HomeMy WebLinkAbout05 27 86 PC Minutes (2)May 27, 1986 Page 7
Referring to the sight distance requirement for a commercial entrance, Mr.
1�40'"` Cogan asked Mr. Echols, representing the Highway Department, if the 75-foot
lack of sight distance could be "rectified without interferring with someone
else's property, or is it possible to come close enought to 350 feet to
satisfy Highway Department requirements?"
Mr. Echols indicated it would be difficult.
Mr. Cogan asked which would be more critical to the Highway Department, i.e.
having two entrances or having a commercial entrance whiched lacked the 75
feet.
Mr. Echols stated the additional 75 feet would just meet minimum requirements.
He added that the two entrances may not be a problem at this time, but it may
be a problem as other properties in the area develop. He indicated it would be
a "tradeoff." Mr. Cogan surmised the Highway Department did not have a
preference.
Mr. Cogan stated the Commission's options were as follows: (1) To approve
the plat as presented by the applicant; (2) To waive the sight distance
requirement and require a commercial entrance; or (3) To allow it to be divided
into only two parcels.
Mr. Bowerman asked if sight distance had ever been waived. Mr. Cogan recalled
that it had been done with North Gardens; however, it was determined that in
that case the speed limit had been reduced, thus reducing the sight distance
11*W requirement.
Mr. Cogan stated the consequences of two entrances were: (1) two stream
crossings; and (2) two entrances within 200 feet of one another.
Mr. Michel stated he was inclined to approve it as submitted, noting that
the applicant has made an effort to get rid of the pipestems.
Mr. Cogan asked if this could be approved with a condition that there be no
further division on these existing entrances.
Mr. St. John, the County Attorney, responded, "Legally, you could."
Mr. Keeler suggested the following note be placed on the plat: "No additional
entrances shall be established to Rt. 668. No individual entrance shall
serve more than two parcels without installation of VDH&T commercial
entrance."
stated
Mr. Cogan/that would still allow one more division. He suggested that there be
no further divisions that would use either of these two entrances. He
suggested the addition of the following condition: "No further division shall
be permitted which would require the use of either of the two existing entrances,
or which would require any additional entrance onto Rt. 668. "
It was determined this would mean there could be no further division of the
property without the approval of another subdivision plat showing a feasible
commercial entrance.
May 27, 1986
Page 8
Mr. St. John stated the wording suggested by Mr. Cogan implied there
could be no other entrance of any kind.
400
Mr. Cogan suggested adding "...other than a private street commercial
entrance," at the end of his suggested condition.
It was determined Mr. Cogan's suggested wording could be shortened to
read: "No further division without an approved private street commercial
entrance." This was to be added as condition l.c.
Mr. Cogan moved that the Lynn Aeschliman Final Plat be approved, including
a waiver of Section 18-36f to allow two entrances, and subject to the
following conditions:
1. The final plat will not be signed until the following
conditions have been met:
a. Virginia Department of Highways and Transportation approval of
proposed eastern entrance;
b. Planning staff approval of technical notes to plat.
c. No further division without an approved private street
commercial entrance.
Ms. Diehl seconded the motion.
Mr. Bowerman stated he could not support the motion because he felt there
were "some situations in the County which do not lend themselves to division
under our existing ordinances."
The motion for approval passed (6:1) with Mr. Bowerman casting the lvo
dissenting vote.
Thach Preliminary Plat - Proposal to create 3.03 acre lot (improved with a
single family dwelling) which leaves 161.2 acres residue. This proposal is a
Family Division with a requested waiver of the requirement for Virginia
Department of Highways and Transportation approval of the entrance (Section
18-57G) and County Engineer approval of private road upgrading (Section
18-36E(1)). Acreage of site is 164.23 acres. Zoned RA, Rural Areas. Samuel
Miller Magisterial District.
Ms. Patterson gave the staff report which stated three main issues were
of concern: (1) septic field location; (2) private road design standards;
and entrance to Rt. 676. Ms. Patterson stated the entrance to Rt. 676 was
the primary concern since it lacked adequate sight distance. She stated,
"We have never recommended a waiver of sight distance." The report stated
that the applicant had neither attempted to obtain permission for an
access easement nor attempted to relocate the entrance in order to obtain
sight distance. Staff recommended denial "based on the grounds that this
plat does not meet the justifications for a waiver of 18-57G in accordance
with 18-3(b) of the Subdivision Ordinance."
It was determined there are division rights with the residue and there
are several other parcels with division rights which use this private
road. It was determined there are approximately 6-10 parcels using the
road though several of the parcels are not yet developed.
Regarding the issue of sight distance, Mr. Jeff Echols, representing the
May 27, 1986 Page 9
Highway Department, commented that the banks, roadway and slope would
1%14W have to be graded to get adequate sight distance. This would require
sight easements and grading easements on private property. He explained
that by shifting the entrance to the other side, 90 feet to the north,
easements would still be required, but it would be a much easier approach.
Regarding the possibility of approving the plat with condition l.a.--VDH&T
approval of any upgrading to the physical construction of the entrance that
could be accommodated --Mr. Echols stated, "The only way we can approve
anything is if they upgrade it to a private street commercial entrance.
I guess that condition would have to be somewhat revised. If our approval
is needed, they would have to completely upgrade it."
The Chairman invited applicant comment.
Mr. Presley Thach, the applicant, addressed the Commission. He indicated
he felt the entrance should not have to be upgraded since this is an
existing residence, using an existing entrance, and traffic on the road
will not be increased. He stated he had investigated the possibility of
relocating the entrance to the north and found the cost, approximately
$8,000, to be an "undue hardship." He requested that the sight distance
requirement be waived.
There being no public comment, the matter was placed before the Commission.
It was determined the Highway Department was saying if the Commission
wanted to approve the plat, condition l.a. should be omitted.
Mr. Keeler explained further, "With that condition included, you recognize that
he is not going to get the sight distance, so if you approve it, you would have
to approve it without the sight distance. The condition is
speaking to the physical construction of the entrance." He suggested the
following rewording of l.a.: "County Engineer approval of construction of
the entrance to the Highway Department's standards." He stated that
way the Highway Department would not have to issue a permit, and the
County Engineer could take their book and say "This is what you do."
Everything else would be complied with except the sight distance.
It was determined this should be worded as follows: "County Engineer
approval of construction of the entrance in accordance with VDH&T standards."
Mr. Michel stated he was comfortable with the re -worded condition. He
pointed out that even if the entrance were moved, the easements would
still be in question.
In response to Mr. Bowerman's question, Mr. St. John stated that the
standards in effect at this time would govern the entrance. He added,
"I believe the 1985 amendment to the Code said that the only power we have
over a family subdivision, as defined in the Code.... is that the subject land
has access to a public road over an easement 12 to 20 feet wide. If I
am right, you can't impose any higher (standards). What I'm saying is,
'What power do we have to do anything once it is shown to us that there is an
existing easement at least 12 feet wide that leads from this house to a
public road?"'
May 27, 1986
Page 10
Mr. Bowerman stated that Mr. Payne, the Deputy County Attorney, had been
explicit about the Commission's lack of power at the time the zoning text
amendment had been discussed. He added that a motion for approval should
encompass the newer road standards.
Mr. Cogan stated, "We can do that just be eliminating condition l.b.
Ms. Diehl commented that she had understood Mr. St John to say that the
Commission only had authority over the road width.
Mr. St. John stated, "You have the power to assure that there is a legal
easement leading from this house to a public highway and that easement is
at least 12 feet wide." He confirmed this was in regard to the road
standard.
Mr. Cogan pointed out that Ms. Diehl's concern was about the entrance.
Mr. Keeler stated, "I don't think the Code of Virginia precludes the appli-
cation of Highway Department standards. I don't think it is intended to.
If you need a Highway permit from the Highway Department, you have to
get it."
Mr. St. John added, "But you don't need one in this case, do you?"
Mr. Keeler responded, "For 3 lots or more, yes sir, you need a commercial
entrance permit."
Mr. St. John stated, "But you can't get one; it is absolutely impossible to
get it, unless you do all this grading and so forth. The Highway Department
has no power, in this case, to tell these people they can't drive
to their house, do they? It is an existing entrance and the Highway
Department doesn't have the power to tell these people they can't use it."
(Mr. Echols commented, "Not without taking legal action." )Mr. St. John
continued, "We do not have any power to invoke Highway Department standards
when the Highway Department doesn't have the power to invoke those
standards."
Ms. Diehl was concerned about the action on this application being inconsistent
with previous similar situations. Mr. St. John pointed out that this is
an existing entrance, not a new access, which is a "totally different ballgame."
Mr. Bowerman questioned why the matter was before the Commission since the
Ordinance is in the process of being changed to accommodate a family division
in terms of the roadway, which is in keeping with the state statutes.
Mr. St. John responded, "This is the same question I asked when the amendment
came before the Board of Supervisors, because at that point I noted that
I didn't think we had any power to do, all along, what was being done to
these family divisions under the Code. The Code is pretty plain, and unless
I am misreading it, which I may be, it says in black and white that
local governments' power over family subdivision is to assure there is
an easement for ingress and egress to a public highway at least 12 feet wide."
May 27, 1986 Page 11
M
Mr. Cogan recalled a former similar application and stated, "Mr. Payne
advised us that because that division created another lot which,combined
with all the other lots on the road, made it over three, therefore a private
street commercial entrance was required and the sight distance was
required. I think that's why this is here."
Mr. St. John indicatedlt was often not aware of what policies or rulings
were made at the Commission level and most family divisiors were "disposed"
of at this level. He added, "Time and again the County Engineer has been
imposing commercial entrance standards, which are very expensive, on these
family subdivisions. I read the Code and I didn't know this was happening,
and I would like for somebody to explain to me under what authority we are
making those requirements."
Mr. Cogan responded, "It's in the Subdivision Ordinance."
Mr. St. John replied, "We can't impose powers by writing them into the
Subdivision Ordinance."
Mr. Cogan stated, "That's why they are doing it, though, right or wrong."
Mr. St. John stated, "But our powers to write into the Subdivision Ordinance
these requirements is limited by the State statute."
Mr. Bowerman asked, "Does the State statute also limit other state
agencies from imposing their requirements, like VDH&T?"
Mr. St. John replied, "No sir, it does not, where the power of the state
agency exists. But, like Mr. Echols said, this entrance exists and
I don't believe the State Highway Department can tell people that they
can't use an existing entrance."
Mr. Bowerman asked if this was applicable only to family divisions.
Mr. St. John replied, "I don't think the family division makes any
difference. That's up to the local government to require or not require
State Highway approval."
Ms. Diehl interpreted, "So it would not require a waiver of Sec. 18-57(g)."
It was determined only one condition would be left, i.e. l.c.
Mr. St. John reviewed his understanding of the proposal and concluded,
"Can we impose the Highway Department's standards when the Highway
Department itself couldn't do it?"
Mr. Keeler stated, "Our ordinance requires, for subdivisions and family
division, that access be approved by the Highway Department. It the
Highway Department will approve these accesses without issuance of a
commercial permit, that's the Highway Department's business. Both the
existing regulations and the proposed regulations, which have been reviewed
by the County Attorney's Office, require Highway Department approval
of entrances. If you want to deal with this on the issue of existing
May 27, 1986 Page 12
development and no intensification of use, I would recommend that you
do it on that basis rather than on an issue of family division. We vo
would like to discuss these issues a little more with the County Attorney's
office because we based the amendments on the language in the Code that says
that the Subdivision Ordinance may contain reasonable provisions for
access and it specifies the width of the easement. Within that context
of reasonable provisions, we felt that the application of things like
Health Department approval and Highway Department approval, which were
state agencies, were not precluded." (Mr. Bowerman interjected, "Not
being local." Mr. Keeler responded, "That's right.") Mr. Keeler
continued, "I didn't feel like the General Assembly took away the powers
of the Health Department or Highway Department in these matters of family
divisions because it speaks to the powers of local ordinances, not
necessarily the powers of state agencies."
Mr. St. John stated, "I agree with everything Mr. Keeler has said and I agree
that the power of the Highway Department is not effected by this state law,
but if the Highway Department itself has no power in this particular case,
I don't see how we can exercise power by imposing a highway standard
ourselves that the Highway Department itself hasn't got the power
to impose, and then justify that by saying that the power of the state
agency is not precluded by this ordinance. If that's true, then let the
State Highway Department stop these people from using this entrance."
Noting that he was confused by all that had been discussed, Mr. Michel moved
that the Thach Preliminary Plat be approved subject to the following
condition:
1. The final plat will not be signed until the following
conditions are met:
a. Planning staff approval of technical notes to plat.
Mr. Cogan seconded the motion.
Ms. Diehl asked that the record show "This does not mean we are approving
that waiver," as stated in the staff report.
Mr. Cogan pointed out that the applicant did not intend a commercial
division of any type and this would probably be a less intense use of an
existing structure.
The motion for approval passed unanimously.
Rose -Pollock Family Division - Division of a 28.24 acre parcel into two lots
of approximately 21 and 7 acres. Located east of Covesville, on the
ease side of Rt. 29 and across from Rt. 805. Tax Map 109, parcel 23. Rivanna
Magisterial District.
Mr. Benish gave the staff report which stated that the applicant was
requesting "relief from Virginia Department of Highways and Transportation's
recommendations for improvements to the right-of-way entrance at Rt. 29."
Because of the discussion which had just taken place with the Thach preliminary
plat, it was determined this was a moot issue.
41%
May 27, 1986 Page 13
Mr. Benish presented an addendum to the staff report which stated that the
✓' applicant was also requesting relief from the road standards. The report
stated: "Staff would, with thisproposal, require that the 30 foot access
easement from the Observatory Road to the property be upgraded to a 14
foot wide gravel road (6" gravel base) as required by the Subdivision
Ordinance." Mr. Benish added, "We are saying, more than likely, a waiver
could be granted for this road under our current or but that
this road should meet our private road standards as they currently
exist, the reason being that based on the same determination we made for
John Walker and Shirley McNulty, the intensive traffic on this road
really would put a burden on Mr. Rose to upgrade it. This section of
the road serves three lots, however, and should meet our current private
road standards, which, in this case, is only a 2-foot additional width."
Mr. Cogan stated, "I don't think we can do that."
Mr. St. John quoted the following from the Code of Virgnia, Section 151466K:
"Reasonable provisions permitting a single division of a lot or
parcel for the purpose of sale or gift to a member of the
immediate family subject only to any express requirement contained
in the Code of Virginia and to any requirement imposed by the
local governing body that lots of less than 5 acres have reasonable
right-of-way of not less than 10 feet providing ingress and egress to
a dedicated, recorded public street or thoroughfare."
Mr. St. John stressed "Subject only to a requirement for a reasonable right-
of-way not less than 10 feet wide." He added, "That means you can't
make it subject to anything more than that in my judgment. (Mr. St. John
noted that he had said 12 feet previously, but that was in error.)
Mr. Bowerman expressed confusion and asked "If the law was changed in
1985, and if we have been in error since that time because we haven't
adjusted our ordinances, is there any reason that we should be
reviewing these at all, under the current statutes, other than the fact
if staff determines that they have the minimum right-of-way; Is that it?
No County Engineer, no VDH&T, no nothing?"
Mr. St. John responded, "Any rules that the Health Department, the State
Water Control, or any state agency...(it) says subject only to any express
requirement contained in the Code of Virginia, and the Code of
Virginia is what sets out the Health Department powers, (i.e.) septic fields,
wells, etc. We're not talking about that. But the local governing body is
limited to a requirement that any lot less than 5 acres have reasonable
right-of-way of not less than 10 feet to a public road."
Ms. Diehl asked about those over 5 acres. Mr. St. John replied, "They
can have anything they want, if they can get it in."
Mr. Michel determined that this referred to a "single" family division.
He asked what would happen if there were 2 or 3 children involved.
//Y
May 27, 1986
Page 14
Mr. St. John responded, "No, no; one at a time. The Code goes on to say
that this is limited to one division per family member. If a person has
22 children, he can do this 22 times and the same rules apply."
Mr. Bowerman asked if the Commission should address the application "in terms
cf the way the ordinance is currently constituted, because that is what the
staff report was based on."
Mr. St. John replied, "That's beyond our powers to enforce or impose."
Mr. Bowerman stated, "But the staff really has an obligation to still deal
with the ordinance until they come to this Commission."
Mr. Benish indicated he was confused as to what staff's position should be
when writing staff reports.
Mr. St. John replied, "You are between a rock and a hard place' because you
are duty bound to apply the subdivision ordinance as written. I am advising
that the subdivision ordinance imposes requirements that the County has
no power to enforce. That's why the subdivision ordinance has got to
be amended, but until that takes place, the staff and Commission have to
comply with the State Code. We can't go around imposing requirements
on people that we have no power to impose simply because we've got an
ordinance that says so. You certainly have no choice, and I don't
think you are waiving anything when you eliminate this condition, having
had no power to impose it in the first place."
It was determined it was not necessary to "waive" the conditions, but rather 444*4
to just eliminate them.
Mr. Michel moved that the staff be granted administrative approval of
the Rose -Pollock Family Division (no conditions imposed).
Mr. Wilkerson seconded the motion which passed unanimously.
Discussion continued on this issue.
Mr. Cogan expressed confusion as to why the Highway Department does not
impose a requirement when Mr. St. John has stated state agencies do have the
power to impose requirements.
Mr. St. John replied, "I can't explain why the Highway Department does not
control that if it can, but I can say that that is a problem for the Highway
Department. We can't tell them to do it or not do it; we can't increase or
diminish whatever power they have. They, in turn, cannot impose their
'druthers' on the applicant by recommending to us what they would like to
see us do, if what they recommend is something we have no power to do.
That's what we've been doing here."
Mr. Cogan pointed out, "But the Highway Department is a state agency just
like the Health Department, (so) why does the Health Department have the power
to enforce their regulations, and the Highway Department does not?"
Mr. St. John replied, "I don't think that's an accurate way to put it. If they
have regulations, they have the power to enforce them." Mr. St. John went
on to say that he did not think the Highway Department had the power to
say "(a) particular piece of land can't enter the highway."
May 27, 1986
Page 15
Mr. Keeler stated, "But they have two different types of permits and they
certainly don't have to approve one for ten houses on (a particular) piece
of property. That comes under a commercial permit. As I understand it,
the Highway Department is not obligated to issue any type of commercial
permit, but they are obligated to give you access to the road."
Mr. St. John stated, "Whatever power they have, they have independent of
what we sit here and do, and if what you say is true, they could go
out there tomorrow, regardless of what we approved or disapprove
and control that entrance and impose their standards... and nothing we
do can effect that."
Mr. Keeler stated, "I think what you're saying right now is more far
reaching than just family divisions, or anything else, because I've heard
the Highway Department say in case of an existing entrance, that they
can't require it to be upgraded. So if we can't and they can't, what
do we do in the case of an existing shopping center that wants to double
its size?"
Mr. St. John replied, "You don't have any Code section with respect to
construction of a shopping center that the power of the local government
is subject only to a requirement to have a right-of-way at least
10 feet wide. There is no limitation on the local government's power,
reading in that language, with respect to a shopping center. That
language only limits the local government's power in a family division
and it was put there for that purpose, to give special treatment to
these family divisions."
Ms. Diehl asked if the Code spoke to any kind of time limitation as to
the amount of time the property must be held.
It was determined this was not addressed in the Code, but a one year
limitation was in the local ordinance. Mr. St. John quoted the following
from the Code:
"Only one such division shall be allowed per family member and shall
not be for the purpose of circumventing this subsection."
He stressed this meant not one per family, but one per family member.
He added, "I guess what we've done is created a presumption, that if the
family member turns around and sells it within a year, its been for the
purpose of circumventing. We created that; that's not in the Code.
I think that's borderline and its one of those cases where there's
nothing that says you can't do it." He added, "Here what you're doing
is in direct contravention to an express limitation on our power."
Mr. Bowerman asked Mr. Keeler to meet with the County Attorney's office
to clarify this matter so that all the County staff "can be working as one."
It was also suggested that family divisions that have required Highway
Department approval since the ordinance was adopted, particularly those
after the statutes were changed in 1985, should be notified of this issue.
o�
S
May 27, 1986 Page 16
Mr. Keeler stated, "There are other things that Mr. St. John's reading
of this is going to effect because the zoning ordinance says that you
can't issue a building permit for any lot created after the effective
date of the zoning ordinance unless it has access out to the public
road."
Mr. Bowerman stated, "Based on what I've heard tonight, I would not expect
to see any more family divisions before us."
Proposed Keswick & Kinloch Agricultural and Forestal Districts - Applications
presented for two new agricultural and forestal districts, submitted by
Katherine L. Imhoff, Local Coordinator, Piedmont Environmental Council, on
behalf of the applicants. Keswick Agricultural & Forestal District is
proposed on the west and east sides of Rt. 22 at Keswick. The proposed
district is comprised of 4,265.68 acres. Kinclock Agricultural
and Forestal District is proposed on the west and east sides of Rt. 231
between Cismont and Cash Corner. Part of the district extends east to
Cobham on Rt. 22. The proposed district is comprised of 1,167.12 acres.
Mr. Benish read the staff report. No action was required of the
Commission. Mr. Benish went over the proposed schedule for these
applications.
There being no further business, the meeting adjourned at 10:35 p.m.
John Horne, Secretary
Recorded by Janice Wills
Transcribed by Deloris Sessoms