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.
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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
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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.
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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
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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
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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:
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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
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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
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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.
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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
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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."
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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,
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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."
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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
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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
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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
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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
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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.
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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.
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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
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