HomeMy WebLinkAbout07 14 1998 PC Minutes7-14-98
JULY 14, 1998
The Albemarle County Planning Commission held a public hearing on Tuesday, July
14, 1998, in the County Office Building, Charlottesville, Virginia. Those members
present were: 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. David Benish, Chief of Community Development; Mr. Ron
Keeler, Chief of Planning, Mr. Juan Wade, Transportation Planner; Ms. Elaine Echols,
Planner, Mr. Eric Morrisette, Planner; Mr. Maynard Sipe, Planner; and Mr. Greg
Kamptner, Assistant County Attorney. Absent: Commissioner Loewenstein.
A quorum was confirmed and the meeting was called to order at 7:00 p.m. The
minutes of the June 30, 1998 meeting were unanimously approved as submitted.
Mr. Benish summarized actions taken at the July 8th Board of Supervisors meeting.
CFW Arrowhead - Request by CFW Wireless in accord with the provisions of Section
10.2.2(6) to allow the construction of a telecommunication facility on Tax Map 88,
Parcel 26. Zoned RA, Rural Areas and is located on the east side of Rt. 29 (Monacan
Dr) on the west side of Rt. 745 (Arrowhead Valley Road) in the Samuel Miller
'" Magisterial District. This site is not located in a designated development area.
Deferred from April 21, 1998 Commission meeting.
Mr. Fritz presented the staff report. He said the Commission had asked, at the April
21 st hearing, that the applicant investigate alternative sites. He said no alternative
sites were located and staffs position remains unchanged. Staff recommended
approval subject to the same conditions as presented in the April 21 st report, with the
exception of a modification to condition #1 which limits the height of the tower to "not
exceed the elevation of the top of the tallest tree within 25 feet down slope of the
tower. "
Referring to the existing tower at the Bellair site, Mr. Rieley said he believes this is the
correct strategy. He suggested an additional condition be added to tower approvals,
in general, i.e. "some provision regarding the future pruning and/or cutting of trees
within a reasonable radius of the pole." He said future clearing of trees around these
towers would 'obviate the very reason that we are working on this strategy to begin
with." He said condition #7 does not seem to prevent future cutting of trees, once the
towers are installed. It seems to address only cutting during the construction phase.
Mr. Fritz said the Planning Department would not authorize the removal of any trees
except those necessary for construction and installation of the tower. Mr. Rieley
asked what happens in the future. Mr. Fritz said the intent of the condition is that "we
would fail to issue any additional tree cutting permit --we would refer it back to the
Planning Commission and to the Board." Mr. Kamptner said the condition could be
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reworded to eliminate any question about interpretation or intent. Mr. Rieley said he
would feel more comfortable if the condition were reworded. Mr. Rooker said he
believes condition #7, as written by staff, would prevent the cutting of trees now or in
the future, within 200 feet of the tower, but Mr. Rieley's suggestion would make the
condition clearer. Mr. Rooker suggested: "The applicant shall not remove any trees
within 200 feet of the tower without the consent of the Director of Planning."
Mr. Nitchmann expressed concern about the fact that the property owner (i.e. the
person leasing the site to the applicant) may not be aware that he will not be able to
cut trees within 200 feet of the tower. He said this could mean a restriction on the
cutting of timber (by the property owner) that could have a very high monetary value.
Mr. Fritz said: "Yes, it limits the tree cutting on the property of the lease area. So the
condition effects a much greater area than the actual lease area. " Mr. Nitchmann said
he doubts if property owners who grant these leases are aware of this type of
restriction. He said he does not feel strongly about Mr. Rieley's suggested addition to
#7, but he wants to be sure that people who are leasing these sites understand the
potential financial impact in relation to restrictions against tree cutting. Mr. Nitchmann
also wondered who will monitor whether trees are being cut or not. Mr. Fritz said the
Zoning Administrator will enforce the conditions, as is always the case.
Later in the discussion, Mr. Finley asked the applicant if the lease includes any
agreement by the landowner that trees will not be cut within a 200-foot radius of the
tower. The applicant's representative, Mr. Whittaker, replied: " I don't think there are a
lot of lessors that would be too attracted with language like that in a lease." Mr. Tice
asked if property owners are required to sign the application for the special permit.
Mr. Fritz said property owners must either sign the application or authorize the
applicant to sign it. Mr. Whittaker said the action which executes 90% of CFW leases
is the issuance of a building permit.
Though a public hearing had already been held on this item, the Chair once again
invited public comment.
The applicant was represented by Mr. Tom Whittaker. He said CFW has been very
pleased with the appearance and acceptance of the mini -cell sites. He was referring
to the Bellair site, and said it is "typical" of a mini -cell site. Answers to Commission
questions were as follows-
_ -Co -location on these mini -cell towers will be very difficult because co -locators
would have to locate farther down on the poles and would not be able to clear the
trees.
--He could not say how many total mini -cell towers will be needed in Albemarle
County. He said there are indications that cellular service will eventually be serving
neighborhoods and not just the commuting corridors. He envisioned the equipment
would be "some type of stealth use of architectural structures." He said CFW
presently has three additional requests that are to be heard by the Commission before
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the August Board meeting. (Mr. Fritz said, if the present pace continues, the County
will have over 40 applications for cellular towers this year, as compared to slightly over
20 last year. He said there are 6-9 cellular providers licensed in Albemarle County,
but, presently, only 4 have shown interest. Three of those 4 are currently operating,
and one other is talking with staff.)
--A tower site can be as small as 10' x 10' or up to 50' x 50'.
Noting that an attachment to staffs report is supposed to explain the applicant's
exploration of alternative sites, Mr. Rieley said: "But the attached letter doesn't
explain any exploration for alternatives sites. It says only that 'this site is critical to our
buildout and cannot be moved any considerable distance.”' Mr. Whittaker could not
comment on the exploration for alternatives sites, but he stressed the importance of
this site. He said this site could not be moved very far, if at all, and the same issues
would exist regardless of where the site might be.
Mr. Rieley said this site and the Red Hill site (to be reviewed later in the meeting)
appear to be connected. He said it appears the geographic location of this site
(Arrowhead) is limited because of the location of another site which has not yet been
approved. Mr. Whittaker replied: "I see your point, but you've got to make some
assumptions." Mr. Rooker asked how far the site could be moved, and still fit into the
system. Mr. Whittaker said it could not be moved more than one mile, "if the sites
were in a straight line," without " opening up a hole between the sites. Factoring in
topography worsens the situation considerably.
Mr. Rooker said he shares some of Mr. Rieley's concern about the fact that this item
was deferred so that alternate sites could be explored, but there is no evidence there
was any further exploration of sites. He reminded the applicant one of the reasons
the Commission made this request of the applicant was because a Conservation
Easement exists on property which adjoins this site, and also the property to the south
contains an historic site. He asked Mr. Whittaker directly: "Has there been any effort
to find another site which is not adjacent to these properties which (the County wishes
to protect)?" Mr. Whittaker replied: "I can't answer that." Mr. Dick Scherer, Site
Acquisition and Construction Manager for the applicant, addressed Mr. Rooker's
question. He explained problems with moving the site to various locations. Mr.
Rooker, after hearing Mr. Scherer's comments, concluded: "So there really haven't
been any efforts to try to find an alternate site that technically works." Mr. Scherer
responded: "Our RF engineers ran it, looked at it, and indicated that was the best
location." Mr. Rooker said: "That's not the question." Mr. Scherer explained how it
was determined that "there appear to be no adjacent areas where a site would
perform as well. It does not appear there are a significant number of options for us."
Mr. Rooker once again reminded the applicant that the County has a policy of trying to
protect conservation easements and historic sites, and it appears the applicant needs
to do some more exploration. Based on the information provided to the Commission,
Mr. Rooker said: "I don't know that we've moved any further down the road than the
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last time we met on this. ... I applaud your efforts with respect to the type of towers
you are using, but I still have concerns with respect to the conservation easement and
the historic site, which are important goals of the county --to protect those kinds of
properties." Mr. Rooker concluded: "if, in fact, you have run these tests on adjacent
properties and you've got data to show that the tower will not work any distance from
its present location, then I would like to see some of that data."
Mr. Tice agreed with Mr. Rooker. He said that though this might ultimately be
determined to be the best site, he had hoped, after the deferral, the applicant would
be able to demonstrate, using a map, other possible locations, and an explanation of
why those locations would or would not work. Mr. Whittaker said the applicant would
be willing to go through that process and provide more data.
Mr. Rieley said he thought this would be a wise approach, not only because it was
what the Commission expected after the first deferral, but also because another item
on tonight's agenda (CFW - Red Hill) may have a direct impact on this site, and "may
be evaluating a location in this general area based on an entirely different set of
assumptions than you were going into previously."
MOTION: Mr. Rooker moved to defer SP 98-09 (CFW - Arrowhead) "until such time
as the applicant is prepared to come forward with the data discussed by the
Commission." Mr. Rieley seconded the motion.
Mr. Kamptner reminded the Chair that the public hearing had been opened, so
comment from the public should be accepted from the public as well as the applicant.
Mr. David Van Roijen addressed the Commission. His comments were directed to
both the Red Hill and Arrowhead sites. He said he does not believe the cellular
companies are acting in the best interests of the public and are not "telling the County
the whole story." He opposed another deferral. He pointed out that the applicant had
not responded to the Commission's request after the last deferral. However, he said if
another deferral is to take place, "the Red Hill and Arrowhead areas need to know that
all the possibilities have been explored and this is the least invasive solution and that
the Planning Commission can tell us what the buildout of towers in our area will be."
He expressed frustration with the delays which have occurred in the hiring of a
consultant. He said: "We have been promised a consultant. It is beginning to look
like this county needs a whole staff to deal with these towers. ... Vote down the Red
Hill and Arrowhead tower sites because of the way they will change the character of
the area, and, more importantly, because you simply don't have the facts to make a
reasonable judgment. At the very least, defer voting on any new towers until you
develop a comprehensive plan with the communities and the consultant, rather than
with the cellular companies."
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Mr. Sam Boatwright addressed the Commission. He was opposed to the requests.
He said the County does not need all these cellular towers.
Mr. Byrd Woods, a resident of Arrowhead, addressed the Commission. He was
opposed to the request. He agreed with Mr. Van Roijen that a comprehensive tower
plan is needed and shared Mr. Van Roijen's frustrations about the continued lack of a
consultant.
Mr. T.K. Woods, a resident of Arrowhead, addressed the Commission. He said he
had been alarmed, during the April hearing, by the fact that the applicant had been
allowed to request a deferral, "although the Commission's by-laws say that he cannot
do so unless he does so seven days before the meeting." He asked if the deferral
now being considered is at the request of the applicant or the Commission. He
questioned why the Commission would request another deferral when the applicant
has not provided the information which was the purpose for the previous deferral. He
pointed out that the historic site is in the middle of the conservation easement, "so the
applicant is not prohibited from going in other directions." He expressed concern
about the way deferrals are granted, and he said a letter he wrote to the Chair of the
Commission in May has not been answered.
Mr. Kamptner explained that the Commission, "on its own," may defer an item. Mr.
*40.1 Woods said the last deferral was at the request of the applicant, though the by-laws
say an applicant must submit a request for deferral seven days before the meeting.
Mr. Lee Maupin, a resident of Red Hill and lead flight paramedic for Pegasus,
addressed the Commission. He expressed concerns about the danger which these
unlit towers pose to Pegasus (a medical emergency helicopter). He asked that there
be a requirement for low wattage lighting on the towers. Mr. Rooker pointed out that
mini -cell towers cannot be taller than the surrounding trees. Mr. Nitchmann thanked
Mr. Maupin for raising a new issue. He suggested this is something which should be
looked at by the consultant.
There was a brief discussion about the latest prediction for when the consultants will
be on board. Mr. Fritz said the funding for the policy consultant will be before the
Board at their August day meeting. Work can begin immediately after funding has
been approved. The consultant who will review applications is still in the negotiation
process.
There being no further comment, the matter was placed before the Commission.
Ms. Washington reminded the Commission of the motion on the floor for deferral.
Mr. Nitchmann said his position regarding the proliferation of towers has not changed --
that a comprehensive plan is needed before more requests are approved. He said he
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would not support a motion for deferral and he will vote 'no' on all tower requests until
a consultant has been hired.
Mr. Rooker asked how long an applicant must wait before re -submitting a request
which has been denied. Mr. Kamptner said: "The SP cannot be reconsidered within
12 months from the date of denial if it is substantially the same application."
Mr. Rieley said that though he seconded the motion for deferral he is "of two minds
because it is very true it was deferred previously for an express reason and, as far as
I can tell, we have exactly the same matter before us, which happened to us once
before with the same applicant."
The motion for deferral failed to pass due to a tie vote. Commissioners Rooker, Finley
and Tice voted for the motion and Commissioners Rieley, Nitchmann and Washington
voted against.
MOTION: Mr. Nitchmann moved, Mr. Rooker seconded, that SP 98-09 CFW -
Arrowhead be recommended to the Board of Supervisors for denial for the following
reasons:
--Inadequate information pertaining to alternative locations; and
--The proximity of this particular site to a conservation easement and historical
resources.
The motion passed unanimously.
SP 98-20 Chestnut Grove Baptist Church - Petition to add a 900 square -foot addition
to an.existing church. The site is located on 1 acre at 8825 Chestnut Grove Road.
The property is zoned RA, Rural Areas, and is described as Tax Map 133, Parcel 42.
The property is located on Route 723 in Esmont and is in the Scottsville Magisterial
District. This area is not in a designated development area (Rural Area 4).
Mr. Wade presented the staff report. Staff recommended approval subject to
conditions.
Mr. Rooker asked if a condition related to a commercial entrance, as described in
VDOT's letter, is needed. Mr. Wade said the Commission has, traditionally, not
required a commercial entrance for this type of use. Mr. Benish added that an
entrance exists so VDOT will not have to issue a permit, but VDOT did recommend
that the entrance be upgraded to allow two -lanes of traffic. Mr. Wade said the
proposed addition will not result in an increase in congregation so condition #3, as
proposed, requires a widening of the entrance, but not to VDOT standards. Because
w.. there have been no accidents related to the entrances, and given the expense of
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widening the entrance, Mr. Nitchmann said he could see no reason to require the
entrance to be upgraded. Mr. Rooker was not in favor of eliminating condition #3.
There was a discussion about condition No. 2, which limits congregation size to 75.
Staff explained the condition is included because of the fact that the capacity of the
septic system is not known. Concerns were expressed by Commissioners about
limiting a congregation's size. Mr. Rooker suggested a condition such as "Septic
system will be kept functional and will not operate above its capacity." Mr. Nitchmann
suggested condition No. 1 could be reworded in such a way that it Would include Mr.
Rooker's suggestion. Mr. Nitchmann also recommended the deletion of conditions 2
and 3. Mr. Benish said the staff should receive comments from the Health
Department prior to the Board hearing so it will be possible to finalize the condition
before the item is heard by the Board.
Mr. Tice asked if condition #4 would allow occasional functions, such as scout
meetings. Mr. Benish replied: I think that is acceptable because that is not an on-
going type of activity. The condition is meant to apply to a use which would require a
separate action by the Board, such as a day-care center. Occasional meetings are
acceptable."
The applicant was represented by Mr. Eugene Rush. He said the existing entrances
'`''W are functioning "fine," and there have never been any problems. He confirmed there
is room to widen one of the entrances if necessary, and the church could afford to
make this improvement.
Regarding the entrances, Mr. Nitchmann could see no reason to "fix" something which
appears to be functioning in an acceptable manner.
There being no public comment, the matter was placed before the Commission.
MOTION: Mr. Nitchmann moved, Mr. Rooker seconded, that SP 98-20 for Chestnut
Grove Baptist Church be recommended to the Board of Supervisors for approval
subject to the following conditions:
1. (Change the wording so that the Health Department approval will have some
relation to the number of parishioners.) (specific wording to be worked out by staff prior to the
Board hearing.]
2. Day care use and other non -church activities shall be prohibited unless approved
through a special use permit amendment.
(Mr. Nitchmann's motion specifically deleted staffs original conditions 2 and 3.)
The motion passed unanimously.
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Staff confirmed a site plan was not required for this proposal.
SP 97-27 CFW Wireless _Red Hill - Proposal to construct a personal wireless
telecommunication facility on approximately 2 acres zoned RA, Rural Areas and EC,
Entrance Corridor Overlay District in accord with the provisions of section 10.2.2(6) of
the Zoning Ordinance. Property, described as Tax Map 87, Parcel 25B is located on
the south side of Route 29 (Monacan Trail) approximately 0.5 miles east of Route 710
(Taylors Gap Road) in the Samuel Miller Magisterial District. This site is not located
within a designated development area.
Mr. Morrisette presented the staff report. It was staffs finding that the request was not
consistent with the provisions of section 31.2.4.1 of the Zoning Ordinance, and
therefore, staff was unable to recommend approval of the request.
Mr. Tice asked if staff has any knowledge of the potential for VDOT right-of-way
towers along this section of highway. Mr. Morrisette said he has had no discussions
with VDOT. Mr. Fritz said VDOT has informed staff of potential sites all along the 164
corridor, and staff has presented that information to the Board, along with some
recommended actions the County would like to see VDOT take. The issue will be
before the Board Wednesday, July 15th. Some of the requests being made of VDOT
include:
--That VDOT require all personal wireless service providers to go through the
county's special permit review process.
--If sites are permitted within VDOT's right-of-way, VDOT's policies should not
simply follow what has been done in other counties, but should reflect the County's
efforts to designate and protect its entrance corridors.
--That VDOT be particularly sensitive to the Ivy Valley area.
Mr. Fritz said VDOT has identified a need for their ITS (Intelligent Transportation
System) along 164, but the same need has not been identified on the 29 South
corridor, "but that doesn't rule out it happening."
Mr. Rooker asked what height tower is needed to support the ITS equipment. Mr.
Fritz said there are no specific sites identified on 164; there is only a general statement
that monitoring is needed. Mr. Fritz said neither staff nor VDOT had been able to
determine what the minimum height would be to satisfy only VDOT needs. VDOT has
not identified a compelling need, or that it is part of their building program, to put these
towers there.
The applicant was represented by Mr. Tom Whittaker. He said CFW is working with
US Cellular on the potential for co -location at this site. Because of the existing public
utility structure which already has an impact on the visual quality of the area, the
applicant feels the addition of this proposed tower would only have an incremental
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impact on the site. He said CFW realizes the value to the community of co -location
and has co -located with other companies in 30 locations in the state. The 150 feet
height proposed is to allow co -location with US Cellular. The applicant feels this is the
best possible location for joint location.
Mr. Rooker asked why it had not been possible to get an easement from VEPCO to
locate on their existing lattice structure. Mr. Whittaker said it was more a problem with
"structural improvements for co -location." He explained those towers are "not
structurally substantial" and do not have adequate wind load capacity to support
multiple antennae. Mr. Rooker asked if there was a letter confirming Mr. Whittaker's
statements in the file, or if there had been any specific conversations with the power
company during which CFW was told the proposed antennae could not be placed on
their existing structure. Mr. Whittaker did not answer Mr. Rooker's question directly,
but responded: "Our intent to work together with US Cellular comes from our
relationship in the past, their difficulty in getting a site in this area, and an opportunity,
because of the nature of this particular location and application, for us to work
together and both of our needs be fulfilled. We have had different conversations with
VEPCO, and I am telling you how VEPCO deals with us, and the type of structure
they have will not be able to support the combined physical infrastructure of both of
(our) companies." He explained further why a monopole cannot be located through
the center of lattice towers.
After hearing Mr. Whittaker's comments, Mr. Tice said: "So it might be possible for
one of those structures to hold CFWs antennae and then US Cellular might be on
another tower." Mr. Whittaker responded affirmatively, but said: "The intent of us
coming here today is to go with co -location and a new structure in an imbedded
telecommunications utility environment."
Because of concerns about time and the length of the Commission's agenda, and
because of the fact that Commissioners are familiar with this site, it was decided the
slides offered by the applicant would not be viewed.
Mr. Mark Gartley, representing US Cellular, addressed the Commission. He said it
has never been said that co -location on power towers is not possible, but experience
with VEPCO on that particular type of power tower, is that they would not allow the
cellular antennae to be above the conductor, and that will not meet the needs of the
cellular service providers.
Public comment was invited.
Mr. David Van Roijen once again addressed the Commission. Referring to Mr.
Whittaker's inability to answer Mr. Rooker's questions clearly, he said it is impossible
to get definitive answers from the applicants. He said the applicants must be required
to exhaust all resources and not just be allowed to present "what they want."
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Ms. Irene Brenneman, a North Garden resident, addressed the Commission. She
asked that the request be denied because it will adversely impact adjoining property
owners, the community, and travelers on the Rt. 29 South corridor. She said the
tower would devalue property values and would be just another eyesore that residents
must live with. She asked that those present at the meeting who were opposed to the
request to indicate their opposition by standing. Approximately 15 people stood in
response to this request. She presented a petition of opposition which she described
as having 97 signatures. She said the voice of the people is clear in its opposition to
these towers, but, at the same time, "we want good cellular service." She did not
think the two statements were mutually exclusive. She referenced an article in the
"Wireless Review" which was related to the use of existing structures, such as church
steeples, trees, signs, etc., for the location of antennae. She said the cellular industry
also uses mini -cells on existing telephone poles. She said co -location should not be
the objective because it requires taller towers. Rather, the objective is to supply the
best signal in the most attractive manner. She said denial of this application will be a
response to the voice of the people and will force the cellular providers to find more
acceptable solutions. She urged the County to hire a consultant and develop a plan
for tower location.
Mr. Ronald Brunk, owner of property across from the proposed site, addressed the
Commission. He distributed photos he had taken of the applicant's test which used a
' crane to depict the appearance of the proposed tower. He said the photos are not a
realistic depiction of how the towers will actually look. He objected to the placement
of the tower on an entrance corridor and to the argument that this is an "unattractive
site, so let's add to it." He said CFW has not been required to find a less obtrusive
site. He suggested an alternative site which might work is not far from the proposed
site and the tower could be hidden in the trees. He said he has determined that the
property owner of that site would be willing to talk to the applicant. He asked that the
request be denied and the applicant be challenged to find attractive solutions that will
work for everyone rather than just a few.
Mr. Satyendra Huja addressed the Commission and expressed opposition to the
request. He said that though he does not own property in the Red Hill area, it is a
very beautiful area which should be preserved. His reasons for opposition were: (1)
It is inconsistent with the county's Comprehensive Plan; (2) It is contrary to the
residential and agriculture zones' purposes; (3) It is contrary to the Entrance Corridor
Overlay District; (4) It would have an adverse impact on adjacent residential
properties and will change the character of the neighborhood; (5) There are few trees
which will provide screening; (6) It will adversely impact property values; and (7)
There is no significant public interest to be served. He suggested that cellular
providers be required to "coordinate their strategies," and be given the message that
towers must be located so that the character of the community which the
Comprehensive Plan is trying to preserve is maintained. He said this proposal does
not meet any of these criteria.
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Mr. Jose Lambert expressed support for Mr. Huja's comments.
There being no further comment, the matter was placed before the Commission.
Mr. Tice said Mr. Huja had stated very well the reasons to recommend denial of the
request.
MOTION: Mr. Tice moved, Mr. Rooker seconded, that SP 97-27 for CFW Wireless -
Red Hill, be recommended to the Board of Supervisors for denial for the following
reasons:
--Non-compliance with the Comprehensive Plan.
--Incompatibility with the character of the area.
--Incompatibility with the Entrance Corridor.
--There may be alternatives available that would better serve the public interest
that have not been fully explored.
--Lack of a comprehensive plan for towers in this area.
Mr. Rooker said he hopes it is clear to the public what VDOT is doing in other areas
of the state, i.e. "they are taking the position that they can build towers in the public
right-of-way, any place where they have public right-of-way, which is virtually all over
the County, without going through any Albemarle County governmental approvals,"
which could mean a tower could be located almost anywhere in the county,
unchecked. He suggested: "People need to let their representatives know that this is
unacceptable. The more citizens who let their representatives know that they disagree
with this VDOT policy, the better off we will be."
Discussion:
Mr. Rieley said he agrees completely with Mr. Huja's suggestion that the County must
send a message to cellular providers, but he is frustrated by the fact that the message
has already been sent repeatedly by previous Commission actions. He said he
thought CFW seemed to be getting the message, because the Bellair site was a move
in the right direction. He concluded: Certainly I think we should deny this request,
but more than that I think we should make it clear that this kind of large structure, with
co -location, is not an acceptable alternative. There are other ways of providing that
service. We've done it in other places. What's good for Bellair is good for Red Hill. It
is completely out of place here. It is completely out of scale. There are lots of
reasons I could give. I have a very personal interest in it --I would see it when
walked out of my house every day. ... We have a beautiful neighborhood and this is
completely out of scale. We need to look at the whole corridor between Crossroads
and the Britts Mt. site with a strategy of small poles hidden in the trees. That should
be a part of a larger comprehensive plan, but I would be prepared to act on individual
requests that don't threaten historic property." Mr. Rooker said: "That is consistent,
entirely, with our past actions."
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OR
Mr. Tice agreed with Mr. Rieley. He expressed appreciation for the efforts CFW is
making to accommodate the Commission's concerns and said CFW has gone far
beyond any other companies.
Mr. Rooker said CFW is to be commended for bringing this application to the public
and seeking public input.
Recalling an event not too long ago when Free Union had made history because it
was the center of an earthquake, Mr. Finley wondered if these towers, which are
made to collapse upon themselves, are also designed to withstand earthquakes. He
pointed out the potential danger from broken power lines if a tower should fail to
collapse upon itself. He said he would support the motion for denial.
The motion for denial passed unanimously.
MOTION: Mr. Nitchmann moved, Mr. Tice seconded, that the Request for a Site Plan
Waiver for CFW - Red Hill be denied. The motion passed unanimously.
SP 98-30 CFW Wireless - Keene - Proposal to construct a personal wireless
telecommunication facility on approximately 9.5 acres zoned RA, Rural Areas and EC,
Entrance Corridor Overlay District in accord with the provisions of section 10.2.2(6) of
the Zoning Ordinance. Property, described as tax Map 121, Parcel 89, is located on
the east side of Route 20 (Scottsville Rd) at its intersection with Route 712 (Coles
Rolling Rd) in the Scottsville Magisterial District. This site is not located within a
designated development area.
Mr. Fritz presented the staff report. Staff recommended approval subject to
conditions.
Mr. Fritz distributed to the Commission copies of a letter from Mr. James Murray, Jr
an adjoining property owner, which was received after the preparation of the staff
report. Mr. Murray's letter expressed opposition to the request.
The applicant's representative, Mr. Whittaker, offered no comment.
Public comment was invited.
Mr. David Van Roijen said it is not clear that the applicant explored every potential
site. He said he believed evidence of such exploration should be a standard
requirement for every tower application, with explanations for why other sites are not
viable.
1,37
„.: 7-14-98
13
Mr. Sam Boatwright said this site is located very close to a VDOT location which is
currently being surveyed for the location of a tower. He asked the Commission to
deny the request.
Mr. Bill Dickey, a nearby property owner, asked that this request be denied until the
County can get a better picture of how many tower sites will ultimately be needed.
Ms. Linda Vachmiester (?), the owner of Plain Dealing Farm, addressed the
Commission. She expressed fear that approval of this tower could lead to more
towers in the area in the future. She said Plain Dealing is an important historical
home and she is in the process of putting the farm under conservation easement.
She, too, expressed concern about "the VDOT tower site next door.” She said the
applicant has not made an attempt to meet with community residents, as was done in
the Red Hill community. She was opposed to the request.
Ms. Peggy Boatwright addressed the Commission. She asked that the request be
denied until the impact can be studied and a consultant's guidance is available. She
said the entire neighborhood is opposed to this request.
There being no further comment, the matter was placed before the Commission.
Mr. Rieley pointed out that though this tower has been compared to the Bellair tower,
there is a substantial difference in that the antennae are panels, which are more
opaque and wider than the "whip" antennae on the Bellair tower. He said the panels
are to be installed directly on the pole, rather than above it, which means the pole and
the antennae will be above the tree tops. He asked (1) if his understanding was
accurate and, (2) why aren't these whip antennae? Mr. Fritz said the condition related
to the mounting of the antennae is the same as in the Bellair site, "where the tower
itself may be at the treetop height and the antennae may extend six feet above the
height of the tower." Mr. Rieley said: "The diagram is incorrect." Mr. Fritz said: "The
diagram shows (the panel) being flush with the top, which it could be, but the top of
the tower would have to be treetop height." The applicant responded to the question
about the type of antennae. Mr. Whittaker said the panel antenna gives more gain
and more coverage (2 miles with 19 dba gain) ) than a whip (omni-directional) antenna
(1.5 miles with 14 dba gain). He confirmed that the panel will need to be above the
trees. The typical panel size is 6 feet tall, 8 inches wide, and 2 inches thick.
Mr. Nitchmann asked if any other sites had been considered. He said another
difference in this site and the Bellair site is that traffic is moving by the Bellair site at a
much higher speed, so there is less time for the tower to be noticed. Traffic will be
moving much slower by this site, so there is a much greater possibility of it being
seen. Mr. Whittaker said no other sites had been considered. He said: "We looked
at what would best fit our needs and fit with previous approvals of the county- a grove
/9 Y
1*%Wl 7-14-98 14
of trees, well screened by the vegetation around it." Mr. Nitchmann said it is
unfortunate that the County "keeps moving the target."
Mr. Tice said the applicant has demonstrated, at the Bellair site, that there is the
opportunity to locate these towers in a way that is as unobtrusive as possible. He
agreed that the antennae are different than the Bellair antennae, but he said his
greater concern is that "we're not looking at these things comprehensively along Rt.
20." He noted that the report says this site will connect to proposed sites at
Roundtop Mt. and Carter Mt., but those applications are not before the Commission.
He said his concern about approving this site is "does that lock us in to choosing other
sites that we might find are incompatible along this corridor and along Rt. 207' He
recalled that the applicant stated earlier that the sites cannot be moved more than
one -quarter mile.
Mr. Nitchmann said it is unfortunate that the applicant did not analyze the Bellair site
to determine why it is considered acceptable. Mr. Tice said a number of applications
had also come in along with the Bellair request so it was possible for the Commission
to see a bigger picture.
Ms. Washington said her greatest concern with all these applications is the lack of a
County policy for dealing with towers.
MOTION: Mr. Nitchmann moved, Mr. Tice seconded, that SP 98-30 for CFW
Wireless - Keene, be recommended to the Board of Supervisors for denial because
not all potential sites have been considered and all efforts have not been exhausted to
make this as unobtrusive as possible.
Discussion:
Mr. Rooker asked for comment on future plans for a system along Rt. 20. Mr. Fritz
said there is one application pending at Roundtop Mt., but there are presently no other
applications on Rt. 20 south. Mr. Rooker said he would have trouble supporting a
motion for denial because it appears the applicant "has done exactly what we asked in
respect to the site, i.e. a treetop type tower that is tucked into an area that, from all
indications, will not be highly visible, and it basically follows the Bellair model." He
agreed that it would be nice to be able to look at the Rt. 20 area as a system, but "it
would be unfair to the applicant to deny his application, which would require him to
wait a year to come back. It's unfair to an applicant, who comes in with a site that
seems to fit the model we have described, and proposes a tower that is of a type we
are looking to have, to then say, 'have you looked at all potential sites?' The applicant
is required to come forward with an application and that application has to be for a site
and the question is has he picked a site that is unobjectionable, not has he explored
every potential site that might be in the area."
/Z
7-14-98 15
Mr. Nitchmann said the Commission would be contradicting itself if it asks "have you
looked every place" of these other requests, and now we say "you don't have to look
every place." He said: "Maybe we need a consensus --do you need to look every
place or don't you need to look every place?"
Mr. Rooker said in the other application which was denied, the denial was because
there might be other sites that would be preferable. He said this property is not
surrounded by a conservation easement. Mr. Rooker said: "Personally, I don't think
we can deny applications only because they are in the rural area, when they seem to
meet the qualifications that we have tried to define for towers in Albemarle County."
Mr. Nitchmann said: "My point is, I don't think we've really defined that yet.
Mr. Rooker said he could support a motion for deferral. Because of the time
constraints for the Commission taking action on the request, Mr. Tice said the
applicant would need to request a deferral.
Mr. Rieley said he found Mr. Rooker's argument persuasive "to the extent that this
pole is consistent with previous ones that have been approved and the message that
we have sent to the applicant, but what troubles me is the substitution of a different
kind of antenna that is much more visible." He said the Bellair site would have a
much different appearance if the antennae were of the panel type. He said he would
vote against the motion for denial if the applicant were to change to whip antennae so
the approval would be consistent with past approvals. Without such a change, he said
he would support the motion for denial.
Mr. Finley agreed with Mr. Rooker. He said he would only be able to support a denial
for this request if he decided that "cellular applicants need not apply." He said the
applicant has done, basically, what is expected of them. He could find no good
reason not to support the application.
Mr. Nitchmann stressed that this is a very rural area. He said: "This location is part
of something that is going to be happening and we don't know what is going to be
happening. I agree they have done everything we want them to do, but there is other
cellular service available that works. My cell phone works down to Scottsville. Right
now, I don't see any reason to jump into this because CFW has met all the
requirements. I still believe Rt. 20 needs more study. I feel the same way about Rt.
53. Where is it going to end?"
There was a brief discussion about the fact that the applicant would have to wait a
year to re -submit the application if it is denied.
Mr. Tice said that though he had seconded the motion for denial, he had found Mr.
Rooker's comments compelling. He said he still believes that this request should be a
/'�
on
7-14-98 16
part of a system plan, and he shares Mr. Rieley's concerns about antenna type.
However, he did not think these concerns were justification for a decision that would
require the applicant to wait a full year. Mr. Tice withdrew his second to the motion.
After the applicant said the antenna type could not be changed at this site and
changing to a whip antenna at a different site would cause the need for
reconfiguration along Rt. 20, Mr. Rieley seconded the motion for denial.
Given the applicant's statements about the inability to change the type of antenna, Mr.
Rooker said he would support the motion for denial.
The motion for denial passed (5:1) with Commissioner Finley voting against the motion
for denial.
MOTION: Mr. Rooker moved that the Request for a Site Plan Waiver for CFW -
Keene be denied.
The motion passed (5:1), with Commissioner Finley casting the dissenting vote.
CFW Wireless Rt. 53 & 729 - Proposal to construct a personal wireless
telecommunication facility on approximately 4 acres zoned RA, Rural Areas, in accord
with the provisions of Section 10.2.2(6) of the Zoning Ordinance. Property, described
as Tax Map 93, Parcel 46B is located on the east side of Route 729 (Buck Island Rd.)
approximately 0.3 miles south of Route 53 (Thomas Jefferson Pkwy) in the Scottsville
Magisterial District. This site is not located within a designated development area.
Mr. Fritz presented the staff report. Staff recommended approval subject to
conditions.
Mr. Nitchmann asked why there is no condition related to landscaping. Mr. Fritz said
landscaping has not been required because of the location of the site on this property
and the distance from the roadway. Staff did not think screening would "overcome
any identified factor. He confirmed that there is some screening from existing
vegetation and other uses on the property. Mr. Nitchmann asked if staff had
considered how effective existing vegetation will be during the winter months. Mr.
Fritz said that factor had been considered. He described all structures that presently
exist between the road and the proposed site.
Mr. Rieley asked why there was no condition related to color, as there has been on
previous approvals. Mr. Fritz said the condition was omitted in error. It will be
reinstated.
1741
14% � 7-14-98 17
Mr. Rooker asked if a condition can be added to require that the special permit
conditions be a part of any lease agreement between the applicant and the property
owner, to ensure that the landowner is on notice of the conditions.
Mr. Kamptner indicated the County does not get involved in private agreements, but
said staff can strongly encourage applicants to make property owners aware of the
conditions of approval. Mr. Fritz said the property owner gets a copy of the action
letter which is sent to the applicant. That letter lists all the conditions.
Mr. Fritz said this site will be a link to the Boyd Tavern site and to a tower at Lake
Monticello in Fluvanna County.
Mr. Rieley suggested condition #1 be amended to read: The applicant shall provide a
statement from a Registered Professional Land Surveyor, certifying the elevation of
the tallest tree.
The applicant was represented by Mr. Tom Whittaker. He offered to answer
questions.
There being no public comment, the matter was placed before the Commission.
" Mr. Nitchmann said this request is in his district, but he must stand by his position
that a comprehensive tower plan is still needed, "even though it looks like this one
might make sense."
MOTION: Mr. Rooker moved, Mr. Finley seconded, that SP 98-31 be recommended
to the Board of Supervisors for approval subject to the following conditions:
1. The elevation at the top of the tower shall not exceed the elevation at the top of
the tallest tree within 25 feet down slope of the tower. The applicant shall provide a
statement from a Registered Professional Land Surveyor, certifying the height and
elevation of the tallest tree. Antennae may extend seven (7) feet above the height of
the tower. Equipment extending above the tower shall not exceed three (3) inches in
diameter.
2. The tower shall be designed, constructed and maintained as follows:
a. The tower shall be of treated wood. Guy wires shall not be permitted.
b. The tower shall have no lighting.
c. The tower shall not be painted.
3. The tower shall be located on the site as shown on the attached plan entitled
"Tower Site for CFW Wireless CV-131" and initialled "WDF 6/25/98."
NOW- 4. Antennae may be attached to the tower only as follows:
�%i 7-14-98 18
a. Antennae shall be limited to a maximum of two (2) fiberglass antennae not
to exceed seven (7) feet in height or three (3) inches in diameter. These antennae
shall be painted brown or a color to match the pole.
b. Satellite and microwave dish antennae are prohibited.
5. The tower shall be used, or have the potential to be used, for the co -location of
other wireless telecommunications providers, as follows:
a. The permittee shall allow other wireless telecommunications providers to
locate antennae on the tower and equipment on the site, subject to these conditions:
1. Prior to the approval of a final site plan for the site or the waiver of
the site plan requirement, the permittee shall execute a letter of intent stating
that it will make a good faith effort to allow such location and will negotiate in
good faith with such other provider requesting location on the tower or the site.
2. The permittee shall provide to the County, upon request, verifiable
evidence that it has made a good faith effort to allow such location. Verifiable
evidence of a good faith effort includes, but is not limited to, evidence that the
permittee has offered to allow other providers to locate on the tower and site in
exchange for reciprocal rights on a tower and site owned or controlled by
another provider within Albemarle County.
6. Each outdoor luminaire shall be fully shielded such that all light emitted is projected
below a horizontal plane running through the lowest part of the shield or shielding part of
the luminaire. For purposes of this condition, a "luminaire" is a complete lighting unit
consisting of a lamp or lamps together with the parts designed to distribute the light to
position and protect the lamps, and to connect the lamps to the power supply. Outdoor
lighting shall be shielded from Rt. 729. Outdoor lighting shall be limited to periods of
maintenance only.
7. Prior to beginning construction or installation of the tower or the equipment building, or
installation of access for vehicles or utilities, the permittee shall obtain authorization from
the Director of Planning to remove existing trees on the site. The Director of Planning
shall identify which trees may be removed for such construction or installation. Except for
the tree removal expressly authorized by the Director of Planning, the permittee shall not
remove existing trees within two hundred (200) feet of the tower, the equipment building,
or the vehicular or utility access.
8. The permittee shall comply with section 5.1.12 of the Zoning Ordinance. Fencing of
the lease area shall not be required.
9. The tower shall be disassembled and removed from the site within ninety (90) days of
the date its use for wireless telecommunications purposes is discontinued.
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7-14-98 19
10. The permittee shall submit a report to the zoning administrator once per year, by not
later than July 1 of that year. The report shall identify each user of the tower and shall
identify each user that is a wireless telecommunications service provider.
11. No slopes associated with construction of the tower and accessory uses shall be
created that are steeper than 2:1 unless retaining walls, revetments, or other stabilization
measure acceptable to the County Engineer are employed.
Discussion:
Mr. Rieley said he, like Mr. Nitchmann, will be consistent, and "will support these which
follow the Bellair model." He said his only concern is related to the setback and the
unusual angle, but staff had answered his questions satisfactorily.
Mr. Tice agreed and said his concerns about being able to see the whole system, in this
case, have been resolved by the fact that the rest of this system is already approved and
in place.
Though she commended the applicant for trying to comply with the Commission's "every
whim,' Ms. Washington said she could not support the motion because she feels strongly
that a consultant should be on board before more tower approvals are given.
The motion for approval passed (4:2) with Commissioners Nitchmann and Washington
casting the dissenting votes.
MOTION: Mr. Rooker moved, Mr. Rieley seconded, that a Request for a Site Plan Waiver
be approved for CFW - Rt. 43/Rt. 729, subject to the following conditions:
1. Approval of an erosion and sediment control plan prior to the issuance of a building
permit.
2. Provision of one parking space.
The motion passed (4:2) with Commissioners Washington and Nitchmann casting the
dissenting votes.
MOTION: Mr. Rooker moved, Mr. Rieley seconded, that a modification to allow a
reduction in setback be granted for CFW - Rt. 53 and Rt. 729.
The motion passed (4:2) with Commissioners Nitchmann and Washington casting the
dissenting votes.
The meeting recessed from 10:25 to 10:35.
�77-
7-14-98 20
SUB 98-046 Western Ridge Phase II Preliminary Plat - Request for preliminary plat
approval for 14.47 acres into 58 lots for a single family residential development. The
property, described as a portion of TMP 56-93 is located in the White Hall Magisterial
District off State Route 240 in Crozet, along Lake Tree Lane. The property is zoned PRD
Planned Residential Development for single family residential development. The Land
Use Plan shows this property as Neighborhood Density in the Crozet community with a
density of 3-6 dwelling units per acre.
Ms. Echols presented the staff report. Staff recommended approval subject to conditions.
She said the only change from the original staff report is related to bonding of screening
trees and is reflected in condition #1(b)(3).
Referring to condition #1(b)(3), Mr. Rooker asked if there is any requirement that trees
which die must be replaced as necessary. Ms. Echols said the condition originated with a
proffer, and the Zoning Department has traditionally made the interpretation that "there is
the implication in the proffer that the trees will be maintained." Mr. Rooker said he would
be more comfortable if the language were to clearly say "plant and maintain." Mr. Rooker
asked if the applicant would be willing to amend the proffer to make it clear that
maintenance of the trees will occur. The applicant's representative, Mr. David Pettit, said
the applicant will not own the property for the indefinite future, but "it would be reasonable
for the applicant to agree that if the trees died within 12 months they would be replaced."
(Later in the discussion Mr. Pettit said the applicant would be willing to include this in the
proffer.) He said he believes the applicant would be reluctant to commit to an open-
ended maintenance obligation. Ms. Echols said the Homeowner's Covenants and
Restrictions could include the maintenance of the trees in perpetuity. Mr. Pettit said the
Homeowner's Association will have the responsibility for performing ground maintenance
and can also have the responsibility for maintaining the trees in the buffer in perpetuity.
(He later agreed to include this as part of the Homeowner's Covenants.) It was
determined the trees in question will be on individual lots and are on the edge of property
that will be dedicated to public use, potentially, for the Rt. 240/250 Connector. The
purpose of the trees is to screen the subdivision from the Connector, which may or may
not be built. Mr. Rooker said his concern would be satisfied if the proffer were amended
as agreed to by Mr. Pettit and the Homeowner's documents include the requirement for
maintenance of the buffer trees.
In response to Mr. Finley's question, Mr. Pettit confirmed that VDOT will maintain the
sidewalk if it abuts the curb, but not if there is a grass strip between the sidewalk and the
curb. He said a reduced setback was granted for the development so there isn't much
extra space. He felt having a 4-foot sidewalk on one side is not only adequate, but is
superior to having sidewalks on both sides because it results in less impervious area and
causes less crowding of front yards.
There was a brief discussion about having a planting strip between the sidewalk and the
curb. Mr. Finley questioned whether plantings could occur in the strip because the utility
7-14-98 21
lines would probably be placed there. Mr. Rieley said there are ways to install the utility
lines which will still permit plantings and it is a common practice. Mr. Keeler pointed out
that the plat shows a 44-foot right-of-way so additional right-of-way would be needed to
have a planting strip wide enough for trees. With a 44-foot width, he estimated there
would be only about 7 feet available for plantings (3 1/2 feet on each side). Mr. Rieley
said the 44 feet is not any type of standard, so if the condition were to change, the right-
of-way could change. Mr. Pettit said the 44-foot right-of-way was selected to enable the
most effective use of this parcel of land. "it allows the applicant to get the number of lots
on this site that are required to meet the Board of Supervisors overall requirement for the
minimum number of dwelling units that it wanted in Western Ridge."
There was a discussion about VDOT's policy for maintenance of sidewalks. Mr. Rieley
said he thought this should be explored more fully because "VDOT has standards for
curb-treeline-sidewalk, (and) if you meet VDOT standards, it doesn't seem to me that
someone in the local residency office that would prefer not to maintain it one way has veto
power over that, particularly if it turns out to be an important issue for us on other things."
Mr. Pettit was then allowed to make his presentation on behalf of the applicant. He said
there had been discussions about the best way to fit sidewalks into the development and
the applicant feels this proposal, with sidewalks on one side, is the best way to go.
Putting sidewalks on both sides would add an additional cost to each lot of approximately
$400 in concrete costs only, not including additional grading costs or costs associated with
planting a grass strip with planting. He questioned whether so narrow a strip would be
conducive to healthy plantings and tree roots so close to sidewalks will eventually cause
damage to the sidewalks. He stressed the neighborhood will be well landscaped and
given the size of the development and the level of traffic, the applicant feels sidewalks on
one side will result in a better development than having them on both sides. Also, having
sidewalks maintained by VDOT will be an advantage to homeowners because it will
eliminate the need to a have a sinking fund to replace the sidewalks. Referring to Mr.
Rieley's earlier statement about questioning VDOT policy, he said the applicant is not in a
position to challenge VDOT.
There being no public comment, the matter was placed before the Commission.
Mr. Tice commended the applicant, the staff, and the Water Resources Manager, for
resolving his earlier concerns about the stream.
Mr. Rieley said that though he agrees that this is not the time to fight with VDOT, he feels
this type of development needs sidewalks on both sides. He said there have been
situations where the density was not great enough (as the Ordinance is currently written)
for sidewalks to be required on both sides. However, here the argument is that the
development is too dense for sidewalks on both sides, that "you're going to use up room
with sidewalks." He said: "if there is ever a neighborhood where sidewalks in front of the
7-14-98
22
houses is appropriate, it is this scale --this 1/10 of an acre lot scale. I think we should
insist on it and it is within our prerogative to do so at this density."
Mr. Finley said it sounds as though adding another sidewalk would be a "squeeze."
Mr. Rieley pointed out that a 4-foot sidewalk is the very minimum. Urban sidewalks are
usually 6 to 8 feet wide. He said adding sidewalk to the other side would not impact the
lot size or configuration because it could be accommodated within the VDOT right-of-way.
Mr. Rooker said it appears the only issue is the additional cost which will be added to lots.
Ms. Washington listed existing neighborhoods which have no sidewalks or have pathways
instead of sidewalks. She asked how the Commission could justify requiring sidewalks on
both sides in this development when that has not been a requirement in the past. Mr.
Rooker explained in this case the requirement for sidewalks is discretionary, given the
density of the development.
Mr. Keeler explained briefly the history of VDOT's policy for dealing with sidewalks. He
said this agreement by VDOT to accept the maintenance of sidewalks within it's right-of-
way in this development is a recent change in VDOT policy. He said the language in
VDOT policy is ambiguous and is interpreted by the local residency.
Mr. Rieley said: "in light of the historic opportunity we have here --the first time in 15 years
VDOT has accepted this kind of configuration --we would be sorely remiss if we missed the
opportunity to go ahead and get these in place."
In response to Mr. Nitchmann's question about the price of the lots, Mr. Pettit said he
believes the homes will be in the $135,000 - $210,000 range. After some quick
calculations, it was determined the additional cost would be insignificant.
Mr. Pettit pointed out that adding the sidewalk would take away an additional four feet of
yard on those lots where it is added, even though it is in the street right-of-way.
Mr. Rooker said he was undecided as to whether or not he would rather, as a homeowner,
have an additional 4 feet of yard, with a sidewalk on the opposite side, or have a sidewalk
on both sides.
Mr. Finley said he understands that in neighborhoods where pathways exist, they are not
used. Residents still walk in the streets.
Mr. Rieley said the pavement that is excessive here is not in the sidewalks, it is in the
street. He said a 29 foot roadway to serve this neighborhood is "absurd," but this is the
VDOT urban standard, and is an issue which needs to be addressed on a state level.
/�17
*#%. , 7-14-98 23
MOTION: Mr. Rieley moved that the SUB 98-046 Western Ridge Phase II Preliminary
Plat be approved subject to the following conditions, and including the requirement that 4-
foot sidewalks be included on both sides of the neighborhood streets:
1. The final plat shall not be submitted for signature nor shall it be signed until the
following conditions are met:
a. Final water and sewer plans are approved by the Albemarle County Service
Authority.
b. The following information is shown on the final plat:
1. A table including the number of lots in open space, acres in
residential use and acres in roads for Phase 1, Phase 4A, Phase 4B and
Phase II.
2. A corrected TMP of 56E, Block 1, Parcel A.
3. The final plat will state that trees will be planted on lots 45, 46, 47
and 48 within 18 months of approval of the final plat.
4. A label for the "Reserved Area," which states "Future Proposed
Four Lane Route 240/250 Connector Road."
c. The County Attorney must approve the covenants and restrictions for
compliance with the requirement for disclosure of the future road in accordance with
Proffer #8, ZMA 98-06.
d. Approval of an erosion control plan by the Engineering Department.
e. Approval by the Engineering Department for any stream buffer disturbance and
approval of mitigation plans.
f. VDOT approval of road plans and drainage computations.
g. Engineering Department approval of road plans and drainage computations.
h. Roads built or bonded in accordance with the approved road plans.
i. Approval by the Fire and Rescue Division for hydrant location and fire flow.
Discussion:
Ms. Washington said she thinks, as a homeowner, she would prefer to have more lawn
aea, as opposed to additional sidewalk. Given the fact that existing pathways are
underutilized, she questioned the need to "tack on more amendments."
Mr. Tice pointed out that this neighborhood is not like existing neighborhoods because it
has a much higher density and "0" lot lines.
Mr. Rooker noted that adding the requirement for additional sidewalks will be imposing an
additional cost on lots for a benefit that may not be perceived as a benefit to the ultimate
users. But given the fact that there is no open space proposed within the community he
concluded: "In light of that I think the balance probably tips toward having the sidewalks."
Mr. Rooker seconded the motion.
on
7-14-98 24
Mr. Finley said he would support the motion for approval, but he believes the developer
feels he has designed a development that he anticipates will attract a certain kind of
buyer. He wondered if any sidewalks would have been proposed if not suggested by the
Commission. He did not know which type of development would be more attractive to
buyers and he felt the developer would be better able to answer that question than he.
He questioned whether the fact that VDOT is now agreeing to maintain sidewalks is a
reason to require them and will set a precedent that is going to add another $1,000/lot.
Mr. Rieley agreed Mr. Finley's point was a good one but said there is one set of standards
which help you sell lots and there is another set which deal with how people are able to 1
live in a community over time. There is a lot of overlay but they are not necessarily the
same and " I would like us to take a broader view."
Mr. Rooker said he is persuaded that the sidewalk is needed because of the density and
the fact that the sidewalk that is being provided is a narrow sidewalk to start with. He
suspected the sidewalks would be well used.
The motion for approval passed (5:1) with Commissioner Washington casting the
dissenting vote.
-------- ------------------ ----- -i
'�%.- SUB 98-045 Luxor Terrace Preliminary Plat - Request for private road approval for a
preliminary subdivision plat for Luxor Terrace Subdivision, to create a total of 5 lots on
approximately 53.935 acres of land described as tax Map 41 parcel 13. The property is
located on the east side of Brown's Gap Turnpike (Route 680) approximately 1 mile north
of Beaver Creek Reservoir in the White Hall Magisterial District. The property is zoned
RA, Rural Areas, and designated Rural Area in the Comprehensive Plan.
Mr. Keeler presented the staff report. He said the only issue which has been identified
has been the private road, and its alignment. Staffs report included the following
comments from the Engineering Department on the private road request:
1. The applicant's choice of a relatively straight road alignment appears to be
the best for the lot layout, in that it provides reasonable access and the least
wvironmental degradation for the proposed lot layout.
2. There appears to be no road alignment that would provide access to the
rear of the property and completely avoid the critical slopes on the site.... Although
some of the critical slopes could be avoided if the stream were crossed at an angle
rather than straight (90 degrees), additional grading for side cuts would be necessary
and the portion of the road traversing the stream valley would be longer, resulting in
more disturbance.
3. Comparisons between a public and private road along the same alignment
demonstrate that 111 % additional earthwork would be necessary to construct the
464� public road. Thus, Engineering feels that the construction of a private road is justified
H7
7-14-98 25
because it would reduce the amount of disturbance and impact to critical slopes and
stream buffer, by following existing grades and minimizing the disturbed area.
Staff recommended approval of the private road request, subject to conditions.
Mr. Rieley noted that the ordinance requires a comparison of the volume of cut and fill --of
30%--"even to meet the benchmark to be considered for approval of a private road." He
said no volume calculations were included in the Commission's packet. He asked if staff
had done volume calculations. Mr. Keeler answered this question by referring Mr. Rieley
to item 3 of the Engineering Department's comments (as stated above). Mr. Rieley said
"no backup information" was provided. He said he had talked with both the Engineering
Department and Mr. Ray (the applicant's surveyor) and he does not think Mr. Ray was
asked to provide volume calculations. Mr. Rieley said: "I have been talking about this for
months and we are still in the same position where we have these things come in where,
in the past, they have been based on pavement width, which is absurd. Here, at least, we
have mass diagrams along the center line, but the Ordinance is very clear --it says
'volume.' You don't get volume from mass diagrams and you don't get it from pavement
widths. My question is a very direct, simple one, have, or have not, cubic yardage volume
calculations been done for these roadways?"
Mr. Kelsey, Chief of County Engineering, addressed the Commission. He said:
"Information was provided by Mr. Ray to demonstrate the earthwork volumes that he
calculated. Was it based on providing field -run cross sections, was it provided based on
cross sections provided by interpreting the USGS contours...?" Mr. Rieley interjected:
"What was the number of cubic yards for each? You said he provided you volume
calculations. What were they?" Mr. Kelsey responded: "He provided the information as
far as a comparison of the analysis." Mr. Rieley responded: "The answer then, is 'no.'
He did not provide cubic yard calculations." Mr. Kelsey said: "Cubic foot calculations
showing the exact volume (Mr. Rieley said: "That's what volume is.") of material was not
submitted with the application." Mr. Rieley said: "That's all I asked. That is what the
Ordinance requires and you are not requiring it." Mr. Kelsey responded: "The Ordinance
requires being able to demonstrate a 30% degradation." Mr. Rieley responded: "No it
does not. It says 'volume of material."'
Mr. Kelsey said he has also brought this up previous times. He explained: "We have a
history of, with 3-5 lot subdivisions, it is extremely easy to show 30% difference in the
public road vs. the private road. It is almost ridiculous to ask individuals to go through that
effort, especially since a great many of the private roads that come in that 3-5 lot category
are property owners that already have an existing road and are subdividing a smaller lot."
Mr. Kelsey passed among the Commission drawings he had prepared which demonstrated
how the Engineering Department makes its comparison. He explained the drawings,
which showed a trapezoidal cross section of a 14-foot wide (private road) compared to an
18-foot wide (public road), in some detail. He said, assuming the same 1-foot depth for
/ 6—U
7-14-98 26
each, there is a 25% difference in cubic foot of roadway. If the depth increases, the
percentage starts to decrease. He said: "What is important, when looking at a trapezoidal
cross section of a roadway, as the depth increases, the volume increases exponentially."
Mr. Rieley interjected: "That is precisely why I raised the point. What you have been
doing in the past, according to you, is taking the 14-foot width of pavement, dividing it into
the 18-foot width of pavement, getting 129%. It was then your position that any 1 %
difference above that gave a virtually automatic O.K. My (reason) for raising this issue is
that that is simply not true. Your figures here prove it. If you have a 3-foot fill section, the
difference is not 29%, it is 17%. If you have a 5-foot fill section, the difference is not 29%,
it is 14%." Mr. Kelsey interjected: "That's based on them both being the same depth, but
that's not the case, because with a private road you have different slopes, different design
criteria so you can fit them closer to the grade. So if you look at the other numbers where
the depth of a private road is 1-foot, but the depth of a public road is 2 feet, you
immediately jump up to 175% difference in earthwork." (Mr. Rieley agreed.) Mr. Kelsey
continued: "So if you are looking at the road profile of a public road vs. a private road and
you're seeing that a private road and public road have a very similar vertical alignment,
then that raises a question that 'this isn't a clear-cut case and we need to take a look at
this a little closer and ask for volume calculations. But if you have a situation where the
vertical profile shows a great deal of separation between the private road profile and the
public road profile, because there is such a large difference, for each section, you can
make a judgment call that this is obviously going to be over (the 30%). Again, this would
only apply in a case with a 3-5 lot subdivision because you have a 14-foot width vs. an
18-foot width, and then looking at the depth. It would not be a clear-cut case in
subdivisions with more than 5 lots, and then you would have to have volume calculations.
In the 3-5 lot category it can be very easily looked at and determined."
Mr. Tice asked where alternative alignments are factored in because the Ordinance
specifically requires that. Mr. Kelsey responded: "When we first look at the roadway, we
look at getting from point A to point B. Is it reasonable for that roadway to go between
those two points?" He described the types of situations where adjustments to proposed
alignments are made. He said: "In this particular case, they've got development rights for
two lots up front and three lots in back. Was it reasonable for them to go across the
stream to go from point A to point B--as far as we're concerned, it was reasonable." Mr.
Tice said: "The Ordinance has a different test." Mr. Kelsey says the Planning
Commission has the authority to look at the situation and consider land use issues and
decide "whether that's reasonable for the Commission's purposes."
Mr. Finley said: "As a professional engineer for 40 years and a registered surveyor for 30,
1 am in full agreement with what (the Engineering Department) is doing. You don't want to
make a mountain out of something that is a molehill. You want to check that percentage,
and if it's obvious --they're saying 111% here --plus or minus, you are still far, far and away
on the private road side. So I'm sure these gentlemen could do mass diagrams,if
warranted." Mr. Kelsey said: "We feel it's a trust issue between us and the Planning
iSl
`�,,,., 7-14-98 27
and the Planning Commission. Certainly, if we feel there is a doubt about that 30%, or it
is going to be close, we are going to ask for the numbers."
Mr. Tice said he does not understand why staff would look at this differently than the
Commission, because the words are very clear, in making the test for private roads, in
18.36(b)(1)(a), which clearly says 'no alternative public road alignment available to the
subdivider on the adoption date of this section would alleviate significant degradation of
the environment.' I don't know how it could be much clearer that in addition to seeing
whether an applicant has chosen an alignment that seems reasonable to get from point A
to point B, the words state that we have to make this evaluation of whether there is an
alternative alignment that would be less degradation to the environment. In the Zoning
Ordinance, it becomes even more so when it involves critical slopes because the Zoning
Ordinance imposes a test for accessways regarding critical slopes--4.2.2. 1 --'These
provisions shall not apply to accessways ... where no reasonable alternative location or
alignment exists.' It couldn't be much clearer that it requires an assessment of whether
there is a reasonable alternative that avoids the critical slopes.... When the Director of
Planning signs that plat, he is certifying that plat is in compliance with the Zoning
Ordinance, yet if that test has never been made regarding whether there is an alternative
alignment that avoids critical slopes, how can the Director of Planning make that
certification?"
Mr. Kelsey responded: "The first decision on that, before you can even make the
determination, you have to determine, is it reasonable for them to extend a road to serve
the parcel on the opposite side of the stream." Mr. Tice said: "That's not what it says."
Mr. Tice acknowledged that the Ordinance is very difficult to understand, but he said he
finds it "mind boggling that when there are words which are clear about what is to be
done, we don't follow them."
Mr. Keeler said: What Mr. Kelsey is saying about the alternative alignment is that he is
looking at the development rights back here and that section of the Ordinance says you
avoid it if possible, but it also talks about providing reasonable use of the land. So unless
you come across the stream, you can't subdivide back there. I think that is what Mr.
Kelsey is trying to say. At the same time, I think Mr.Kelsey gave you two or three
examples where Engineering has changed the alignment." Mr. Keeler listed some other
instances where the road alignment was changed. He said: "I don't want you to have the
idea that Engineering is not looking at these things. He is looking at it as an engineer,
and to him he doesn't see a whole lot of difference between 24% slope and 25% slope. I
know there is the absolute in the Ordinance, and it's magic because we put it in there.
But, I'm trying to point out that I think you are saying the same thing, but using different
words."
Mr. Tice said: "if we could ever get to the point of junking this Ordinance and making a
simple Ordinance that just identifies the performance standards we want to see in terms of
/r5 A
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7-14-98 28
water quality and all these other things --but the fact of the matter is we can't do it and so
we have to have these standards."
Mr. Rieley said: I want to establish what I think we agree on, and make sure that we are
handling this properly in the future. In the past you (i.e. Mr. Kelsey) have come before us
and used the method, even when there was no alignment --there was no road alignment --
and advocated a private road on the basis of the 14 feet divided into the 18 feet was
129% and that surely there would be another 1 % degradation somewhere. Your figures
and my figures both demonstrate that is inaccurate. You cannot use that standard. Can
we agree that you will not do that in the future?" Mr. Kelsey responded: "If that is what
(the Commission) would like. Again, the reason why we went with that approach was
because in the 3-5 lot category, previous Planning Commissions were concerned that we
were making applicants provide something in cases where reasonable judgment could be
used. If it's your desire to make everyone, including requests for private roads with 3-5
lots, to submit cross section computations showing the average end areas, we can do
that." Mr. Rieley said: "I would like a volume determination." Mr. Kelsey said: "The only
way to do the volume is to do cross sections." Mr. Rieley responded: "Exactly." Mr.
Kelsey continued: We had a lot of cases that were coming in with 3-5 lots, where there
is a piece of property with two lots and an existing farm road and they subdivide a third
lot --those folks will have to hire an engineer." Mr. Rieley interjected: "If the object is to
get around the Ordinance, and do something different, then we ought to change the
Ordinance."
Mr. Rooker agreed with Mr. Rieley's last statement. He said: "it seems to me the
Ordinance is objective and you have to have the objective data in order to make that
comparison. It's pure and simple, black and white. If the Ordinance is not what we want,
then we should look at changing the Ordinance." Mr. Kelsey said there have been
discussions about this 3-5 lot category, and "there has to be a better way of doing this."
Mr. Keeler added: But I believe Mr. Kelsey is right. The Commission, in the past,
basically said 'use your engineering discretion in cases where the road is already there
and it is obvious to you that it is going to meet the test. He has been taking his direction
from the Commission in the past."
Mr. Nitchmann said he could see nothing wrong with the Engineering Department's
procedure to date. He said: "I don't see what the big deal is here. What is the big deal
about a road going into 3-5 lots. Why add 4 more feet of dirt when you can get by with a
14-foot width. I don't care if it is one cubic foot more or 10 cubic feet more. Is the
purpose to stop people from using their land? What is the purpose? We've been going
along fine."
Mr. Tice responded: We need to be basing our decisions on objective, factual
information." Mr. Nitchmann said: "The world isn't always that way."
IS3
7-14-98
29
Mr. Finley said: "I think the Ordinance is adequate and 1 likewise feel that the way the
Engineering Department is doing this and the discretion they are using is adequate. I
don't have a problem either way."
Mr. Rooker suggested: "Perhaps you can have one of two things --you can have actual
volume computations or you can have a certification from the Engineering Department that
the criteria is met, and then if you want to probe behind that you can, and we can either
deny or accept it. I think, in most cases, it might be reasonable to rely upon a certification
of the Engineering Department that the criteria is met or exceeded." Mr. Rieley
responded: "If the Engineering Department is doing their homework."
Addressing the item before the Commission, Mr. Rieley said: "In this particular case, I
think, it is a lot closer than these preliminary figures would lead you to think." He asked to
hear from the applicant's representative before commenting further.
Mr. Rieley said he hopes Mr. Kelsey understands that though he is not pleased with this
situation, he does understand that the Engineering Department has been "getting direction
from previous Boards and previous Commissions" and that direction is different from what
he is now asking. He stressed that his concern is not a personal reflection on Mr. Kelsey.
Mr. Kelsey said there is also the issue of customer service. He said if the Engineering
Department can provide a service "by being able to evaluate less detailed information and
still produce reasonable results, without putting extra burden on the public, we would like
to do that if we can." Mr. Rieley responded: "And you heard our desire for objective data
loud and clear."
Comment was invited from the applicant.
The applicant was represented by Mr. Roger Ray. He said he has been working on this
plan for almost 90 days and 14 copies were delivered to the Planning Department over 50
days ago. He said the applicant believed these issues had been resolved prior to this
meeting and believed every test of design for this type of subdivision had been met. His
comments included the following:
--The property could have been developed with 6 lots, but the applicant chose to
develop only 5 lots so that the smallest road required could be used to serve the
subdivision.
--Regarding whether alternate alignments were considered, he said: "In the design
of any subdivision I do, I consider alignments throughout all the areas of the subdivision. I
have personally chose and looked at different alignments. I did not make a volume or end
area assessment of different alignments because after visually looking at the plan and
looking at profiles --if I cross that stream I'll traverse fairly steep slopes for 500 or 600 feet
and some of those slopes are 25% or greater. If we choose an alternate alignment and
lengthen that crossing of the stream, we'll be traversing 600-750 feet of slopes that are
probably 23% or 24%. So, do you cross 500-600 feet with 25% slopes, or do you cross
7-14-98 30
750 feet with 23% slopes? I would choose the crossing with the shorter distance and
approximately the same slopes."
--He described the method he had used in determining the percent of environmental
impact. He said he had done "an average end area based on a center line profile." He
displayed two drawings and referred to those during his comments. (Mr. Rieley disagreed
with Mr. Ray's terminology. He said: "I don't think it's proper to refer to those as average
end area, and I think the other engineers in here will agree. That really is a mass diagram
based on the center line differential between the existing and proposed.) Mr. Ray
responded: "I don't agree, Mr. Rieley. I think you can do an average end area looking
either along the center line of the road or perpendicular (sentence unfinished.... In a lot
of places we are only assessing the pavement and shoulder widths, so I think it is a viable
assessment." (Mr. Rieley responded: I wont belabor the point, but this is not an average
end area. This is a mass diagram. I think textbooks agree with me.")
--Mr. Ray said many years ago this type of information was required, i.e. when a
private road was requested, applicants were required to actually design and stake the
private road and prepare a cross section and do a volume comparison. But several years
ago that requirement had been relaxed because of the expense of providing this
information "up front" when preliminary approval was being sought, because that was a
final design item. He did not know who had decided to make the change, "but we are just
following in the same footsteps that people who have been here before have followed, and
I think I have done a better job in making this assessment than what is presented in most
cases. He said he believes his assessment shows that environmental impact will be
much greater with a public road. He stressed that he had considered alternate
alignments, though he had not submitted data about those alternatives.
Mr. Tice asked if the cut and fill is balanced in the diagrams shown. Mr. Ray replied:
"Fairly close, probably not." Mr. Tice asked if the fact that fill material must come from
somewhere on the site is taken into account in the comparison of volume for
environmental degradation. Mr. Ray responded: "We have not got to the point of that
final design item. We can't get to that point until we do our final design. If, across the
board, you want to require everyone that stands before you to do this final design item,
then I'll support it, but I don't want to do it on my project if others that have come before
me and others that are going to come later, are not required to do that." Because of the
cost involved, Mr. Ray said: "We have to agree on an alignment before I can do the
design. I am receptive to listening to comments about other possible alignments."
Mr. Ray confirmed that any other alignment will "be more distance across those critical
slopes --whether they are 23%, or 25% or 26%."
Mr. Tice suggested an alternative alignment (following the existing ridgeline) which he
thought would be in significantly less steep slope areas. He said he feels the Ordinance
requires "that alternative be explored."
om
7-14-98 31
Mr. Ray said Mr. Hirschman (Albemarle County Water Resources Manager) had visited
the site the previous day and explored the stream crossing for the entire length of the
property (approximately 500 feet). He said Mr. Hirschman indicated that moving the road
downstream really doesn't accomplish much except making the road longer." Slopes
were considered on both sides of the stream. Mr. Hirschman confirmed Mr. Ray's
comments. He said some of the contours shown on the USGS maps are not apparent in
the field." He said: "I couldn't see that a change in alignment would do anything more
than lengthen the road."
Mr. Ray expressed the desire to be involved in any discussions about potential policy
changes in respect to private roads.
Mr. Rieley described his reaction to the road, based on his review of the plan. He said
this proposed alignment is in opposition to one of AASHTO's (American Association of
State Highway Transportation Officials) criteria, i.e. " that there should never be a straight
horizontal alignment laid down over a rolling or steep terrain because you get a roller
coaster effect. He stressed that his detailed analysis of this proposed alignment is no
reflection on Mr. Ray and he agreed with Mr. Ray that the applicant should have had
answers long before now. He explained his main concern is with the way private roads
are being reviewed and the criteria that is being used and "that we're not going by the
Subdivision Ordinance."
Mr. Rieley said he had looked at a natural alignment as alluded to by Mr. Tice, which
makes a more curving horizontal alignment that avoids the area of steep slopes. He
acknowledged, as stated by Mr. Ray and Mr. Hirschman, that there may be slopes shown
on a USGS map that are insignificant when viewed in the field. He also agreed that the
information Mr. Ray has presented is superior to what the Commission has received in the
past. Mr. Rieley described, in detail, the results of various calculations he had made.
He had spoken with a VDOT employee, Bill Mills, about how VDOT applies mountainous
terrain and rolling terrain standards. He said the alignment he proposes "is gentler and
because the road center line is at a lesser gradient, the runoff in the ditch lines is much
less velocity." He concluded: "This case I am trying to make is this is a much closer case
than it appears when you first look at this 111 %, and I think Engineering should have
looked at it more carefully. I think it did, indeed, warrant a look at a different alignment.
expect that when you factor in the fact that this is an 18-foot road instead of a 14-foot
road, you are probably going to get up around 20% more, maybe even 30. It's going to
be a very close call, relative to the cut and fill. But I think on the other issues --the velocity
of runoff, and, ultimately the safety and appearance of the road --that alignment would be
much better. So I don't think there is a clear case here that this passes the criteria that is
set, not the way we have been doing things in the past, but what the Zoning Ordinance
requires, and I think Mr. Ray is right if we change it for him we have to change it for
everybody. But I feel very strongly we have to raise the bar on this information and get
better and clearer information."
7-14-98 32
Mr. Rieley said he is not suggesting that this applicant be forced to build a public road, but
he does feel it should be realigned "to more nearly fit the terrain and slow down the
velocities of runoff' and "if you went to 12% and 14% and lowered the K value ... you could
follow this general alignment, using private road criteria, cut your costs to your client, cut
your construction costs, decrease the environmental damage and have a better product.
That's what I am arguing for."
Mr. Finley asked: "Mr. Rieley, could you prepare a plan and get it through Planning?
Would you certify what you are saying? Would you be willing to certify that with a stamp
that you are correct vs. what we have been hearing here? Should we question our staff
on the basis of what you are saying?" Mr. Rieley responded: "I'll give this to Mr. Ray and
Mr. Kelsey and to anybody who wants to see it and they can check the figures. I would
be happy to do that. This is not an alternate plan. That is a line on a drawing that
suggests an approach. I don't want to design his road, but I do want it to be changed to
be more friendly to the environment and I don't think, as it stands, this meets the criteria
for the distinction between the public and private road. I am not inclined to try to press
that point and force him into a more expensive public road that is not necessarily in
anybody's best interest, but I do think this demonstrates clearly there is a better alignment
for that roadway."
Mr. Rooker asked if the applicant would consider accepting this alternative alignment at
this time.
The Chair recognized Mr. Hirschman for additional comment. Mr. Hirschman said he has
not looked at Mr. Rieley's proposed alignment, but he advised that a decision not be made
one way or the other without further study. Having visited the property, he said he has
some concerns about the alignment Mr. Rieley described.
Mr. Tice agreed. He said this is the type of analysis that staff needs to be making early in
the process, and it does not require final road designs. Such information would allow the
Commission to make an objective evaluation of potential alternatives.
Mr. Rieley said: I agree and I agree that what I was working on is base information that
is, frankly, not worth very much because we have a policy that goes back (for many years)
that I have always found mysterious --that you can use 20-foot USGS but you interpolate it
to 5-foot contours. So that means you are working from maps, pretending like it's 5-foot
accuracy and it's really 20-foot accuracy. That's all this is. I am not suggesting that this is
a final line. All these things have to be field checked, but it raises an important concern
and it shows this is a lot closer call than the initial cut would make you think it is."
Mr. Ray said he has argued for a long time against having to make the interpolation for
the 5-foot contours. He said: But its an exercise we do and we add error into the plan
by having to do this interpolation. I really wish we didn't have to do that." Returning to
the issue of the road alignment, he said: "I really believe I have picked the best alignment
'i% , 7-14-98 33
for this road. I have reviewed the alignment Mr. Rieley has proposed and it will not have
any great impact cost -wise if we do that alignment instead of the one I have chosen. I
don't agree with Mr. Hirschman that we need to delay the decision. I would opt to go with
that alignment. I do not want to put it on that ridge line but I don't believe Mr. Rieley
shows it on the ridge line for lot #5. He shows it about where the building site for lot 5 is.
If that is the desire of the Commission, it doesn't seem to be any great impact on my
subdivision to do that."
Given the fact that the applicant is willing to accept either alignment, Mr. Rooker asked if
there could be a condition which would require the alignment be used which would cause
the least environmental degradation, based on a field determination. Mr. Rieley said: "it
depends on who makes the determination." Mr. Rooker said: "At some point we have to
rely on somebody to make that determination."
Mr. Finley asked if environmental degradation is that which occurs during construction. He
said: "Because the erosion control plan will take plan will take into account all
disturbance. Mr. Rooker said he was looking at post -construction degradation, which
includes volume and velocity of runoff. Mr. Rieley added: "Right. Long term. That
goes beyond the volume calculations."
Mr. Ray stressed that he does not want to be in a position where he is required to do a
final design for both alignments to make the comparison. That is unfair to the applicant.
(Mr. Tice agreed.) Mr. Ray said: "I'll make that change tonight if you, as a body, want me
to do that."
Mr. Rieley said: I would be satisfied with less than that. I would be satisfied if you agree
to deflect this line to reflect this general strategy. I don't want to lock you into this line that
I drew on this map. You know things in the field. I would be happy with a statement from
you that you will modify that alignment so that it doesn't go straight down the hill --so that it
can go at a less steep gradient and that you can have broader curve at the bottom and
still have less cut and fill." Mr. Ray responded: "I would be glad to do that. I don't know
that I want it left to someone else's interpretation of where that center line needs to be. If
I choose that center line before I do my design and the Engineering Department agrees
with that center line, I would be glad to do that, if I can do this before I do the actual field
work and field design."
Mr. Rooker said what Mr. Ray proposed sounded reasonable.
Mr. Finley said: "What disturbs me is that we're doing this. I think we have fully qualified
staff who come forth with an acceptable recommendation. I have taught this at two
universities --University of Virginia and Virginia Tech --and I've done it in seven countries
and worked at it for 40 years and I would not dare to sit here tonight and start telling a
man who has already spent 90 days on his project that I don't think you've done the best
job --with the backing of an Engineering Department. Should we do that in the future?"
7-14-98 34
Mr. Tice said he agrees with what appears to be the resolution to this issue. He added:
"But the better benefit coming out of this whole discussion is that there is a change in the
direction the county takes in looking at these things so that this type of evaluation is done
early on."
Mr. Finley responded: "But I'm not convinced it hasn't been. Considering the fact that
they have been in the field, and given the accumulated amount of man -months, --they
have worked at this for years, --I'm not convinced that they have not done this completely
in accordance with the Ordinance."
Mr. Rieley noted that staffs impression of this, as Mr. Kelsey said, was that it was so far
over the limit that they didn't even need to look at any figures. It was obvious it was way
over the limit, but "when I took a preliminary alignment using State standards and using
the same kind of mass diagram Mr. Ray used, I came up with an alignment, even though
the road was longer, that had less cut and fill. So I don't know how you can reconcile
that with 'staff is doing what they need to be doing'. I think they need to be doing
something different. They need to be looking at it more carefully and closely early on."
The Chair said potential changes to the private road section of the Ordinance are not
going to be resolved tonight. She suggested it was time for a motion.
Mr. Kurt Gloeckner, a local engineer, was allowed to speak. He said he would like for
there to be a discussion (at some future time) about private roads in general. He said he
thinks the Ordinance looks at private roads "totally wrong." Addressing the item presently
before the Commission he said: "The problem here is that the Engineering Department,
the Water Resources Manager and the applicant's surveyor have looked at it and they fit
the road to the land. What we ought to be discussing is who came up with 25% as a
critical slope. We mow that every day. He is fighting a battle that shouldn't be fought in
the first place. All of you are struggling with the letter of the law of the Ordinance, which
is wrong to begin with...."
MOTION: Mr. Rooker moved, Mr. Rieley seconded, that SUB 98-045 Luxor Terrace
Preliminary Plat be approved subject to the following conditions, including the approval of
the request for private roads with the understanding that the applicant will adjust the
alignment as suggested by Mr. Rieley if it is found, after a field determination, that such
adjustment causes less environmental degradation:
1. Albemarle County Engineering approval of final private road plans and drainage
computations.
2. Per VDOT:
--A private street commercial entrance is required.
--A recorded plat for the sight easement will be required when applying for
the entrance permit.
iS?
cm
7-14-98 35
3. Albemarle County Engineering approval of a stormwater management/BMP plan
and computations. The plan should be prepared in accordance with the recently adopted
"Water Protection Ordinance."
4. Alemarle County Engineering approval of a mitigation plan for construction of the
private road within the stream buffer.
5. Albemarle County Engineering approval of an erosion control plan.
6. Roads built or bonded in accordance with the approved final road plans.
Discussion:
Mr. Tice noted that the staff report says the applicant agreed to shift the lot lines on lot 3
so a driveway could be constructed to avoid critical slopes. He asked if that agreement is
addressed in the conditions. Mr. Keeler responded: "No. The conditions here deal only
with the road. You can add that as a condition if you like." Mr. Tice asked: "So where
would that be addressed?" Mr. Keeler responded: "We'd address it administratively." (No
additional condition was added.)
The motion passed unanimously.
Mr. Rieley asked that Mr. Ray realign the roadway to make the horizontal curves
broader and more sweeping and decrease the vertical gradient."
Mr. Keeler asked if the Commission wished to make a separate motion regarding the need
for further study of the issue of private road review. There was no support for such a
motion.
Family Divisions and Private Roads - Discussion
Mr. Nitchmann expressed reluctance to discuss this issue at this time, given the time
(12:40 a.m. and given the fact that information was just tonight received from staff which
the Commission has not had time to review.
Mr. Keeler said the only issue is "whether or not the Planning Commission wishes to
review family divisions which involve private roads." Because a number of people had
stayed to hear the Commission's discussion, he felt that question should be answered.
He stressed that at least one plat has been held for almost 60 days. Also, the Board of
Supervisors has proposed a change to the Family Division provisions (to be acted upon by
the Board Wednesday, July 15th), which will effect three of the 7 family division requests
which are being held up. He said the Board was asked if they would consider allowing the
plats which are already "in hand" to be reviewed under the old provisions, and "they chose
not to do that."
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Ms. Washington reminded the Commission that this issue is before the Commission
because Mr. Tice had raised questions about the Commission's role in the review of family
divisions. She explained that the memo prepared by Mr. Kamptner, in response to
questions raised by Mr. Tice, a copy of which was distributed to the Commission on July
7th, said that though the Commission has the right to review family divisions, the scope of
the review is very limited. Noting that the Commission already has full agendas and long
meetings, she was concerned that adding another review would result in even longer
agendas and meetings.
Mr. Tice stressed he was not advocating that the Commission take over the review of all
family divisions. However, his main concern (though he has others) is: "Where there are
accessways, whether they are public or private, the Zoning Ordinance, in 4.2.2.1, provides
for this clear test that accessways that cross critical slopes are exempt from critical slope
requirements where no reasonable alternative location or alignment exists. So I've asked
the question --whether its private roads or public roads, and for family divisions it is
typically a a private road --of how staff makes the determination that there is no reasonable
alternative location to crossing critical slopes in order for the Director of Planning to certify
on those plats that they are in compliance with the Zoning Ordinance." The only answer
he has received is that when the Zoning Administrator reviews these, she relies on the
surveyor's seal to assume that the surveyor has looked at alternative alignments, but
"there is no certification on the plat to state that such an analysis was done, and staff
doesn't do it."
Throughout the discussion there was debate on the County Attorney and staffs
interpretation of various pertinent sections of the Ordinance vs. Mr. Tice's interpretation of
some of these sections.
Ms. Washington said she believes the Agent (the Director of Planning) should be
authorized to continue approving family division requests as has been the procedure in the
past. She said there may need to be some changes in the language of the Ordinance, but
such changes cannot take place at this meeting. She said the issue raised by Mr. Tice
could be addressed at a later time.
Mr. Tice said he believes the language already exists in the Ordinance to require the type
of evaluation which he believes should be done, but "if that is the case then staff should
start doing what the Ordinance requires."
Mr. Keeler said this is an issue which goes beyond family divisions --the issue of the
accessway and the slopes --because those can apply to any plat created because staff
does not look at driveways.
There was a discussion about the interpretation of the term "accessway."
Mr. Nitchmann asked what type of action was being requested from the Commission.
/6!
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Ms. Washington again stated that a motion is needed to allow staff to continue to review
and approve family divisions under the requirements of the Subdivision Ordinance without
the requirement for Planning Commission review. An action needs to be taken tonight
because of changes to the Subdivision Ordinance which the Board will consider at it's
meeting tomorrow. Those changes which the Board will consider could effect some of the
pending family division requests.
It was determined that at least one of the pending applications will be at the 60 day point
on July 18th.
MOTION:Mr. Rooker moved that the application which will expire on July 18th be
,
released, for staff to approve if it meets the requirements of the Ordinance as interpreted
by the staff. Somewhat later in the discussion, Mr. Rieley seconded this motion.
Discussion continued.
Mr. Tice said he has stated his main concern, i.e. "whether we are really fulfilling the
requirements of the Zoning Ordinance and, therefore, able to properly certify that these
are in compliance with the Zoning Ordinance."
There was a discussion about when the Commission might be able to discuss the issue
raised by Mr. Tice again. She said if it is going to be a long time, she would not support
the motion to release just one pending application. She said she would prefer that staff be
authorized to continue reviewing the requests, as they have in the past, for at least the
next 30-60 days.
Mr. Nitchmann questioned why the Commission is trying to "micro -manage" staff --"people
that we have hired and pay good money." He said: "The real purpose of this request, in
my mind, is just to stop these people from cutting up the tops of the mountains until the
Mountain Protection Ordinance gets approved. That's my personal opinion. I think staff
has done a good job on this in the past and I don't see any reason we need to be
involved with it. If a planning commissioner wants to call up a certain thing in his district,
he has the right to do that. If he wants to do that, let him call it up. I don't think we need
to change anything."
Mr. Sipe reminded the Commission that approval of this motion could mean that a couple
of the pending plats might be caught by the Board's action tomorrow."
Mr. Rooker said the Board can make a determination as to whether or not they want to
grandfather existing applications or not.
Ms. Washington asked Mr. Keeler when this item could be scheduled for Commission
discussion again. Mr. Keeler responded: "I am unsure what we would be bringing back to
you. Mr. Kamptner's memo outlined the situation for review of family divisions. It is very
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limited under the provisions on the Code that we adopted our family division provisions
under. If the Commission looks at the plats it is looking at them under the same
Ordinance provision that staff looks at them. Quite honestly that is why the Commission
chose not to look at family divisions in the past." Mr. Kamptner listed the following items
which can be addressed in the review of a family division: setbacks, bulk regulations,
height regulations, use regulations and some other general development standards that
pertain to lots." Mr. Rooker said: "So you are saying that no critical slope requirements
are imposed on any private roads in family subdivisions." Mr. Keeler responded: "We rely
on the note that the surveyor puts on the plat." Mr. Rooker said: "That brings up Mr.
Tice's point that, in fact, the surveyor is not actually doing that work."
Mr. Keeler read the following statement which appears on family plats:
The surveyor shall certify on the plat that the existing and/or proposed right-of-way is
of adequate width and horizontal and vertical alignment to accommodate a travelway
passable by ordinary passenger vehicles in all but temporary extreme weather
conditions, together with an area adequate for the maintenance of such travelway.
He said: "We felt, under the provisions of the Code that we adopted this under, that was
about as far as we could take it in terms of access...."
Mr. Tice said he could see no harm in approval of the motion on the floor and then to discuss
this item again in the next couple of weeks.
At this point, a member of the audience began to speak. The Chair allowed him to address
the Commission.
Mr. Joe Cochran, representing the Knasel family, said such a delay would be detrimental to
his applicant's request which will expire on August 1.
Mr. Rooker said it would be up to the Board to decide if any changes would be applied to
pending applications.
Mr. Cochran said his client's application has been pending for a month and a half and has
been through several changes at staffs direction. He said he does not believe the
Commission would make any changes to the plat even if it were to review it because the
scope of the Commission's review is very limited. He said: "if delayed, we may lose out on a
lot on this one." He asked that this request be released also.
Mr. Kurt Gloeckner was allowed to speak. He said he has been working on the Knasel plat
for almost three years. The owner has been working on plans for the property, for the family,
for four years. He described how long staff has taken to review the request and all the
corrections he has been required to make. He said: "I am not relaxed about this because
this is an honest effort by people to do something for their family and it has nothing to do with
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the Mountain Ordinance you have been fighting over. It is not at the top of a mountain; it is in
a hollow."
Ms. Washington asked Mr. Kamptner if the "spouse issue" (i.e. deleting spouses from family
divisions) is to be considered by the Board on July 15th. Mr. Kamptner replied: "Yes, that is
in the draft that is front of the Board tomorrow night --removal of spouse."
Mr. Rooker said the Board may not make that change, but if they do make it, they can decide
whether it will apply to pending applications or not. "I'm not suggesting that they should or
they shouldn't. We didn't even recommend that change. 'They came up with it."
Mr. Ray asked to address the Commission. Ms. Washington was reluctant to allow more
public comment, but Mr. Ray said: "I believe this is a public hearing and I believe you have
my work on the Board and I believe you are discussing it and I believe you are discussing the
other two proposals which are up there so I would like a minute to say a few words. I take
objection to Mr. Rooker's statement that surveyors are not taking this certification seriously
about whether this right-of-way provides reasonable access. I take that extremely seriously. I
staked that right-of-way to make sure and looked at it myself and I created a 100-foot right-of-
way to make sure there was adequate room to construct a road, so I take those things
extremely seriously and I take all certifications on my plats extremely seriously. This plat (i.e.,
the Wood plat) has been before the County since June 1st. We have worked repeatedly and
diligently with Zoning and Planning to meet all their concerns and demands and we believe
that plat has been ready for signature for several days. We have addressed all items and we
are anxious to get it signed. If the Board of Supervisors changes the definition of family
division, it will adversely effect those parcels of land. So we would like for you to release that
so staff can sign our plat tomorrow."
Mr. Rick Walden was allowed to address the Commission. He said he is dividing his land
among his children and he is making a provision that will not allow the land to be sold out of
the family. He said the road has existed for 100 years and has a gentle slope. He said he
has met all the criteria. He said: I think I am being picked on, and Mr. Wood, for opposing
the Mountain Protection Ordinance, even though people say that's not true. I think it is petty.
There is no reason for this to have been called up at this time (when these have been
approved by staff) for many years. I don't think there is a good reason for these not to be
passed."
Mr. Walden asked if anyone could recall a time when a family division has been called up
before the Commission. Mr. Rooker pointed out that these requests have been called before
the Commission at the request of a commissioner and the Ordinance provides for that
authority. He pointed out to Mr. Walden that the motion on the floor is to release the request
which will expire on the 18th, which is Mr. Walden's request. Mr. Walden said he wants all
the requests to be treated fairly.
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Mr. Wendall Wood was allowed to address the Commission. He said his application has met
all the criteria and staff is ready to sign the plat. He said: "I think it would be suspicious if
you single out one and not the others. Ms. Washington has said that there will not be time to
get back to them and you have a limited review. We have complied with the Ordinance. Mr.
Tice has chosen to call it up but there is nothing he has found wrong with it. The plat is
ready to be signed. Staff will confirm that. We have complied with all requests and have
gone beyond what anyone else has ever been required to do before. If that's not suspect, I
think you need honestly address that. We have met the criteria and ... I think you have to do
what the County Attorney is asking you to do."
Mr. Rooker said he does not think the County Attorney has asked the Commission to do
anything. He said there are seven applications which are pending, but have not expired. He
did not think anyone was being singled out. "They happen to be the pending applications.
They could have anybody's names on them."
Mr. Wood responded: "They are ready to be signed. The only reason they have not been
signed is because Mr. Tice called them before the Commission. That is the only reason the
plat hasn't been signed. "
Mr. Gloeckner interjected: That is exactly right. They have been stalled to this point
because of trying to guess what the Board is going to do. It makes me angry because I have
been working on it so long and now I'm trapped in some political scheme that has nothing to
do with my plat."
Mr. Rooker repeated his previous motion to release the application which will expire on July
18th (the Walden application) for staff to take the action it deems appropriate.
Mr. Nitchmann expressed confusion about the implication that the Commission is "holding"
the applications. Mr. Kamptner attempted to clarify this question. He asked: "Have these
been called to the Commission for review?" Mr. Sipe replied: "Yes." Mr. Keeler interjected:
"This is why we need appeals in writing. Mr. Sipe said he does have a written request. He
said: "This is a request to hear these plats formally. We are not hearing them individually
tonight, but we have a request to do that."
Ms. Washington asked Mr. Tice: You called up all these requests for us to hear individually
at a later date." Mr. Tice replied: "Generically. I had an issue about Planning Commission
review of public roads in family divisions and asked them to be called up before us to bring
attention to this issue, so we can resolve the issue."
Mr. Finley said: "So of all these on this list, all these would be called up." Mr. Tice replied:
"Unless you release them."
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7-14-98 41
Ms. Washington said she would like to release at least two of the requesst, the ones which
will expire on July 18th and the one which will expire on August 1st. She again was skeptical
that the Commission would be able to resolve Mr.Tice's questions before August 1st.
Mr. Nitchmann said he agreed with some of the speakers, "that if it wasn't for the Mountain
Protection Ordinance, this would not be in front of us tonight and it is just a means to hold
these people up from subdividing their property and I think that is the truth of the matter and,
in my opinion, we don't need to change anything. The staff has been doing a fine job. I have
been sitting on here for six years and we have never had any family division problems in the
past. If we want to start micro -managing the county staff and the way things are done, I don't
think we should hold these applicants hostage because we've got a group of people who want
to take away property rights from people in the mountainous areas."
Mr. Rooker said: "I didn't call these up and I have no desire to take away property rights from
anybody, but I do have a desire to let the Board make a decision on whether or not it wants
to apply its changes in the Ordinance to pending applications. I think that's their decision.
We did not propose this change in the Ordinance. They did. That is the only change which
is being discussed which might impact pending applications....."
Mr. Rooker asked that his motion be voted on.
yam"` The motion to release the application which will expire on July 18th for staff action failed to
pass due to a tie vote. Commissioners Rooker, Rieley and Tice voted for the motion and
Commissioners Finley, Nitchmann and Washington voted against.
(Mr. Walden interjected from the audience that his request will not be effected by the potential
changes to the Ordinance because he does not have a spouse.)
MOTION: Ms. Washington moved to continue to allow staff to review and approve family
divisions administratively for a minimum of 90 days.
Mr. Tice said he believes this issue can be resolved in the next couple of weeks, "in plenty of
time for the 8/1 and 8/15's and 9/13's to be approved." He said he believes this is an
important issue.
Mr. Kamptner attempted to pin down "the issue to be resolved." He understood it to be the
procedure for the review of alternative alignments. Mr. Tice added: "Regarding the critical
slope applications for accessways."
Absent any formal action by the Commission to change the usual procedure, Mr. Finley was
puzzled as to why these requests cannot be acted upon by staff, as they normally would be.
Mr. Finley said: "One commissioner requested a review. There's been no motion to hold up
anything that has passed yet. At this point we have taken no action that would change what
has been done all along." Mr. Kamptner explained: "Mr. Tice called up these family division
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plats." Mr. Finley said: "He called them up, but what came of it?" Mr. Kamptner said they
have not been scheduled on the Commission's agenda yet, but the seven which are pending
will be scheduled for Commission review. Mr. Keeler added that this was a "running appeal"
so any other family division requests which come in in the proposed Mountain District will get
scheduled too."
Mr. Rooker asked what will happen with the application which will expire on July 18th. Mr.
Kamptner said: "Under the Code, the applicant must file a notice to us and if the Commission
doesn't act within 10 days, it is deemed approved."
Mr. Tice again said he believed the issue could be resolved in the next couple of weeks.
Several voices from the audience responded: "What's the issue?" Mr. Tice asked: "How
many times do we have to go over it?" Mr. Nitchmann said he still is not sure what the issue
is. He understood the issue to be: "Does the Planning Commission want to review family
division applications which involve family divisions with private roads which are in the
Mountain Resource Area, identified in the Open Space Plan?" Mr. Tice said: "No, that's not
the issue." Mr. Nitchmann responded: "That's what it says here." (He explained that he was
reading from the background paragraph in the staff report.)
Mr. Tice repeated "the issue." "Has the County been applying the standards of the Critical
Slope Ordinance to accessways so that the Director of Planning can certify that the plats are
in compliance with the Zoning Ordinance? (The Engineering Department) doesn't apply that
system to family divisions." Mr. Rooker added: " I guess the question is whether or not the
critical slope requirement of the Ordinance applies to family subdivisions."
Mr. Finley asked if the question of whether or not the staff is applying the Ordinance properly
is reason to hold up these applications. Mr. Kamptner said commissioners have the right to
call up any family division for review. He reminded the Commission that the memo he had
prepared for them focused on the scope of that review in relation to private roads which are
part of family divisions. He said the Commission has the right to review whether or not the
division satisfies 18-36(d) 2, 3, 4 and (e)1. Now the question has come up as to the
applicability of the alternative alignment standard that is in 4.2.2.1. The context of that
provision doesn't appear to apply to private roads, but it does apply to accessways. We didn't
look at that in my memo."
Mr. Rooker concluded: "So we don't have a definitive interpretation of the applicability of that
section before us now." Mr. Kamptner responded: " I don't even know if these plats raise the
issues that are involved."
Mr. Finley asked what happens if the fact that the Commission wants to review a request
holds it up, even if the Ordinance says "if you don't respond in 10 days it is passed." Mr.
Kamptner said the request for Commission review does not change the time period the
County has to act on a plat.
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7-14-98 43
Mr. Finley said he would second Ms. Washington's motion if she would change it to 60 days
instead of 90. Ms. Washington said 60 or 90 made no difference to her.
Mr. Tice said he had no problem with releasing the request with the July 18th deadline.
Ms. Washington said she did not support the motion because she had a concern about
making a distinction between the one application and others which were also very close to
expiring.
(There was never a definitive second to Ms. Washington's motion and it was never acted
upon.)
At 1:35 a.m. Mr. Rooker expressed a desire to go into Executive Session to discuss a
potential legal issue.
Staff asked for a brief recess.
-------------------------------------
The meeting recessed from 1:35 to 1:45.
-------------------------------------
The meeting reconvened at 1:45 a.m.
There was a brief discussion as to whether or not an Executive Session was needed.
MOTION: Mr. Rooker moved, Mr. Rieley seconded, that the Commission go into Executive
Session for the purpose of consultation with legal counsel and briefings by staff members
pertaining to probable litigation or other specific legal matters requiring the provision of legal
advice by counsel, as authorized by Section 2.1-344(a)(7) of the Code of Virginia.
The motion passed (4:2) with Commissioners Rooker, Finley, Rieley and Tice voting for the
motion and Commissioners Nitchmann and Washington voting against.
The meeting went into Executive Session at 1:50 a.m.
The meeting reconvened in open meeting at 2:15 a.m. The Chair confirmed that no actions
had been taken by the Commission during the Executive Session.
Mr. Rooker said: "An issue we want to complete the discussion of is whether or not these
particular applications present any 4.2.2.1 issues that we are aware of." Mr. Sipe said: "We
have not, in the course of our reviews, looked at the roads to see if they cross critical slopes
or not. The surveyor certifies on the plat that the road is reasonably passable by motor
vehicle. There is some indication that Zoning would rely on that certification, but I haven't
done any further review of that, formally, with any of the plats."
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Mr. Rooker asked about the other issues in 4.2.2.1. Mr. Sipe quickly reviewed 4.2.2.1 and
responded: "I feel it is similar to the earlier discussion with Engineering. I'm not sure whether
or not any alternatives were looked at as it states in one of the paragraphs. We are in a
position where we rely on the surveyor to certify the road to the standard of Table A in the
Subdivision Ordinance. We don't generally go beyond that."
Mr. Rooker said: "What they (staff) are saying is that they don't really do anything to
determine if it complies with 4.2.2.1." Mr. Keeler explained: "My instructions to my planners
have been to go down the list that is on the page and once you've checked everything off you
close the book. This is for exempt plats and family divisions. So if there has been any issue
of interpretation beyond that, I guess it falls on me. I go down the list and check these things
off and, if the family division plat meets those requirements, sign the plat. So it's a question
of interpretation, I think, as to whether or not we have been doing that correctly."
Mr. Rooker said: "Whether or not 4.2.2.1 is something that should be looked into and
certified prior to approval. That's the issue here. What you're saying is that has not been
done in the past." Mr. Keeler replied: "It has not been done in the past and I see nothing
specifically here in the design requirements --there are no design requirements actually for a
private road for a family division other than the certification --that specifically sends us back to
that particular section of the Ordinance, which is not to say that we shouldn't be looking at
that section. But, again, I looked at the table, and it has a certification by the surveyor, which
includes horizontal and vertical alignments."
Mr. Rooker said: "Contrary to some statements made by the public, my total concern with
this procedure is basically the issue raised by Commissioner Tice, and that's that 4.2.2.1
should be looked at when reviewing family subdivisions, and I think it is an important review if,
in fact, it is required. Probably, it is unfair to these applicants to apply a different standard to
them today than we've applied apparently in the past, for many, many years. We ought to
seriously look into going forward, whether or not 4.2.2.1 applies. If it does, it ought to become
a part of the regular review for these kinds of applications. But in light of the fact that we
don't have clear guidance, I don't know that it is reasonable to hold up these folks'
applications. We don't know for certain whether or not the 4.2.2.1 review would point out
anything in these applications that is problematic."
Mr. Tice asked: "Is there any reason why we couldn't have that answer next week or the
week after?" He again said he had no problem with releasing the application that is about to
expire.
Mr. Rooker said he would consider making a motion to recommend to the Board if they make
the change to eliminate spouses from family divisions, that it not apply to pending
applications. He said the concern being discussed is not trying to take away a division right,
but rather that this section, 4.2.2.1, should apply to the review process. He said it appears
that some of the pending applications do involve critical slopes and, if this section applies,
these applications should be reviewed with respect to that section.
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MOTION: Mr. Rooker moved that the Commission recommend strongly to the Board that if
they pass the change in the Family Subdivision Ordinance which deletes the spouse as an
eligible family member, that it not be made applicable to pending applications.
Mr. Rieley seconded the motion.
Discussion:
Mr. Tice said he could support such a motion. He stressed that his reason for calling up this
issue has nothing to do with the Board's action, which he was not even aware of until a few
days ago.
Mr. Finley said that after re -reading some of the sections, he thinks his earlier interpretation
may have been wrong.
The motion passed (5:1) with Commissioner Nitchmann casting the dissenting vote.
Mr. Nitchmann said he had voted "no” because he does "not have confidence in the Board
that they will do that."
Mr. Rooker said he would make the same motion, as a "reconsidered motion," which he had
previously.
MOTION: Mr. Rooker moved , Mr. Rieley seconded, that the application that is to expire on
July 18th be released for staff to review and act on administratively.
The motion passed (5:0:1) with Ms. Washington abstaining.
The Commission requested that staff research the applicability of 4.2.2.1 further as it relates
to family divisions, and give as definitive guidance as possible to the Commission by next
week's meeting so that a decision can be made on whether or not to individually review family
division applications.
There being no further business, the meeting adjourned at 2:31 a.m.
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