HomeMy WebLinkAbout05 13 1997 PC Minutes5-13-97
MAY 13, 1997
The Albemarle County Planning Commission held a public hearing on Tuesday, May 13,
1997, in the County Office Building, Charlottesville, Virginia. Those members present were:
Mr. Jared Loewenstein, Chairman; Mr. David Tice, Vice Chairman; Mr. William Nitchmann;
Ms. Babs Huckle; Mr. Bruce Dotson; and Mr. William Finley. Other officials present were:
Mr. Wayne Cilimberg, Director of Planning and Community Development; Mr. Ron Keeler,
Chief of Planning; Mr. John Shepherd, Planner; Ms. Elaine Echols, Planner; Mr. Jack Kelsey,
Chief of Engineering; and Mr. Greg Kamptner, Assistant County Attorney. Absent:
Commissioner Washington.
A quorum was confirmed and the meeting was called to order at 7:00 p.m. The minutes of
April 29, 1997, were unanimously approved as submitted.
Mr. Cilimberg summarized actions taken at the May 7th Board of Supervisors meeting.
SP 97-05 Wingspread Farm Estates - Request for a special use permit to allow construction
of a bridge in the floodway in conjunction with the proposed Wingspread Subdivision. The
bridge would cross the Hardware River near Lots 9 and 10 of the proposed subdivision. The
property is currently described as Tax Map 98, Parcel 15A and is located on the west side of
route 29 North near the intersection with Heards Mountain Road (State Route 633) in both
the Scottsville and Samuel Miller Magisterial Districts. The property is shown as Rural Areas
in the Comprehensive Plan and is zoned RA, Rural Areas.
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SUB 97-009 Wingspread Farm Estates Preliminary Plat - Request for preliminary subdivision
plat approval for Wingspread Subdivision which contains 31 lots on 704.95 acres of land
described as Tax Map 98, Parcel 15A and Tax Map 109, Parcel 35A for Ms. Jill V. Stolz,
owner. The property is located on the west side of Route 29 North, near the intersection
with Heards Mountain Road (State Route 633). (This revised plat shows no lots proposed on
the east side of Rt. 29S and replaces the plat which showed lots on both the east and west
sides of Rt. 29S). The property is in both the Scottsville and Samuel Miller Magisterial
Districts. The proposed subdivision is shown as Rural Areas in the Comprehensive Plan and
is zoned RA, Rural Areas.
Ms. Echols presented the staff report. Staff recommended approval of both requests, subject
to conditions. Staff answers to specific Commission questions were as follows:
--Condition No. 1 of the special permit was amended after the Commissioners
received the staff report. It now reads: "Water Resources Manager approval of a Water
Quality Impact Assessment and inclusion of mitigation measures for the critical sections
immediately upstream and downstream of the street crossing to be in the Erosion and
Sediment Control Plan."
--Currently the property to the northwest of the Hardware River is being farmed.
--The property is heavily forested on the steep slopes (behind the housing sites).
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--The provisions of the proposed Mountaintop Protection Ordinance would not impact
this plan because planned building sites are below 1000 feet elevation. (Portions of the
property are above 1000 feet, but the building sites are outside those areas.)
--The percentage of grade on the roads is not known at this time because engineering
calculations have not yet been done. The roads will be required to meet VDOT's criteria for
mountainous terrain standards for private roads. The maximum grade is 14%. The grade
cannot exceed 14% without a waiver from VDOT. VDOT is "very cautious" about approving
waiver requests.
--The stream crossing can be designed to a minimum 10-year storm standard, if an
emergency access is provided. (If an emergency access were not provided, the stream
crossing would have to be designed to a 100-year storm standard.) Safety issues will be
addressed by the engineers as the stream crossing is designed. It is difficult to say whether
upstream development "would change the hydraulics of the stream." It is expected that the
stream crossing will be flooded during larger storm events. Mr. Kelsey said he is not aware
of any particular flooding problems, in recent years, with this section of the Hardware River.
Ms. Huckle said that flooding is more of a concern once dwellings have been constructed.
(Mr. Keeler pointed out that houses and septic systems cannot be constructed in the 100-
year floodplain.) An analysis of the cross section will be required to determine the impact of
grading on the flow of the stream in a 100-year storm. The analysis is also to cover the
impact on a 10-year storm. Ms. Huckle said there seem to be a lot of unanswered
engineering questions at this point.
--At this point, the staff has not seen any proof that the easement which covers the
emergency access will allow its usage by these planned dwellings. Though Ms. Echols said
the location of the emergency access easement is shown on the plat, and Mr. Keeler said
the Deed Book and Page notation of the recordation of the access easement will have to be
cited, it was decided a condition could be added to the Preliminary Plat and the special
permit to address this concern.
--The Water Resource Protection Areas Ordinance restricts encroachments to a
maximum of 50 feet into a Resource Protection Areas buffer. The type of water quality
assessment required will be dependent on the area of the encroachment. Road crossings
are the only exceptions. The total square footage impacted is taken into consideration in
determining if a major or a minor impact assessment is required. Mr. Tice pointed out that
the language in the proposed Water Resources Ordinance says "when stream buffer
encroachment is unavoidable." He asked if the current ordinance uses that same language
and if there is a test for avoidability. Mr. Kelsey could not answer this question. Mr.
Cilimberg noted that this property is divided by the Hardware River, so a stream crossing
would be necessary to reach part of the property. Mr. Tice responded: "Unless it were to be
structured as a Rural Preservation Development. There is enough acreage on the east side
of that stream to be able to configure 31 lots, if my rough calculations are right." Mr.
Cilimberg said he believes the RPD option had been discussed with the applicant. Mr.
Keeler said this applicant owns the Applewood Cove property and, because of the history of
that property, chose not to pursue the special use permit that would have been required if an
RPD had been proposed. As to the question of the "test of avoidability," Mr. Keeler said the
Water Resources Manager administers the WRPA Ordinance. Mr. Tice concluded: "I guess
my point is if the language is in there that encroachments, such as roads, are allowed when
they are unavoidable, is it unavoidable if the applicant has an option of creating an RPD,
even if a special use permit is required, because a special use permit is required to do the
stream crossing?" Mr. Kamptner noted another exception to the buffer area requirements:
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"When the application of the buffer area would preclude reasonable access or prohibit the
practicable construction, installation and maintenance of water and sewer facilities,
encroachment into the buffer shall be allowed in accordance with certain criteria.
Encroachment shall be the minimum necessary to provide for the proposed access. Best
management practices, which effectively mitigate the encroachment, shall be utilized and a
water quality impact assessment shall be submitted in accordance with the Ordinance." Mr.
Cilimberg said the question raised by Mr. Tice seems to be whether this provision of the
WRPA Ordinance could be used to require an applicant to pursue a development design
which would not involve encroachment. This is a mixture of the WRPA Ordinance and the
Zoning Ordinance. Mr. Cilimberg asked Mr. Kamptner to comment on this issue. Mr.
Kamptner responded: "If the use that is going to be allowed with this special use permit is
one that creates an impact --we're talking about the bridge and the construction of the road
over the river --you can impose reasonable conditions that address those impacts, and,
because it is connected to the special use permit, you have some ability to cross over to this
other ordinance. There are particular requirements that you want to impose to address an
impact if you do that." Ms. Huckle asked: "Could that include requiring that it be a Rural
Preservation Development?" Mr. Kamptner replied: "I don't see the nexus between that
particular type of subdivision design and this particular application that is before you." Mr.
Tice continued to explain his concern. He said he sensed, from the staff report, that the
Engineering Department strongly recommended that the stream crossing be avoided. But
after the Water Resources Manager looked at the site and alternative locations and the
applicant developed this plan to do mitigation and streambank stabilization elsewhere to
compensate for the crossing, the Water Resource Manager then "backed off' and said those
improvements would likely compensate. Mr. Tice concluded: "My concern is what precedent
we set by doing that. I know, from being in the ecological restoration business, one could
justify just about any kind of crossing anywhere in the county by doing some sort of off -site
mitigation. On the state and federal permit level for wetlands, there is a very strong line
between their first priority, which is avoidance, and only when an impact cannot be avoided
do you get into mitigating measures. I don't doubt that restoration can be done on the
stream --if the language is strong enough to make sure we require it-- that has a net
improvement to the stream ... (but) I worry about the precedent that we would set in a situation
where there is an alternative available, or at least until we've had a chance to see. It may be
that once the applicant tried to do a design of an RPD on that site, there might be some
reason why it won't work. But, I'd like to see that and see that there were no alternatives
before taking this step." Mr. Cilimberg later added: "Because of the way the Ordinance
reads, with an RPD being an option for a landowner, we've never felt we have the legal right
to say to an applicant, 'There is a stream crossing involved here for you to do a conventional
development, therefore we're not going to be able to support the stream crossing until you
shows us whether or not a Rural Preservation Development can be constructed in such a
way as not to involve a stream crossing.' Particularly considering the fact if we made that
kind of request and it came forward, it is subject to a special permit approval by the Board of
Supervisors. That is the position we have been in and why we would not have pursued that
approach." Mr. Kamptner added: "I think I would look, in this particular case, to conditions
that specifically address any potential impact to the crossing of the river. Going to an RPD
to address that --to me seems like a fairly drastic measure. It does accomplish the protection
of the river, but throughout our Ordinances and various Codes, we recognize that streams
will be crossed and we have a provision, under 19.2, to address potential impacts. I think
would be much more comfortable pursuing that avenue in addressing the impacts." Mr.
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Keeler added: "One of the reasons we made the Rural Preservation Development optional
from the beginning is because it involves an easement that accrues to the County. As an
option, it is a voluntary easement. But I think to tell a property owner he has to give the
County an easement is certainly not voluntary and is not an optional situation."
--The applicant owns the parcel on the east side of Rt. 29 which contains a large part
of the floodplain. Ms. Echols explained: "This carries the same Tax Map number as the
larger acreage, but it has been determined by the Zoning Administrator that it is a separate
parcel, and that parcel also has development rights. The original submittal contained some
lots on that side which were later removed. The applicant has chosen not to subdivide that
property at this time so it has not been included with this request."
--A private road maintenance agreement will be required.
--The Water Quality Impact Assessment is related only to water quality and deals with
mitigation of the vegetative buffer lost on either side of the stream.
Applicant comment was invited.
The applicant was represented by Mr. Fred Missle and Mr. Kirk Hughes. Answers to
Commission questions were as follows:
--An RPD was not considered for the following reasons: (1) Constraints related to the
floodplain on the front portion of the property and the existence of a second tributary which
crosses the property and contains wetlands; (2) Strong public opposition to RPD's in this
area in the past; and (3) If the "upper portion" of the property were to be a part of an RPD, it
would be necessary to purchase additional right-of-way.
--The applicant is not aware of any restrictions on the existing easement, as it relates
to Wingspread, which would prevent its being used as an emergency access. Though Mr.
Kelsey confirmed that it is standard that the emergency accessway will be gated, it was
decided a condition would be added to require that the emergency access be gated.
--A formal mitigation plan has not yet been developed, but it is anticipated it will be a
combination of boulder bank stabilization and vegetative streambank stabilization to allow
filter strips between the property and the Hardware River so the net BMP result is that the
water running off will not be less clean than it currently is.
--There is no plan to require lot owners to fence livestock out of the river.
--Studies were done comparing a 10-year stream crossing to a 100-year crossing. A
100-year would have resulted in a very large structure which would have caused a lot of
environmental degradation. That was the reason for proposing a 10-year structure with an
emergency access.
--The owners intend that this development have an equestrian theme. Mr. Missle was
not familiar with the marketability of this type of development. He also did not know when
construction would begin.
Public comment was invited. None was offered and the matter was placed before the
Commission.
Mr. Nitchmann said much of this property lies in his district. Most of the people he has
spoken with are in favor of this proposal.
MOTION: Mr. Nitchmann moved, Mr. Finley seconded, that SP-97-05 for Wingspread Farm
Estates be recommended to the Board of Supervisors for approval subject to the following
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conditions: [NOTE: There was some discussion about the added conditions which had been
proposed during the discussion and whether they should be attached to the special permit or
the preliminary plat. It was decided the conditions related to the access easement and
gating would be added to both. ]
1. Water Resources Manager approval of a Water Quality Impact Assessment and inclusion
of mitigation measures for the critical sections immediately upstream and downstream of the
street crossing to be in the Erosion and Sediment Control Plan.
2. Engineering Department approval of the final crossing plans and details. These plans
must clearly show the before and after construction 100-year flood elevations and
boundaries.
3. Engineering Department approval of structural plans, details, and computations.
4. Engineering Department approval of hydrologic and hydraulic computations for the
crossing. These computations must demonstrate compliance with sections 30.3.2.2 and
30.3.3 of the Zoning Ordinance. Flood elevations at the upstream property line must not
increase.
5. Engineering Department receipt of proof of compliance with Federal and State agencies
regulating activities affecting wetlands and watercourses. The applicant is encouraged to
contact the Federal and State agencies in the early stages of the design process.
6. Verification that the access easement which exists on the property, as shown crossing
"`" Lots 12 and 13, can be used for emergency access from the subdivision to Route 29.
7. Provision of a gate across the emergency accessway which discourages shortcuts
through the adjoining properties but provides unimpeded emergency access during flooding
or other emergency conditions.
Discussion:
In response to Mr. Finley's questions about the rules for crossing rivers and streams, Mr.
Kamptner repeated that "it is recognized in the County Code that rivers will be crossed." Ms.
Huckle asked staff to comment on a bridge another developer had constructed at the
Bentivar development, which he was forced to remove. Mr. Keeler said the developer, in
that instance, had constructed a low water bridge without a grading permit or an approved
special use permit. The matter was litigated and, during appeal, the developer had removed
the bridge. Ms. Huckle asked if there are provisions which say that a stream crossing cannot
interfere with a stream's navigability. Mr. Keeler responded: "Under certain circumstances,
there are certain navigable rivers where you can't interfere with navigation based on the
public's right to enjoy them."
Mr. Dotson said he feels it is unfortunate that an RPD was not pursued, "because if there
was ever a natural, where you have a stream crossing, this would be it." However, he said
4*0.- he can understand the applicant may feel somewhat "tainted" after the Applewood Cove
experience. He concluded: "I really believe in Rural Preservation Developments, but I also
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believe we have to apply the rules we have and the rules say the applicant can do this. So I
am prepared to support the motion."
Mr. Tice said he agreed with most of Mr. Dotson's comments. However, "a special permit
exception is supposed to be for special exceptions --for unusual conditions." He again raised
the issue of avoidability and though an RPD may be stated in the Ordinance as an option, it
is still an alternative which should be explored. At least, "we should have the information
before us to show that it can't work." If it could not work, a special permit could then be
justified. He agreed Applewood Cove was an unfortunate incident.
Ms. Huckle did not think Applewood Cove was comparable to this request because one is a
farm and the other an orchard and there were a lot of special conditions on Applewood Cove
which are not on this request. Ms. Huckle said she would support this request, but she is
uncomfortable with the fact there are still many engineering questions unanswered.
Mr. Loewenstein said he has concerns about the RPD issue and he agreed it would have
been helpful if the RPD option had been more fully explored. However, the RPD is optional
and the Commission "must work within the limits of what the law allows."
The motion for approval passed 5:1 with Commissioner Tice casting the dissenting vote.
The Chairman then called for a motion on the Wingspread Farms Preliminary Plat.
MOTION: Mr. Nitchmann moved, Mr. Dotson seconded, that the Wingspread Farms Estates
Preliminary Plat be approved subject to the following conditions:
1. The final plat shall not be submitted for signature nor shall it be signed until the following
conditions are met:
a. Engineering Department receipt of a copy and proof of recordation of a County
standard Stormwater Management Facilities Maintenance Agreement for the pond and any
proposed BMP facilities.
b. Engineering Department approval of an erosion control plan.
c. Engineering Department approval of final public road plans and drainage
computations.
d. VDOT approval of final public road plans and drainage computations.
e. Roads built or bonded in accordance with the approved final public or private road
plans.
f. Engineering Department approval of pond routing and spillway discharge
computations, and possible improvement plans. Discharge waters of the 10-year storm must
be demonstrated not to block roads to the lots.
g. Compliance with the conditions of Special Use Permit SP 97-05.
h. Verification that the access easement which exists on the property, as shown
crossing Lots 12 and 13, can be used for emergency access from the subdivision to Route
29.
i. Provision of a gate across the emergency accessway which discourages shortcuts
through the adjoining properties but provides unimpeded emergency access during flooding
or other emergency conditions.
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Discussion. -
Mr. Tice asked if condition No. 1 includes the stream mitigation work. (Mr. Kelsey responded
to this question but his answer was inaudible on the tape.) Mr. Tice said there will likely be
maintenance required of the mitigation sites. He wondered if this should be added to the
condition. It was ultimately decided that condition No. 1 of the special permit (as amended
by Ms. Echols at the beginning of the meeting and stated above under the approval of the
special permit) would address this concern. Mr. Tice said: "Assuming that the Water
Resource Manager felt maintenance was important, he could make sure that is a part of
what he approves."
Mr. Tice again said he feels this is the "wrong plan," but because the Commission
recommended approval of the special permit, he would support the preliminary plat.
There was a brief discussion as to whether or not the final plat should come back before the
Commission. Ms. Huckle again expressed concern about the lack of engineering detail
available at this time. Staff explained that the final plat is simply a verification that all
conditions have been met and the plat is ready to be recorded. The final plat cannot be
approved until the preliminary plat conditions have been satisfied. Requiring that the
Commission approve the final plat will cause added expense to the applicant and will be an
"after the fact" approval.
Mr. Nitchmann declined to change his motion to include a requirement for Commission
approval of the final plat.
Mr. Tice asked that the Engineering Department, before approving the final plat, make sure
that the Resource Protection Areas designation show the contiguous wetlands.
The motion for approval of the Preliminary Plat passed unanimously. The Commission
confirmed that the action did not require Commission review of the final plat.
MISCELLANEOUS
The Commission confirmed Mr. Nitchmann as the Commission's representative on the CIP
Technical Committee.
There being no further business the meeting adjourned at 8:25 p.rr�
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