HomeMy WebLinkAbout06 07 1994 PC Minutes6-7-94 1
June 7, 1994
The Albemarle County Planning Commission held a public hearing on
Tuesday, June 7, 1994, Room 7, County Office Building,
Charlottesville, Virginia. Those members present were: Ms. Babs
Huckle, Chair; Mr. Tom Blue, Vice Chair; Mr. Bill Nitchmann; Ms.
Katherine Imhoff; Mr. Bruce Dotson; and Ms. Monica Vaughan.
Other officials present were: Mr. V. Wayne Cilimberg, Director of
Planning and Community Development; Mr. Bill Fritz, Senior
Planner; Ms. Mary Joy Scala, Senior Planner; Ms. Yolanda Hipski,
Planner; and Mr. Larry Davis, County Attorney. Absent:
Commissioner Jenkins.
The meeting was called to order at 7:00 p.m. and a quorum was
established. The minutes of May 24 were unanimously approved as
amended.
Mr. Cilimberg briefly summarized actions taken at the June 1st
Board of Supervisors meeting.
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Addition to Pasture Fence Mountain Agricultural/Forestal District
The proposed district consists of one parcel containing 453.5
acres located west of Mount Fair off Route 756. Tax Map 13,
Parcel 5.
Ms. Scala presented the staff report.
The applicant offered no comment.
Public comment was invited.
Mr. Kevin Cox - He pointed out that though the landowner, by
entering into this District, agrees "not to develop his land in a
more intensive use," the Albemarle County Code "defines more
intensive use in a very peculiar way," i.e. "a more intensive
use does not include subdividing land in an ag-forestal district
into 21 acre tracts and then an individual is free to put homes
on it." He stated: "I don't care what the Code says, that's a
more intensive use, and I fear that ag-forestal districts are
simply turning into a mechanism to promote large -lot, expensive
zoning, and I find that very objectionable." He suggested that
the Commission "look at these districts and try to determine what
the history has been and how many 21-acre lots have been created
in the districts since they first began to exist, and how many
homes have been built." He questioned: "What is the point in
declaring that this set aside land is to be preserved for
agriculture and then allowing people to subdivide it and put
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homes on it? It is directly contrary to the intent of the law."
There being no further public comment, the matter was placed
before the Commission.
In response to Mr. Cox's comments, Ms. Scala stated: "Mr. Cox is
correct about a more intensive use, but we have never done a
formal study of this but I am sure that if we did we would find
that there has been very little subdivision of any size in the
ag-forestal districts. Most people that join these districts
intend to preserve their land and they are not using it as a
excuse to develop it. That is the opposite of their intention.
I'd be happy to put together a report like that and I think you'd
find that it would support that." Mr. Blue added: "I think
you're right, with very few exceptions. Some of them have come
before this Commission." Mr. Nitchmann could not recall any such
subdivisions having been before the Commission during his 2 1/2
years on the Commission.
Ms. Scala explained that the wording in the Code is unusual, "but
every County writes their own definition of more intensive use
and ours is tied to our subdivision ordinance, as are other
counties', and because our subdivision ordinance, basically, has
determined that 21-acres is the minimum size of farm, so to
speak, it was based on land -use minimum acreage so that every
parcel that is divided into that size could still retain land
use. It is really tied to that acreage and it might even be
arbitary to set a larger acreage, although we have discussed
doing that. But it really hasn't been a problem to date."
Ms. Imhoff agreed with Ms. Scala and added that she felt other
areas which have ag-forestal districts would "feel that we've
been fairly restrictive in any type of development that we allow
here in Albemarle County and have certainly been consistent with
the densities under the Zoning Ordinance."
MOTION: Ms. Imhoff moved, seconded by Mr. Blue, that the
Addition to Pasture Fence Mountain Agricultural/Forestal District
be approved. The motion passed unanimously.
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Review of Blue Run Agricultural/Forestal District - This district
will expire on June 17, 1994. It was establis ed in 1986 for a
time period of eight-(8) years. The district consists of 30
parcels totalling 4,116.951 acres, located on Rt. 20N, Rt. 231,
Rt. 640, Rt. 641, Rt. 645 and Rt. 777.
Ms. Scala presented the staff report. She explained that review
of this renewal request is required because several property
owners have requested withdrawal.
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Mr. Blue asked if property owners, who withdraw at the time of
the expiration of the district, must give a reason for their
withdrawal. Ms. Scala responded: "All they have to say is 'I
want out . "'
Mr. Dotson asked if those persons who withdraw can then continue
with use -value taxation, if they qualify. Ms. Scala responded:
"If they qualify --if they keep the agricultural or forestal use,
they don't have to actually give that up until they change the
use of the property. They can continue to qualify for the land
use tax." Mr. Dotson asked: "And if they didn't qualify, would
there be a roll -back tax?" Ms. Scala responded affirmatively.
She added: "Conversely, if they are in the district and they are
not doing something agricultural or forestal in nature, they may
not qualify for that land -use tax. They can qualify for it under
open space in some cases if they have enough acreage."
Mr. Dotson asked if one of the reasons for the required review of
the renewal, when there are withdrawals, is to determine if
"there is still sufficient land in the district to make sense --to
be coherent, to be viable?" He felt it was conceivable that the
district could become so fragmented that it would no longer be
meaningful as a district. Mr. Blue felt it was more a legal
requirement. He also felt the Agricultural -Forestal Committee,
who reviews the requests prior to Commission action, would alert
the Commission if fragmentation was a concern.
Ms. Scala was not certain that the requirement for review in
these instances is actually in the State Code. She explained
that our Board has decided under what conditions renewals are to
be reviewed and this is one of those conditions, i.e. when there
are withdrawals.
There being neither applicant nor public comment, the matter was
placed before the Commission.
Mr. Nitchmann requested that staff speak with someone with "a lot
of history with the county," who might recall if there have been
subdivisions within ag-forestal districts.
MOTION: Mr. Blue moved, seconded by Ms. Imhoff, that the Blue Run
Agricultural/Forestal District request for renewal be approved,
for a time period of 8 years.
The motion passed unanimously.
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SP-94-12 Todd Shields - Petition to establish recreational
facility of 6.0 acres zoned HC, Highway Commercial (24.2.2(l)j.
Property, described as Tax Map 32, parcel 41H1 is located on the
south side of Rt. 649 approximately 700 feet west of Rt. 29 in
the Rivanna Magisterial District. This site is located on the
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boundary of areas recommended for Regional Service and Office
Service in the Community of Hollymead.
Mr. Fritz presented the staff report. Staff recommended approval
subject to conditions.
Ms. Imhoff asked for further clarification of the issue of
possible access onto Rt. 29, which will be decided at a later
date. Mr. Fritz explained that access onto Rt. 29 would require
an easement and not all those details are available at this time.
Ms. Imhoff expressed concern about "additional pressure on Rt.
29, stripping of that frontage." She felt one of the desirable
aspects of this site is that it's access is from Airport Road.
Mr. Fritz pointed out that this would not result in "stripping"
because the properties which front on Rt. 29 would have access to
29 in any event; however, access on 29 would alleviate some of
the pressure on the intersection at Rt. 29 and Airport Road. Ms.
Imhoff asked if it would be only a "right -turn in, right -turn
out," with no crossover envisioned. Mr. Fritz responded: "There
is even an ultimate possibility of getting access down to the
signalized intersection opposite Forest Lakes. ... If it were
located somewhere else, it would be a right -in, right -out."
It was determined the proposed skating rink would be indoors.
Mr. Fritz noted the following change in suggested condition No. 4
(at the request of the applicant): "Hours of operation shall be
limited to Sunday -Thursday, 8 a.m. to midnight, and Friday and
Saturday, 8 a.m. to 1 a.m." The applicant had also asked if
condition No. 1 ("No alcohol sales.") would prevent the serving
of wine at a private party. (The applicant had clearly indicated
that alcohol would only be at private parties, and not on a
"routine" basis.) Mr. Fritz stated that staff had not yet had
time to consult with the Zoning Administrator on this condition
and whether or not the condition, as worded, would address the
applicant's desire. Mr. Fritz felt this was a mAtter to be
decided by the Zoning Administrator, rather than the County
Attorney. Mr. Davis stated that the language could be made very
clear so that it would reflect the Commission's intent. Ms.
Huckle pointed out that she felt the applicant's liability would
increase significantly if alcohol is allowed on -the premises.
Ms. Imhoff asked staff to describe the property as it presently
exists. (She noted that part of it is uo on a bluff and part is
quite open.)
Mr. Fritz described the property and then read the
ARB's suggestion, i.e. "To maintain the existing tree buffer to
screen the activities from Rt. 29 North. Staff to determine the
depth of the vegetation. If this cannot occur, then to provide
vegetative screening around the perimeter of the property." Mr.
Fritz concluded: "So it does take into consideration that in the
event that (a) there's not any vegetation there now or (b) if
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it's removed during construction --the ARB would have the
opportunity to review that." He explained that staff would also
be looking at the issue of screening during site plan review in
relation to the ARB's comments. Ms. Imhoff clarified that her
concerns were with the southeast corner of the property which she
felt would be difficult to screen.
The applicant, Mr. Todd Shields, addressed the Commission. He
described the concept and the facility. He presented photographs
of similar facilities in other localities. His comments, and
answers to Commission questions, included the following:
--The skating rink and children's play area may be added in
the future "as conditions warrant."
--No alcohol will be served during the hours the facility is
open to the public. The earlier discussion about possible
private parties, would be "outside" the usual public hours of
operation, or during special reservations of the park.
--All adjacent property owners have been contacted and no
objections have been expressed. No opposition has been expressed
from surrounding residential owners. One adjacent owner (of
industrially zoned land) has expressed a desire for a buffer
between the properties. Mr. Shields expressed the willingness to
work with this property owner, but he was opposed to such a
requirement being made a condition of approval. The President of
the Forest Lakes Homeowners' Association was contacted and he
stated he is "unaware of any dissention regarding the project."
The matter was to be brought up at the Forest Lakes Board meeting
on June 9th.
--The facility will be locally -owned and well managed.
Management will be by a company which specializes in this type of
facility. This will not be a franchise. The design will be done
by a leading firm in the industry and will be similar to those
shown in the photographs, and will incorporate the latest safety
and security features.
--He asked that the Commission "consider the hardship of
installing a left -turn lane on Airport Road." He explained that
initial comment from VDOT (prior to purchase of the property) had
stated that a left -turn lane would not be warranted. He suggested
that left -turn lanes be delayed and done when future improvements
to Rt. 649 are made. He expressed no opposition to VDOT's other
recommendations. (Mr. Blue pointed out that the Commission has
been consistent in requiring left -turn lanes on other proposals
on Rt. 649 as recommended by VDOT. He regretted that VODT had
led the applicant "down the primrose path and then changed it's
mind." He pointed out that the Commission had caused the County
to spend extra money at Broadus Wood School for a turn -lane
because of the safety issue. He felt strongly that "if VDOT says
it's necessary, we would require it." Ms. Imhoff supported Mr.
Blue's comments.) Mr. Shields stated that if access onto 29 is
possible, it may eliminate the need for the turn lane off 649.
Ms. Huckle pointed out that this facility will cater to young
drivers and she felt a left -turn lane would be necessary.
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-- Mr. Dotson asked if the applicant objected to being
IF down" to the uses listed. Mr. Dotson wondered if it is
the Commission's custom to list uses in this way, or if the words
"or the equivalent as approved by the Zoning Administrator" could
be added. Mr. Fritz explained that the Commission has in the
past recommended that the uses be listed since there could be
different interpretations of "similar or equivalent" uses. Ms.
Huckle recalled that the Zoning Administrator has, in the past,
ask that the Commission be very specific. Mr. Shields could not
envision any other uses at this time. Mr. Fritz explained that
the special permit could be amended if the uses were to change.
Mr. Nitchmann pointed out that the children's play area was not
mentioned in condition No. 2. Mr. Fritz explained that was
included in the arcade description, but he stated that
"children's play area" could be added if the Commission wished.
Mr. Nitchmann was in favor of this inclusion in No. 2. Mr.
Shields explained that the children's area would include
carousel -type rides.
--The skating rink will be for roller skating and will be
open year-round. It will not be operated as a part of Adventure
Land, rather it will be developed in conjuction with a skating
rink developer.
--Mr. Dotson called attention to condition No.3 which states
that the "use shall be in general accord as to the layout shown
on the sketch plan,...." He "imagined" that not a lot of time
had gone into the sketch plan. Mr. Shields confirmed that he had
chosen not to submit a fully -engineered site plan until the
approval of the special permit has been obtained. Mr. Dotson
commented: "So, conceivably, there could be quite a bit of
change." Mr. Shields responded affirmatively. Mr. Dotson
concluded: "So, we're not trying to hold you to this layout
which really hasn't been studied." Mr. Fritz added that it is
understood that there will be "manipulation" of the plan during
the site review process, particularly if access to Rt. 29 is
obtained.
Ms. Huckle noted that the road goes near the detention pond. Mr.
Fritz explained that any impact to the detention pond would have
to be addressed, either through replacement or relocation.of the
pond.
The following members of the public addressed the Commission:
Mr. Joe Wright (adjoining property owner on two sides) - He
expressed support for the project. However, he asked that a 20-
foot buffer be required, on the southern portion of the property,
where the possible placement of noisy activities could impact his
property. He felt that maintenance of the existing vegetation
would probably suffice. (Mr. Fritz pointed out that the
applicant has stated his opposition to such a condition. If the
Commission feels such a condition is necessary to support the
request, then the Commission should recommend for denial.) Mr.
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Wright had no current plans for the development of his property.
He felt, however, that if noise was a problem, it could effect
the marketability of his property. It was determined the present
zoning on the property of concern to Mr. Wright is C-1. Mr.
Fritz explained that the only setbacks which would be required
would be those required by the Building Code since these
properties are similarly zoned, i.e. "there is no setback for
commercial uses adjacent to commercial or industrial properties."
(Mr. Fritz pointed out that screening is not required between
residential uses.) Ms. Imhoff felt this project was different
than a lot of commercial development in that there are not many
buildings, but there is a lot of pavement and structures. She
expressed support for some type of setback, particularly since it
could be achieved simply by "not grading all the way to the
property line and leaving in place existing vegetation." She
asked that the applicant think very carefully about that buffer.
Ms. Huckle pointed out that, with the exception of the skating
rink, all the activity would take place outdoors. Mr. Blue asked
if the Commission could legally require a buffer beyond what is
required in the Zoning Ordinance. Mr. Davis replied: "Yes, you
can put any reasonable condition that you want that would make
the zoning restrictions more restrictive in order to establish
that this use would be compatible with adjacent properties." Ms.
Imhoff added: "We couldn't have done it if it was a straight
commercial project, but because it is a special permit that gives
us the flexibility of putting additional conditions to make the
use fit." Mr. Blue pointed out that this is a small site and he
understood the applicant's desire to retain his flexibility.
Ms. Huckle pointed out that the placement of the batting cages
and bumper boats, at the extreme edges of the property rather
than adjacent to the parking area, would be more likely to impact
the adjacent property.
Dr. Valenti (owner of property on Rt. 29, in front of the
subject property) - He expressed support for the project and did
not feel it would adversely effect his property.
Ms. Lisa Harmon - Though she did not express opposition to
the proposal, she expressed concern about the impact on Rt. 649
(Airport Road); noise impact on nearby homes; and possible
impact on the recently approved mobile home park in the vicinity
of this property.
The applicant, Mr. Shields, made closing statements. He stated
that noise studies have shown that there will be no impact on any
residences in the area. Regarding screening, he stated: "I
would like to work with Mr. Wright on the screening. ... Perhaps
we could share a buffer on both pieces of property, perhaps 10
foot on each side. ... But I would not want that as a condition
of this special use permit." He pointed out that if the bumper
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boats and go-carts are placed on the other side of the property,
there may be no effect on Mr. Wright's property.
Mr. Blue wondered if condition No. 3, related to the sketch plan,
might result in the same type problem which has recently arisen
in connection to a previous approval (the outdoor theater). Mr.
Fritz responded: "If you believe that there is no need to tie
this down --that that condition has no merit, then you can delete
that condition. We believe it is important in terms of the
general layout that it had, in terms of its most objectionable
aspects, as stated in the previous application, are furthest away
from 649, furthest away from residential properties located on
the opposite side of 649. If your general concern is to the
locations of parking and location of commercial activities, you
may want to state it in that manner so that things can be
shifted." Mr. Blue noted that the requirement for a buffer could
"shift things around competely" and if that happens, does it
"open up the applicant to someone coming in and complaining that
'you didn't abide by the sketch."' Mr. Fritz agreed that a
requirement for a buffer could limit the applicant's ability to
follow the sketch plan. Mr. Fritz confirmed that if the
Commission were to add such a condition, the Board could remove
it if the matter is resolved before the Board hearing. Mr.
Cilimberg pointed out that condition No. 3 (that the use shall be
in "general accord" with the sketch plan) had been proposed
before the issue of the buffer was raised. If it is felt that
the buffer is more important, then the Commission may want to
consider deleting No. 3. The site plan could then deal with the
specifics of where parking and buildings are placed. Mr. Blue
felt that would be more fair to the applicant. Mr. Cilimberg
concluded: "If you established the buffer, we are going to
require the site plan." Mr. Blue pointed out that requiring
afull 20- foot buffer on Mr. Shields' property could result,
ultimately, in Mr. Wright having the "full benefit" of his
property, whereas "we have limited the use of the applicant's
property." It was determined that though the Commission could
not require a buffer on Mr. Wright's property at this time, it
could reduce the size of the buffer to 10 feet on Mr. Shields'
property. Mr. Blue concluded: "We'd still be being unfair, just
half as unfair."
Ms.Imhoff did not think it was a question of "either/or", i.e.
either the buffer or the site plan. She felt the sketch was of
value and she was not in favor of deleting it..
Ms. Imhoff asked why the applicant was requesting a 1:00 a.m.
closing time on Friday and Saturday. She was concerned about
traffic impact --noise, car lights, etc. --at this late hour. Mr.
Shields stated this was not an unusual closing time for
recreational uses.
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Mr. Shields commented: "I was under the impression that the
general accord of this plan (implied) some flexibility because we
have not engineered this plan. So my understanding was that as
long as the facilities were in general accord --that we were going
to have go-carts, we were going to have approximately the same
size building in basically the same areas. I was not under the
impression that I had to put it exactly here because, as I have
discussed with the staff, we don't know until we engineer the
plan, whether this will work. And so we would like the
flexibility of being able to move it around. That's my
understanding of the condition and I would like for you to
consider possibly eliminating that condition and putting a buffer
if that is what your concern is. I don't think any turn of these
activities would adversely impact anybody surrounding this. So I
don't think this particular footprint should be set in stone."
Ms. Imhoff replied: "I was not meaning to imply that it was set
in stone, but that in 'general accord' you'd have a building
generally somewhere there, you'd have parking along that property
line. I agree with you it is general accord. This is not an
engineered site plan."
Mr. Davis cautioned: "I think you need to be careful because the
Zoning Administrator has held general accord to mean more than
what I think you intend it to be and I think what Wayne indicated
earlier is what I think the Zoning Administrator thinks is in
general accord, that the buildings and facilities are in general
relationship to each other they way they are presented on this
site plan." Mr. Dotson suggested possibly a change of wording
from "general accord" to "rough accord" which would make it clear
that this was not the same as general accord.
Mr. Shields concluded: "It's going to be presented under a site
plan and it is my understanding that is when exact locations will
be approved. If the accord is an issue, I would prefer that it
be eliminated. We are really looking at the special permit and
not the site plan and I would prefer that we look at it on the
merit that we are going to have those activities and not where
they are located."
Mr. Blue pointed out that he had raised this issue only because
of recent problems with the outdoor theater.
There being no further comment, the matter was placed before the
Commission.
Given the fact that the buffer issue had been raised, Mr.
Cilimberg suggested that the general accord condition not be
used, but "instead use the buffer approach."
Mr. Shields confirmed he would not object to the requirement for
a 10-foot buffer, with the deletion of condition No. 3,
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Ms. Huckle asked why the batting cages and bumper boats were
shown at the property line. Mr. Shields explained: "The logic
is that attractions are spread out so that activities can take
place in between. The batting cages, I can say now, will not be
located there because you would have to go through the go-carts
to get there. There really is no certain reason why they are
located where they are. It was just to describe the area." He
stated he had understood that the location of the activities
would not be at issue at this time since this is a site plan
issue. Ms. Huckle suggested that the noiser activities be placed
in the middle.
MOTION: Ms. Imhoff moved that SP-94-12 for Todd Shields be
recommended to the Board of Supervisors for approval subject to
the following conditions:
1. No alcohol sales or consumption. (NOTE: The words "or
consumption" were added later in the discussion as described
below.]
2. Uses shall be limited to go-kart track, batting cages,
miniature golf, arcade, bumper boats, skating rink and children's
play area.
3. Hours of operation shall be limited to Sunday -Thursday 8 a.m.
to midnight and Friday and Saturday 8 a.m. to 1:00 a.m.
4. Construction of road improvements contained in Virginia
Department of Transportation letter of 5/25/94.
5. Provisions of a 10-ft. vegetative buffer adjacent to TM32,
Marcel 41D.
Mr. Dotson seconded the motion.
Discussion:
Mr. Nitchmann was in favor of prohibiting the consumption (as
well as the sale) of alcoholic beverages. He pointed out that
this is a facility which will be used primarily by young people
and it would be dangerous to have children involved in the same
activity as persons who may have had too much to drink. Ms.
Huckle agreed.
Mr. Blue did not think there should be a restriction for private
parties.
Ms. Imhoff stated that the original condition (No alcohol sales.)
would not prevent alcohol from being brought onto, and consumed
on the premises while these were activities were being engaged
in. She supported the addition of the words "or consumption," as
recommended by Mr. Nitchmann, to condition No. 1 and amended her
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motion accordingly. (Mr. Dotson also agreed with the amended
condition.)
The previously stated motion for approval passed unanimously.
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SP-94-13 Tom Kuhlman - Petition for a Home Occupation Class B on
acres zoned RA, Rural Areas [10.2.2(31)]. Property,
described as Tax Map 64, Parcel 2H is located on a private road
on the north side of Rt. 610 approximately 1.9 miles east of Rt.
20 in the Rivanna Magisterial District. This site is not located
within a designated growth area (Rural Area 2).
The meeting recessed 5 minutes to allow time for the Commission
to read a letter which had been submitted to staff just prior to
the meeting.
Mr. Fritz presented the staff report. The report concluded:
"Based on the sale/transfer of goods produced off -site and the
comment of the Zoning Administrator, staff is unable to support
this request and therefore recommends denial."
Mr. Blue felt the main issue would be related to traffic and not
the sale of goods produced off -site. He noted the significant
discrepancy between the applicant's traffic figures and those
referred to in letters from neighbors. He asked if staff had
been able to verify the UPS records. Staff had been unable to
verify the UPS records.
Ms. Imhoff asked if staff could briefly explain the history of
home occupations in the County. Mr. Fritz responded to Ms.
Imhoff's request and also explained that recent staff research,
which compared the County's regulations with other localities,
showed that the Counties regulations are "a little broader," i.e.
"less restrictive."
Ms. Huckle felt this use would be appropriate in a commercially
zoned area, but felt that an exception (waiver) related to the
sale of goods produced off -site, should not be approved to allow
this.
The applicant, Dr. Tom Kuhlman, addressed the Commission. His
comments, and answers to Commission questions, included the
following:
--A recommendation for denial based on the issue of sales of
materials produced off -site, would result in many existing
similar businesses (distributorships such as Avon) being
illegal. (He felt this was an important aspect of this review
and repeated this feeling several times throughout the hearing.)
--No increase or change in the existing business is proposed
or anticipated. The garage has been used for some time. The
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complaints which have arisen are based purely on the issue of
traffic.
--He asked that the Commission review his letter (made
available to them previously) since they were presently being
asked to review letters just submitted by the public. He felt
his letter should also be fresh in their minds.
--He could offer no explanation for the significant
difference between his traffic figures and those presented by the
neighbors. He stated that the only way to verify the accuracy of
his figures would be to talk to the UPS driver. He explained
that staff had verified his figures through an "unannounced"
visit. (Mr. Fritz confirmed Dr. Kuhlman's statements and also
explained that it was because of staff's confirmation of Dr.
Kuhlman's figures that UPS had not been contacted.) He described
UPS traffic as "one box/week, one or two packages/month." Dr.
Kuhlman stated that the Commission would have to make a decision
"based on the facts." (Mr. Blue said the Commission did not know
the facts.)
Referring to Dr. Kuhlman's statements regarding the effect a
denial would have on other distributorships, Ms. Imhoff
expressed her disagreement with his statements. She explained:
"I think the whole point of sales is at the heart of this. I buy
both Avon and Amway products and in those cases the people come
to me. The difference here is people coming to you. So I think
the fact that you are having people come and pick up sales
products is different from the way I have experienced Amway and
Avon sales." She pointed out that in other areas with which she
is familiar, this type of business has been conducted from
commercial space "when they have reached a certain scale." She
suggested that Dr. Kuhlman's business may be at a point where
consideration should be given to leasing commercial space. It was
of great concern to her that there are home occupations which are
becoming commercial uses.
Ms. Imhoff asked the applicant to explain the types of products
which he distributes from his home. He explained that his
distributorship deals only with home care and personal care items
(approximately 200). He added that the only retail sales which
have been conducted from his home have been to neighbors. Ms.
Imhoff pointed out that the Zoning Administrator has interpreted
"the people who are in your triangle and are picking up products
to distribute further on" to be retail sales. Dr. Kuhlman
explained that it is that interpretation which makes him feel
that similar businesses could become illegal as a result of a
negative action on this request.
Mr. Fritz interjected that the "Zoning Administrator's intention
was not to state that Avon and Amway and other distributors like
this would necessarily be in violation of the permit. ... It is
unfortunate the Zonina Administrator is not here. The intent is
the wholesale --where it is transferred wholesale to someone
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else, it`s not the person who receives it and goes door-to-door
selling encyclopedias, or whatever the case may be. That's not
what this is addressing. This is addressing a specific type of
use that Dr. Kuhlman has."
Mr. Blue asked if the applicant sells distributorships, or
recruits persons to sell the products. The applicant replied
affirmatively to the question "Do you recruit people?" Dr.
Kuhlman added, however, that there are some sales which are
required by law.
Mr. Blue stated he would have a hard time voting on this request
until the questions about the discrepancies in the traffic
figures could be answered. He could not understand why the
neighbors would.have such a drastically different story about the
traffic. He pointed out that the neighbors are not objecting to
the sales, but rather to the traffic. Dr. Kuhlman offered no
answer to this question but he was of the impression that the
neighbors assume that all traffic which comes to his house is
business, which is not true. He also made reference to an
ineffective road maintenance agreement. Mr. Blue understood it
was the applicant's contention that he did not have any more
traffic to his home than the average family. Dr. Kuhlman pointed
out that the staff report states that traffic is not the issue.
He also stated that he has made every effort to limit the traffic
and he will continue to do so.
Mr. Dotson invited the applicant to make his case for his
business being a distribution rather than a sales activity. Dr.
Kuhlman replied: "That's what it is. The people who buy things,
who are distributors as we are ... we end up being a warehouse
ordering distributor because we are 3,000 miles away from the
person who introduced the business to us. People that we put
into the business, that we personally deal with, they ...pick up
(their products from us)." Mr. Dotson asked if these people pay
when they pick up. The applicant responded affirmatively but
stated that could be changed if that was a concern. He also
explained that his profit is made through bonuses which are
determined by "total volume." He makes no profit from recruiting
other salespersons. He confirmed that the only sales which have
taken place from his home are to neighbors on an occasional
basis.
Ms. Vaughan asked: "So as a distributor, you do not necessarily
have to operate out of your home, your warehouse could be in a
storage bin." The applicant responded affirmatively. Ms.
Vaughan asked if all the homeowners on the road bear the
maintenance costs of the road on an equal basis. The applicant
again responded affirrmatively but described the maintenance
agreement as being "very rudimentary." She asked if the road
maintenance agreement was at issue. Dr. Kuhlman responded: "i
don't know. We all have to sit down in a joint atmosphere again
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14
to discuss it." Ms. Vaughan explained she was attempting to
determine if the road maintenance was an underlying issue in this
matter.
Public comment was invited.
The following residents of the road addressed the Commision:
--Ms. Deborah Douglas - She expressed opposition to the
request. She stated that the road could not tolerate the traffic
generated by the applicant's business. She pointed out that it
is a matter not only of traffic volume, but also of size and
weight of vehicles. She explained that presently only 4 families
use the road and share in its maintenance. [She explained that
the Williams family no longer use the road, having constructed
another driveway in a different location. It was later noted
that Mr. Williams does use a small portion of the road. Mr. Blue
later confirmed this information about the Williams' use of the
road.] She explained that the disagreement "revolves around the
method for dividing the charge for the maintenance for the road."
Previously it has been paid for on a per foot basis. A year and
a half ago, all the parties came together to discuss a user fee
percentage basis. She explained that maintenance which at one
time lasted 2-3 years, now lasts only 6 months. She described
UPS and Federal Express traffic which she had personally
observed. She stressed that this business, when counting the
deliveries, pick ups, and weekly business meetings, generates
much more traffic than the average home. She explained that Dr.
Kuhlman has contacted her regarding restricting traffic to his
home, but his offer is unclear and he has been unwilling to make
this offer in any sort of legal or contract form. The applicant
has also expressed an unwillingness to enter into any type of
formal user -based method of road maintenance.
--Ms. Jessica Lindstrom - She explained that sales are not
her main concern, rather the concern is the traffic. She stated
that so as not to add to the problem, she has disallowed any UPS
deliveries to her home. She stated that since she had initiated
the complaint against the applicant (the first of April), the
Kuhlman's have made a genuine effort to curtail the traffic. She
described traffic which she has observed. She could not explain
the different conceptions of the traffic counts either, but
stated she could only speak to what she has seen. Efforts are
being made to voluntarily work out a resolution to this problem.
She stated that if a personal contract could be entered into with
the Kuhlman's which would resolve the traffic issue, she and her
husband would withdraw their complaint. She felt there was
enough time for the matter to be resolved before the date of the
Board hearing. She had no concern about the use of the garage in
the business, nor about the sales aspect of the business.
There being no further public comment, the matter was placed
before the Commission.
-2//
6-7-94 15
Being familiar with the regulations in other areas, Ms. Imhoff
expressed the feeling that Albemarle County's regulations on home
occupations are permissive. She was concerned about home
occupations becoming increasingly sales oriented. She stated:
"I would not be supportive. I think there is a certain size that
you reach, and this one is somehow beginning to hit a threshold
for me. I have a lot of questions about seeing us encourage
these, especially in areas where people feel that they are buying
(into a residential area). I have a lot of doubts about whether
this is appropriate."
Mr. Blue said he would agree with Ms. Imhoff if the sales were
the issue and were such that they generate conditions which are
adverse to the residential use. He asked how Ms. Imhoff felt
about home occupations such as doctor's offices, barber shops,
etc. He felt these too could create problems.
Ms.Imhoff agreed with Mr. Blue regarding the types of uses he
mentioned. However, she had had no experience with requests for
such occupations since she had been on the Commission. She
concluded: "I think we are walking a thin line on our uses in
the rural area."
Ms. Huckle recalled a request which had caused a "furor among the
neighbors" and had not been approved. She felt the home
occupation had been created originally to allow persons to make
products in their homes and to enable small entreprenuers to make
money if for some reason they could not leave their homes. She
stated: "This applicant, however, is a physician at the
University and the level of his business seems to be much higher
than what was envisioned by the home occupation."
It was Mr. Dotson's perspective that "if the intent is to protect
the neighborhood, whether it is a residential or a rural
neighborhood, it seems clear that it is disruptive to the
neighborhood right now; it seems clear that it is generating
additional traffic. On the other hand, there is enough
separation in the topography, etc., that it is out of sight. In
a sense, it is not harming anyone visually. If the business is
run properly, I tend to see it as a distribution, not as sales,
because I tend to think of sales as being to the public, and this
is to a restricted category of people. So in that sense, it is
not sales. However, I can see that maybe a zoning text amendment
would be necessary to clarify if we mean sales to the public or
something else. I think it is ill-defined right now."
Ms. Imhoff added that a "threshold" also needs to be defined.
She stated: "At some point distribution, if it's to lots of
people, it doesn't matter if it's wholesale or retail."
Mr. Dotson said it is at that point which traffic becomes an
issue because traffic is an indicator of the volume. He
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6-7-94 16
concluded: "I see it is generating some traffic so I am kind of
on the fence but I see some problems here."
Mr. Nitchmann perceived that this is an issue where a group of
homeowners wish at some point in time someone would have written
a better, "who's going to pay for what" regarding the road. He
felt the road could have been similarly effected if other types
of meetings (e.g. bridge club) had occurred at any of the
residences on the road. He questioned that UPS would be coming
to the applicant's home several times a day since "they (UPS)
make money by making the least amount of trips and picking up the
most goods." He pointed out that this location is a considerable
distance from the UPS terminal. On the question of sales, he
agreed with Ms. Imhoff that "this walks a fine line as to what
constitutes a sale." It was his feeling that a retail sale has
not taken place until the actual consumer buys the product. He
agreed that when Home Occupations are studied more closely in
weeks to come, some of the terminology needs to be more clearly
defined. He felt the home occupation had been intended to allow
other activities, "and not just make things." He recalled that a
car repair home occupation had been approved in his district
because it served a community need. He felt the main point of
contention was the discrepancy in the traffic count. He felt
it should be possible to check into the UPS records. He was
reluctant to take action on the request at this time because he
was uncertain about the precedent question, i.e. "does this say
that if you are running a Tupperware operation, and you have
distributors, are you now breaking the law?" He felt staff had
probably focused on the sales issue because it seemed to be the
"easiest way to cease and desist this operation." The real
problem, however, is the condition of the road, and equitable
maintance of that road. He was in favor of deferral until staff
has had time to verify records with UPS. [Ms. Imhoff pointed out
that there was also concern about traffic generated by the other
meetings which take place. Mr. Nitchmann was not concerned about
the meeting traffic because it is no different than a private
residence having a weekly card party. He felt the issue was
"heavy" traffic.] He did not know if the Commission had the
authority to gather information on a private business in this
way. He asked Mr. Davis to comment.
Mr. Davis commented: "Staff could provide whatever information
you feel you need to make a decision. It is certainly
appropriate." He offered further clarification: "The Zoning
Administrator has made a determination that the fact situation
involved in Dr. Kuhlman's business does constitute sales. What
you do today in your deliberations will not impact on that
determination. That is her determination to make. What is
before you in this application is whether or not you want to
recommend to the Board of Supervisors a waiver of the restriction
on sales regarding a Class B Home Occupation. That's what is
0' /
6-7-94
17
before you as well as whether or not you want to recommend
approval of the Class B occupation itself."
Mr. Blue asked what the Commission could do if a majority did not
agree with, or understand, the Zoning Administrator's
determination. Mr. Davis responded: "You have two options: To
appeal the Zoning Administrator's decision to the Board of Zoning
Appeals; or you could initiate a Zoning Ordinance amendment to
clarify it in a way that expresses your intent." Mr. Dotson
added: "Or, we could approve the Zoning Text Amendment that we
declared our intent to consider last week which would make this
by -right."
Ms. Huckle felt this application has proven to her "that a Home
Occupation Class B by -right can create numerous problems and I
think we would be making terrible trouble for ourselves and it
wouldn't be fair to the County to approve something on a by -right
basis which would possibly cause this type of problem or worse.
Maybe it was the traffic which generated this complaint, but
that does not relieve us of the basic fact that the Zoning
Administrator has said that this is an illegal business as
constituted and I think we would be shirking our duty if we
didn't speak to that."
Ms. Imhoff stated that though she was prepared to move for denial
of the request, she was of the opinion that other Commissioners
might be in favor of a deferral to allow time for more
information to be gathered on the traffic situation and also to
allow the neighbors more time to try to resolve the problem. She
also noted: "And we have not had the benefit of having had the
Zoning Administrator here this evening." [Mr. Davis stated the
item was scheduled for the Board on July 13th, which is enough
time to allow a Commission deferral.]
Mr. Blue expressed support for a deferral.
MOTION: Mr. Dotson moved that SP-94-13 for Tom Kuhlman be
deferred to June 21st to allow the Zoning Administrator to be
present and to allow time for additional traffic information to
be gathered. Mr. Blue seconded the motion.
Discussion:
Mr. Blue stated that he hoped the applicant and the opposition
would try to resolve this issue.
The motion passed unanimously. (Ms.Imhoff was absent from the
meeting during the vote.)
Ms. Huckle expressed the hope that the Commission would "try to
think of this on a broad scale, county -wide, all the places where
this could take place and think about whether they are opening
6-7-94 18
Pandora's Box if they decide to change the interpretation of the
Zoning Administrator's opinion."
SP-94-17 St. Anne's Belfield - Petition for a private school on
28 acres zoned R- , Residential [13.2.2(5)] and EC, Entrance
Corridor. Property, described as Tax Map 60, parcels 57, 57A,
57B and 57C is the location of St. Anne's Belfield School. This
site is located in the Jack Jouett Magisterial Distirct and is
recommended for Public/Semi-Public (Institutional) use in
Neighborhood 7.
Ms. Hipski presented the staff report. Staff was recommended
approval subject to one condition. The Commission was also being
asked to rule on two other issues: (1) the question of the
"reasonable availability of public sewer"; and (2) the allowance
of two parallel bus parking spaces. Staff was supportative of
the two parallel spaces and was also of the opinion that public
sewer was not reasonably available.
Mr. Blue felt that this is basically a technicality given the
fact that the school has been in existence for 40 years.
Mr. Blue asked if any consideration had been to the public sewer
coming the other direction, i.e. "instead of towards Canterbury
Hills, out 250 west." Mr. Blue stated that the sewer line is
available on the Faulconer property. He also asked if there have
been any problems with the septic system. Ms. Hipski was not
aware of any problems and noted that the Health Department has
given approval. The existing system will require no upgrading
because there is no proposal to increase the number of students.
The applicant was represented by Mr. George Conway, Headmaster.
He was accompanied by Brian Smith, one of the engineers of the
site plan. Mr. Conway offered to answer questions. Mr. Smith
addressed the placement of the sewer line question raised by Mr.
Blue. He was aware that public sewer is available at Piedmont
Tractor. He stated: "It seems to me that alignment would be a
lot better than going across the mountain to the Colonnades or
Canterbury Hills." He did not know if the design engineer had
considered that possibility. He stated that it might be
possible, but he had no information on the capacity or
availability of that line.
Ms. Huckle suggested that the applicant might want to consider
the route suggested by Mr. Blue because even though it is not
required at this time, there may come a time when connection to
public sewer will be required and something may have been built
over it and it may be harder to access.
.2/S
6-7-94 19
Regarding the distance to the connection suggested by Mr. Blue,
Mr. Blue was of the opinion that the distance was probably
greater.
There being no public comment the matter was placed before the
Commission.
It was noted that staff had consulted with the Service Authority
on the options which were available. Ms. Hipski stated that the
Service Authority had felt strongly that public sewer was not
available based on the topography. (Mr. Blue pointed out that
the line which goes beyond Piedmont Tractor is maintained by
Rivanna Water and Sewer Authority rather than by the County
Service Authority.)
Mr. Blue noted that the Health Department has approved the
existing septic system and the Service Authority has commented
that public sewer is not available. He stated he was in favor of
approving the request, but with instructions to staff "just as a
further confirmation to go back and ask the Albemarle County
Service Authority, 'have they considered that other route?"'
MOTION: Mr. Blue moved that SP-94-17 for St. Annes-Belfield
Incorporated be recommended to the Board of Supervisors for
approval, subject to the following condition, including the
approval of two parallel bus parking spaces, and also that the
Commission find that public sewer is not reasonably available to
the site.
1. Enrollment at this campus shall not exceed 330 students.
Mr. Nitchmann seconded the motion which passed unanimously.
SP-94--14 Harcros Lumber & Building Supplies, Inc. - Petition to
allow outdoor storage and display on 4.87 acres zoned HC, Highway
Commercial and EC, Entrance Corridor [30.6.3.2(b)]. Property,
described as Tax Map 78, Parcel 16 is located on the south side
of Rt. 250 approximately 400 feet east of Rt. 20 in the Rivanna
Magisterial District. This site is recommended for Regional
Service in Neighborhood 3.
Ms. Hipski presented the staff report. Staff recommended
approval subject to two conditions.
Mr. Nitchmann asked questions about the location, height and
color of the fence. Ms. Hipski pointed out the location and
explained that the ARB has indicated it would like to see a 5-
foot fence. The applicant responded that the fence would be
"natural or painted."
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6-7-94 20
It was determined the display would be 25 feet x 7-10 feet wide.
The applicant, Mr. Robert Lester, addressed the Commission. He
described the display area in detail. He expressed no problems
with the ARB's recommendations.
There being no public comment, the matter was placed before the
Commission.
After determining that Harcros Lumber had bought -out Moores, Mr.
Nitchmann asked if there were any plans to change the color of
the logo. Mr. Lester responded negatively. Mr. Nitchmann
pointed out that many of the businesses along this corridor have
recently changed their signs and it has greatly improved the
appearance.
Ms. Hipski distributed a new set of conditions. She explained
that the Zoning Administrator had reworded condition No. 2 to so
as to avoid possible confusion in the future.
MOTION: Mr. Nitchmann moved that SP-94-14 for Harcros Lumber &
Building Supplies be recommended to the Board of Supervisors for
approval subject to the following conditions:
1. Issuance of Certificate of Appropriateness by the
Architectural Review Board.
2. While the items placed in the display areas may vary, the
display area shall be limited to the areas highlighted on the
plan intialled YAH and entitled "attachment B" of this report.
Ms. Vaughan seconded the motion which passed unanimously.
-----------------------------------------
MISCELLANEOUS
Mr. Cilimberg asked the Commission to let staff know their summer
schedules.
Mr. Cilimberg stated he had spoken with Bob Lee, Fauquier
County, regarding the possibility of the two Commissions meeting
together to discuss rural preservation planning and new types of
development planning and visiting other localities. It is
contemplated that the Albemarle Commission will travel to
Fauquier one evening and stay over through the following day. He
asked the Commission to express preferences for times. Not all
Commissioners responded, but those who did expressed a preference
for a Friday and Saturday in July. Mr. Blue expressed concern
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6-7--94
21
that there may be criticism if the trip is over -night. Ms.
Imhoff explained that arrangements have been made for
accommodations in private homes, so expenses will be minimal.
-----------------------------------------
There being no further business, the meeting adjourned at 10:15
p.m.
Secretary
DB
'/F