HomeMy WebLinkAbout03 01 2011 PC MinutesC"
Albemarle County Planning Commission
March 1, 2011
The Albemarle County Planning Commission held a meeting and public hearing on Tuesday,
March 1, 2011, at 6:00 p.m., at the County Office Building, Lane Auditorium, Second Floor, 401
McIntire Road, Charlottesville, Virginia.
Members attending were Russell (Mac) Lafferty, Duane Zobrist, Chairman; Ed Smith, Thomas
Loach; Linda Porterfield, Don Franco and Calvin Morris, Vice Chair. Julia Monteith, AICP,
Senior Land Use Planner for the University of Virginia, was absent.
Other officials present were Gerald Gatobu, Principal Planner; Margaret Maliszewski, Principal
Planner; Judith Wiegand, Senior Planner; Amelia McCulley, Director of Zoning/Zoning
Administrator; Eryn Brennan, Senior Planner; J.T. Newberry, Code Enforcement Officer; Ron
Higgins, Chief of Zoning; Stephanie Mallory, Zoning Assistant; Mark Graham, Director of
Community Development; Glenn Brooks, County Engineer, David Benish, Chief of Planning;
and Greg Kamptner, Deputy County Attorney.
Call to Order and Establish Quorum:
Mr. Zobrist, Chairman, called the regular meeting to order at 6:02 p.m. and established a
quorum.
Committee Reports
Mr. Zobrist invited committee reports.
• Ms. Porterfield said the Historic Preservation Committee met yesterday and is working to
do at least one activity during Preservation Week.
There being no further reports, the meeting moved to the next item.
Matters from the Public not Listed on the Agenda
Mr. Zobrist invited comment from the public on other matters not listed on the agenda. There
being none, the meeting proceeded to the next item.
Consent Agenda
a. Review of the Hatton Asiricultural and Forestal District - Referral to Agricultural
and Forestal Advisory Committee: Periodic (10-year) review of the Hatton Agricultural
and Forestal District, as required in Section 15.2-4311 of the Code of Virginia. The
district includes the properties described as: Tax map 135, parcels 13, 13A, 13B, 14B, 15,
15A, 15C, 17, 18, 19, 22, 22A, 22C, 22C1, 22C2; tax map 136, parcels 2A, 6B, 8H, 9,
9A2, 9B, 9C, 9D1, 9E. This district, created on June 29, 1983 for not more than 10 years
and last reviewed on June 20, 2001, shall next be reviewed prior to June 29, 2011. (Eryn
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Brennan)
b. Review of the Totier Creek Agricultural and Forestal District - Referral to
Agricultural and Forestal Advisory Committee: Periodic (10-year) review of the
Totier Creek Agricultural and Forestal District, as required in Section 15.2-4311 of the
Code of Virginia. The district includes the properties described as: Tax map 121, parcels
70A, 70B, 70D, 70E, 72C, 85, 85A; tax map 122, parcels 5, 5A; tax map 128, parcels 13,
14A, 14B, 14C, 14D, 27, 29, 30, 72; tax map 129, parcels 3, 5, 6, 6A, 7A, 7D, 9; tax map
130, parcels 1, 5A; tax map 134, parcels 3, 3A, 3B, 3C, 3D, 3E, 3F, 3G, 3H, 3I, 3J, 3K,
3L; tax map 135, parcels 7, 10, 11. This district, created on June 29, 1983 for not more
than 10 years and last reviewed on June 20, 2001, shall next be reviewed prior to June 29,
2011. (Eryn Brennan)
Mr. Zobrist asked if any Commissioner would like to pull an item from the consent agenda for
further review.
Motion: Mr. Morris moved and Ms. Porterfield seconded for approval of the Consent Agenda as
presented.
The motion passed unanimously by a vote of (7-0).
SDP-2010-00094 Farm/Cosner Property (AT&T CV427 Tier II) - Final
This is a request for approval of a treetop personal wireless service facility with a steel monopole
that would be approximately 136 feet tall (10 feet AMSL above the tallest tree within 25 feet),
with an 11.5' x 20' equipment shelter, within a 1,600 square foot lease area. This application is
being made in accordance with Section 10.2.1 of the Zoning Ordinance, which allows for Tier II
wireless facilities by right in the Rural Areas. The property, described as Tax Map 102, Parcel
11B, contains 7.64 acres, is located in the Samuel Miller Magisterial District, and is zoned RA,
Rural Areas. This parcel is situated on the west side of SR 20 S, and the proposed facility is
located on the northwest portion of the parcel. The Comprehensive Plan designates this property
as Rural Area in Rural Area 4. (Gerald Gatobu)
Mr. Gatobu presented a PowerPoint presentation and summarized the staff report.
• This property is on Route 20 South and would have a 136-foot tower placed onsite as part
of this application. A balloon test was conducted on January 19, 2011 in the general
vicinity of the proposed placement. He presented some pictures within the vicinity. The
balloon could generally be seen through the trees. Based on the visibility staff thought
that it was highly mitigated and not very visible. Staff as well as the Architectural
Review Board recommends approval.
• The most important principle for siting wire facilities in the County is mostly visibility.
The ARB reviewed the request for compliance with the design guidelines for the
Entrance Corridor on February 22"d. The ground equipment would not be visible from
the EC. The antenna and monopole would be highly mitigated. Based on the balloon test
there will be minimal or no material difference whether the monopole was at seven feet
versus ten feet above the reference tree. Therefore, staff recommends approval at the
height of ten feet above the referenced tree.
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on
Mr. Zobrist invited questions for staff. There being none, the public hearing was opened, and the
applicant invited to address the Planning Commission.
Kathryn Carmichael, representative for AT&T, presented a PowerPoint presentation to provide a
general overview of the area and explain the improvement in coverage. The site is located just
along the street from Camp Road along Route 20. She presented a map showing significant tree
coverage on the subject parcel as well as a heavily forested area behind the recommended site.
The old Route 20 roadbed would be used for access to prevent removal of trees as much as
possible. The access road cut off would be about 160 feet from the old Route 20 roadbed toward
the tower site. The reference tree in this location is a 126-foot Poplar, and the proposed tower
would be 10 feet above that at 136 feet. The reason AT&T is trying to increase coverage in the
area is to provide service in this heavily traveled location on Route 20, which currently has no
AT&T coverage. Their network along Route 20 with this monopole would significantly increase
coverage along Route 20 and the surrounding areas. The photo simulations show how well the
tower blends in, noting that it is not highly visible from Route 20 due to the heavy tree coverage.
The gravel road they are building is approximately 160 feet long and 12 feet wide.
Mr. Zobrist invited public comment. There being none, the public hearing was closed, and the
matter was placed before the Commission.
MOTION: Ms. Porterfield moved and Mr. Loach seconded for approval of SDP 2010-00094
Farm/Cosner Property (AT&T CV427 Tier II) — Final as recommended by staff to be 10 feet
above the reference tree.
The motion passed unanimously by a vote of (7:0).
Mr. Zobrist noted that SDP-2010-00094, Farm/Cosner Property (AT&T CV 427 Tier II) - Final
was approved for the personal wireless service facility at the proposed height of ten (10) feet
above the reference tree. This is not a matter that requires Board approval.
SP-2010-00032 Avon Street Ross AT&T CV376 Tier III PWSF
PROPOSED: A one hundred and eleven (111) foot AT&T treetop Personal Wireless Service
Facility in an avoidance area (Southern Albemarle Rural Historic District)
ZONING CATEGORY/GENERAL USAGE: RA, Rural Areas-; agricultural, forestal, and
fishery uses; residential density (0.5 unit/acre in development lots)
SECTION: 10.2.2 (48) which allows for Tier III personal wireless facilities in the RA Zoning
District
COMPREHENSIVE PLAN LAND USE/DENSITY: Rural Areas - Preserve and protect
agricultural, forestal, open space, and natural, historic, and scenic resources/ density (.5 unit/acre
in development lots)
ENTRANCE CORRIDOR: YES
LOCATION: 527 Woodchuck Lane off Scottsville Road [State Route 20]
TAX MAP/PARCEL: 09000-00-00-014132
MAGISTERIAL DISTRICT: Scottsville
(Gerald Gatobu)
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Mr. Gatobu presented a PowerPoint presentation and summarized the staff report.
• This is a special use permit, SP-2010-32 for a Tier III personal wireless facility, which is
proposed for Route 20. A balloon test was conducted in November 2010. The balloon
was flown at 10 feet above the reference tree.
• In photographs of the area, he noted the balloon was hidden from the road. The most
important principle for siting wireless facilities is visibility. The Architectural Review
Board said the proposed tower is not expected to have a detrimental impact on the
historic district in general. The only reason this is a Tier III is its location in the historical
district. Apart from that, everything else would have been a Tier II. The ground
equipment would not be visible from the Entrance Corridor and the monopole and
antenna would be highly mitigated.
• This is located in the Southern Albemarle Rural Historical District, which is why it is a
Tier III. There would be no material difference in visibility between seven feet and ten
feet above the reference tree. Staff recommends approval at ten feet above the reference
tree with the one condition listed in the staff report. He has received calls from several
people saying they actually welcome having this improved coverage or service along
Route 20. It appears that there is a big need for the cell phone service in that area.
Mr. Zobrist invited questions for staff.
Mr. Lafferty asked if the residents living on the site are in agreement with the proposal.
Mr. Gatobu responded yes. He spoke with a next door neighbor whose issue related to the runoff
from the tower. He talked with engineering staff today to make sure that is done in due
diligence. Their first consideration is the disturbance of critical slopes. In this case the tower
would not be in critical slopes. The second consideration is the amount of grading needed for
access. In this case, the amount of grading would not exceed 10,000 square feet. If the
disturbance gets to 10,000 square feet, it would trigger an erosion and sediment control
application to be done so staff can look at the E & S measures that need to be put in place. That
is basically the two biggest things. However, in this case he talked with the neighbor and
applicant to try to make sure during construction they try to reroute the sheet flow to go away
from the access. They really don't have any way to mitigate any of those factors right now.
Mr. Lafferty asked if the only objection would be in the grading and not in the actual tower itself.
Mr. Gatobu. replied that was correct in that staff would look at the grading. In this case, it is a
matter of sheet flow once they put the tower and ground equipment in. What they do is bore
holes and there will be a fence. It generates some amount of runoff, but not much. "Per the
ordinance and per engineering, they really don't have any way to mitigate any of those factors."
As per the neighbor the run off goes down towards the access. It will mostly be up to AT&T to
see if they can work with the applicant at least to help run the water out somewhere and not just
runoff into the access.
Mr. Zobrist asked why it couldn't be required of the applicant in the approval of the construction
plan that they are directing the water away from the neighbors.
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Mr. Gatobu responded that since this is a special use permit there could be a condition that there
be some runoff control.
Mr. Zobrist asked staff to draft some language to add to the conditions.
Mr. Gatobu replied yes, staff could work something out to see if they can get that into one of the
conditions.
Mr. Zobrist invited the applicant to address the Planning Commission.
Kathryn Carmichael, representative for AT&T, pointed out that the landowner, the Ross' are
here tonight. She presented a PowerPoint presentation to provide a general overview of the area
and explain the improvement in coverage.
• The goal with this tower is to establish better coverage in this area. Their first approach
is to look for existing buildings, water towers and other structures for location. If those
can't be found, they look for landowners. In this case, this is a great land location
because the property is narrow, but it goes up the side of a mountain. When looking at it
from Route 20 the visibility is heavily mitigated because it is a significantly wooded area.
However, it also has a backdrop of the mountains that provides mitigation for the
visibility. They would use the existing driveway with an access road built back to the
actual tower location.
• She presented photo simulations of the area taken from the intersection of Woodchuck
Lane and Route 20. The tower cannot be seen from that location or other surrounding
areas. The reference tree is 97 feet tall. The proposed tower is at 111 feet with a change
in elevation. Because of the heavily wooded lot and the change in elevation, they are
able to locate the tower in this area with the significant tree cover. Although they are not
able to see it, it will still work.
• Because of the slope and the tree coverage, the visibility is heavily mitigated. There are
several other tall trees in the area. The reference tree is 97' tall. The nice fact about this
site is it has a natural clearing, which resulted in not having to remove as many trees as
they would have had to before. They would place the pole in the natural clearing area.
For the access they are going to cut off the existing driveway so they will not have to
remove many trees at all.
Mr. Zobrist invited questions for the applicant.
Mr. Loach asked what the coverage percentage difference would be between seven and ten feet.
Ms. Carmichael responded that the additional 3' height makes a fairly significant difference to
achieve coverage objectives, but she can't provide a specific percentage.
Mr. Smith asked if the two areas mesh together in coverage.
Ms. Carmichael replied that the two areas work together to provide coverage in this area. That is
why the two towers are so close to one another.
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Mr. Zobrist asked how many more towers would be needed to provide coverage all the way to
Scottsville.
Ms. Carmichael replied that it depends on how far they want to go along Route 20. Obviously,
this is an important area that they are trying to build up a network. The County probably has a
significant amount of applications that are pending right now to try to make this road covered.
Mr. Zobrist asked if each tower gives about 3 to 4 miles of coverage.
Ms. Carmichael replied that it depends on the topography as to how much coverage can be
achieved. Route 20 is an important area that they are focusing on right now.
Mr. Zobrist asked if AT&T has any problem with the condition to direct water runoff away from
the neighboring property.
Ms. Carmichael responded that the access for the neighbor Mr. Gatobu mentioned runs parallel
to where AT&T's access would be. AT&T needs to be able to get to that site. If there is an issue
with drainage, they will need to ensure the stability of that road as well for their own purposes.
Obviously, they will do their best with the construction to make sure that the drainage issue is
taken care of.
Mr. Zobrist invited public comment. There being none, he closed the public hearing to bring the
matter before the Commission.
WOW
on
MOTION: Ms. Porterfield moved for approval of SP-2010-00032 Avon Street Ross AT&T
CV376 Tier III at ten feet above the reference tree with the condition presented by staff and an
additional condition requiring the applicant to keep any additional runoff caused by the tower
off the neighboring property.
Mr. Kamptner noted that he would finalize the language for the new condition prior to this item
going to the Board of Supervisors.
Ms. Porterfield added that she would like it noted to the Board that even though this is in an
historic district, both the ARB and Commission agreed that the only effect would be on the
property it would be sited on.
Mr. Loach seconded the motion.
Mr. Franco pointed out the goal is not to try to keep all runoff from the adjacent site, but to
reduce the impact of the increased runoff resulting from the tower.
The motion passed unanimously by a vote of 7:0 subject to the following conditions:
1. The proposed personal wireless service facility must be developed in general accord with
the plan prepared by SAI Communications with a revision date of 12-2-2010, and a
certified engineer's seal and signature dated 12-02-2010.
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2. Additional condition to be added requiring the applicant to keep any additional runoff
%W caused by the tower off the neighboring property. (Language to be finalized prior to this
item going before the Board of Supervisors. The goal is not to try to keep all runoff from
the adjacent site, but to reduce the impact of the increased runoff resulting from the
tower.)
Mr. Zobrist noted that SP-2010-00032 Avon Street Ross AT&T CV376 Tier III personal
wireless service facility was approved at the proposed height of ten (10) feet above the reference
tree with staff s recommended conditions, as amended to reduce the impact of the increased
runoff resulting from the tower on the adjacent property This item will be heard by the Board of
Supervisors at a date to be set.
SP-2010-00058 Charlottesville Power Equipment
PROPOSAL: To establish outdoor storage, display, and/or sales of power equipment in the
Entrance Corridor (EC) Overlay District
ZONING CATEGORY/GENERAL USAGE: Highway Commercial (HC) - commercial and
service uses; and residential use by special use permit (15 units/acre) in Urban Area
Neighborhood 2; Entrance Corridor (EC) - overlay to protect properties of historic, architectural,
or cultural significance from visual impacts of development along routes of tourist access
SECTION: 30.6.3 (a)(2) which allows outdoor storage, display and/or sales in the Entrance
Corridor (EC) Overlay District by special use permit. No residential units are proposed.
COMPREHENSIVE PLAN LAND USE/DENSITY: Community Service - community -scale
retail, wholesale, business and medical offices, mixed use core communities and/or employment
services, and residential (6.01-34 units/acre).
ENTRANCE CORRIDOR: Yes
LOCATION: At the northwest corner of the intersection of Rio Road East (Rt. 631) with Putt
Putt Place
TAX MAP/PARCEL: 06100-00-00-124FO
MAGISTERIAL DISTRICT: Rio
(Margaret Maliszewski)
Ms. Maliszewski addressed the Board, stating that this is an application from the Charlottesville
Power Equipment Company to establish outdoor storage, sale, and display of power equipment
in the Rio Road East Entrance Corridor.
• The site is located at the corner of Rio Road East and Putt Putt Place. This building
previously housed the Rivals and Boudreau's restaurants. There are various types of
power equipment proposed to be displayed in the areas highlighted in the plan. It
includes the patio area in front of the building, three areas along the perimeter of the
parking lot, and one small area along the addition at the back of the building. The
applicant has outlined the types of equipment to be displayed, such as lawnmowers, golf
carts, trailers, etc. in the five different display areas. It is a total of 6,591 square feet of
display area.
• A special use permit is required for this use specifically because it is proposed in the
Entrance Corridor. The intent of the requirement for the special use permit is to review
the visual impacts of the outdoor storage, sale, and display activity on the Entrance
Corridor street. The ARB reviewed this proposal and had no objection to the use with
ALBEMARLE COUNTY PLANNING COMMISSION - MARCH 1, 2011 7
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recommended conditions. With those recommended conditions of approval, no
detrimental impacts to the corridor are anticipated.
• The ARB's recommended conditions pertained to the location and method of display,
landscaping, and the height of items for display. Those are typical conditions for this
type of use in the Entrance Corridor. Because the ARB had no objection to the use with
those conditions, staff is recommending approval with the conditions as presented in the
staff report.
Mr. Morris asked if they had begun to move into that location.
Ms. Maliszewski responded that the business is in the building.
Mr. Lafferty commented that this is a "well thought out plan" that includes a lot of detail.
Mr. Zobrist opened the public hearing and invited the applicant to address the Commission.
L.F. Wood, the property owner and landlord for Charlottesville Power Equipment, represented
the applicant. He made the following comments.
• Charlottesville Power Equipment are moving their location due to the loss of lease on
Route 29 next to the new Hibachi Inn. Their lease was up on January 30 and they have
rented some storage space across the street to move in part of their items. They are
operating within the building and have stored a few small lawnmowers and equipment on
the property. This is a small equipment operation. There are no big tractor -trailers or
*WWI items that have significant height. They have worked closely with staff and the ARB.
On February 17, 2011, the ARB recommended approval based on several
recommendations as presented to the Commission. They have no problem with that.
• Most of the shrubbery and growth is mature. Most of it was planted in 1975 with Snow's
Nursery. The shrubbery has matured since that time. He likes the idea of adding some
other small greenery and two more trees. One of the trees has been knocked down twice
by automobiles running off Rio Road. That is very reasonable.
• The conditions were discussed at the ARB meeting. They made a request in condition 2c
in the last sentence where it says, "... and shall be spaced in a form to form a hedge at
maturity." That hedge is in front of Area D, which is on Putt Putt Lane between Putt Putt
Lane and the parking lot. Putt Putt Lane is a private road that they built to state standard
years ago in 1975. It is not on the Corridor itself. It is partially visible from the Corridor.
• However, they worked very closely with the Albemarle County Police Department. As
most know behind this location at the very end of the road there is Rio Hill subsidized
housing units. Although it is very nicely operated, they have some problem with
security, vandalism, and trespassing. They would ask that the condition be changed to
take out, "to plant a hedge." They would like to plant some separate smaller 30" height
shrubbery type of things between the existing mature trees. They would hate to see a
hedge that would be a hiding area so when police are making calls to Rio Hill or some
vandalism on this property that police officers would be able to have a sight distance into
the property for their safety in performing their duties.
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• They would accept all of the other conditions and agreed to do that. They plan to go
before the Board of Supervisors on April 1. He asked for a favorable recommendation
with these conditions.
Mr. Zobrist asked how the last sentence in paragraph C would be modified to meet the security
need.
Mr. Wood suggested eliminating it from the word "and" on. They did not want to be cited in
violation. Therefore, it would be made clear and simple. Charlottesville Power Equipment
would keep the area well maintained.
Mr. Zobrist invited public comment.
Bruce Draper, Chairman of Trustees for Aldersgate United Methodist Church, noted that the
church was right across the street from the proposed location. They are proud and happy to have
this fine company to come in their area because it would be a whole lot better than what they
have had given the history of the bars that were in the area. The applicant maintains their
property in excellent shape. He thought this business would be a big asset to the neighborhood.
There being no further public comment, Mr. Zobrist closed the public hearing to bring the matter
before the Commission.
Mr. Lafferty asked if the hedge was 30".
Ms. Porterfield clarified that Mr. Wood doesn't want the plantings to grow into a hedge, and
asked if he could just put in bushes and space them.
Mr. Wood responded that he has no problem with that.
Ms. Maliszewski said that the recommendation came from the ARB, based on staff s
recommendation. Individually spaced shrubs was not what she recommended.
Mr. Morris asked if she sees any problem with leaving space for the safety and so on.
Ms. Maliszewski responded that she doesn't review for safety, but only for Entrance Corridor
guidelines.
Mr. Lafferty commented that he doesn't want the applicant to get in trouble with the ARB and
have to go back through the ARB process.
Motion: Mr. Lafferty moved to approve SP-2010-00058 Charlottesville Power Equipment
subject to the conditions as recommended by staff with the part of the sentence in 2c pertaining
to the hedge growing to maturity removed. Mr. Morris seconded the motion, which passed
unanimously (7-0).
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En
Mr. Zobrist noted that SP-2010-00058, Charlottesville Power Equipment would go to the Board
on a date to be determined with a recommendation for approval with the following conditions, as
amended:
1. Equipment shall be displayed only in Areas A, B, C, D and E shown on sheets 1, 2 and 3
of the plan entitled "Tax Map 61 Parcel 124F Amended Site Plan" prepared by
Roudabush, Gale & Associates, Inc., revised January 18, 2011.
2. The site shall be landscaped as follows:
a. Add one tree in the planting strip between Putt Putt Place and the parking row labeled
"Area C" and one tree in the planting area between the rows labeled "Area B" and
"Area C." These trees shall be a species whose mature height is coordinated with the
overhead electric lines and shall be planted at a minimum of 3 %2" caliper (if
reasonable for the species). Provide the height of the overhead lines.
b. Add three small trees or large shrubs between the existing trees in the planting strip
along Display Area D.
E Add shrubs in the planting strips between the parking lot and Putt Putt Place,
including the corner at the intersection with Rio Road. The shrubs shall be a mix of
species and shall include evergreen shrubs, but may also include deciduous species.
The shrubs shall be a minimum of 30" high at planting.
d. Add this note to the plan: All site plantings of trees and shrubs shall be allowed to
reach, and be maintained at, mature height; the topping of trees is prohibited. Shrubs
and trees shall be pruned minimally and only to support the overall health of the
plant.
3. Display items in areas A, B and C shall not be taller than 7', which corresponds to the
bottom of the soffit on the existing building.
4. Display items shall not be elevated anywhere on site.
5. Balloons, banners, signs, and/or other similar items shall not be attached to equipment on
display or installed anywhere within the approved display areas.
6. Items stored in the fenced storage area shall not rise above the height of the fence.
ZM4,-2010-00012 King Property
PROPOSAL: Rezone .85 acre of a 1.775 acre parcel from Rural Areas (RA) zoning district
which allows agricultural, forestal, and fishery uses; residential density (0.5 unit/acre in
development lots) to Light Industrial (LI) zoning district which allows industrial, office, and
limited commercial uses (no residential use). Remainder of the parcel is zoned Light Industrial.
PROFFERS: Yes
EXISTING COMPREHENSIVE PLAN LAND USE/DENSITY: Rural Areas - preserve and
protect agricultural, forestal, open space, and natural, historic, and scenic resources/ density ( .5
unit/ acre in development lots)
ENTRANCE CORRIDOR: Yes
LOCATION: 352 Rio Road W (Rt. 631) at intersection with Four Seasons Drive
TAX MAP/PARCEL: 045000000025AO
MAGISTERIAL DISTRICT: Rio
(Judith Wiegand)
Ms. Wiegand presented a PowerPoint presentation and summarized the staff report.
ALBEMARLE COUNTY PLANNING COMMISSION - MARCH 1, 2011 10
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• The purpose of this rezoning is to rezone a portion of a site that is now zoned Rural Areas
with the other portion zoned Light Industrial, so that both portions will have the same LI
zoning. She pointed out the location of the property and its proximity to Rio Road and
the entrance to Four Seasons Drive. The property backs up to Squirrel Path, which is in
the rural areas. Some of the property in the back was designated by VDOT for a future
Western Bypass. The Comprehensive Plan recommends this area for Rural Area
designation. This is the current zoning. Prior to the adoption of the ordinance in 1980
the property was zoned Light Industrial. The property was two separate properties at one
time. The parcels were joined in 1982, but the zoning was left split.
• She presented an aerial photo of the property, which shows the residential property
behind the property. There was significant tree coverage in the area. There is one small
residence in the middle of the parcel, which is just under two acres in size. The property
is located in the South Fork Rivanna water supply or watershed. Because of the water
shed and other concerns related to this, the applicant has proffered to remove one of the
by -right uses listed under Light Industrial. They would remove assembly and fabrication
of light aircraft from component parts manufactured off site. Staff basically has no
problem and were happy to recommend that both halves of the parcel be zoned Light
Industrial. One reservation staff has is that this property is in the water supply and
watershed.
• Staff is concerned about what could possibly happen on this property with various types
of Light Industrial uses. Staff has considered this and has talked with the applicant about
it. It is a small site. So many industrial type uses would simply not be possible here
because of the size of the site. In addition, the fact that it is located in an Entrance
**AW Corridor would mean it would have to meet certain regulations. So things like storage
yards might not be approvable depending on how they chose to try to lay something out.
Staff also recognizes that any business that might go in that would have actual hazardous
material would also have a course of monitoring and tracking system. So staff is not
particularly worried about that because it would be very carefully supervised. They also
note that the surrounding property that is also zoned Light Industrial does not have any
kind of restrictions on it in the form of proffers or other restrictions.
• Basically, what staff would like to do at this point is go through the list of by -right uses
as attached to the staff report. There are a couple that staff wants to ask questions about.
Staff is open to questions from the Commission. The uses found in the Light Industrial
District by right are compounding of drugs, fire and rescue stations, and then a whole
series of manufacturing, processing, and fabrication and so on of various uses. Staff sees
some potential issues, but it is hard to tell from this exactly what people would be using.
Again, if it were a hazardous waste, it would be tracked and monitored. Staff had some
reservations about photographic equipment because the process uses chemicals. Staff
was okay with most of the by right uses. Number 8 is the one the applicant has agreed to
proffer out, which is the assembly and fabrication of light aircraft. The storage yard use
would have to be approved by the Architectural Review Board. Staff also looked at
engineering, engineering design and assembly work because it could involve materials
and might generate vibrations and noise.
• Staff found favorable factors as the rezoning would address the unique location
circumstances of the parcel, which is currently split into two zoning districts. It would
also make it consistent with the surrounding property.
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• Staff found that unfavorable factors include the proffers removing only one potential use,
as stated in the staff report. Staff is concerned that there is insufficient commitment to
watershed and water supply protection because only one use was proffered out.
• Staff doesn't recommend approval of this rezoning unless some commitment is made to
limit the uses to those appropriate in the location, particularly relating to the water supply
watershed.
Mr. Zobrist invited questions for staff.
Mr. Lafferty asked who owned the triangular piece of property behind the site.
Ms. Wiegand responded that VDOT owns it, and confirmed that if VDOT sells it the property
owner would have the first option to buy it since that piece was originally part of this property.
The owner of the property is trying to rezone the property with the intention of selling it. He
wanted to have one zoning on the property so someone would more likely be able to use it if
sold. So there is no plan proffered as part of this nor is there a specific use being requested. She
did not know if the property was sold if it would go back to this owner or another one.
Mr. Lafferty commented that the previous owner would have first right of refusal to buy the
property back at the price VDOT paid for it. If that is the case, he understands that VDOT has to
do something very soon. He asked if they are doing "a creep down toward the reservoir" and
will the applicant come back in. That would be his concern.
Ms. Wiegand noted that was a question for the applicant.
Mr. Morris commented that he went by the location today, and the parking lot on the adjacent
property was full of Century Link vehicles. He asked who actually occupies the site.
Ms. Wiegand responded that Century Link is in one of the buildings and the property that VDOT
has acquired is in the back.
Mr. Morris asked if staff would be in favor of the application if the potential uses were proffered
out not to be used.
Ms. Wiegand replied that staff would feel more comfortable with those removed.
Mr. Loach asked why the piece of land wasn't included in the LI zoning that's all around it, and
whether there were any limitations placed on the surrounding properties.
Ms. Wiegand responded that she is not aware of any restrictions placed on adjacent properties.
Apparently, only one of the parcels was included in the rezoning when it changed to LI.
Mr. Cilimberg noted that this is somewhat like other properties the Commission has seen in
projects, such as Restore `N Station — which had old zoning predating the 1980 zoning of the
county, and what was done in 1980 was essentially reflecting the zoning that was in place. For
ALBEMARLE COUNTY PLANNING COMMISSION - MARCH 1, 2011 12
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on
whatever reason one of these parcels originally had Light Industrial zoning and then the parcels
were combined.
Mr. Zobrist opened the public hearing and invited the applicant to address the Commission.
David Cook, representing the applicant Steve King, stated that they don't have anything more to
add to what Ms. Wiegand has already presented. They are here to answer specific questions.
There are no specific plans for the property at this time. The applicant wants to create a more
saleable property by having consistent LI zoning on the property. It just seems to make more
sense. They don't have anyone interested in the property at this time.
Mr. Zobrist invited questions for the applicant.
Mr. Morris asked if the applicant would be willing to include the additional proffers to restrict
possible uses on #8, #9, and #10.
Mr. Cilimberg noted that #8 was already included.
Mr. Cook said when they were trying to come up with uses to proffer it was difficult because Mr.
King is not the ultimate end user. Mr. King did not want to paint himself into a corner by
limiting the property. They felt that at some point whatever the next use might be, they are going
to come back before the Board anyway to get a permit to operate.
Mr. Zobrist noted that maybe not, which was the problem.
Mr. King noted that in order to get a business permit to operate they are going to have to come
back and go through the necessary process to get the approvals. The size will limit some uses.
However, because it is so uncertain what the next use might be they are reluctant to load it up
and get the LI zoning, but not be able to do anything with it. That's why they were hesitant to
put too many proffers in there right now.
Mr. Zobrist commented that it's difficult to rezone it when the intended use is not known, and
staff is recommending against it.
Mr. Cook stated that the applicant is in agreement with the four proffer restrictions that staff has
presented.
Mr. Zobrist invited public comment.
Barbara Kalemba-Sliwinski, an adjacent neighbor, supported the proposal.
Neil Williamson, of the Free Enterprise Forum, stated the question here is whether the need is
there for additional concerns to the water supply watershed. He asked if Albemarle County is
not checking industrial endeavors now. Right now if they place this on the property, they will
have one-half of the property that has the zoning conditioned. Effectively they get it on the other
side. He was not certain that a great gain is made here because he believed that through zoning
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clearances and other issues that the County has through a site plan, etc. to deal with these issues,
that he was not sure it belongs in a rezoning discussion.
There being no further discussion, Mr. Zobrist closed the public hearing to bring the matter
before the Commission.
Mr. Lafferty commented that maybe the conditions should be made on the whole property.
Mr. Kamptner pointed out that the rezoning applies only to the .5 acre portion of the entire
parcel. The proffers would apply only to the portion being rezoned. This is an unusual type of
proffer dealing with off -site impacts. That may be possible. The other option may be that it
needs to go through to rezone the entire parcel, which is typical where they have land that is
already rezoned and the applicant wants to amend the proffers to rezone the entire portion. It
may be from LI to LI, but it is with the addition of new proffers.
Mr. Zobrist asked if the applicant would have to file a new zoning application and start over
again. On the other hand, could they add the balance.
Mr. Zobrist replied that he would let Community Development staff answer that. They can look
at the issue as to whether or not the proffer could be amended. The Commission could
recommend that the proffer be amended to put the limitation on the entire parcel, "but that's
really stretching beyond the boundaries of the land that's being rezoned." Staff can take a look at
that question. He pointed out this is a different situation from an applicant who is offering to
build an offsite road or something like that.
Mr. Lafferty said that he shares Mr. Williamson's concern about the proximity to the drinking
water "and it's all downhill" to the reservoir. Everything is going to drain right into the
reservoir.
Mr. Zobrist commented that Mr. Williamson was contending that there shouldn't be limitations
put on LI.
Mr. Loach stated that Mr. Williamson was saying that the conditions for the water protection
would fall under the site plan review, not the proffers themselves.
Mr. Zobrist asked if that was what he meant.
Mr. Lafferty replied that he thought the reason the proffers came up is the protection.
Ms. Porterfield pointed out during the time she has been on the Commission there have been at
least two schools that have tried to go in on that side of the road. One proposal was turned down.
The other proposal was a work session and did not get good feedback so it did not come back. If
they are turning down schools due to watershed concerns, then she thought they have to be
careful with industrial property.
Mr. Loach agreed.
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Mr. Cilimberg noted this rezoning is for less than 'h of the total property. If they were going to
develop this property industrially, it would likely be built on both sides of the line. The proffer
being applied to this parted line is practically going to impose this limitation on the whole parcel.
He did not know if it is a critical matter that they have to have the whole parcel under the proffer
limitation. It practically, due to its size, is going to be limited if they feel like there should be a
limitation.
Mr. Zobrist suggested that they simplify it. He asked Mr. King if he would be willing to proffer
the four conditions to apply to the whole property.
Mr. King agreed that he would.
Ms. Porterfield asked if that was possible.
Mr. Kamptner replied that the Commission could recommend that. Staff would analyze it
between now and the Board meeting to see if that was practical. He thought what Mr. Cilimberg
said was true giving the very small size of the parcel.
MOTION: Mr. Lafferty moved for approval of ZMA-2010-00012 King Property with the entire
parcel being subject to the four conditions as discussed.
Mr. Franco seconded the motion, which passed unanimously (7-0).
Mr. Zobrist noted that ZMA-2010-00012, would go before Board of Supervisors on a date to be
determined with a recommendation for approval subject to the proffer as recommended by staff
and as amended to delete four uses and to apply such deletion to the entire parcel. Staff to
determine legality of applying proffers to the entire parcel between now and the Board meeting.
(Set Out Recommended Proffer Changes, as follows:)
The uses of the Property permitted by right shall be all those uses allowed by right under Section
27.2.1 of Chapter 18, Zoning, of the Albemarle County Code, as that section is in effect on [date
of rezoning action], 2011, a copy of which is attached hereto and incorporated herein as
Attachment A, except for:
• Manufacture, processing, fabrication, assembly, distribution of products such as but not
limited to:
- Photographic equipment and supplies including processing and developing plant.
(section 27.2.1(3))
• Assembly and fabrication of light aircraft from component parts manufactured off -site
(section 27.2.1(8));
• Storage yard (section 27.2.1(9));
• Engineering, engineering design, assembly and fabrication of machinery and components,
including such on -site accessory uses as machining, babbitting, welding and sheet metal
work and excluding such uses as drop hammering and foundry [section 27.2. 1 (10)].
The Commission took a brief recess at 7:00 p.m.
ALBEMARLE COUNTY PLANNING COMMISSION - MARCH 1, 2011 15
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The meeting reconvened at 7:08 p.m.
ZTA-2010-00008 Farm Winery Outdoor Amplified Music
Amend Sec. 5.1.25, Farm wineries, of Chapter 18, Zoning, of the Albemarle County Code. This
ordinance would amend Sec. 5.1.25 to amend the noise standard for outdoor amplified music at
farm wineries. The full text of the ordinance is available for examination by the public in the
offices of the Clerk of the Board of Supervisors and in the Department of Community
Development, County Office Building, 401 McIntire Road, Charlottesville, Virginia. (Amelia
McCulley)
Mr. Zobrist reminded meeting attendees that this proposal addresses two very narrow issues, and
staff has made a recommendation to the Commission of two proposed zoning text amendments.
That is all the Commission will discuss and vote on tonight. He asked that speakers direct
themselves to the zoning text amendments since the Commission has spent a lot of time with this
issue and are ready to move it on.
Ms. McCulley stated that given the legal issues pertaining to the ZTA, Mr. Kamptner would
begin the presentation by providing some context for the discussion. The staff presentation will
be given after that.
Mr. Kamptner presented a PowerPoint presentation and a memo addressed to Albemarle County
Board of Supervisors and Planning Commission dated March 1, 2011 regarding farm wineries;
,t, regulation of outdoor amplified music. He said that what's being addressed here is why
weddings and wedding receptions are allowed at farm wineries, with the second issue being the
regulation of outdoor amplified music. There are three topics discussed in the memorandum.
Regarding the first issue, he stated that weddings and wedding receptions are usual and
customary activities at farm wineries; events with 200 or fewer persons do not have substantial
impacts on the public health, safety or welfare; and weddings and wedding receptions at farm
wineries are considered to be agricultural activities. He reported that state law section 15.2-
2288.3 says that usual and customary activities and events at farm wineries "shall be permitted
without local regulation unless there is a substantial impact on the health, safety, or welfare of
the public." He explained that under the county's farm winery regulations since 1998, special
events including wedding receptions have been allowed — so wedding receptions under the prior
and current farm winery regulations would be considered to be "usual and customary." The
standard under state law is that usual and customary activities that have to be allowed without
restriction are examined statewide, so county staff was part of a team in 2007 and 2008 that
surveyed the statewide practices of localities that have farm wineries — and the conclusion was
that these two activities are "usual and customary" statewide.
He said that staff also looked at a house bill in the General Assembly that failed in 2008, which
included a lengthy list of activities and events that would fall under the definition of usual and
customary activities. That bill failed. In a meeting with the Farm Winery Council in 2008, they
indicated that the farm winery council would rely on the list in that bill as creating the uses
considered to be "usual and customary." Since the county had allowed wedding receptions since
ALBEMARLE COUNTY PLANNING COMMISSION - MARCH 1, 2011 16
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1998 and had studied the statewide activities, there was no reason for county staff to determine
otherwise as it was consistent with other localities.
Mr. Kamptner said that the second issue staff considered was identifying substantial impacts that
might arise from the various activities and events held at farm wineries, and unless a substantial
impact is found state law prohibits the county from regulating these activities.
County staff identified three potential impacts — entrances onto public roads, which would be
regulated by VDOT; health and sanitation issues, which would be regulated by the Department
of health; and noise, which is left to the county. So no substantial impacts were found for those
events that will have 200 or fewer persons, but staff recommended and the Board adopted
regulations to require a special use permit for certain types of activities and events including
weddings and wedding receptions if more than 200 persons would be attending at any one time.
Mr. Kamptner stated that the last — and most controversial issue — is the county's conclusion that
weddings and wedding receptions at farm wineries are considered to be agricultural activities.
He acknowledged that in the abstract, it is "not the easiest conclusion to reach," and in the
unique context of farm wineries the county has determined that these activities are agricultural in
nature. The definition of agriculture in the Zoning ordinance includes agricultural industries or
businesses, which is fairly broad in scope and may be an "underappreciated clause" in the
definition of agriculture. He stated that the business part of a farm winery includes promoting
and marketing wine, which is accomplished through a wide range of activities. The business part
of a farm winery includes promoting and marketing wine, which is accomplished through a wide
range of activities under state law — and within the terms of that law, they market and sell their
products. He stated that weddings and wedding receptions are usual and customary activities at
farm wineries and the county's farm winery regulations require that they be related to agri-
tourism or wine sales, which brings the activity back to the agricultural link.
Mr. Kamptner said that the final element is a 2009 amendment to the state law that compels
localities to take into account the "agricultural nature" of the activities of farm wineries that
market and sell their product, and the county has determined that these activities are agricultural.
He stated that the most relevant point of that conclusion is how this fits into the regulation of
outdoor amplified music. The obligation under state law is to balance the interest of farm
wineries with the affect on adjacent owners and nearby residents. The second issue is that the
noise standard for outdoor amplified music at farm wineries precludes the enforcement of the
general noise regulations by the police department, and that is the companion controversial issue.
He reported that the third issue raised was whether the county can ban outdoor music at farm
wineries all together.
Mr. Kamptner reported that state law stipulates that no local ordinance regulating noise other
than outdoor amplified music arising from activities and events at farm wineries shall be more
restrictive than that in the general noise ordinance. The companion provision states that in
authorizing outdoor amplified music at a farm winery, the locality shall consider the affect on
adjacent owners and nearby residents. The current audibility standard borrows from the
standards in the general noise regulations and considers the impact of outdoor amplified music
ALBEMARLE COUNTY PLANNING COMMISSION - MARCH 1, 2011 17
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on adjacent owners and nearby residents. He noted that the standard itself "is a pretty high
standard," and the real complaint is its civil enforcement and the speed with which the county is
allowed under state law to proceed.
Mr. Kamptner said that the audibility standard is not the only possible standard though, and the
other standard being debated is the decibel -base standard — which in the proper context is a
reasonable standard as well. He emphasized that the rest of the land uses in the Zoning
ordinance are subject to a decibel -based standard.
Mr. Kamptner stated that the county has taken the position that the noise standard for outdoor
amplified music at farm wineries precludes the enforcement of the general noise regulations. He
explained that outdoor amplified music generated during a wedding reception is a sound
generated from a land use, so like every other land use it is enforced by the Zoning Administrator
and her staff as a zoning violation under the Zoning ordinance. He explained that there are two
classes of penalties — civil and criminal — with civil being the typical approach and state limits of
$250 for the first violation and $500 for each subsequent violation. He said that the other civil
remedy is injunctive relief, and one of the farm wineries' neighbors has obtained a temporary
injunction against Keswick Vineyards. He emphasized that a police officer has no authority in
civil matters with limited exceptions that are inapplicable here, and state law prohibits police
from enforcing civil matters except for serving subpoenas, etc.
Under the general regulations such as the zoning noise regulations, he said, sound produced
during lawfully permitted, bona fide agricultural activities is exempt. He explained that because
of the way the county has viewed these events in the past, they would fall under the exemption
under the general noise regulations.
"What the farm winery outdoor amplified music standard is," Mr. Kamptner said, "is really an
exception to the general exemption that exists — not only in the general noise regulations but also
in the zoning noise regulations."
He stated that the final issue of whether the county can ban outdoor music at farm wineries
altogether was considered, as the state law refers to localities regulating noise and authorizing
outdoor amplified music. Under a Dillon Rule analysis, Mr. Kamptner explained, staff
concluded that if the General Assembly had intended to enable localities to prohibit outdoor
amplified music it would have used the word "prohibit." He said that the word "regulate" is the
lesser power than the power to "prohibit," so it can't be concluded that that power would even be
implied from the power that's granted. That is the introduction and Ms. McCulley will continue
on with the rest of the presentation.
Mr. Zobrist thanked Mr. Kamptner for getting the memo out to the Commission to review.
Ms. McCulley stated that the county received a letter late this afternoon from Jake Bushing of
Pollock Winery, which was forwarded to the Commission by email and appears in paper copy at
their places, and noting that Mr. Bushing supports the use of a decibel -based standard.
ALBEMARLE COUNTY PLANNING COMMISSION - MARCH 1, 2011 18
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Ms. McCulley reported that on May 5 there was a comprehensive rewrite of farm winery
**a,, regulations that included changes to sound regulations, and December 2 there was a roundtable
involving the public with a December 5 resolution of intent from the Board. She said that on
January 18 the Commission held a work session and February 8 they discussed the item again
and directed staff to proceed to public hearing, which is this meeting, with an audibility standard
to be enforced by the police department. She stated that the next day the Board discussed having
a decibel -based standard and set their public hearing date for March 9. She indicated that the
county attorney has drafted both ordinances, as attached in their reports.
Ms. McCulley stated that there is a need to balance "two competing needs" in terms of the public
purpose, and it's important to evaluate what you are trying to achieve by amending regulations.
She said that the standard and enforcement must be "reasonable, effective, and efficient," and
she has spent considerable time contemplating what those words mean in terms of regulation.
She said that to be reasonable it must consider the needs of the wineries and neighbors, must be
possible to achieve, must be objective, and must be easily measurable. She stated that there are
differing opinions as to whether an audibility standard or decibel -based standard best achieves
the purpose, noting that the decibel standards under Section 4.18 were adopted in 2000 after
"many many years of work" that included community sound readings and work with a
community noise task force. She stated that the county has found that those standards do work
for land uses and in researching them has found that they are "very comparable with other
localities' standards," not extreme in either direction.
She said that another aspect of being reasonable is that it needs to be easily measurable, and a
rw decibel standard needs an instrument to measure it — which is one issue that continues to
resurface. She stated that zoning currently enforces a land -use based decibel ordinance and uses
a sound meter, which is regularly calibrated, and moving to a decibel standard would not be new
at all.
Ms. McCulley said that to be effective the same situations must be treated equally, and one
concern that has been raised is that imposing a decibel standard to a farm winery creates an
inconsistency in regulation when compared to an event such as a wedding on an adjoining
property. She clarified that there is already a "deliberate, intentional inconsistency" in sound
regulations on private property versus what is controlled through zoning regulations as a land -
use activity. "It's purposeful. It's a division of private use of one's property and use of one's
property that's subject to zoning regulations." She commented that this inconsistency has
existed for many, many years, and prior to the audibility standard it was a nuisance noise level;
and prior to the current decibel levels it was a different decibel standard.
She said that to be effective, there must be some determination by the landowner as to whether
they are in compliance. She stated that weddings that are resulting from a special use permit for
special events under the zoning regulations are subject to a decibel -based standard — and staff is
suggesting that weddings that take place on farm wineries should also be subject to this standard.
She said that those who are having to bear with a nuisance next to them have some basic needs
and want some relief from that noise as quickly as possible, also seeking some assurance that it's
not going to be a recurring problem. While police may have a greater and more noticeable
presence, they cannot shut down an event. She said that police work toward voluntary
ALBEMARLE COUNTY PLANNING COMMISSION - MARCH 1, 2011 19
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compliance, and an extremely small number of noise complaints — less than 8% - make it to
M summons. She said that staff s suggestion is to have police team with zoning to be the initial
response in those limited cases.
Ms. McCulley reported that the third criteria, efficiency, relates mostly to enforcement, but also
relates to the standard. She noted that this includes choosing the right resources to use for the
job, and staff suggests that use of the police department for this type of enforcement is an
inappropriate use of that "very strained and very understaffed resource." She emphasized that a
noise complaint is a very low -priority police call, and the county police department is currently
understaffed by 20 officers below the Comp Plan staffing recommendation of 1.5 officers per
1,000 population to achieve desired response times.
Ms. McCulley stated that it's important to achieve the desired result, and staff suggests that a
decibel standard will better allow wineries to avoid violations, and wineries themselves have said
it allows them to better determine whether they are in compliance or not. She explained that if a
complaint comes in after normal business hours and the police are available, they would respond;
if the violation continues, zoning staff would observe it and send a notice of violation if it recurs.
The next step, she said, is civil penalties — but there is also an injunction available to zoning
whereby a judge agrees that a person has not followed requirements and imposes sanctions
accordingly. If there is a recurring problem, the county could go must quicker to an injunction
route to try to get more serious and longer -lasting results. Under a criminal proceeding, the
police would go to a site typically more than once looking for voluntary compliance and if the
problem recurs they would issue a summons that would likely result in a misdemeanor fine for a
specific date and time. The civil injunction allows this court order to stand as long as necessary
with the sanctions imposed if it is violated. She suggested that the civil route actually provides a
greater enforcement action. What they are learning in this process is they should go much more
quickly to that route rather than the civil penalty route because it is not going to be as good a
process as this kind of thing.
Ms. McCulley concluded by stating in summary that staff continues to recommend approval of
the draft ordinance, which is a decibel -based ordinance enforced by zoning. Alternatively, the
Commission may choose to recommend approval of Draft Ordinance E — which is the audibility
standard enforced by police. If there are specific questions, Mark Graham is here to try to
answer any engineering questions and Lieutenant Allen from the Police Department to answer
any police questions.
Mr. Zobrist thanked Ms. McCulley and asked if there were questions for staff.
Mr. Morris noted that as far as the administrative program that he heard laid out that one of the
things he was impressed with was that she felt that if there is a complaint issued about a wedding
that action needs to be taken very quickly. He asked if zoning would take the action in a
situation where a complaint is issued about a wedding.
Ms. McCulley explained that in all likelihood most weddings would occur outside zoning's
regular business hours, and in the event of a complaint a neighbor would inform the county that
it was a nuisance. From then on, once they are informed about it, the county would schedule
ALBEMARLE COUNTY PLANNING COMMISSION - MARCH 1, 2011 20
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time to be able to witness if it is a continuing violation. Most of the time there is voluntarily
,%NW compliance and it is not a continuing problem. However, if it is they will plan to be there and
witness the events and are take the necessary action.
Mr. Morris said if it continues how will they know that it continues and what action can the
neighbor take. What he envisions if they go with staff s plan was zoning is going to have to
establish a "duty roster" that would be in place every time there is going to be a wedding or
whatever at any of the wineries. That would likely mean that management, which is exempt
from overtime, would need to be on call, go out, and respond immediately. They would need a
backup in case there were two violations at the same time. He commented that the Zoning
Department is "just as strapped" as the police department. He questioned how they would
provide action immediately to the person issuing the complaint. If this happens on a Friday
night, they don't want to wait until Monday morning for a return phone call.
Ms. McCulley stated that in off -hours, the call would go to the police department and an officer
would go out and talk to the winery if they can fit it in just as they do currently with their noise
complaints. There is about a 92% success rate in getting the sound turned down. She explained
that if zoning were informed of it on a Friday night the following business day staff would be in
contact with that winery and find out what their subsequent events are and what their plan is for
that location. Staff would make plans to be there to witness it. What happens in reality is that
this is a very limited circumstance. It has really amounted to such a limited circumstance that
one individual, a code enforcement officer, has been able to schedule his time to be off during
the week in order to be available via phone to take the call on Saturday night when it occurs.
Ms. Porterfield clarified that Mr. Morris is saying that Zoning should be on call. These types of
events are going to occur on Friday, Saturday, Sunday and holidays. So Ms. McCulley was not
offering to schedule her staff to have them be on call so they take a complaint.
Ms. McCulley responded that this would be "a significant budgetary impact." So what staff
would do in those situations is plan for somebody to be available during the time of the next
event with time taken off the regular work week to compensate for the overtime or pay them for
that limited time they are there say on that Saturday night.
Ms. Porterfield noted otherwise what she was saying is that she would direct the police to take
those calls on Friday night, Saturday, Sunday, holidays or anytime her office is not open.
Ms. McCulley replied that she did not have any authority to direct the police to do anything. Her
understanding, and Lieutenant Allen can speak, is that if the police receives a call through 911,
and are available and the person insists on an officer responding to a call, they will attempt to
respond to that call if at all possible — even if it's a zoning violation.
Ms. Porterfield asked if that was different than what has been happening, that people have not
been calling the police.
Ms. McCulley replied that people have called the police even after calling Zoning.
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Ms. Porterfield noted that would have been when Zoning staff was not available. To follow that,
she was reading Zoning staff s recording, which says there is going to be an on -site visit within
ten business days and that these calls will be taken care of in the order received except for the
ones that are environmentally hazardous or regard public safety. Does that mean a complaint
about a winery event could drop down even farther than actually being gotten to the Monday
after the weekend when something happens?
Ms. McCulley replied that just like the police Zoning has to work it into their work load. They
have lost probably at least half of their enforcement staff. Their numbers are significantly down
and they are handling a high case load on top of building permits, which are time -oriented.
Knowing that these types of things are time sensitive and that another event is probably going to
occur potentially as soon as the next weekend they would try to get to it, be available for that
next event, talk with the winery, and try to work it out.
Ms. Porterfield noted in other words winery event complaints were not going to be "immediate
gratification" so to speak because of Zoning's time frame as to when they could get to these
things.
Ms. McCulley said the intermediacy after the event has ended is to resolve it so it does not recur.
Ms. Porterfield agreed, but asked if it could be a few days before staff could get back to the
complainant after the event occurs.
Ms. McCulley agreed that it could be.
Ms. Porterfield asked if this situation would happen regardless of whether it's an audibility
standard or a decibel standard. Is it the same situation as far as reporting the violations and the
response to the reports. In the County's response that has been delineated, does it matter whether
it's the audibility standard or the decibel standard and is there any difference in the response.
Ms. McCulley responded that if it's assigned to Zoning staff, there would be no difference in the
response and it would be treated equally. In fact, since they currently have land uses controlled
by decibel level now she would not be surprised if some of the loud noise calls the police
currently get could be land -use based noises that Zoning should be regulating anyway. That is
what staff is suggesting happens.
Ms. Porterfield clarified that it makes no difference as to which of the two ways, and Ms.
McCulley replied that was correct.
Mr. Loach said just for clarification on level of noise allowed they gave the example of the
tractor at 6 a.m. He asked if a tractor is allowed to be there because of the right to farm law, and
if so does the 65-decibel rule apply.
Ms. McCulley responded that it is allowed because of the right to farm, and the fact it is an
agricultural use makes it completely exempt.
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Mr. Loach noted that they were almost talking about multiple levels. One is a tractor and the
other is the stump grinder application, which was too loud.
Ms. McCulley noted that it was at 50 and 65 decibels.
Mr. Loach said now they were into a third level, which was the farm winery level that is a
decibel level they were trying to determine.
Ms. McCulley said the decibel level staff is recommending is the existing decibel level that
would apply to the stump grinder if he had been allowed to open. It applies to any land use in
the rural areas or residential district that is regulated.
Mr. Loach noted that staff made the analogy of the tractor at 5 a.m. So it seemed like a wedding
at 5 a.m., if they wanted to start go on the honeymoon early, would be okay, too because it is in
the rural area.
Ms. McCulley replied that she did not intend to imply that.
Mr. Loach noted when the police responds they are using the audibility standard when the officer
stands back and listens to determine if it is an acceptable level. Therefore, it seems like they
have a problem because they are asking the police to go out and apply an audibility level, which
they are actually saying is void because it is a land use situation. There seems to be some
inconsistency with this proposal as to how and when the police respond. There needs to be a
clear methodology if they are to respond. It seems to be a case of fixing something that isn't
broken. If they have a 92 percent success level that seems to be pretty good.
Ms. McCulley explained that the police enforce the audibility standard in a way that she would
love Lieutenant Allen to explain. It is not as rigid as neighbors to farm wineries would expect us
to enforce it. It is not if it can be heard at all in any way, shape or form it is a violation. They
are using their best judgment as to whether it is loud enough to be a nuisance and it is audible, of
course. She was afraid that the standard that people are expecting us to uphold is more
significant and impractical for farm wineries to achieve.
Mr. Lafferty asked for some clarification as to the magnitude of this problem.
Ms. McCulley responded that of all the wineries in Albemarle County, there are only complaints
from one — but some wineries are in the process of expanding their event area, with two under
construction for large event spaces of 10,000 square feet. Therefore, it is possible that there may
be more in the future. Right now, it relates to one winery only.
Mr. Lafferty asked if staff thus far has been able to handle the situation, with immediate action
desirable but not practical in this case.
Ms. McCulley replied that the neighbors would disagree, and in retrospect, she feels the county
would move quicker in the case of a violation. She was not saying in that particular case. She
thought that based upon what they have learned they would not track the normal civil penalty
ALBEMARLE COUNTY PLANNING COMMISSION - MARCH 1, 2011 23
FINAL MINUTES
route until they max out at $5,000 and then go to injunction if it continues. They would go much
quicker to an injunction to get the desired result of compliance.
Mr. Lafferty said he thought this has been a learning lesson for all of us.
Mr. Cilimberg emphasized that this regulation is not really about weddings, it is about "amplified
music," and that's it. The rest, as Mr. Kamptner said, is considered to be agricultural activity.
They are really talking about the regulation of amplified music outdoors and that is not regulated.
They are talking about a very specific aspect.
Mr. Zobrist asked if staff had considered a safe harbor regulation whereby wineries could self
regulate, adding that he doesn't see any reason why they can't use their own decibel meters. He
said that if someone makes a complaint, they could prove the noise level with the decibel meter.
That way they would not get a violation. That way the winery would know at all times whether
they are in compliance or not. The Commission had a lengthy discussion and gave very specific
instructions to staff. He was not sure either one of the regulations comes up to what the Planning
Commission said. That may not be relevant because the Board is going to have their hearing in a
few days to make their decision. He would like to help them if they can. If they could create
some kind of safe harbor for the wineries so they could install their continuous monitoring
machinery that they cannot tamper with might be something that at least it was up to them
whether to do it or not. If someone complained then they could provide that night's readings.
He could not figure out how the decibel meter works even after reading all of the technology on
it. He was perplexed on how they could solve this problem. There were more and more people
coming to Albemarle County and many brides wanted to get married here. He was for all of that
stuff. But they have to figure out what those who live next to the winery are willing to tolerate
and how do they do it without spending a lot of money. It seems that in many areas in law they
give people a safe harbor. Someone does not have to register if they do a, b, c, and it is up to
them to proof it if he comes knocking on your door. He asked if staff has considered that at all.
Ms. McCulley replied yes, but maybe not at the degree he mentioned although staff has done
some interesting research. She responded that with a decibel -based ordinance, self -enforcement
could be used to determine compliance — and a sound meter reading must occur for five minutes
and then establish an average reading. The machine itself, if it is on the right way to measure,
will give the final average measurement of what that decibel level is. There is machinery that
could be fixed that a winery could use or hire somebody to do. There is equipment that could be
used by a hired third -party expert who could be a professional expert, which is what quarries and
other industrial sites often use. The remote sensing equipment, wireless equipment, and fixed
equipment is out there. She stated that this would be helpful, but it may not stand up the test of a
good attorney in court who might question whether or not it was tampered with unless there was
a video of the entire recording time. She thought that a decibel based ordinance allows wineries
to self regulate.
Mr. Zobrist stated that if they give a safe harbor to wineries and they give staff their records and
it looks fine they are not going to enforce. He questioned how they would get a smart attorney
on the other side unless it is the neighbor who is suing for an injunction. He suggested that the
let the neighbors worry about that one. It would make it simpler to enforce because they would
ALBEMARLE COUNTY PLANNING COMMISSION - MARCH 1, 2011 24
FINAL MINUTES
not have to have decibel readers in the hands of anybody. If they receive a complaint let the
%W police go out there. If the police decide it is too much noise they will talk to them. If they don't
lower the noise, then zoning can go out on Monday morning and ask them for their reading.
Some people will tamper and cheat and some won't. Those who violate or cheat would
obviously receive a lot more calls. He was for simplicity and certainty on both sides. He
thought they might be going about it in the wrong way.
Mr. Morris suggested that law enforcement person address the Commission to discuss the
decibel -based system in how they handle it now and what are their recommendations.
Mr. Zobrist invited Lieutenant Allen to come forward and address the Commission.
Lieutenant Ernie Allen of the Albemarle County Police Department addressed the Commission.
Mr. Loach asked Lieutenant Allen what the criteria would be for the 92% success in establishing
that both parties are happy so the officer can leave the site.
Lieutenant Allen responded that last year there were over 700 calls, with only 13 summons
issued. They need to keep in mind that the police standards are more flexible — with them going
100 feet from where the complaint is coming from and if it can be heard, "it is too loud." If it is
not 100 feet, then he basically goes inside the residence with all the windows and doors closed.
Then if he can hear it, then it is too loud. He stated that it is really up to the responding officer
and subjective as to whether a noise is too loud and whether to approach the individual to ask
them to turn it down. It is on a case by case basis.
Mr. Loach asked what percentage of calls reaches the point where the police determine that the
noise level is acceptable, but the complainant doesn't feel that way.
Lieutenant Allen responded in his experience that there is usually at least 80% compliance. They
do not have a noise meter and is all from what he can hear. If there are repeat visits to the same
locations a summons would likely be issued. He would doubt that the first time they received the
call that a summons would be issued. It would only be after repeated offenses for the same
location. Again, they can't shut it down.
Mr. Morris asked if the audible standard has worked for him and for his officers.
Lieutenant Allen responded, "Yes."
Mr. Zobrist opened the public hearing and invited public comment. There are two propositions
before them. Attachment E is staff s attempt to response to the Commission's prior suggestion.
Copies are available for the public.
Al Schornberg, owner of Keswick Vineyards, addressed the Commission, stating that he
supports staff s recommendation that a sound ordinance be created using the decibel metric and
opposes the recommendation that it be based on audibility. He also said that when the farm
winery ordinance was changed to support farm winery activity in Albemarle and agri-tourism,
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FINAL MINUTES
the intent of the sound ordinance was not for a neighbor to stand 100 feet from the property line
with an ordinance enforcement officer and "struggle" to hear a sound. "That's why it has to
change, and that's why we need a decibel reading."
Patrick Cushing, Director of the Virginia Wine Council, addressed the Commission and stated
that he sat in on the roundtable last December. He stated that the council represents 190 wineries
and 300 vineyards in Virginia, and his primary focus is lobbying the General Assembly for
things like tax credits and funding for the wine board. He said that he is here in support of the 19
Albemarle wineries, adding that it is important to have activities — especially weddings — and
outdoor amplified music is a key component that plays a large role and drives a large portion of
sales on the premises of Virginia wineries. "Our wineries rely on the foot traffic at wineries. So
the more people that they can bring on their site the more wine they can sell and the more that
industry can be driven — especially here in this county." He stated that the wineries are a major
driver of economic activity. Over the next couple of months there is a new study pending that
looks at the economic impact of wineries on the Commonwealth. They have some new funding
to take a look at that. They expect that to be a very large number. That number has not been
updated probably in about ten years. When looking at this ordinance, the council supports a
decibel -based ordinance. It is important that the wineries have the ability to self -regulate. He
added that the idea of self -policing is an important aspect of this ordinance and that is what the
decibel measurement provides. He said that the audibility standard is "way too subjective," and
any pin point of music or "blip on the radar screen" from amplified can result in events being
shut down. They would like to see the decibel standard for enforcement.
Elizabeth Lewis Page addressed the Commission and stated that she has lived at Linden Lane
Farm for the past 33 years. Until last year, they have enjoyed a very quiet and peaceful
existence, but that has been "abruptly interrupted" by a number of very loud events coming from
the winery next door. She stated that at times the noise from these events was overwhelming and
unsettling. She would appreciate anything that can be done to prevent this type of abusive
behavior in the future.
Lee Beltrone addressed the Commission, stating that she has laryngitis. Jason Beltrone, her
husband, addressed the Commission and read a statement on her behalf. Mr. Beltrone said that
there are several provisions in this proposal by zoning that "seem unlikely to work." He
explained that neighbors have no way of knowing whether there would be events that might have
outdoor amplified music, as the events aren't advertised. Mr. Beltrone noted that there are a
dozen wineries and cider -works already operating throughout the county, and it would be
unlikely that staff could monitor them simultaneously with one sound meter and limited staff.
He said that the staff report also says that the civil process is efficient and effective for
compliance when voluntary compliance does not work, and residents could initiate the process
by calling the zoning complaint hotline. The Commission has a copy of the recording on the
complaint hotline. He stated that complaints are monitored during normal business hours and
investigations are conducted within a 10-day period — days after the outdoor event takes place.
"There is no possibility for an alleged violation to be checked as it is occurring under that
criteria, and perhaps no way for actual violation to be ultimately cited."
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Judith Summer addressed the Commission, stating that she supports the audibility standard and
police enforcement of the noise ordinance. She said that noise pollution in any form is
"unwelcome sound" that negatively affects human health, adding that it can make people
physically ill. She suggested that anyone wanting to have amplified should get a special use
permit from the county, which would alert enforcement that someone would be having amplified
sound. Ms. Summer stated that sound waves travel according to the laws of physics, but
variation and outdoor environment introduce unpredictability into estimating the path and
intensity of sound. She added that refraction from temperature differentiation can cause sound
waves to bounce up, and underneath you won't hear anything; diffraction is the spread of sound
waves around an object, such as a concrete wall. Ms. Summer commented that the only winery
that has had a problem with the audibility standard is Keswick Winery, which has been for sale
for several years. She said that the easement agreement with the Virginia Outdoors Foundation
allows them to build a 10,000 square foot permanent structure associated with the winery as long
as it's not visible from Route 231. Ms. Summer indicated that the listing states: "Keswick
Vineyards provides an opportunity to own an established and profitable vineyard winery estate."
She said that the owners might not want to build a permanent indoor event venue given the
uncertainty of their ownership, but the decision not to build means accepting noise limits on
outdoor activities. Ms. Summer read a definition of emergency and said it doesn't sound like
something zoning can handle, adding that 911 is the number people know to call for
emergencies. She emphasized that if only one winery has run afoul of the law in the last year,
it's unreasonable to expect a flood of 911 calls in the future. "Give the responsibility to law
enforcement."
John Henry Jordan addressed the Commission, stating that his house is 2,000 feet from the
property line between the Page's residence and Keswick Vineyards. He said that he has heard
music from their events from his front porch. He stated that Ms. McCulley made a comment
about zoning not having the authority to direct police, and he has been pondering how in the past
the police were instructed not to respond to winery events. "Somewhere, somebody said `don't
go."' He said that zoning is more significantly understaffed than county police percentage -wise,
missing one zoning administrative position, one enforcement manager, and two out of six code
enforcement officers. He stated that he supports the audibility standard and asked why the entire
law is being changed for one violator — with 18 other wineries abiding by the law. He also
pointed out that there have been considerable man hours spent on this issue, and if vineyards are
given more leeway to make noise there's no way zoning will be able to handle it. He said that
the county attorney has already indicated in the past that the use of a metering device would
trigger additional professional requirements in terms of court, and while zoning staff is trained,
they are not certified in the use of the meter.
Kathleen Jump addressed the Commission, stating that she has lived next door to a winery for
the last 10 years and noting that she is in favor of the audibility standard as it is the "most
stringent." She said the difference in her case is that a structure was built to contain the
amplified music, and as an interim measure, the winery only played amplified acoustic music.
She stated that the regulation of amplified music is the only aspect of a winery's operation that
the county can control, and the number of events and hours the music is played are out of their
control. She noted that there are also noises from catering businesses coming in and out, as well
as noise generated from recycling. She commented that she hopes the Commission won't be
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FINAL MINUTES
short-sighted in its consideration of measures pertaining to winery activities and amplified
music. She encouraged them to protect the interest and attraction of persons who want to live in
agricultural areas.
Art Beltrone addressed the Commission, stating that he lives at 6057 Gordonsville Road adjacent
to Keswick Vineyards. He said that one part of the issue is the detrimental effects of outdoor
amplified music from then vineyard property during events and weddings, but that is only one
part of the issue. He stated that this meeting isn't about one vineyard in one location, noting that
Sissy Spacek had told the Commission that the reason she selected Albemarle County for her
family's home was "for the peace and tranquility in the rural area." She said that he and his wife
also chose this area to get away from Long Island, and were drawn here because of the area's
scenic beauty and strong sense of history. He stated that today the 19 wineries and cider -works
stretch from one end of the county to the other and host a wide range of activities to promote
their businesses, such as weddings with outdoor amplified music. He said that even "rock
concerts" could be promoted in the countryside, but the Commission has the opportunity tonight
to champion the way to protect and preserve the special qualities of county living for now and
future generations. He added that the state actually encourages them to do so, with Section A of
the Farm Winery Ordinance provisions stating, "in authorizing outdoor amplified music at a farm
winery, the locality shall consider the effect on adjacent property owners and nearby residents."
Burt Page addressed the Commission, stating that he lives next door to Keswick Winery and
saying that he wants to speak to an issue that has not yet been discussed. He said that the most
important and compelling issue in this case is public welfare, health and safety. As the county
ordinance states, "the public has a right to and should be free from an environment of excessive
or unwanted sound ... and the Board of Supervisors has a significant governmental interest in
providing an environment free of excessive and unwanted sound." He stated that county
research shows that inadequately controlled sound "presents a growing danger to the public
health, safety, and welfare." He said that his concern with police enforcement of noise
complaints is having corroboration from a credible witness to the offense with the capability of
issuing a citation if the facts on the ground dictate. He stated that the Zoning Department has
demonstrated repeatedly "their inability or unwillingness to perform this important function."
He said that neighbors seek no special consideration, only peaceful enjoyment of their property.
Nannette Derkac addressed the Commission, stating that she is also an adjacent property owner
and is here in support of the audibility standard. She said that she and her husband purchased the
farm in Albemarle because of the beauty, the history and tradition, the serenity, and the peace it
provides them and their three sons. She commented that there are many people who have made a
commitment to preservation by putting their land in easement, and while she is supportive of the
wine industry, she doesn't understand why the assets of the county and state should be sacrificed
for economic reasons.
Stephen Barnard addressed the Commission, stating that he is the winemaker at Keswick
Vineyards and saying that it is important to have a measurable sound level. He stated that he
supports a decibel -based system.
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Cindy Schomberg addressed the Commission, stating that last year the county changed the
ordinance to encourage agricultural activities and allow wineries to increase the number of
special events. She said that Keswick Vineyards engaged in doing special events and has invited
neighbors to come out and see what is being done. She asked why these neighbors didn't call
them first, as they went directly to the police and zoning instead. She said that the Zoning
Department went to the second wedding and came back on the following Monday to tell them
they were in violation. She stated that at the third wedding, zoning went out to the neighbors'
again and didn't feel there was a violation. She said that it must be a situation where noise is
actually a nuisance, not that they can just hear it because it is unreasonable to think that it would
be totally inaudible. She pointed out that their home and winery are not for sale, as they now
live here full-time.
Neil Williamson of the Free Enterprise Forum addressed the Commission, stating that in another
locality north of here their website has a link on the wedding page for brides before they sign
contracts "understanding our commitment to noise control." He said that the information from
the winery states that they were allowed to build a garden pavilion and "based on a contract of
trust and respect" they are "totally committed to preserving the integrity of our operations and
the rights of our neighbors to peacefully enjoy their property and the rural nature of our
community." He also said that the winery says that "while music is a very important aspect of
your wedding or reception, the determination of acceptable levels of music are at the sole and
exclusive direction of the winery." He stated that the winery says they have hosted hundreds of
events, and has occasionally asked music to be turned down — working with an objective metric
that the bride understands as she signs the contract. The point is that there is an objective metric
level. This winery in the north is working with an objective metric that the bride who signs the
contract and pays the money. Levels of expectations are made of the neighbors, the winery and
of the participants in the wedding.
Donald Morin addressed the Commission, stating that he is the attorney representing Mr. and
Mrs. Page, the neighbors of Keswick Winery. He would refer to next to the last slide in Mr.
Kamptner's presentation. He asked that slide to be put up on the board. They are here in support
of the audibility standard primarily because as drafted they understand that the audibility
standard will be in Chapter 7 and would be enforced by the police. Lieutenant Allen spoke about
the police enforcement and how easy and objective it was to do. He emphasized that police
enforcement is critical, and is also easy and objective. "He stands a hundred feet from the
property line, and if he can hear it, it's too loud." He said that he then goes over and talks to the
people making the noise to get them to turn it down, which works over 80% of the time.
"Nothing could be easier. Nothing could be less expensive." He said that he was part of the
roundtable in December and asked Ms. McCulley how many sound meter devices the county
has, when they were last calibrated, and who is certified and trained to operate them. He
responded that she said she didn't know, and the police department does not even have one. It
will be a substantial economic impact if they go to a decibel standard. He noted that this would
be expensive to implement and possibly subject to attack in court, adding that the audibility
standard provides "a level playing field." He stated that in writing to the Commissioners and the
Board, he said that amplified outdoor music has always been regulated under Chapter 18, the
zoning ordinance and under Chapter 7, the general noise ordinance.
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Mr. Morin noted that Mr. Cilimberg was correct that they are here about outdoor amplified
music. When the Board was adopting the audibility standard as it exists today under the general
ordinance, this is the commentary provided to the Commission and Board of Supervisors.
County Code Section 7.105-B5 "establishes noise standards emitted from various devices
including electronic sound amplification equipment" and the standard prohibits sound that is
audible from a distance of 100 feet or more from the property line of the parcel in which the
device is located or for inside a dwelling unit or hotel room on a parcel other than a farm
winery." He said that the Farm Winery Ordinance has a provision that states in authorizing
outdoor amplified music, the locality must consider the effect on adjacent property owners and
nearby residents. "This draft further clarifies that outdoor amplified music is not an exempt
agricultural or any other activity. It is subject to regulation under Chapter 7. That's why the
audibility standard as it's been proposed should be adopted. Let the police enforce it, it's easy to
do."
There being no further public comment, the matter was placed before the Commission.
Mr. Zobrist said that at the last meeting there were four Commissioners who voted in favor of an
audibility standard and three who voted against because they wanted a decibel -measurement
standard. He asked if any Commissioners had changed their position since then.
Mr. Loach responded yes that he voted last time for a decibel based standard, but that he may
have a compromise standard that he would express later.
Mr. Zobrist questioned whether the Commission wanted to spend their time on Attachment E or
D.
Ms. Porterfield supported the concept that "if it is not broke, don't fix it." The big problem
seems to be the enforcement. When Lieutenant Allen said the audibility standard was adequate
"that sold it for me." She supports the audibility standard with the police enforcement.
Mr. Morris agreed.
Mr. Lafferty asked Mr. Kamptner to explain Section 2B of his memo.
Mr. Kamptner said the passage that Mr. Morin cited was in the annotated version of the draft
ordinance. He did not believe the Commission has those. It goes into the argument as to
whether or not the standard is enforced by the police under the general noise regulations or under
the zoning regulations. The annotations unfortunately were not updated to coincide with the
final language of the draft ordinance, which imposed a standard that was similar to the standard
in the general noise ordinance, but it no longer contained the direct cross-reference to the general
noise regulations. Once this matter got to the Board of Supervisors, there was a change and the
desire was to have it enforced under the Zoning Ordinance. That is how they always interpret
and they don't duplicate violations.
Mr. Kamptner stated there is a precise provision in the Virginia State Code that deals with civil
enforcement, which hasn't been cited because it hasn't been relied upon up to this point. They
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don't know if it is speaking just within the context of a zoning ordinance or applies across the
*4W11 board. The language says, "Designation of a particular zoning ordinance violation for a civil
penalty pursuant to this section shall be in lieu of criminal sanctions, and except for any violation
resulting in injury to persons -such designation shall preclude the prosecution of a violation as a
criminal misdemeanor." They did not cite that, but that is an additional reason why they don't
duplicate violations. Like he said, that particular provision is less than ten years old. They are
not aware of any cases where that has been applied from a zoning noise regulation versus a
general noise regulation. However, at least it indicates the intent of the General Assembly not to
have civil penalties being on top of possible criminal sanctions.
Mr. Zobrist asked if one or the other is okay.
Mr. Kamptner replied yes.
Mr. Lafferty commented that he sees the problem breaking down into amplified music and the
audible versus decibel standard, and the zoning enforcement versus the police.
Mr. Franco said that he sees it breaking down into expectations as to how reasonable and
immediate the relief has to be with the second being how reasonable is that standard. He looks at
it as a land use and looks at the other land uses that are out there. They listened earlier to
comments about calling the hotline and maybe being pushed off because there are a number of
different calls and it might be prioritized below other health and safety issues. Other things that
he had heard that have happened in the past for zoning violations would be dumping, junkyards,
and things like that which cause environmental problems. He did not think there is a need for
zoning staff to be on call on the weekends just to answer "junk calls." Those would be, in his
opinion, to have a greater impact to the environment. So he looks as the expectations as being
unrealistic to have immediate relief from the situation and the problem. From his perspective,
immediate relief is a problem.
Mr. Lafferty said that he did not think they disagree. He did not think that having loud or
audible music or some decibel level constitutes an emergency.
Mr. Franco said it seems that they have boiled this down to three events that occurred last year.
The third event at which zoning walked around and did not hear an issue. As far as the amount
of calls, he did not think this was tremendous. He had heard the winery come before them and
say they have made changes and zoning is working with them to try to correct the situation. He
thought they ought to allow staff to continue working with the community to fix the problem He
did not know if bringing the police into it is a necessary requirements because there are a plenty
other land use issues that would take a higher priority for him with the police.
Mr. Lafferty agreed.
Mr. Zobrist asked to try to frame the issue. He asked if they have a majority that wants to
discuss Exhibit D since he thought they ought to move this along. He asked if Exhibit D was the
audibility.
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Mr. Cilimberg noted that Exhibit E was the audibility.
Mr. Zobrist asked if anyone wanted to discuss Exhibit D, which was the decibel standard
recommended by staff. He noted that D to E is the one they were talking about. That is subject
to the standard in the County Code 7.105.b5 shall be enforced as under 7.107 rather than under
this chapter and shall not be considered exempt. That is Exhibit E. He asked if that was the one
the Commission asked staff to draft.
Mr. Kamptner replied yes. Staff is going to recommend some different language for that.
Mr. Zobrist noted that only two Commissioners, Mr. Lafferty, and Mr. Franco, want to talk about
that. He asked if the rest of the Commissioners want to go on to a discussion of Exhibit E.
Mr. Smith commented that a statement was made that "not audible is not reasonable," but it is
reasonable if that's what you are used to.
Mr. Lafferty said that was not quite right if they go out into the woods.
Mr. Smith pointed out he was only talking about amplified music.
Mr. Lafferty asked for what length of time and if it was instantaneously or for half a minute.
Mr. Smith replied it would be for a duration. If they were going to have a wedding or any event
it was not going to be just one instance but for the duration of the event if it was offensive.
Mr. Lafferty said that they are talking about objective versus subjective. When he says duration
that is subjective unless you say the duration of the event or a specific time. If he says audible,
what he can hear now is a lot less than what he could hear 20 years ago. An average decibel
reading over a specific period of time they are getting a specific reading.
Mr. Smith noted they have nice young police officers that can go out to the site that will listen.
Mr. Loach noted that there is a specification that says duration if they want to talk about it. The
duration criteria for daytime noise is proposed to be five minutes of continuous sound within a
one hour period. Mr. Smith is talking about a lot more than that.
Mr. Zobrist said it was with normal hearing levels. He asked that they go back. He has had
several conversations with members of the Board of Supervisors because they want to know
what the Commission is doing. He is fairly certain that the Board of Supervisors wants a decibel
standard, but the more he hears the more he likes the audibility standard and what the
Commission did at their last meeting.
Mr. Morris agreed.
Mr. Zobrist said after hearing the lieutenant, he thought the audibility standard is the simplest
solution in the world. They might get five calls in a year. He agreed with Mr. Beltrone who said
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that they have 19 wineries and it will probably be stretched out. He thought that might be true.
He wants to help the farm wineries, but he wants to help the neighbors, too. He is a neighbor,
too. Not everybody can buy a house that is a long way from their neighbors. Therefore, they
have to live in this society and put up with it. The wineries are in the rural areas and have
neighbors. They have a large properties and should be able to contain their sound. He is in favor
of passing whatever language Mr. Kamptner wants to put in Attachment E, the audibility
standard to the Board of Supervisors for adoption.
Mr. Loach said that it seems the effort here is to come up with an acceptable decibel level for the
neighbors. They use 50 decibels currently for the rural area. He was not sure that was good, bad
or in different. When the police respond, they use a subjective standard "which a reasonable
person is going to use and say that music is either too loud, shut it down — or I'm going to shut
you off." He said that he doesn't know what that decibel level is, and it's really whether or not a
person can hear it. He was not sure if that dramatic of a criteria is necessary. If was not sure
what level of sound was acceptable at 8 p.m. to 10 p.m. when someone was trying to rest. If he
knew that decibel level, he would be more than happy to put it into place and essentially let the
wineries self regulate. He stated that if that decibel level could be established, wineries could
have a decibel meter onsite to be certified by the county as accurate, and an officer can evaluate
that — unless there is no meter, whereby he would use his own judgment. He was not sure if 50
decibels was too high or too low. He just could not decide. When he heard the demonstration in
the conference room, he felt that 65 decibels was too high. Obviously, he did not have the votes
here. If he had to he would go to a decibel level that is acceptable and enforceable by the winery
so they can self regulate and would be able to show it to the police and use that as the criteria.
Mr. Kamptner asked to answer Mr. Loach's question at least partially. The general noise
regulations are not all audibility -based standards. There is one general prohibition that they
plugged into that one. The standard being is being that it shall be unlawful for any person to
produce sound that causes at least a 15-decibel increase in the sound level above the ambient
sound level and using the procedures that are used under the zoning ordinance. He explained
one of the reasons why the 15-decibel level was chosen was in the statement of purpose and
intent in the general noise ordinance. One of the provisions they used to support the regulations
they stated was that "studies have characterized the human reaction to increases in sound
pressure levels over ambient levels as measured in decibels as intrusive for increases of 5-10
decibels, very noticeable for increases of 10-15 decibels, objectionable for increases of 15-20
decibels, and very objectionable to intolerable for increases of 20 or more decibels." If he
recalled correctly he believed that decibel increases of less than 5 were generally not perceptible
or at least not to the point where they affect people. He stated that using an increase over the
ambient sound level is another approach.
Mr. Zobrist said that they couldn't do less for them than they are doing for the general public
according to what he told them.
Mr. Kamptner replied no, for outdoor amplified music they can regulate. It does not have to
match the general noise standards.
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Mr. Zobrist said the general standards could not be more restrictive on the wineries and anything
except for outdoor amplified music.
Mr. Kamptner agreed.
Mr. Morris stated that they hear time after time again that they don't have money for this or that
and yet if they go to a decibel level they are going to need to have new equipment and special
training for the staff. Going back to a statement made by a fellow Commissioner, he did not see
that they have something that is broken and did not feel that they need to change it. He would go
with Attachment E. That would be his recommendation to the Board.
Mr. Zobrist noted that the recommendation to the Board was to adopt Exhibit E as redrafted to
meet their intent. He asked Mr. Kamptner what he was going to do to change it.
Mr. Kamptner said that in a discussion with Larry Davis today they think that rather than having
a zoning regulation reach over into the general noise regulations, that what this standard should
say is something such as they would not regulate it under the zoning ordinance and it would not
be exempt under the zoning ordinance. They would need to amend the general noise regulations
to identify the standard. The one that was in the drafts from over a year ago, which is the
standard for radios and other electronic devices that amplify music.
Mr. Zobrist asked if that was the 15 decibels over ambient.
Mr. Kamptner replied no, that is the audibility standard. Then they would amend the exemption
section to exclude outdoor amplified music from the agricultural exemption just to eliminate any
argument or debate as to whether or not it's produced from an agricultural activity.
Mr. Kamptner suggested that the motion be made to employ the concepts in Exhibit E and
recommend them to the Board. They would like the Board to know that they listened to all of
the arguments and science, and at the end of the day, four or five Commissioners were persuaded
that E was the way to go and not D.
MOTION: Mr. Morris moved and Mr. Smith seconded to accept Exhibit E and recommend to
the Board that an audible standard be adopted.
Mr. Zobrist invited discussion.
Mr. Franco asked as part of the motion and part of the framing of the motion made that he talked
about the expensive equipment and stuff. He thought he heard staff say earlier that it is
equipment and skill sets that they have and currently use to enforce other noise provisions in the
land use section of the code. He thought if that was one of the facts or one of the fundamental
basis for the motion, that is incorrect statement because it is not requiring additional equipment.
Mr. Morris said that what he has heard was contradictory statements across the board.
Mr. Franco asked that they get an absolute.
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Mr. Morris asked that they remember it is the police department that is going to go out and take
intermediate action unless they want to set up a duty section for the zoning department and they
are on duty.
Mr. Zobrist said he wanted to go back to what persuaded him. The lieutenant persuaded him and
Ms. Porterfield, too. He thought that was the direction and maybe the Board of Supervisors
could hear from him also. It is really their decision and the Commission is just trying to do their
best and make a recommendation. They want to make the best recommendation they can. He
has tried to accommodate what he has heard from them and he just cannot get there.
Mr. Franco asked if he saw this as something that "creates a creep" in the rest of the land use
provisions to the police department. If there are violations of other land use like dumping or
construction taking place on a weekend that is not suppose to be are they going to make
provision in other chapters of the ordinance so the police can shut those things down.
Mr. Loach said that he was sure that the police are handling those things as they would handle
them now if they were called under Chapter 7.
Mr. Franco noted that was just noise. He asked what about other activities that are taking place.
If construction is taking place and it is not suppose to be, should they have the police handle it.
Right now if construction starts on a site at 5 a.m. for building construction he thought that is
considered outside the normal time zone and the police don't have the power to come and shut
11%W that down.
Mr. Zobrist stated that they don't shut it down. That is not before the Commission right now.
He suggested that they stay with the point. He asked if there was any discussion in respect to the
motion.
Mr. Loach asked if there was any support to have the wineries use a meter, with the officer using
the meter to get the decibel level, as Mr. Kamptner was talking about. If there is no meter the
officer still has the ability to use the auditory standard if that is not available. They can make the
meter one that has to be certified by the county so that they know it will not be rigged to give a
false reading.
Mr. Morris said that looking at it from an industrial point of view, the county doesn't have the
technical capability to certify anything as far as calibration. They would have to get an outside
calibration organization, which is fine if they have a certified calibration person on staff who can
in fact calibrate a decibel meter.
Ms. McCulley stated that the equipment is sent back to the manufacturer on an annual basis to be
officially and certifiably calibrated.
Mr. Morris said that the manufacturer would then be the calibration agency and they would have
to get that person in here to do the calibration.
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Mr. Zobrist noted or to testify.
Ms. Porterfield asked to respond to Mr. Loach's comment. She understood what he was trying
to say. She would hope that if the wineries have the decibel meters that they can figure out what
the decibel reader should say to make sure that they are in compliance with the audibility
standard. She would think that they could work with their neighbors to get on the neighbor's
property and just check it out. That way they could look at their decibel reader, but the police
would be using their ears.
The motion passed 4-3. (Mr. Lafferty, Mr. Franco, and Mr. Loach voted nay.)
Mr. Lafferty voted no because he thought the standard should be more objective.
Mr. Zobrist said the motion passes and the Commission would make that recommendation to the
Board of Supervisors. He was sure that each Commissioner would be called by whoever
appointed them and they could explain the many hours the Commission spent. He thanked
everyone for coming. It is a tough decision. He apologized that the Commission could not come
up with a better solution, but it would ultimately be up to the Board.
Mr. Kamptner stated that this would go to the Board on March 9. Staff will summarize the
Commission's action since he was not sure if the minutes would be provided.
Mr. Zobrist noted that the Commission struggled with this item. The Commission would support
whatever the Board does.
Old Business:
Mr. Zobrist asked if there was any old business.
• Mr. Kamptner reported that regarding the critical slopes waiver case in Key West for
Sinclair, the Virginia Supreme Court accepted the Sinclair petition for appeal and it is
currently in the briefing phase.
• The Pages, property owners adjacent to Keswick Vineyards, obtained a Temporary
Injunction from Judge Higgins.
• Two Planning Commissioners need to submit their responses to the Planning Commission
Organizational Diagnostic questionnaire.
There being no further old business, the meeting moved to the next item.
New Business:
Mr. Zobrist asked if there was any new business.
• No Meeting March 8, 2011
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There being no further new business, the meeting moved to the next item.
Adjournment:
With no further items, the meeting adjourned at 9:02 p.m. to the March 15, 2011 meeting at 6:00
p.m. at the County Office Building, Room 241, Second Floor, 401 McIntire Road,
Charlottesville, Virginia.
V. Wayne
(Recorded and transcribed by Sharon C. Taylor, Clerk to Planning Op mmissi & Planning
Boards)
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