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HomeMy WebLinkAbout03 03 1998 PC Minutes3-3-98 MARCH 3, 1998 The Albemarle County Planning Commission held a public hearing on Tuesday, March 3, 1998, in the County Office Building, Charlottesville, Virginia. Those members present were: Mr. Jared Loewenstein, Chairman; Mr. David Tice; Mr. William Nitchmann; Ms. Hilda Lee -Washington, Vice Chairman; Mr. William Finley; Mr. Dennis Rooker; and Mr. Will Rieley. Other officials present were: Mr. Wayne Cilimberg, Director of Planning and Community Development; Ms. Susan Thomas, Planner; Ms. Elaine Echols, Planner; Mr. Eric Morrisette, Planner; Mr. Bill Fritz, Senior Planner; Mr. David Hirschman, Water Resources Manager; Mr. Jack Kelsey and Mr. Glenn Brooks, Engineering Department, and Mr. Greg Kamptner, Assistant County Attorney. A quorum was confirmed and the meeting was called to order at 7:00 p.m. Action on the February 10th minutes was tabled (by unanimous vote) until the March 10th meeting. Mr. Cilimberg briefly summarized actions taken at the February 18th Board of Supervisors meeting. CONSENT AGENDA Southside Shopping Center Final Site Plan - Parking Lot Slope Waiver Request and Loading Space Waiver Request and Carriage Hill Apartments Preliminary Site Plan Waiver -Requests for (1) Waiver to allow for construction on critical slopes; (2) Waiver to allow for cross slope parking grade in excess of 2%; and (3) Waiver to allow for curvilinear parking. No concerns were raised about either of the items on the Consent Agenda. MOTION: Mr. Rooker moved, Mr. Nitchmann seconded, that the Consent Agenda be approved. The motion passed unanimously. ZMA 97-10 The Storage Center - Request to rezone approximately 0.948 acres from C-1, Commercial, to HC, Highway Commercial. The property, described as Tax Map 32, Parcel 37A1, is located on the west side of Route 29 North (Seminole Trail) approximately 1/4 mile south of the intersection with Route 649 (Airport Road) in the Rivanna Magisterial District. The property is recommended for Regional Service in the Community of Hollymead in the Comprehensive Plan. Deferred from the February 13, 1998 Commission meeting. and 1-6,q 3-10-98 9 Tracta is referring to except for the units behind Putt Putt. [Mr. Keeler said the units behind Putt Putt are private development projects and are involved in some types of programs.] Mr. Keeler went on to address some of Mr. Tracta's comments and explained that the reason there is no affordable housing development in Ivy or Keswick is because they are not growth areas. In terms of other areas in the county absorbing low-income development, the first one done was in Crozet --The Meadows. People were terrified of that development in the beginning, but it is now the meeting place in Crozet. Crozet also has Crozet Crossing. In Scottsville, the old school has been converted to elderly housing. Presently, the County is working with Habitat for Humanity on a single-family subdivision in the Esmont area. In the Piney Mountain community there is Briarwood, which, though not subsidized, is probably the largest development we have in terms of a developer providing affordable housing. He said the Jordan Development Corporation (The Meadows), AHIP, and Habitat for Humanity have not undertaken any projects in the urban area. Mr. Finley said he had understood tonight's presentation had been simply an information session. He said he now knows more about the topic and asked: "Does everything that we bring up like this for information --do we then have to decide that it's time to change it --are we going to make new recommendations and tighten the screws so he has to do more, or are we going to loosen them so he does less? If it's coming back, I hope the questions will be very clearly defined so I will know what to expect and won't look (uninformed). If it's going to be better for all concerned, fine. But if not, let it be." Mr. Rieley said he believes there are a number of the bonus provisions which might be counter productive. He said he thinks they do need to be reviewed and should be scrutinized very carefully. Referring to Mr. Nitchmann's comments about all the studies already taking place, he said there may be some advantage to looking at "some of these things which are boiling" at the same time, because there are many overlaps and many of these things could have significant impact on the bonus provisions. He said: "To whatever extent we can do it, within the staffs limits, I think we should look at this as holistically as possible and not only make each one of these individual initiatives make sense, but make them make sense working together." Mr. Loewenstein said he does not see why the present bonus process cannot continue to be used, with the addition to the staff report as suggested by Mr. Nitchmann. This change would require very little additional staff time. On the issue of studying the entire bonus provision issue further at this time, he asked that Mr. Keeler consult with Mr. Cilimberg and report back to the Commission on how such a study would impact the staffs current workload, keeping in mind the potential overlap identified by Mr. Rieley. A decision on another work session can be postponed until staff has had time to discuss the question. He said he feels many of the studies 3-10-98 10 14%.W mentioned by Mr. Nitchmann are near completion and so it might be possible to undertake a study of the bonus provisions in the not too distant future. He said: "If there is any way in which we can examine this topic without seriously impacting the time element or the quality involved in working on these other, and in some cases related, initiatives, I think it would be good to do. Staff will have to help us plan that timetable because I don't think anybody here wants to add an unbearable load on Planning Staffs shoulders." Mr. Keeler said he will discuss the topic with Mr. Cilimberg. He pointed out that staff has already discussed the fact that staff is scheduled to look at the Zoning Ordinance after the completion of the DIS committee and the bonus provisions are in the Zoning Ordinance, so that would seem to be the time to look at bonuses. He said: "I am not sure you want to get in a situation where you may be repealing some things that they may want to put back in later, but if you feel there is a burning issue to be dealt with we could probably do it sooner. Mr. Cilimberg would have to make the commitment for staff time." Mr. Loewenstein said there is no suggestion that a Resolution of Intent should be adopted at this time, so staff is not being given a "finite mandate." Mr. Tice said he thinks the only burning issue will be taken care of with the additional information added to staff reports as described earlier by Mr. Nitchmann. Mr. Nitchmann said if the bonus provisions are not being used, it may be the developers think they are not drafted properly. He suggested it would be helpful to seek input from the development community as to why they do not presently use the bonuses, and how the provisions can be changed to help the county achieve some of its goals. Mr. Tice agreed that was an important part of the study. Mr. Keeler summarized the Commission's directions to staff: --Schedule a presentation by Ginny McDonald on the accomplishments of the Housing Committee to date. --With future development applications, begin to include in the staff report an analysis (when applicable) of the potential density which could be achieved if bonus provisions were used. --Discuss with Mr. Cilimberg staffs work program and report back to the Commission on whether a study of bonus provisions, with potential amendments, could be worked into the existing work program, or if it should be postponed until some of the studies which are already taking place have been completed. Mr. Rieley pointed out that the bonus provisions were established in 1980, revised in 1985, and he feels that is one reason they should be studied given some of the changes which have occurred in the County. M Rn M 3-10-98 Mr. Tice noted that in addition to those groups already identified as being an part of a study, (the Housing Committee and the development community), "we need to make sure that the neighborhood associations and the public in are a part of the process." MISCELLANEOUS 11 important he said general Committee Assignments - Mr. Loewenstein reminded Commissioners to let Mr. Cilimberg know what committees they presently are working with, and whether they wish to continue to serve on these committees. Committee assignments need to be publicized. County's Home Page - Mr. Loewenstein said the page needs to be updated. Electronic Communication Among Commission Members - Mr. Kamptner said he has prepared a memo on this topic and it may be distributed to Commissioners at the next meeting. Commission's Policy for Accepting Comment During Public Hearings -There was a brief discussion regarding the procedure for accepting public and applicant comment, particularly in terms of time limits and rebuttal, during public hearings. Several Commissioners felt the Commission's policy should be consistent with the Board's. Mr. Kamptner is to provide a copy of the Commission's present policy, along with a copy of the Board's policy, for comparison. There was support for including on each agenda a brief statement which will explain the procedure which will be followed during the meeting. This topic will be discussed again at a future meeting. There being no further business, the meeting adjourned at 9:30 p.m. V. Wayn Cilimberg, etary DB 1 �7 3-3-98 2 ZMA 97-13 Anthony Valente - Request to rezone approximately 0.82 acres from C-1, Commercial, to HC, Highway Commercial. The property, described as Tax Map 32, Parcel 37A, is located on the west side of Route 29 North (Seminole Trail) approximately 1/4 mile south of the intersection with Route 649 (Airport Road) in the Rivanna Magisterial District. The property is recommended for Regional Service in the Community of Hollymead in the Comprehensive Plan. Access to the property is from Route 29 North. Deferred from the February 13, 1998 Commission meeting. Ms. Thomas presented the staff reports. Staff recommended approval of both, subject to acceptance of the applicants' proffers. Mr. Loewenstein asked staff to comment on VDOT's plans for Rt. 29 North. Mr. Cilimberg said the project is a couple of years away. He anticipated there will be a lot of discussions about some new concepts, e.g. a series of parallel roads. Unfortunately, there is no definite information available at this time. The applicant for The Storage Center was represented by Mr. Todd Shields. He said he agreed with the staff report. He offered to answer Commission questions. There were no questions. Public comment was invited. None was offered. The applicant for Anthony Valente was represented by Mr. Rick Carter. He said the applicant agrees with the staff report. Both staff and the applicant are satisfied with the proffers. He offered to answer questions. Mr. Loewenstein asked if the applicant anticipates any problems with the project once the two-year VDOT plans for 29 North are finalized. Mr. Carter was skeptical that the plans would be finalized within two years. He said he is aware of some designs that are being considered and "we are going to design it, as best we can, keeping that in mind." There being no public comment, the matter was placed before the Commission. There was no further Commission discussion on either ZMA 97-10 or ZMA 97-13. MOTION: Mr. Rooker moved, Ms. Washington seconded, that ZMA 97-10, The Storage Center, be recommended to the Board of Supervisors for approval, subject to acceptance of the applicant's proffers. The motion passed unanimously. MOTION: Ms. Washington moved, Mr. Finley seconded, that ZMA 97-13, Anthony Valente, be recommended to the Board of Supervisors for approval, subject to acceptance of the applicant's proffers. Discussion: 160 3-3-98 3 Mr. Rooker noted that the proffer letter was not signed. Staff said the letter had been received late in the afternoon. Mr. Cilimberg said the proffers are "substantially" acceptable. A signed proffer will be required at the time of the Board hearing. The motion passed unanimously. SP 97-65 - Greenwood Farm Bridge - Request for special use permit approval, in accordance with Section 30.3.5.2.1(2), for fill in the floodplain to construct a road and bridge over Yellow Mountain Creek. The road and bridge will be to serve timbering and recreational activities of the property owner and provide access to future residences on the property. The property, described as Tax Map 71, Parcel 2, is located on the south side of Route 250, approximately 2400 feet from the intersection with Route 690 and approximately 3000 feet from the intersection with Route 689. It is zoned RA, Rural Area. The property is designated as rural areas in the Comprehensive Plan. Deferred from the February 17, 1998, Commission meeting. Ms. Echols presented the staff report. Staff recommended approval subject to conditions. Ms. Echols explained that conditions 3 through 8 are related to engineering and environmental protection issues and conditions 1 and 2 are the Planning Department's recommended conditions for no more than 2 residential dwellings on the south side of the stream and that both of the dwellings be built at an elevation of less than 900 feet, in keeping with the Open Space Plan. The applicant has asked that only conditions 3 through 8 be attached to the permit' Ms. Echols explained the reason for conditions 1 and 2: "Staff is concerned that allowing more than 2 dwelling units on the south side of the stream will cause the need for an upgraded road which will necessitate major fill in the floodplain. Staff is also concerned that construction of a home or homes will take place on a ridgetop, which will also necessitate construction of a driveway on steep slopes. Both of these activities are discouraged in the Open Space Plan, which is part of the Comprehensive Plan." Mr. Nitchmann asked Ms. Echols to explain why staff changed it's recommendation for 3 dwelling units, to 2 dwelling units, and on what grounds does staff base its recommendation for 2 dwelling units. Ms. Echols said staff had originally recommended only 1 building site. That recommendation was later changed to 3 building sites. "Then when (staff) realized private road standards for the 3-5 lot subdivision with a private road would require much more fill in the floodplain to support that third lot for the driveway, we couldn't support that aspect of it and that is why we are back down to 2 lots being recommended on the south side. It is an issue of additional fill in the floodplain related to a private driveway as required in the private road requirements." Mr. Nitchmann asked if the Engineering Department agrees with that assessment. Ms. Echols responded affirmatively. Mr. Nitchmann asked if the concern is because "additional dirt will cause some safety hazard or health hazards downstream?" Ms. Echols responded: "it raises the amount of fill that is put in the floodplain, which has some impact on the floodway itself and the flow of the water." Mr. Glenn Brooks, representing the Engineering Department, and Mr. David Hirschman, Water Resources Manager, addressed Mr. Nitchmann's question. Mr. Nitchmann again asked: "I am trying to determine why you 3-3-98 4 feel, the extra amount of fill, if it is required, would be detrimental to the health, or safety, or welfare, of people downstream. I guess that is the reason --for people downstream. Right?" Mr. Brooks responded: "No, not specifically. I don't think it is going to be a detriment to health, safety or welfare. it is just a matter of trying to minimize the impacts to the stream valley, ..., and we didn't believe that much fill was necessary. It is our recommendation that as little fill as possible be placed in that stream valley." Mr. Nitchmann asked if "as little fill as possible" is a subjective determination. Mr. Brooks said the determination is based on each individual site and how much backwater will be generated during certain storm events, and if it is going to effect property that water backs up onto. If this bridge caused water to back up, it would flood the neighboring farms. It is not likely in this case. Mr. Rooker asked if the Engineering Department has calculated what "percentage increase in fill might be occasioned by higher road standards for a third lot." Mr. Hirschman responded: "if you visit the site, it is evident that by designing with the site, it has the potential to be a very low impact crossing because both approaches can largely be put at grade without building what would basically amount to a causeway --a raised surface on both sides of the floodplain with 2:1 or 3:1 slopes sloping down for some distance. That kind of raised causeway is virtually a dam all the way across the floodplain. The footprint of that crossing is significantly bigger than putting in the accesses at grade. I think that is the main issue. If they were designing a crossing that was required to meet road standards, we would have the obligation to say that it had to be a causeway --the surface of the road would have to be above the 100-year flood elevation. It is not that that is unapprovable, but it's not the original design that was submitted. We worked with the applicant --and I really think they had the same idea --of making this a crossing that was fitted to the site and had as low an impact as possible." Mr. Nitchmann asked: And what changed that position was going to 3 or more?" Mr. Brooks explained some of the comments in the Engineering Department's memo: "It didn't specifically change it. We just wrote a memo to bring up the fact that if they did put more than 3 lots on this driveway, we would be obligated to tell them to raise the road level above the 100-year storm elevation, which would necessitate a lot more fill. We just couldn't recommend that." Mr. Nitchmann asked: "The point I'm trying to make is, is there a law which says they couldn't comply with making the road bigger, or you just didn't want to do this because you would not like to see the road be bigger? Are you coming about it objectively, or subjectively?" Mr. Hirschman explained: "We could evaluate it either way. The thing that would kick in the road standards would be the 3 houses that would be served by the road. I think the Engineering Department could review it as it was designed --as a low impact crossing, or as designed according to road standards. But we haven't had the opportunity to make that comparison at this point." Mr. Loewenstein said: "But one point is, if the conditions were to allow 3 building sites on the south side, then that would automatically kick in the road requirement." Mr. Hirschman said: "I don't know if it would unless they exercised actually constructing those three residences." Mr. Brooks added: "Any three residences, anywhere on the property, would necessitate that the principal means of access meet the 100-year flood standards. That would include if they were to have three residences on this side of Stockton Creek." Mr. Tice interjected: "But just up to the point where those three residences are. For instance, if they had 3 residences north of Yellow Mountain Creek, but only two on the south side of Yellow Mountain Creek, across Yellow Mountain Creek 1.6a 3-3-98 they would not have to meet 100-year flood requirements." Mr. Brooks responded: "That's correct. Mr. Hirschman added: "If it was a different driveway." Mr. Finley asked if the Engineering Department had determined the 100-year floodplain elevation. Mr. Brooks said the applicant's engineer submitted some preliminary calculations which included some rough estimations of elevations. Mr. Finley asked: "I thought approval of a crossing in a floodplain depended on a backwater analysis. Did anyone do that?" Mr. Brooks said generally that would be a part of a final engineering analysis. He said preliminary engineering calculations were done "just to give us an idea of what could be a low -impact crossing with not much fill and what could be more, and since they were designing the bridge at a fairly high mark above the 100-year, we just wanted to see if would have a great impact, and it turns out it doesn't. So we were just getting an idea of how much fill there was going to be. Usually, we don't do that kind of calculation until the very end, because it is usually fairly obvious." Mr. Finley asked: "Is the reason you oppose the fill because of the effect on the backwater?" Mr. Brooks said: "We don't oppose the fill. We're just sort of evaluating --if there are three residences or more it is going to be this much. From our standpoint, and environmentally, and even from the applicant's standpoint, as low impact as possible is what we would recommend, but we don't really oppose it. If they get approval for 3 residences or more, we will evaluate it." Noting that this stream is in the public water supply reservoir, Mr. Tice asked: "Has it been the policy of Engineering, based on direction from actions that the Board of Supervisors has taken in the past, that the general policy has been, in this County, to try to limit the amount of fill that takes place in these floodplains, particularly on creeks leading into the public water supply reservoir." Mr. Hirschman replied: "That is an excellent question, and it would seem there would be a straightforward answer. As you know, when we get into the realm of standards, we often don't have a choice. Personally, and as Water Resources Manager, I would always like to have low impact crossings. However, when we get into public and private road standards, we are required, and the applicant is required, to have that road surface at a certain elevation. It doesn't say you need a certain amount of fill, but it begs the question, of course. It would be nice, in the water supply watershed, if we could have a little more balance between what the standards say and what the best environmental solution would be." Mr. Tice said: "The idea, though, is to try to limit the amount of fill as much as we can." Mr. Hirschman responded: "Absolutely. Not only for environmental, but also for flood control purposes." Referring to condition No. 5, Mr. Tice asked what type of "mitigation measures for encroachment into the Water Resources Protection Area Buffer' may be possible. He said presently, the stream has essentially no woody vegetative buffer. He asked if the traditional specifications for riparian buffers --at least 35 feet wide on each side of the stream --could likely be one of the mitigation measures. Mr. Hirschman replied: "That is really the only mitigation measure that has been discussed. These things are made a condition and after the special permit is approved, we get to the details. That has not been committed to, but, obviously, when you visit the site, it is the one that comes most readily to mind." Mr. Rooker asked: "To what extent could those measures mitigate the increased fill that might be required?" Mr. Hirschman replied: "It's really hard to say. /6.3 3-3-98 6 When we do these mitigation plans we look for the opportunities that are available on Nlil r site. Putting in some kind of riparian buffer is the best opportunity at this site for enhancement. In effect, how can you really mitigate a stream crossing, besides enhancing some other part of that stream buffer that's effected. I think that is the way I look at it. Obviously, the ideal situation environmentally is to have the low -impact crossing with the minimization of fill plus the stream corridor enhancements." Mr. Finley asked if Mr. Hirschman if the term low -impact, in environmental terms, means less erosion with less fill. Mr. Hirschman said: "One thing that is positive is this is a span, rather than putting culverts and fill directly in the stream. A span is always viewed as a better option. The other issue is the amount of grading and the amount of material that has to be cut, or brought in as fill, and the amount of earth work necessary, and changes to existing topography, which would be opportunities for erosion as well. Those would be the components of low -impact." Mr. Tice said a Water Quality Impact Assessment would look at the total impact, direct and indirect, of the bridge. He asked: Am I correct, you would want to take into account in that kind of assessment, not only the footprint of the crossing itself, but what indirect impacts might occur as a result of what that bridge allows you to do on the other side of the creek? Mr. Hirschman said usually his objective, when considering mitigation plans, is "vegetation and how can we enhance/ restore, the vegetative condition of the buffer." Mr. Tice said the Water Quality Impact Assessment (i.e. mitigation plan) is a carryover from the Chesapeake Bay Protection Ordinance and the idea is to look at "total impact" and if a crossing of the creek then leads you to construct roads that are on steep slopes... roads that would not occur but for the crossing of the stream, then they are related to that and should be taken into account in the Water Quality Impact Assessment." Mr. Hirschman said: "In terms of the runoff from the road, right." Mr. Finley said it appears, from the cross section, that the road is above the 100-year floodplain elevation. He asked if staff is saying the road will have to be at a higher elevation than shown in the cross section (if more than 2 dwelling units are constructed). Mr. Hirschman responded: They would have to bring the approaches up to the elevation of the bridge." Staff could not say what the elevation, above existing grade, is, but Mr. Brooks said "the requirement is only that the road not be inundated at any point during the 100-year storm." Mr. Rooker asked if this is a requirement which can be waived. Mr. Cilimberg said: Private road standards cannot be modified." Mr. Rooker concluded: "It would have mandatory application when and if they tried to develop the third lot." Mr. Nitchmann again expressed a lack of understanding of the reason for staffs change of recommendation from 3 to 2 building sites. Mr. Cilimberg explained: "The Engineering Department is providing the recommendations based on engineering aspects of the crossing and, in Mr. Hirschman's case, those things related to water quality where a proposal is in the water supply reservoir. They are providing that as information for you to use in making your decision, and, ultimately, for the Board to use in making its decision. Staff makes a recommendation based on what they (the Engineering Department) has provided. When we were made aware of the increased fill that was necessitated by a third dwelling to meet the private road requirements, that's what created the change in recommendation, particularly because it was increased fill in a reservoir 16 3-3-98 7 watershed supplying stream. That is where this stood as of Friday, when the Engineering Department comments were sent to the Commission. That is a responsibility that the Engineering and Planning Departments have to provide you with information to help you make your decision. Your recommendation to the Board, and the Board's ultimate decision, is based on that information, what you hear from the applicant, and what you decide you feel is the proper decision, and ultimately what the Board feels is the proper decision. I don't think it is a question of objective vs. subjective. It is a providing of information from Engineering, a recommendation from us based on what Engineering has provided, and now it is in your hands to address as you see fit. Some of the questions tonight, such as Mr. Rooker's as to how this might effect water quality, are issues for you to consider. Of course, the applicant has their view as to the request and the potential impacts and what is in your purview for your decision. That was in the fax sent to you today (from the applicant). Ultimately, that is what you have to work from." Mr. Finley said: "So far, the applicant has not proposed to raise the road. Right?" Mr. Hirschman responded affirmatively. He further confirmed that staff has made no analysis of a wider road at a higher elevation. Mr. Finley asked if staff has approved the design which the applicant has submitted. Mr. Hirschman responded: "We have met with the applicant and feel like this is a good design for a stream crossing." Mr. Loewenstein summarized. So just to clarify. It is just the raising of those sections of driveway that are in the floodplain and therefore would require significant fill in the floodplain, that the Engineering Department is not supporting, and that is presumably the principal reason why the Planning Department staff has worked with the applicant and this has been ikft,l modified to recommend approval of the special use permit with the condition for 2 dwelling units rather than 3. Is that an accurate statement?" Ms. Echols responded: "Yes." Mr. Nitchmann asked if the requirements would be the same if this were a 3-lot family division, i.e. "if this was a division of 3 lots for a family, would a bridge to meet the 100- year storm be required?" Ms. Echols responded: "If there is a stream crossing in a 100- year floodplain, the answer is yes." Mr. Brooks said: "If they get the special permit approved, and come in later with a 3-lot family subdivision, I would not see that." Staff confirmed that any crossing in the floodplain requires a special permit, regardless of whether it is a family division or not. Mr. Rieley asked: "If we approved this with staffs recommendation for two lots, would that preclude them from doing a family subdivision to three, leaving the roads the same, at a later date?" Mr. Cilimberg responded: "if you were to approve this as recommended by staff, they are limited to two, unless you were to stipulate an allowance for additional lots for a family division." Mr. Nitchmann asked: "If we did that, would they then have to meet more restrictive road standards for a bridge?" Mr. Cilimberg explained: "What is going to be the key is having more than 2 lots served by a road in which at least 2 of those lots are not part of a family division." Mr. Rooker asked how the crossing of Stockton Creek (on another part of this property) fits into the plan, i.e. "is there any requirement that that crossing be upgraded, based on additional lots?" Mr. Cilimberg said he was not familiar with the existing crossing, but "if to provide the road necessary to serve that subdivision an upgrade of that crossing is required, then it will most likely require a special use permit." 146 8 3-3-98 Mr. Cilimberg explained the points at which different road standards become applicable, i.e. "up to two dwellings served by a road do not have a standard that is addressed by the ordinance; 3-5 lots will kick in a standard of a 14-foot wide road with other associated standards in the table; and 6 or more is a design which is basically a public road at mountainous standard design. He said the only situation which "can avoid those standards is if those divisions are family divisions where we do not apply the road standards. They could create a driveway serving two dwellings on two lots owned by different people and then put five family divisions off that same driveway. That driveway is still going to have to become a private road because it will serve three entities that are unrelated and those three entities will at least kick in the 3-5 lot private road design." In response to Mr. Rooker's question, the applicant said the existing Stockton Creek crossing is 12 feet wide. Mr. Cilimberg said: "A point that is coming out here is that the Stockton Creek crossing may not be able to handle more than 2 lots that are not family divisions, and that will more than likely kick in a special use permit requirement before you even get to this particular lot. If they did family division up front and came back and did other division on the back, they'd still have to kick in the Stockton Creek crossing. Mr. Nitchmann said: From my perspective, if I owned the property, I'd say'I'll cross that bridge when I come to it.' But if you tell me right now I can't build any more than 2, that takes all my options away from me in the future to come back and even apply for some other use for my land. That is what I'm objecting to.... That means I can't come back at some later date and ask for a special use permit to build a third house." Mr. Cilimberg said: "Yes you can. You can ask for amendment of your special use permit. Nothing is forever in these legislative decisions." Mr. Nitchmann summarized his understanding of the reason staff had changed their recommendation to only 2 dwellings: So the major objection is because Engineering feels that to go to 3 houses may put excessive fill in the floodplain which could cause some damage downstream. Is this a downstream damage issue?" Mr. Brooks said: "I don't think it would do a lot of damage downstream in the long run." Mr. Hirschman said: "It's more the depth at the site itself and that type of crossing (to serve 3 dwellings) hasn't even been designed. We don't even know what the design would be like. We'd have to evaluate it at the time. But if you compare that with what is designed here, this one is obviously preferable. Mr. Nitchmann once again said: "I'm just trying to get clear in my mind why you changed your mind from stating that 3 houses built below the 900 foot contour on 90 acres is supported by the Comprehensive Plan to saying 'No, we only want 2.' 1 guess it is on the basis of the Engineering Department's letter which says it is 'not recommended."' Mr. Brooks attempted to clarify the letter referred to by Mr. Nitchmann: "I think it was more, on our part, a statement that we would prefer the at -grade approaches and the crossing that was submitted to one that we were uncertain of and how much additional fill would be placed in the floodplain." Mr. Nitchmann concluded: "So you really don't know unless you look at their design whether it's good or bad." Mr. Brooks responded: "Right. As Mr. Hirschman said, we would look at that when it was brought forth. Mr. Nitchmann said: "But Ms. Echols took it as being bad because she changed the recommendation from 3 to 2." Mr. Brooks said: "With the crossing proposed, I think her point was that crossing is good for 2, but maybe not for 3." 3-3-98 9 Mr. Tice pointed out that it is a consistent policy of the Board of Supervisors to try to minimize the amount of fill which occurs in the floodplain, particularly in the public water supply watershed. Mr. Hirschman said: "We try to minimize impacts altogether, no matter what they are." Mr. Cilimberg added: "I think it is fair to say that was an important consideration. In discussion about this whole special use permit along the way --and I know the applicant views their rights on that side of the stream differently than we do --but staffs position is based on the county's water supply protection efforts and it's Comprehensive Plan/Open Space Plan decisions. Two things that jumped out at us were impact on the stream which is the water supply reservoir and impact in the Mountain Protection Area that had been identified in the Open Space Plan. When there was a possibility that there may be a dramatic difference in fill for the 3 houses vs. 2, we viewed that in terms of water quality impact in particular. They could certainly come in with a design engineered for 3 or more lots, and more than likely create an engineered plan that would meet the muster of the Engineering Department, but it is still more fill in the floodplain. So, ultimately, you and the Board have to decide whether or not that is acceptable." Having researched his files, Mr. Tice said he found two other stream crossing requests for special permits over the past two years. He said the most compelling reason for approving those crossings was the fact that in both cases the only access to the bulk of the property was to be able to cross the stream. He said: "Where that seems relevant to me here is there may very well be a compelling case for a special use permit to upgrade the stream crossing of Stockton Creek because where Stockton Creek is located the only way to access this property is across Stockton Creek. But, taking into account the impacts that then would occur from the fill that would be required in that stream crossing, it would seem to make us want to be even more cautious about what we do at this stream crossing, which is well within the property and one of the questions is does the applicant still have reasonable use of the property? We have approved stream crossings in the past, but, right up front on the two I have mentioned, the critical factor was the fact that in order to have reasonable use of the bulk of the property, or in one case the entire property, the only way to do it was to cross the creek and we approved the special permits with the conditions recommended by Engineering." Mr. Rooker said he understood Mr. Tice's comments, but he felt a consideration in this request should be the fact that there are 90 acres of land involved with this crossing and "the owner has the right to see that 90 acres at some time, separate from the remainder of the property, so I don't think it's fair to deny access to this property completely." Mr. Tice stressed that he was not advocating denial. Rather, he was just pointing out the Board's policy in past years, i.e. when it comes to protection of the public water supply, the Board has seldom veered from a very strict policy of protecting the resource where we can, and we need to take that into account." Mr. Finley asked if the applicant is proposing these as family divisions. Ms. Echols said they are not presently proposed as family divisions. The applicant has requested no limitation. ,4ftw, Mr. Rooker asked Mr. Hirschman to comment on the present means of crossing the stream. Mr. Hirschman was not familiar with what the applicant might presently be doing, iG7 3-3-98 10 but said it would be possible to ford the creek for either a logging or agricultural ' operation. Mr. Rooker said he had visited the site and it appears the banks of the stream are eroding severely at the spot where it is being forded. He asked if perhaps continued fording of the stream is more detrimental to water quality than some type of bridge. Mr. Hirschman said The span is better in terms of bank erosion." Mr. Cilimberg added: "That was one of the reasons I think Elaine had suggested that the 14-foot bridge that would pass the 100-year storm was preferable to the fording for a means of access for timbering or orchard activities. So there is that improvement when you have that crossing in place." Mr. Tice addressed the issue of timbering. He said the state now has a forestry water quality law which prohibits the sedimentation of waterways and gives the Department of Forestry the authority to stop an operation. One of the items they look at is the crossing of streams and they mandate, through that law, the use of bridges. Also, the County requires, for continued participation in the Land Use Assessment program, that the landowner, when conducting forestry operations, use Best Management Practices. So, strictly looking at the timbering aspect, it probably would not be the case that a landowner can ford the stream to be able to conduct timbering operations. Also, the County's newly ado pted ted Water Resources Ordinance exempts silvaculture operations but only if they are using Best Management Practices. "So, if a landowner were to conduct a timbering operation and did not use best management practices, including very likely the use of a temporary bridge on a stream, they would be found, in fact, to be in violation of the Water Resources Ordinance, because it would no longer be exempt." Mr. Hirschman said it has been his experience that enforcement is "completely dependent on the point of view of the area Forester." Discussion continued on potential scenarios and the road standards and bridge width that would be required for different numbers of lots. Mr. Rieley said: "If by going from 2 lots to 3 we kick in raising the level to get above the 100-year floodplain, which raises all kinds of serious environmental concerns, from my perspective, then the question is, why do you need a 14-foot width. A 14-feet width of a roadway is a very strange animal. It is two narrow for two-way traffic, and too wide for one-way traffic. The only place it occurs is in Albemarle County private road standards for 3-5 lots. Does it make sense to approve a 14-foot wide bridge if we are only approving two lots? Granted the amount of fill is not a great deal, but it is something and it is in a water supply watershed. If we are in fact talking about a roadway to serve two lots, a roadway that is as wide as a lane on an Interstate highway (12 feet) seems wide enough." Mr. Hirschman commented: "The impact on this design would be minimal for as much of the driveway as is at grade, so the only difference you would have is two feet of gravel or whatever it is. That is another case where at -grade design is, at least environmentally, preferable." Mr. Finley asked: "if we approve 2 lots, would they need another special use permit to raise that up? Mr. Cilimberg responded: "The Board's final conditions would determine whether they had to come back or not." Referring to two recent proposals (Panorama Farms Mountain Bike and Ragged Mountain Natural Area), Mr. Tice recalled that, based on the nature of those proposals, there had ilA 3-3-98 11 been a recommendation that an assessment of biological resources which might be .. impacted by the projects be performed. He said: "We know that some of the streams in the western part of this County have an endangered species in them --a rare mussel --and it would seem like the fill and the impacts of a bridge like this could directly impact a habitat for that mussel in these streams, if, in fact, it is in this area. In light of having that recommendation on these past requests, I am curious as to why staff would not include that in the recommendations for this? I think it is a fairly simple procedure." Ms. Echols said staff had not considered that issue. Mr. Cilimberg said it is up to the Commission as to whether or not to include the requirement for a biological assessment. There was a brief discussion about how this type of assessment is performed and the costs involved. Mr. Rooker estimated the expense would be between $400 and $1,000 and would take less than a day. Mr. Nitchmann thought such a requirement would be "really stretching." Mr. Finley asked what would happen if the mussels are found to be present in these streams— "would they lose everything?" Mr. Tice said it would become a factor in the Water Quality Mitigation Plan. Mr. Tice felt strongly that the County Ordinances and the Comprehensive Plan make this a responsibility of the bodies of this County to take these things into account." Mr. Hirschman pointed out that any type of crossing requires, potentially permits from the Army Corps of Engineers, the Department of Environmental Quality and the Virginia Marine Resources Commission through a process called the Joint Permit Application. That application is circulated to the agencies responsible for endangered species, but, in reality, whether any on -site assessments are actually done, it is probably case specific." Mr. Tice did not think this was an "onerous" process. Applicant comment was invited. Ms. Nan Brodie addressed the Commission. Before beginning her presentation, she pointed out that the proposed bridge is a "span" and there is actually no activity in the stream. This should minimize any impact on any biological resources which may be present in the stream. She had no objections to recommended conditions 3-8, but she did object to conditions 1 and 2. Most of her presentation centered on her argument as to why conditions 1 and 2 should not be attached to the permit. It was her position, based on her interpretation of the Zoning Ordinance, that the County could only impose conditions related to the use for which the permit is granted," in this case "for special use within an overlay district, specifically the Flood Hazard Overlay District." She said: "The stated purpose of the Flood Hazard Overlay District is to provide safety and protection against flooding. Therefore, the only conditions which you can properly attach to a special use permit for activity in a Flood Hazard Overlay District should be conditions which are related to providing protection and safety against hazards associated with flooding. She said conditions 3-8 "cover this adequately." Her comments about conditions 1 and 2 included the following- --Those two conditions are not related to the Flood Hazard Overlay District and have "no bearing whatsoever on the special permit's purpose of providing protection against flooding. The conditions not related to the Flood Hazard Overlay District "cannot be justified as appropriate for a special use permit in that district. They are not justified by the Zoning Ordinance or the Comprehensive Plan." 169 12 3-3-98 --Issues related to roads constructed on mountainsides are addressed through the Water Resources Ordinance. "Should we decide to continue a road on up the mountainside, we will have to do so subject to the approval of the Engineering Department...." --The Zoning Ordinance addresses 20 by -right uses for land in the Rural Areas District. First among these is "single-family detached dwellings." Section 10 of the Ordinance addresses what development should be like in the Rural Areas. "This is the enabling legislation. Any attempt to circumvent that legislation by using this permitting process to zone my property in a way that is more restrictively zoned than other properties similarly situated is simply not lawful. It is not an acceptable use of this permitting process." --"The uses I am proposing for the 90 acres south of the creek are all uses permitted by -right and are all uses currently in existence on surrounding properties. I am not seeking a variance or an increase in density rights. I am simply asking for a permit to cross the stream and have access to those 90 acres and once I have that access to use the land as is permitted by -right." --The objective of the Open Space Plan, as related to mountains "is to recognize the value of Albemarle's mountains and to pursue additional protection measures. The Open Space Plan does not preclude building above any particular contour, nor does it recommend such a prohibition. There are no zoning ordinances that preclude building above any particular contour nor does this appear in the Open Space Plan. The Open Space Plan includes a long list of techniques currently in use that can be used to further the goals and a Mountain Protection Ordinance is not among those. It is also important to note that the special permit permitting process is not among those techniques. It talks about the Mountain Protection District as a potential technique that is not currently in use. ... The County has not adopted a Mountain Protection Overlay District at this time. It is not the law and it is not the place of the Board of Supervisors, the Planning Commission or the Planning Department to re -write the law before it has been enacted." (She cited a Virginia Supreme Court case to support her position --Foster vs. Geller.) --"What is being proposed by the Planning Department effectively takes 90 acres of my property. That property has value. For you to use this process --because I am trying to get across a stream to gain access to that property --to rezone my property and effectively limit its potential as far as the financial value of that property, to me seems to be a taking without compensation and an unjust taking without due process or compensation. The Open Space Plan actually talks about the fact that development rights may have to be purchased from owners in order to pursue these goals." She quoted from the Open Space Plan: It should be emphasized that these objectives and strategies are not intended to reduce density or development rights beyond that allowed in the current regulations without compensation. "The Open Space Plan addresses the fact that enabling legislation is mandatory and that compensation has to be provided to landowners before rights can be taken away." --"The use to which the land on the south side of the creek can be put is defined by Section 10 of the Zoning Ordinance. The use of the land on the south side of the creek, except for that portion of the land which lies in the Flood Hazard Overlay District, is not within the purview of this process. To limit my uses of that land in any manner, whether by limiting the number of home sites or the location of home sites is not 170 13 3-3-98 supported by the Ordinance, is not justified and amounts to a taking without compensation." --"The Planning Department recommends approval of this special use permit, but recommends attaching conditions that are not related to the purpose of the Overlay District for which the use permit is granted. This is inconsistent with the Ordinance and not supported by the Comprehensive Plan. The Zoning Ordinance is clear that regulations set forth in the Ordinance are to apply uniformly to each class of land. My land should not be zoned differently simply because I have to go before you for a special use permit to cross a creek that runs down the middle of it." --"The granting of this permit advances the purposes of the Comprehensive Plan in several respects. Most notably, it allows agricultural and forestal activities which could not take place without a permanent bridge. It allows for protection of the forest land by providing access for fire trucks.... It avoids the necessity of fording the creek.... It allows me vehicular access to 90 acres of my property. (Ms. Brodie pointed out that her handicap makes walking difficult.) It is important to note that the Zoning Ordinance promotes providing access to the handicapped above all other considerations in the Ordinance." --The 90 acres is remote and is not easily seen from any public road. It is shielded, by topography, from the view of all but the closest neighbors. --A bridge is necessary to make use of the land. Timbering is the only use that could be accomplished by -right presently "and even that requires management of crossing the stream. All the other 19 by -right uses in the Zoning Ordinance (Section 10) are precluded by denial of access." -"The Engineering Department has determined that the environmental impact on flooding and other environmental aspects will be insignificant. Concerns about stream buffers and erosion is addressed by the Water Resources Ordinance and other State and local agencies that the Engineering Department is prepared to make sure are enforced." --She addressed the issue of the road. She said: "I am not asking to build a road to meet subdivision standards, a road that might or might not have additional fill, that might or might not have an impact. I am asking for the same road, on grade, that I asked for when I first filed the application. I do want the bridge to be 14 feet wide." She explained that the existing 12 foot bridge at the front of the property is very treacherous during snow events when snow is piled up along the sides. Mr. Hirschman has said he has no objection to a 14 foot wide bridge because he feels the difference in impact caused by a 14 foot bridge (vs. a 12 foot bridge) would be insignificant. (Mr. Hirschman confirmed that he had discussed this issue with the applicant.) "The road and bridge I want have already been reviewed and approved by Engineering. [NOTE: Later in the meeting it was determined that the design referred to by Ms. Brodie has been reviewed by the Engineering Department but has not actually been approved_] Conditions 3-8 are sufficient to meet the requirements that relate to protection of the property and neighboring properties against the hazards associated with activity in the floodplain. The road I want will support 2 lots and any number of family division lots. If you limit the number of houses I can have on that side of the mountain, you have effectively said to me the family division rights don't apply to you Mrs. Brodie. You can't have the same family division rights that every other land owner in this county has. You have taken away those rights and foreclosed my rights under the Family Division Act. You have also foreclosed my right, at some point, to 17/ 3-3-98 14 come before this Board again and request an amendment to the special permit and to upgrade the road." --She asked that the Commission approve the permit for the bridge and the road that was requested when the application was first filed, and with only conditions 3-8. She said "In addition to there being no legal basis for conditions 1 and 2, there is really no practical need." Because of the inadequacy of the bridge over Stockton Creek, "I can't develop that mountainside" without obtaining a special permit to widen the bridge and raise the height of the road across Stockton Creek. "You've already got that protection. To limit my rights to prevent something that may never happen in the first place, when those rights aren't related to that which is under consideration with the special use permit, to me, seems to be an unacceptable outcome." --She stressed that she is not a developer but she does not want to give up legal rights that every other landowner in the County in a rural area has. Ms. Brodie concluded her presentation: "I'm happy to work with the Engineering Department.... At this point, I'm simply asking you to do what you're sworn to do --enforce the laws as they are in place today." She expressed her appreciation to staff for their assistance during this process. Mr. Rooker asked if Ms. Brodie agrees, based on the information that has been presented about the fact that the road bed will have to be raised significantly if a 3rd lot is built, "that a third lot occasions a potential impact on water quality?" Ms. Brodie responded: "No I don't agree, for several reasons. One is because there is more than one way to skin a cat. At this point, we have not asked our engineer (Mr. McKee) or the Engineering Department to look at a road that would meet the 3-5 lot standards. I can't give you an answer one way or the other. Obviously, this must be something that is doable or you would not have roads going across floodplains all over Virginia. That must be a way this can be done in a manner that is acceptable. Staff has not said that it could not be approved, rather they have said they prefer the least possible impact and they have stated they have not had a chance to review a design for 3 lots because that request has not been made. Addressing Ms. Brodie's statement that she would not be able to request an amendment at some future time, Mr. Rooker said she was not correct. An amendment can be requested at any time, or a new permit could be requested. Ms. Brodie responded: "I would think there would be a bias if I would come back. If this permit has some restriction of this type and I were to come back, now I am working against a restrictive provision that otherwise would not be in place. Otherwise I would be coming before you and the simple question would be 'is this acceptable in the Flood Hazard Overlay District'? Now you are adding another layer. Is there grounds on which to overturn the previous decision of the Planning Commission and the Board of Supervisors? You don't come to these conclusions lightly. I would think that the weight of what you had previously decided on a special use permit would bear heavily on decision makers in the future." Mr. Rooker said one issue had been ignored in the applicant's legal analysis, i.e. "the special use permit is a permissive process --it is a discretionary process." Mr. Rooker /%9 3-3-98 15 quoted from Ms. Brodie's own letter regarding the Board's authority: The Board of Supervisors hereby reserves to itself the right to issue all special use permits permitted hereunder. Special use permits for uses as provided in this Ordinance may be issued upon a finding...." He concluded: "So we have to make those findings in order to even exercise our discretion to grant the permits." He said: "You would agree we reserve the right to deny a permit even if those findings are made?" Ms. Brodie responded: "I would say your right to deny a permit in the face of facts and circumstances that meet the guidelines that are clearly set forth in the Ordinance, those conditions that the Planning Department has already said are met relating to substantial detriment to adjacent property, the character of the district, harmony with the Ordinance and that sort of thing, I would submit that while, yes, it is a discretionary process, that your refusal to grant a permit would be an arbitrary and capricious act and would be overturned." Mr. Rooker said: "It seems to me the Ordinance is saying you have to find those things even to exercise the discretion to grant (a permit). So if those findings were not made, we wouldn't even be here, or we might not be here, or it might be a very easy decision, because if you don't make those, the Ordinance, basically, does not even give us the discretion to grant. So obviously there are cases in which you can make those findings, and deny the special use permit. Ms. Brodie responded: " I certainly hope this is not one of those cases. I would like to point out that the Flood Hazard Overlay District does specifically address bridges as one of the activities in a floodplain that it anticipates will be the proper subject of a permit being granted. But, yes, Mr. Rooker, you are well within your rights to state that this is a discretionary process. But I would say that your rights to exercise those discretionary actions have to be grounded within the framework of the Ordinances and the Comprehensive Plan and that a denial of a special use permit in a case where the factors set forth in the guidelines are met, would be one that would warrant consideration by a court as being arbitrary and capricious." Mr. Kamptner commented: "Even if all the criteria could be met, the standard that would ultimately be looked at is whether or not, as a result of the denial, there is an existing reasonable use of the property and, when you are looking at that you are not looking at particular portions of the property on which a use may be precluded. You are looking at the entire parcel. For this particular property, it was identified in the staff report as a working farm with 4-5 houses. It has 10 additional development rights that could be exercised. (Ms. Echols said the property has a potential for 17 lots.) The 90 acres on the other side of the stream is believed to be usable for timbering. (Ms. Brodie interjected: "Subject to crossing the stream.) Based on all of that, I think you could find there is an existing reasonable use of the property. Recognize also that there are always certain regulatory and physical limitations as to the ultimate highest buildout of a piece of property. Physical limitations may be steep slopes. Regulatory limitations are setback requirements, the existence of the Flood Hazard Overlay District, the ability to establish that drainfields exist --so there are existing features, both physical and regulatory, that can also ultimately limit the ultimate buildout of the particular piece of property." To address comments made by the applicant about the proposed Mountain Protection Ordinance, Mr. Loewenstein asked Mr. Kamptner to comment on "the legal validity of applying the goals of the Open Space Plan in the Comprehensive Plan through approval of conditions for a special use permit in order to further the goals of the Open Space i79 3-3-98 16 Plan." Mr. Kamptner said: I would like to move that ordinance (Mountain Protection Ordinance) completely out of the picture. It hasn't been adopted so it should not be considered. The Comprehensive Plan works on multiple levels, but I will touch on two of them. The first is that it sets forth a sort of roadmap of ordinances that should be adopted to implement certain policies. It also just provides a statement of policies and goals and objectivess, which, as you know, whenever you are making a legislative determination --a rezoning or a special use permit --you look to to guide your decisions. A lot of those policies and goals in the Comprehensive Plan are never intended to be separately implemented through an ordinance, but they stand, within the Comprehensive Plan, as a policy and a guideline." Mr. Loewenstein asked: "And those guidelines, as they presently stand within the Comprehensive Plan, can be used to consider the approval of specific conditions for a special use permit, as long as we are not denying reasonable use of the property?" Mr. Kamptner responded: "One of the elements that you look at is consistency with the Comprehensive Plan and I think that may come into play with the condition pertaining to the elevation of the residences. We discussed that, and I think the connection is from the result of the approval of this special use permit. It's one step removed, for example, from the direct impact on water quality immediately down stream. But there is that connection." Ms. Brodie said: "I do take issue with the conclusion of the County Attorney that reasonable use of the property can be made without the bridge. It is 90 acres; it is a huge portion of the property; and I can't get to it all the time without a bridge. I think reasonable use of the total property requires a bridge for many reasons, not the least of which is simply my own access to it." Addressing Ms. Brodie's statements that denial of the request, or inclusion of conditions 1 and 2, would be treating the property differently than other similar properties in the Rural Areas District, Mr. Tice asked: "Are you aware of any other properties, with a similar situation, with a Flood Hazard Overlay District that had to be crossed, that we have treated differently than what staff is recommending here?" Ms. Brodie responded: "I have not looked into that. I can't answer you. That may or may not be something that has come before you." If the request were to be approved with 3 lots, Mr. Finley asked the applicant if it would be her intent to build a road and crossing to the 3-5 lot standard. Ms. Brodie: "I am saying I would like to build a road on grade which would not support a subdivision of 3-5 lots. I am saying I would like you to approve that without prejudicing my ability to use the land in any way. If there is a concern that to grant me the permission to build the road with simply the conditions related to the engineering standards, without a limitation on the number of houses, might be taken as tacit approval of this body that I am entitled to upgrade, or I am entitled to have subdivision rights that are not approved by road standards, then perhaps you might attach some language such as 'nothing herein shall be deemed to speak to the feasibility of such development as it relates to roads.' So, in other words, you grant the permit, but you say in it 'we are not talking about whether or not she can do what she would otherwise have the right to do.' So when the time comes 17 3-3-98 that I want to put up that 3rd house --if I should ever want to --then I go before the Planning Department for approval and they are going to say 'if you want to do this then you have to upgrade the road.' At that point I will have to come again for another special use permit and upgrade the road. But I will have the right to do that without there already being a limitation on the development on the south side of the (creek). So if you attach language to the permit that says you are not speaking to the feasibility of development on the south side of the (creek) as it relates would have, to comewould a d say 'gee, they opportunity that I, or another subsequent landowner off on it --they gave me permission.' I'm not trying to do that. I'm not trying to get you to give me permission to build a bigger road or to have more houses than the Subdivision Ordinance would allow. I simply don't want you to take away rights that I currently have. It seems to me you could grant the permit with conditions 3-8, related to engineering, and, to allay any concerns that approval might be deemed to have given permission for a development that is not supported by that road, you simply say you are not speaking to the feasibility of development as relates to roads." Mr. Rooker asked if the applicant had not agreed at some point to limit the number of lots on the south side of the creek to 2 lots. Ms. Brodie said that was not accurate. She explained a discussion she and her husband had had with staff during the previous week, "in an effort to bring this thing to closure," , i.e. "we made an agreement with Ms. Echols that we would build below 900 feet and accept a restriction of our property rights to 3 home building sites on the south side of the (creek). [NOTE: During Ms. Brodie's comments she made a reference to the "south side of the mountain" on three different occasions. it is believed she was actually referring to the south side of the creek.] She said: "We came to that agreement, frankly, out of a feeling of being coerced by this whole process in the Planning Department. We wanted to get on with things and we wanted to come to you with a positive recommendation from the Planning Department. Then Ms. Echols called on Friday of that week and said ban accep taof her communication bth the le was off. el Ing don't Department that was no longer agreement and the feel anything that we heard from the Engineering Department was anything different than that which we already knew. In a memo from Glenn Brooks on January 20th, he pointed out that subdivision road standards could come into play with an additional house on the property. We have not asked for a different road." Mr. Rooker said it had been his understanding, during a meeting with the applicants on the property, that they were willing to limit the number of lots to 2. Ms. Brodie said a "possible compromise had been discussed with him where 2 lots would be acceptable if one of the lots was above the 900 foot elevation, but that had not been an agreement made with the Planning Department. Mr. Brodie said what had been discussed with Mr. Rooker during the meeting on the property was not "a deal", it was rather just a discussion of ideas. Mr. Rooker asked if the applicant would be willing to accept staffs original recommendation for a ma mum of 3 lots. He said it seems the applicant has gone from 2 lots, to 3 lots and now, o limitation. Mr. Brodie explained: "After the County terminated the deal, what changed is that my wife rolled up her sleeves and researched the law and what we found is that this whole process, while motivated and procedural at this point, isn't necessarily supported by the law. So we felt we are really giving up our rights. The more we educated ourselves, the more we realized these are rights that we have and we shouldn't be so cavalier about giving them up for a short-term vision of what we would like to do when ,73' 3-3-98 18 these are rights which have value financially. We have an obligation to our heirs to fight 14%MWfor these rights." Mr. Rooker asked: "So it is now your position that you would not be satisfied if the limitation were 3 lots." Mr. Brodie responded: "Correct." Mr. Loewenstein asked: And you are also not agreeable to condition No. 2 which limits the location of the lots to below the 900 foot elevation point. Mr. Brodie responded: "At this point that is true though we are well aware that the proposed ordinance may become law and if it does it will preclude us building above 900 feet. Even though we are fighting for it today we may never enjoy that right because when it becomes law we will have to obey the law." Public comment was invited. None was offered and the application was placed before the Commission. Mr. Tice addressed the applicant's statement that the staffs position is not supported by law. He said: I don't believe that is the case. I believe we are on pretty firm legal grounds on any options that we are considering, whether approval, approval with conditions staff has recommended, or denial. Regarding the intent of the Flood Hazard Overlay District, the applicant stated that the only conditions that can be properly attached to a special permit for an activity in a Flood Hazard Overlay District should be related to the purpose of the Flood Hazard Overlay District which is to provide protection against the dangers associated with flooding. In fact, if we read in the Ordinance the intent of the Flood Hazard Overlay District, it is more specific than that. It does include protection from flooding, but it goes on to state more specifically these provisions are intended to restrict the unwise use, development, and occupancy of land subject to inundation which may result in danger to life and property, public costs for flood control measures and/or rescue or relief efforts, soil erosion, sedimentation and siltation, pollution of water resources and general degradation of the natural and manmade environment. So, in fact, the intent is much more broad. As Commissioner Rooker has said, our authority under the section of the Zoning Ordinance covering special use permits is discretionary. It does say the Board of Supervisors May grant a special use permit if the criteria are met. It also goes on in the section dealing with the conditions we can impose if we are going to approve a permit, stating that such conditions must be related to the use for which the permit is granted. It goes on to say that such conditions shall relate to the purposes of this ordinance. The ordinance it is talking about is the Zoning Ordinance. I am not going to read all these objectives, but it includes a much broader protection of the natural environment, public safety, welfare and specifically the relationship to the Comprehensive Plan. The Mountain Protection Ordinance has been talked about and I think that is unfortunate because the proposed ordinance is irrelevant to this request. We don't need to be talking about a potential ordinance to be concerned about the Comprehensive Plan. The Open Space Plan is a component of the Comprehensive Plan and it says specifically, on page 2: This plan consolidates all currently available information in order to identify the most important areas to preserve or conserve as open space. It goes on and mentions that one of the benefits of the Plan is to discourage the piecemeal loss of important open space by recognizing the importance of each individual parcel and achieving the area's overall open space goals. It goes on, on page 7, to identify what significant resources are, which include the mountain areas and also the water resources areas, including the stream crossings. On page 9 it specifically identifies the 900-foot contour of Yellow l �� 3-3-98 19 Mountain as being the cutoff point above which it is recognized as a significant resource. Pages 17, 18, 22, 23 and 26 all identify areas and responsibilities in our Comprehensive Plan right now that are part of the purpose of our Zoning Ordinance and, by that nature, are entirely relevant to us in the setting of conditions for a special use permit. I think it is absolutely critical that we make sure that we treat similarly situated properties consistently. The fact of the matter is, as far as I know and at least in the last 2 years that I have been on this Commission, any time we have had an application that included the significant resources identified in the Open Space Plan, such as the mountain resources, we have taken those into account. The most prominent cases in point being the telecommunications towers which we have been consistent about the areas identified as significant mountain resources in the location of those towers. He described actions on two properties which are more similar to this property --one on the Doyle's River where the entire property was across the stream and did not involve a Mountain Resource Area, and the other on the Wingspread Farm Estates where the bulk of the property was across the stream and a compelling case was made that there was no feasible or practical alternative means of access, and, more importantly, all the building sites were located below the Mountain Resource Area. "So in fact we have treated similarly situated properties consistently and I don't know of any that we haven't. As I have already said this area is in the public water supply watershed and the Board has been absolutely consistent on taking a very careful and strict approach to the protection of the watershed and that bears very heavily on the way I look at this today. Given the fact that this stream is virtually unprotected right now, I do think there is an opportunity to do a stream crossing with the mitigation measures andl am sure the Water Resources Manager would look at what would effectively mitigate the direct footprint of the bridge itself and of the fill in the floodplain. But I firmly believe it is our responsibility to take into account the total impacts of a bridge crossing like this which would include the impacts of whatever use occurs on the property as a result of the stream crossing. For us to do otherwise is, in my mind, illogical and not really fulfilling our responsibilities to protect the health, safety and general welfare. I raised the issue of the Biological Resource Survey. I do believe Mr. Hirschman is sensitive enough to that topic and, because it is primarily a water quality issue, it is an appropriate topic for the water quality impact assessment or mitigation plan, so I am satisfied that the mitigation measures he would likely approve would be the types of measures that would not be harmful and might even be beneficial for species that might be in the stream. So I will be satisfied with his review of that. But I do think we are on firm legal ground to either adopt the conditions recommended by staff or, if we felt at this point, based on the information before us, to deny it. There very clearly is reasonable use of this property. The applicant raised the taking issue. It is my understanding that under Virginia Law to be found to be a taking you have to virtually eliminate all economic use of a property and it is clear that we are not limiting any of the historic uses of the property. Mr. Finley commented: We are limiting home building. You know David, a highway inspector could bankrupt every contractor if he followed every regulation to the letter and no roads would be built. You talked about Engineering's decision on the road, but as I read their letter, they are saying 'no, you can't do this because of the impact; you can't put that fill in bringing it up to floodplain level because of the impact.' At least they are recommending that this not be done." (Mr. Tice interjected: "If they raised it to the 100- 1,77 3-3-98 20 year flood level.) Mr. Finley continued: Which they say they must do if they go to three houses. It seems the property owner could say 'I have rights here and I want to build a bridge to get into my property and I want a special use permit to build a bridge and I am going to build it according to the Engineering Standards, including Best Management Practices. And if you build a bridge on a waterway you do have to get (permits from other agencies as well, which include a biological survey). So it seems like all the bases are covered. The only thing is this fill may have an impact on the reservoir, but, again, any fill anywhere in the watershed could have an impact. We have Best Management Practices and you have to meet those in your Erosion Control Plan to get a permit to do what you want to do. So how do we protect, on the one hand, what these ordinances are designed to protect --mountains, creeks, watersheds, etc. --and likewise protect the private property owner who has rights also." Mr. Tice said he did not disagree with Mr. Finley, but he does not think the use of the property is being taken away. Mr. Tice explained, using a personal experience as an example, that there is no guarantee, when all aspects of a piece of property are taken into account --such as critical slopes, erosion, setbacks, drainfields, access, etc., --that a property owner will be able to achieve everything which may be allowed by -right. He added: But even with that, we are not taking away potential development rights here." He believed a plan could still be developed which could probably accomplish the full development rights of the property. He did not think the economic value of the property would be diminished in any way. Mr. Rooker said: "I think it is clearly in our discretion to grant the permit or not to grant it. However, I don't think it would be fair to the applicant, in this case, not to grant the permit. I agree with virtually everything Mr. Tice said, but I think this is an appropriate case to reach a balance between the private property owner's rights and the general health, safety and welfare interests of the County and the other things expressed in the Comprehensive Plan. I think the conditions recommended by staff provide a good balance in accomplishing that. I, personally, could support the application with the conditions recommended by staff with a couple of minor additions. When you look at the limitations imposed by Stockton Creek, I think the limitation of the back part of this property to two lots is not really a significant limitation with respect to the entire property. There is nothing in the future that prevents the applicant from coming back if they want to develop a third lot, and making a specific proposal for a design for a road and a bridge for which they can seek a special use permit and if it is reasonable in relationship to what they are planning to do with the back property at that time, it would certainly be given fair consideration by this Commission. I think, at this time, given the planned use of the property, to me, what the staff has recommended is a reasonable and proper balance of the interests involved here." Mr. Loewenstein said: I would concur with that. I also want to underscore, at least in my mind, there is no question about denying reasonable use of the property. I don't think we are limiting the existing use in any way. With approval of the permit with conditions essentially as proposed by staff we have struck the kind of balance that you suggest and, under those circumstances, I would be able to support that kind of approval." 3-3-98 21 Mr. Rieley said: "1 agree as well. I concur with Mr. Rooker that this is a reasonable balance. I know this has been an agonizing process ... and everybody is trying very hard to find a fair balance between the public's interests and the applicant's interests. I raised the question of the width of the bridge. I am persuaded by Ms. Brodie's concerns about snow removal, and I am sufficiently reassured by the fact that if this ever does have to come up to a higher elevation it requires another review process. So I drop that reservation. In general, this kind of stream crossing and the approach the applicant's consultant has taken I think was right on for this kind of project in which the flood water was essentially diverted around the structure, which is the responsible way, I think, to handle a crossing in this situation. It is only appropriate, obviously, for a low use facility in which you are allowing the flood water go over top of the road. But it is appropriate in this instance. So I thought the initial review of this by the consultant was also on target. So, I am going to support this with staffs recommendations." Ms. Washington said she could support the request, with staffs recommendations. Mr. Finley said: "I will support it, but I think we have to be equal in thinking of all the ordinances that are coming forth, and remembering these are people and we have to give them equal treatment. We have to look at both sides. I can see a majority of the Commission are supporting this (with staffs conditions), and, rather than vote against it, I will vote with the majority, but I think we must remember private property owners do have rights and we have to protect those rights. We have to uphold those rights. They are the people, just like we are. If you come in with a request and I start putting restrictions, you %WWI are going to resist. You are not going to want people, wherever you live, telling you what you can and cannot do. This is their home place. We are saying, you may have rights, but you can't put them there. We are telling them they can only put two dwellings on the south side of Yellow Creek." Mr. Rooker interjected: "We are saying that, unless they come back for an amendment to the special use permit. In my mind, the problem with leaving it open ended is that you have an automatic kick in --if they get a third building permit --for a road that creates a substantially different situation than the road they are actually proposing to build. Mr. Nitchmann asked: "But don't you still have that even if they do come back for a third dwelling? Mr. Rooker answered: "But the Commission would get a chance to look at it and look at the design of the bridge and get specific information on the amount of fill." Mr. Nitchmann said: "The Commission would still look at it anyway, right? They couldn't just build a third home...." Mr. Cilimberg explained: "If this were granted without the conditions recommended by staff, then you would not see the bridge. It would basically be an acceptance of whatever is necessary to meet the road requirements." Mr. Nitchmann asked: "If they came in later and wanted to put up a third house, and they applied for a building permit? What process would that kick in --for a family division or a subdivision?" Mr. Cilimberg responded: "A family division we would review as an exempt plat action. If it were for a private road approval, you would approve the private road. The bridge approval would already exist and you would evaluate the private road based on the private road standards." Mr. Rooker said: "If we approve this without a limitation as to the number of lots, we have pretty much waived the chance to look at the bridge again. There is nothing we are doing here today to prevent them from coming back, when they want to build a third lot, and making a proposal as to how the 7i 3-3-98 22 crossing would be effected and what type of road they would put in and what the impact might be on the flow of water and the flood conditions." Mr. Nitchmann said he is concerned because his experience on the Commission over the past six years has shown that whatever conditions are attached to this approval, at this time, will prejudice an applicant's request for an amendment at some future time,because the applicant will have to show good cause as to why the Commission's decision, which made good sense at the time, should be changed. He said: "We are just placing another obstruction in the landowner's way and it puts the burden on the applicant to either prove us wrong, or to prove the circumstances have changed to where it really doesn't matter. I know that has happened, because I have seen it. He said he is also concerned because no one has proven to him what aspects of the health, safety or welfare of this community are really going to be impacted by this. There is only speculation as to what the impact may be. He asked: "Who are we to say what is the usable right of an individual's piece of property? This is a third of this property and the timber on it is worth a lot of money. The applicant could clear cut the land tomorrow if they wished. We have the opportunity here to give them what they want. Let them build a house up there which will probably greatly diminish the possibility of them ever clear cutting that piece of land because they will want to retain the beauty surrounding their home. It seems short-sighted, from my standpoint, to not look at that aspect. As far as the 900 foot level, the house they are proposing is below the ridge line. One of the things I was most concerned about with the Mountain Protection plan is that you don't ruin the ridge line. This house is going to be down so far, and tucked away, so unless you know specifically where it is you are never going to see it. It just really bothers me that this government can come on a person's land and tell them they can't do something they want to do in all good faith to improve the land.... It is not as though they are going to sell the property. They want to live there and they may want their children to live below them. And we are sitting here today and saying 'you've got other uses for that property so that gives us the legal right to do this. That really frightens me and not just for this case. In general, it frightens me. I think the property owners of this community really ought to stand up and take notice of what is happening with the Mountaintop Ordinance and these other things. There are people in this community who own land which has been in their families for 100 or 200 years ago and they may one day need the full dollar value of that land. If you take away people's rights to build in certain areas, it does have a financial impact and unless this community is willing to pay for that financial impact, then I don't think we've got the right to tell them they can't have 3 lots there because I still think the other things will take place properly. If they want to subdivide it, they still have to cross Stockton Creek." Mr. Tice responded to Mr. Nitchmann's comments: "I think you are absolutely right, and Mr. Finley too, that part of our responsibility is to uphold private property rights. But this document (Zoning Ordinance) is all about the balance between private property rights and the public interest. That is why we have this. If this was totally about allowing anybody to do anything they want to do with their property, we wouldn't be sitting here today and we wouldn't have this Ordinance. I think we have worked out an arrangement that strikes that balance --one that gives the applicant the rights to their property, and I am willing to i0 3-3-98 23 bet without any diminution of economic value, and yet protects the public interest. I think we have accomplished exactly what it is our responsibility to do on this Commission." Mr. Loewenstein added: "Though not necessarily true of this application, but certainly its true to say that, overall, unrestricted use of one individual property may also effect the value of properties elsewhere, which gets back to the public interest issue. We have to be extremely aware of that." Mr. Finley said he agrees completely with Mr. Nitchmann's statement. He said he, too, is "frightened." He said: "I don't think anyone develops anything without restrictions, but you can stay within the restrictions and still do a good job of what you want to do with your property. If we can't then we ought to change the restrictions." Mr. Loewenstein answered: "I agree and I am suggesting, as some others have, that the conditions of approval for this particular application, as recommended by staff, do, in fact strike a balance and provide only reasonable restrictions that seek to address both the needs of the private property owner and the public good." Ms. Brodie was allowed to address the Commission again. Based on the Commission's discussion, she said it sounded as though there would likely be a favorable vote with staffs recommendations. She pointed out that the item still must be heard by the Board of Supervisors and they may or may not agree with the Commission, and "you may end up with a house on top of the mountain." Ms. Brodie offered the following "compromise." "My husband and I would like to go back to the agreement that Ms. Echols found acceptable a week ago, on Wednesday, that we do not build above the 900 foot contour but our rights to home building sites on the south side of the creek are limited to three. We are not asking for any road other than that we already applied for, but the Family Division Act would allow each of our two sons to also have homes nearby. That compromise was acceptable to Planning last Wednesday. I believe there was some confusion on the part of the Planning Department as to our intentions because we do not intend to upgrade the road to subdivision standards. I realize that to put, whether it is one additional house --from 1 to 2 or from 2 to 3--unless we were to use the Family Division Act --would require us to come before you again and ask for another special permit to upgrade not only this road, but to upgrade the crossing across Stockton Creek, because that is just a 12-foot wide bridge. Since this agreement on our part would make it absolutely certain --as of today, as of now, without any doubt as to what the Board of Supervisors might say --that we would not be building above 900 feet, I think you could consider it a victory. It would preclude any chance that the Board of Supervisors might accept Mr. Nitchmann's argument, the private property arguments of Mr. Finley, and my arguments and allow us to build wherever we want on the mountain. You are not passing on the feasibility of the road to support additional development. You are simply allowing us to have 3 home building sites. So I would ask you to consider accepting staffs recommendation, but the language would be altered in two ways: (1) Where the conditions refer to 'building sites', I would like that to be changed to 'home building sites' (in both conditions 1 and 2), to preclude any possible confusion should we construct a barn or a duck blind, or something like that; and (2) Condition 1 would say the'... bridge will serve no more than 3 home building sites on the south side of Yellow Mountain Creek.' Conditions 3 through 8 would remain unchanged." She asked the Commission /9/ 3-3-98 24 to consider this compromise. She reminded the Commission "the 3 home building sites might be supported by this road were they to be family divisions which, from our perspective is the most likely scenario and were we to otherwise try to subdivide we would have to again come before you and ask for that road to be upgraded because we are not building a road to support that at this time." Mr. Tice suggested an additional condition (or possibly in place of No. 1): "The floodway crossing shall generally conform to the plan submitted by the applicant subject to the Engineering Department approval of conditions 3 through 8." Mr. Loewenstein asked if Mr. Tice was suggesting deleting the condition related to the number of building sites. Mr. Cilimberg responded: "I think what I have heard the applicant say is their intent is to build the road and the bridge that was submitted to Engineering and analyzed. That road and bridge will support two building sites, or could support more than two if they were family divisions. I think you could cover that in conditions with that understanding. The language would need to either speak to this special use permit being conditioned on the road and bridge as submitted and reviewed by Engineering, or that they could have up to two home building sites with additional allowed for family division. There are two ways to approach that. Or you could do both, and I think that is really what the applicant is asking for now." Ms. Brodie understood Mr. Tice's suggestion as follows: "Instead of the language of No. 1 right now, No. 1 would go away. The language would say that the road and bridge shall be approved as heretofore submitted to, and approved by, the Engineering Department, subject to conditions 3 - 8. 1 do want to clarify that 'as submitted' would mean the 14-foot wide bridge. (Mr. Loewenstein responded: "That's my understanding.) Condition No. 2 would read 'No homes shall be built above the 900-foot contour."' Mr. Kamptner asked if the plan that was approved by Engineering had a limitation on the intensity of the use --will it serve only up to 3 building sites, or 4 or 5. Mr. Kelsey responded: "What we were looking at, as far as our review, was something for serving 2 lots or less of a conventional subdivision. For a family division, we don't have any road standards." Mr. Kamptner said he would prefer a reference to a specific plan that has been approved. [NOTE. Engineering staff confirmed they have reviewed the plan referred to by the applicant, but it has not yet been approved.] Mr. Rooker felt Condition No. 1 should remain, with a change made from 2 to 3 lots. He thought there should be two separate conditions --one dealing with number of building sites and one dealing with road specifications. Mr. Finley understood Mr. Cilimberg's statement to be that the road, as designed, could support two building sites and family divisions. Mr. Cilimberg responded: "Yes." Mr. Tice added: "A family division such that the total number of home building sites on the south side of Yellow Mountain Creek would not exceed three." It was decided the following changes to the conditions would be made: 1*1W..1 --Change No. 1 to read: In addition to agricultural, forestal and recreational activities, the bridge shall serve no more than two building sites for dwelling units (or WE 3-3-98 25 three building sites for dwelling units if one or more of those sites is created as part of a family division) on the south side of Yellow Mountain Creek. --Change No. 2 to read: The buildings sites for dwelling units, as referred to in Condition No. 1, shall be located below the elevation of 900 feet as identified on the County's Open Space Plan. --Add Condition No. 9: The road, bridge and floodplain crossing shall generally conform to the design that was submitted with the special permit application. (This language was suggested by Mr. Hirschman.) Again Ms. Brodie wanted it to be clear that the plan was for a 14-foot bridge. The Commission acknowledged their understanding that the plan is for a 14-foot bridge. Ms. Brodie asked if "for agricultural activities" would include the allowance for a barn. Mr. Kamptner replied: "Yes. That would be a central farm structure. So I think that would be allowed." MOTION: Mr. Finley moved, Mr. Tice seconded, that SP 97-65 for the Greenwood Farm Bridge, be recommended to the Board of Supervisors for approval, subject to the following conditions: (1) In addition to agricultural, forestal and recreational activities, the bridge shall serve no more than two building sites for dwelling units (or three building sites for dwelling units if one or more of those sites is created as part of a family division) on the south side of Yellow Mountain Creek. (2) The buildings sites for dwelling units, as referred to in Condition No. 1, shall be located below the elevation of 900 feet as identified on the County's Open Space Plan. (3) Engineering Department approval of an erosion control plan. (4) Engineering Department receipt of proof of compliance with Federal and State agencies regulating activities affecting wetlands and watercourses. (5) Water Resources Manager approval of a Water Quality Impact Assessment outlining mitigation measures for encroachments into the Water Resources Protection Area Buffer. (6) Engineering Department approval of hydrologic and hydraulic computations for the crossing. These computations must demonstrate compliance with sections 30.3.2.2 and 30.3.3 of the Zoning Ordinance. Plans must show the existing and proposed floodplain boundaries and elevations. (7) Engineering Department approval of structural plans, details, and computations. (8) Engineering Department approval of grading plans to evaluate cut and fill in the floodplain. (9) The road, bridge and floodplain crossing shall generally conform to the design that was submitted with the special permit application. ,13 3-3-98 26 The motion passed unanimously. The meeting recessed from 10:15 to 10:30. Ragged Mountain Natural Area Site Plan Waiver Request - Request to waive the requirement for a full site plan (32.2.2) for a proposed parking area and trails for Ragged Mountain Natural Area, on property described as Tax Map 75, Parcels 47B (portion) and 1. Access is from State Route 702 (Reservoir Road) in Neighborhood 6 in the Samuel Miller Magisterial District. It is currently zoned RA, Rural Areas, and designated RA, Rural Area in the Comprehensive Plan. Ms. Thomas presented the staff report. Staff was also recommending a waiver of Section 4.12.6.3(b) to allow a grade of 5% in any direction in the parking area. The applicant was represented by Mr. Dan Bieker. He said the requirement for a fully engineered site plan would be very costly. He said Mr. Hirschman was involved in the laying out of the trails to ensure that there will be no severe erosion problem. He answered Commission questions. --Hunting is currently prohibited by the City of Charlottesville (the owner of the property) and he anticipates it will continue to be prohibited, but "there is a provision in the conditions approved by the Board that if there is a nuisance problem which exists, (such as with the over population of deer), that condition can be waived if it is deemed necessary to resolve the problem." He said there are no plans to allow hunting, given the public presence on the property, but it is a future option. --No privies will be provided. Public comment was invited. Ms. Minor asked if hiking will be limited only to the trails, or will the entire area be open. Ms. Thomas said hiking is to supposed to take place only on the trails, but that has been a concern which has been discussed. The County Police will be the enforcement agency if violations of standard operating procedures at Ragged Mountain Reservoir occur. It is hoped a public information program and good signage, steering people away from adjoining properties, will address the concern. Mr. Bieker said while the plan is to restrict hiking to the trails, "we have to keep in mind that this is public property and there are many trails and logging roads present on the property. The Ivy Creek Foundation is not anticipating the force of law to keep people off other parts of the property. We can suggest, we can use signage, we can discourage it. But, I think it would take a declaration from the City, as the legal property owner, to make the requirement that people are required, under force of law, to stay on the trails only." Mr. Pat Mulaney, Director of Parks and Recreation for Albemarle County, pointed out that it is already legal to hike anywhere on this property, and it is hoped that putting the property under the direction of the Ivy Creek Foundation will prevent some of the illegal uses which are occurring. OR 3-3-98 27 Mr. William Ross, a resident of Ednam Forest, agreed that good signage will help keep people on the trails. He suggested that signs be planted at frequent intervals, with particular attention paid to the position of the signs where the trail will exit the existing service road: Ms. Elizabeth Murray expressed her support for the waiver request. She stressed that "as Albemarle County grows, we must also grow our natural areas." She reminded the Commission that when the Ivy Creek Natural Area had been established 19 years ago there was no requirement for a site plan, nor did the County "ask us to build our own parking lot or raise our own money to build the parking lot," and that was at a time when the Foundation did not have a track record. She said the Foundation has learned a lot about trails and "this is coming as a more polished initial suggestion for a natural area." Mr. Sam Frielick, an Ednam Forest resident, supported the request for a site plan waiver. He suggested, however, that the trail be put on existing geodesic maps, to give the neighbors, and the County, a clear picture of the location of the trails. Mr. Mark Anderson, representing Camp Holiday Trails, expressed concern about the fact that one of the trails actually is on Rt. 702 for a short distance. Mr. Bieker said there is no way to realign the trail, but he does not anticipate it will be a serious problem because it is a dead end road and it is for only a short distance ("probably a couple of hundred feet where you would walk past Camp Holiday Trails to get to the new parking lot"). He said the parking lot is designed for 20 vehicles and there is really no anticipation that there will be an abundance of hikers. He said even if the parking lot is full, if there is an average of 3 people per vehicle, it amounts to only 60 people over 1,000 acres. He said there is room to "walk to the side" and he did not think it would cause an impediment to traffic. Mr. Anderson said the traffic during the day varies, but there are times, at the beginning or ending of camp sessions, where traffic may be heavy. Otherwise, it is "a steady, lower stream of traffic." (Mr. Tice suggested a possible re-routing of the trail, but Mr. Bieker said it would be difficult because of the steepness of the terrain and there would still be no way to prevent people from walking along the road because it would be easier.) Ms. Thomas suggested a road sign on Rt. 702 to indicate the presence of hikers would also be helpful. There being no further comment, the matter was placed before the Commission. Mr. Tice said this appears to be a reasonable request. He commended the applicant for a high quality report. He supported staffs recommended conditions. He wondered if there should be any changes in the conditions to address signage which has been discussed. Given the size of the property, Mr. Finley envisioned there will be "people walking all over it." He did not think very restrictive signage would work. Mr. Rooker thought the signage could be left to the discretion of the Ivy Creek +,. Foundation, working with the neighbors. /8s OR 3-3-98 28 Mr. Rieley assumed the parking area would at least be laid out with equipment which will assure the 5% gradients are not exceeded. Mr. Kelsey said: "We will probably be involved at some point." Mr. Rieley said it would be a shame if they ended up being 8% or 9%, which would be a problem. Mr. Brooks said the grading will have to be laid out as a part of the erosion control plan. Mr. Rooker said condition No. 1 should address this concern. MOTION: Mr. Tice moved, Mr. Rieley seconded, that a waiver of the requirement for a full site plan (Section 32.2.2) be approved for the Ragged Mountain Natural Area, subject to the following conditions: (1) Engineering Department approval of the final sketch plan showing the entrance, parking area and basic grading. (2) VDOT approval of entrance and site distance improvements as shown on the final sketch plan. (3) Engineering Department approval of an erosion control plan. (4) Applicant shall work with the Water Resources Manager to minimize impacts to the intermittent stream located at the eastern edge of the proposed parking area during development of the parking lot. (5) Applicant shall install signage at the parking lot indicating that vehicles remaining at the time of lot closure shall be towed at owner's expense. The motion passed unanimously. MOTION: Mr. Tice moved, Ms. Hilda seconded, that a waiver of Section 4.12.6.3(b) be granted for the Ragged Mountain Natural Area Site Plan, to allow a grade of five percent (5%) in any direction in the proposed parking area. The motion passed unanimously. MISCELLANEOUS Mr. Loewenstein asked that staff add to a future agenda a discussion of time limits on public debates. There being no further business, the meetin adjourned at 11.05 p.m. V. V10ayne Cilimb r ,Secretary DB / �6,