone excluded from the AGR zone, allowed in AL through RT). RESIDENTIAL MOBILE HOME ZONE Mr. Payne stated that they should be lo- cated close to the employment areas, but not in the agricultural and con- servation zones. CO and CL Mr. Payne stated that these districts could be applied in some places to the old commercial zoning. If commercial was located near a primary residential area then CO would be the most applicable. He stated that it gave the Commission a degree of control without completely dimi- nishing the property values. He stated that "campus type" used in the state ment of intent would have to be defined. He stated that CG would take care of the more intense commercial uses. IL Comparable to the existing M-1 zone. IG Comparable to the existing M-2 zone. HISTORIC DISTRICT Mr. Payne stated that first a zone should be provided for this but thought that it should be mapped until the Commission was pro- vided with all the documentation for the sites. NATURAL RESOURCE ZONE Mr. Humphrey stated that there was a question of why the 150' frontage? He stated that this was a question of proper access, etc. FLOOD PLAIN Mr. Payne commented that the Commission should be certain what criteria they were using for designating this area. G L - o n L. Humphrey, retary 9