HomeMy WebLinkAbout06 21 1994 PC Minutes6-21-94 1
JUNE 21, 1994
The Albemarle County Planning Commission held a public hearing on
Tuesday, June 21, 1994, Room 7, County Office Building,
Charlottesville, Virginia. Those members present were: Mr. Tom
Blue, Vice Chair; Mr. Bill Nitchmann; Ms. Katherine Imhoff; Mr.
Bruce Dotson; and Mr. Tom Jenkins. Other officials present were:
Mr. Bill Fritz, Senior Planner; Ms. Amelia McCulley, Zoning
Administrator; Mr. Ron Keeler, Chief of Planning; Ms. Jan
Sprinkle, Planner; Mr. Tom Eaton, Zoning Assistant; Mr. Tom
Leback, UVA representative; and Mr. Larry Davis, County Attorney.
Absent: Commissioners Huckle and Vaughan.
The meeting was called to order at 7:00 p.m. and a quorum was
established. The minutes of June 7, 1994 were unanimously
approved as amended.
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SP-93-13 Tom Kuhlman - Petition for a Home Occupation Class B on
9.9 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).
Mr. Blue explained that this item had been deferred from a
previous meeting so that staff could obtain some additional data.
He asked that any public comment not be repetitious of comments
made at the previous hearing.
Mr. Fritz briefly reviewed the request. He explained that the
Commission had requested the following additional information:
(1) UPS trip counts; and (2) Comment from the Zoning
Administrator. On the first item, Mr. Fritz explained that the
applicant had presented the UPS log book, which staff had
verified was as represented in the applicant's letter. Staff had
also spoken with the UPS driver, who also verified the accuracy
of the log.
The Zoning Administrator (Ms. McCulley) addressed the Commission.
She offered general information on the Class B Home Occupation
and then commented specifically on this application. She
presented a graph showing the number of home occupations --Class A
and B--(by category) for the years 1992 to present. She offered
the following data:
--A total of 1,098 were approved in this period.
--On average, approximately 400 home occupations are
approved per year.
--Class A is a simple "walk-in, walk -out" approval, takes a
matter of minutes, with a $10 fee.
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--Only a few Class B (approximately 5) are approved per
year.
--Class B differs from Class A in that it involves employees
other than family members residing on the premises, and/or the
use of a detached structure.
--Regulations for Home Occupations are found in Section
5.2.2 of the Zoning Ordinance.
--Subsection C, Performance Standards, states that "there
shall be no sales on the premises other than items handcrafted on
the premises in connection with such home occupation." Section
5.1 (Under Supplementary Regulations 5.0), permits the Planning
Commission to make modifications to any of the regulations of the
Supplementary Regulations. That section states: "The Planning
Commission may waive, vary or modify any requirement, in a
particular case, upon a finding that such requirement would not
forward the purposes of this ordinance or otherwise serve the
public interests."
--The prior ordinance (predating the 1980 Ordinance) allowed
Class B occupations only in R-3, by right, the highest density
residential zoning district. By definition, they were "only
allowed in connection with which there was kept no stock in
trade, nor commodity sold upon the premises." She explained that
the regulations have become more permissive in that "we have
allowed stock in trade but the prohibition against sales
remains."
Ms. McCulley's specific comments on the Kuhlman request included
the following:
--"Products produced off site are brought to the site,
sorted and stored. They are then transferred to others on the
premises. Those who receive the products are sponsored by the
Kuhlman's and they in turn sponsor others and/or sell directly.
(Those who receive the products) typically make weekly orders
through the Kuhlman's and later the Kuhlman's receive a bonus
check, a payment, from Amway. The amount of this payment is
based on the entire volume of sales through the Kuhlman's
distributorship."
--Webster's Dictionary defines a "sale" in a number of ways,
including (1) "the transfer of onwership of and title to
property from one person to another for a price; and (2)
distribution by selling. Black's Law Dictionary defines sale in
much greater detail (2 full pages) and ends with "transfer of
property for consideration either in money or its equivalent."
She explained that her determination had been based on the
transfer of property --Amway goods --on the Kuhlman's property.
She stated, in making her determination, she had researched how
other localities have treated sales. In eleven (11) other
ordinances studied, it was found that, "almost across the board,
sales are prohibited, either expressly or by implication through
other restrictions...." Of the eleven surveyed, two allowed
sales by special permit.
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Ms. McCulley explained that in making this determination, she had
sought answers to the following four questions:
(1) "Does this mean that direct distributors (e.g. Amway,
Avon, Tupperware, etc.) are no longer permitted?" Answer:
"That's not true. Based on our experience and requests for home
occupations... most do not distribute from their home. They do
not sell directly as a retail sale, nor do they distribute to
those they sponsor who in turn sell. Instead they make
arrangement for off -site distribution such as at a party, or
taking it to someone's home."
(2) "Will this ruling extend to other home businesses for
which a product is sold, such as an architect preparing building
plans, an accountant preparing a tax return." Answer: "No.
Those are professional services. A product is a result of a
service and is, in a sense, handcrafted."
(3) "Why did we even get into sales when the complaint was
initiated by a concern about traffic?" Answer: "First, the
issues are difficult to divide because the traffic in this case
is a result of the independent contractors coming to pick up the
goods that they have ordered. Secondly, it is my job to review a
case for compliance with the Ordinance. I can't cast a blind eye
to one section of the Ordinance, while looking at another section
of the Ordinance."
(4) "Is our Ordinance going to adequately address
situations where we could have potentially harmful businesses in
a neighborhood--e.g. bodyshops which are potentially using toxic
fluids and creating toxic fumes, noise, etc.?" Answer: "Within
Section 5.2.2.1, Subsection E, there is a requirement that home
occupations comply with engineering performance standards. These
are standards that are established for industrial uses and they
pertain to noise, water pollution, air pollution, vibration,
glare and radio activity. So I believe that we are protected by
that regulation."
Ms. McCulley concluded: "In summary, I think that it is
important to understand that the neighborhood piano teacher and
others who are engaged in these cottage industries, should be
permitted to continue to work from their homes, subject to
performance standards, and in this case, sales, although at a
very, very low volume, is the issue, from a compliance with the
Zoning Ordinance perspective. It is not my responsibility to
review it as Mr. Fritz does for special permit criteria. The
alternatives available are either the Commission can vary that
requirement, based on the facts of this case --low volume and so
forth --or, secondly, Dr. Kuhlman can change his operation so that
goods are not transferred on the premises, or, thirdly, he could
appeal my decision to the Board of Zoning Appeals, who could find
that I am incorrect."
Mr. Nitchmann asked if a Business License was required, in
addition to the Home Occupation fee. Ms. McCulley replied that
it was her understanding that a Business License is required, but
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that is a different process. Mr. Davis explained that whether or
not a Business License is needed is dependent on the gross
receipts of the business. He believed that a license is required
if gross receipts exceed $5,000. If less, application must still
be made, but no Business License is required. Mr. Blue was of
the understanding that a Professional License is required, based
on gross receipts.
Mr. Dotson asked if more than one Home Occupation could exist on
the same site. Ms. McCulley replied that there are no
restrictions against this. She added that the applicant
currently has two home occupation permits on file --one for Ms.
Kuhlman, who is an artist who produces clothing, and another for
Dr. Kuhlman, as an Amway business.
The Chairman invited applicant comment.
Dr. Kuhlman addressed the Commission. His comments included the
following:
--He asked staff to confirm that the figures he had
presented in his documentation were verified as being accurate by
UPS. (Mr. Fritz confirmed this was the case.)
--He and his wife have always had business licenses on their
businesses. They have also had a Class A License.
--The Class B request is solely due to the desire to move
the storage area to the garage. No increase in the business is
planned.
--Well over 50% of the UPS deliveries are for personal
usage, and are not business related.
--Bonus checks are paid to anyone who is an Amway
distributor.
--The issue hinges on the interpretation of the definition
of "sales." He stated: "We are not generating any income off of
that. We are a point of distribution, not a wholesaler in the
classic sense of the word. You must realize this is not business
as usual. We are a point of distribution for the few local
people who we are personally involved with and there is no income
generated out of that point of distribution to those people."
--He offered the following definition of home occupation
which he stated is used in many locales: "Home occupancy Class X
- except for items or articles produced on premises, no product
shall be sold to members of the general public, members of the
general public shall not include persons on the premises by
private individual invitation."
Mr. Dotson sought more information as to the type of check which
the applicant receives, and the nature of the transaction. Dr.
Kuhlman explained that it is a normal check, payable to himself
and his wife. He explained that his business is a "point of
distribution, they order items through us and they pick it up the
next day, or we ship to people." He confirmed that he is
"compensated, penny' -for -penny," for what he paid for the items
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and beyond that "incentives come in the form of the bonus
checks."
Mr. Dotson asked the applicant to comment on a statement (in his
March 31 letter) which said "there have never been 2 UPS
deliveries to our home (in a single day)." Dr. Kuhlman
interrupted: "Interactions, change." Mr. Dotson asked: "Have
you corrected that?" Dr. Kuhlman responded: "No. I'm sorry I
interrupted you, but as far as I know, interactions. It is
possible that there has been some time in the past when the UPS
has been there twice, but that clearly is not the case, will not
the case." Mr. Dotson asked if a delivery and a pickup could
have occurred in the same day. Dr. Kuhlman responded: "Not to
our knowledge, nor to our UPS driver's." Mr. Dotson asked if the
UPS log reflects both deliveries and pickups. Mr. Fritz
responded affirmatively. Mr. Fritz added that though UPS had
stated there could be occasions where there would be a delivery
and pickup in a single day, it would be an unusual circumstance.
Dr. Kuhlman explained that though he has an agreement with UPS
for daily pickup and delivery, "we never did that." He explained
that driver knows to come on Monday afternoons, and on other
days, he calls.
The Chairman invited public comment.
Ms. Jessica Lindstrom addresssed the Commission. She stated that
the neighbors had not been able to reach an agreement with the
applicant. She noted, however, that the traffic has been reduced
since April, and "to a level that has been very agreeable." She
also explained that she was personally aware of deliveries which
had taken place Monday, Wednesday, Thursday, and Friday (during a
week since the previous Commission hearing). She repeated that
the issue of concern to her is the traffic, and not the use of
the garage for storage. Should the permit be granted, she asked
that a restriction be placed on the permit which will limit the
traffic. She also pointed out that road travels (for 1/2 mile)
directly through her property and thus every vehicle can be heard
and seen. She did not object to "meeting traffic," which she
described as regular automobiles, rather it is the UPS traffic
which is most objectionable.
Mr. Jeff Douglas, a neighboring property owner, addressed the
Commission. He objected to additional traffic created by this
business, which "tears up a road for which (he) must pay
maintenance." He agreed that the traffic level has been
acceptable since April, but he felt that if the permit is
approved, the traffic level "will go right back up again." He
urged that the request be denied. He expressed no concern about
the sales aspect of the proposal.
Dr. Kuhlman again stressed that most UPS deliveries to his home
are personal, not business related.
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The matter was placed before the Commission.
Ms. Imhoff explained that she felt the main issue was that of
sales, as brought up by the Zoning Administrator. She felt it
was a "threshold" issue and this business has hit a threshold
where it is distribution. She considered it to be sales, whether
remuneration comes at the time the goods are distributed or a
month later. She felt the County has been very permissive on
home occupations and she did not support a waiver to allow an
"almost commercial level in terms of exchange of goods." She
concluded that she could not support the request.
Mr. Nitchmann attempted to understand the UPS log. He
interpreted, based on the logs (from June 93 through March 94),
that there was an average of 6 pickups, for business purposes,
per month. Thus, the reduction in UPS service since April has
been the result of the applicant's reduction in personal catalog
orders.
Mr. Jenkins asked if the Commission could do anything about the
traffic.
Mr. Blue explained that the issue before the Commission is that
of sales. He stated: "Unless we approve a waiver on the sales,
the Zoning Administrator is going to pull his license, and he
then has the chance to go to the BZA to see if they will overrule
the Zoning Administrator." He again stated that though traffic
was the issue which initiated this request, it is not the issue
on which the Commission must rule.
Mr. Jenkins pointed out that the request will first go to the
Board. He repeated his question about traffic. Mr. Fritz
confirmed that a condition could be added to restrict traffic,
but a waiver would still be required in relation to the sales
issue. Mr. Davis commented: "A Class B requires a special use
permit and you can add conditions related to the special use
permit. Even under a Class B, you would have to have the sales
or he could no longer sell on the property."
Mr. Blue commented: "And there are some people who feel that
that waiver might be precedent setting." Ms. Imhoff added: "And
I also think our Zoning Administrator is saying that our Zoning
Ordinance does not seem to support that waiver."
Mr. Blue pointed out that the applicant could initiate, if he
chose, a Zoning Text Amendment to define sales more clearly. Ms.
McCulley confirmed that was correct and she believed the
applicant had proposed to do that.
Mr. Dotson felt there were several issues:
(1) Sales, which could he addressed through a waiver. He
felt that the ordinance should be changed if the definition is to
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be changed, and not just do it in this instance, but do it for
everyone.
(2) The question of whether the business is on a public or
private road. He felt that there could be some distinction made
between the two.
(3) Traffic. The County Attorney has said the Commission
can impose some limits on traffic.
(4) If approved, would it be in perpetuity, or could it be
reviewed again after a certain time period to see how it has been
working out. (Mr. Davis confirmed that a time limit could be
placed on the special permit.)
(5) The number of home occupations allowed on a site. He
commented: "without thinking about it a lot, my reaction is
maybe you ought only be allowed to have one. But that's a zoning
text amendment issue."
(6) Should home occupations be allowed on the same site as
an accessory apartment?
Mr. Blue felt Mr. Dotson was "right on target," and he suggested
that perhaps staff could be asked to study at least 4 of the 6
issues raised by Mr. Dotson.
MOTION: Mr. Jenkins moved, seconded by Ms. Imhoff, that SP-94-13
for Tom Kuhlman, be recommended to the Board of Supervisors for
denial.
Mr. Dotson asked the County Attorney to comment on the
consequences to the applicant if the Board denies the request.
Mr. Davis explained that the applicant would have to discontinue
his use of the storage shed and discontinue his operation of
selling goods from the premises. Mr. Blue added: "But his
personal buying from the catalogs, and the traffic issue, could,
conceivably, be just as bad as it ever was." Mr. Davis agreed.
Ms. Imhoff commented that she felt the possibility of having time
limits for special permits was an interesting idea and may be an
avenue for some other group to pursue.
The previously stated motion for denial passed unanimously.
[NOTE: This item was discussed briefly later in the meeting, at
two separate times. These discussions are transcribed farther
along in these mintues.)
ZMA-94-08 Covenant Church - Petition -to rezone 0.611 acres from
R-4, Residential, to C- , Commercial (proffered) . Property,
described as Tax Map 61, parcel 154C (part of) is located on the
north side of Rt. 631 approximately 300 feet east of the Southern
Railway in the Rivanna Magisterial District. This site is not
located within a designated growth area (Rural Area 2).
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6-2 1-94 8
Mr. Fritz presented the staff report. Staff recommended approval
subject to acceptance of the applicant's proffer.
Ms. Imhoff asked about the large cleared area on the site. Mr.
Fritz explained that it is a part of the approved site plan. He
also clarified that a slight shift in a new building is planned
to provide for a better passageway between the existing building
and the new building. Because of the shift, the setback in one
area (he pointed to the location on the plan) is violated. He
confirmed that the area to be rezoned is owned by the church and
no development is proposed in the area. All activities on the
property are church related. The rezoning is to allow for the
shift in the building.
The applicant was represented by Reverend Bare. He stressed that
the church already exists and all hurdles have been cleared for
construction of a new multi -purpose community building. (He
clarified that the new building would be a part of the church and
there were no plans to rent it.) He pointed out that part of
the 0.61.1 acres is already zoned commercial. He explained that a
point on the site plan, which he described as a "camel's hump,"
needs to be eliminated because it's use as a travelway creates a
safety problem for emergency vehicle access.
For.the benefit of Mr. Dotson, Mr. Fritz explained the
circulation problem created by the "camel's hump."
The Chairman invited public comment.
Ms. Barbara Pugh addressed the Commission. She explained that
she was representing her mother who is the closest residential
neighbor to the church. Her mother's concerns were related to
commercial development and the associated noise, traffic, and
pollution. She asked if the existing gravel road would
eventually become a state road. (It was determined the road Ms.
Pugh was speaking of was that which accessed the back property
and is not owned by the church. Mr. Fritz explained that there
are currently no plans for development of that property and no
plans for upgrading the road. He stated that it is possible that
at some future time the road will be paved. He also explained
that the action on this request would have no effect on the
development of the adjacent property.) Ms. Pugh asked for more
information on the hours the facility will be in use and if it
will be open only to church membership.
Regarding the issue of the road, Reverend Bare expressed the wish
that all the neighboring properties could "get together" and
construct one access off Rio Road. However, the church has
already been given approval for a commercial entrance off Rio
Road. Regarding hours of usage, he felt this was a "moot
question" because the church is a commercial office and as such
can be open, "if that's 24 hours a day and 7 days a week." He
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explained that as a 501C-3 (non-profit organization) the church
is "obligated to keep an open posture toward the community. The
church is not entitled to operate as a social club; it is not
entitled to charge a fee; it is not entitled to be
restrictive...." He concluded: "Yes we do intend to use the
facilities in the broadest kind of manner possible to compliment
and to facilitate an improved community in Albemarle and
Charlottesville."
Mr. Nitchmann asked if the church could foresee selling
memberships to its fitness gym. Rev. Bare was not familiar with
ACAC (as mentioned by Ms. Pugh). He explained: "We're talking
about a gymnasium. We're not talking about a health club, or a
membership or anything of that nature."
Mr. Jenkins again brought up the question of hours of usage.
Rev. Bare felt the hours would generally be 9 a.m. to 11 p.m. He
stated that is consistent with the present usage.
Ms. Imhoff stated: "You could do this expansion to your building
with or without this rezoning. what this rezoning allows you to
do is place the addition in a better relation to your parking and
your traffic circulation, is that correct?" Rev. Bare responded:
"Yes and no. We would still need to come back and ask for a more
definitive request, special permit, because we want to take out
that difficult curve. .. And it is my understanding that we
cannot do that until we have gone through some kind of process
that means coming here."
There being no further comment, the matter was placed before the
Commission.
Mr. Blue stated he had spoken with Ms. Haney (Ms. Pugh's mother)
and she had expressed her opposition to the proposal.
Ms. Imhoff stated that usually she is sympathetic to losing
residential potential, particularly in the urban area. However,
since this is such a small piece of land (at best supportative of
two dwelling units), and the proposal results in a better
development pattern for an existing use , she concluded she had
no problems with the request.
MOTION: Ms. Imhoff moved that ZMA-94-08 for
recommended to the Board of Supervisors for
the acceptance of the applicant's proffer as
report dated June 21, 1994.
Mr. Jenkins seconded the motion.
Discussion:
Covenant Church be
approval subject to
stated in the staff
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Mr. Dotson asked if this change would result in a more logical
boundary for this commercial district, "such that it will not
percipitate a further house keeping matter." Mr. Fritz replied:
"In my opinion, more so than it is now."
The motion for approval passed unanimously.
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SP-94-15 UVA Credit Union - Petition for a five window drive
through on 4.1 acres zoned HC, Highway Commercial (proffered) and
EC, Entrance Corridor [24.2.2(13)]. Property, described as Tax
Map 45, parcel 109 (part of) is located in the northeast corner
of the intersection of Berkmar Drive and Woodbrook Drive in the
Charlottesville Magisterial District. This site is recommended
for Regional Service in Neighborhood 1.
Mr. Fritz presented the staff report. Staff recommended approval
subject to conditions.
The applicant was represented by Mr. Williams Lores, President of
the Credit Union. He expressed agreement with the staff report.
He stated: "We have noted the requirement for the bypass and do
agree that that is an important issue to allow our members access
to the Credit Union." Mr. Blue clarified that the reference to a
bypass was a reference to "the bypass from the drive-in back into
the parking lot, not the western bypass." Mr. Fritz confirmed
that was correct, and added: "We're recommending that the
western bypass not be an issue."
Ms. Imhoff asked if there was a reason for requesting 5 windows,
which she felt was somewhat excessive. Mr. Lores explained the
reasoning behind the request and confirmed that market research
indicates that 5 windows are needed.
Mr. Dotson asked if all 3 driveways onto Berkmar are necessary,
or could it work with only 2? Mr. Lores explained that it is
desirable to have the drive through access the furthest from the
intersection and the entrance and exit should not be
intermingled. Mr. Dotson expressed the opinion that 2 driveways
might be a better site design and would actually result in less
cost in terms of paving. Mr. Lores explained that many
possibilities had been considered. (Mr. Blue pointed out that
getting the traffic off Berkmar quicker would result in less
traffic backup.)
Mr. Dotson asked if the "trees" shown on the southeast portion of
the sketch are already in existence or if they would be planted.
Mr. Fritz explained that they are not currently in existence and
at site review there will be a requirement for landscaping and
the tree canopy requirements of the Ordinance will have to be
met. Mr. Lores explained that it will be desirable to have a
buffer between the site and the Lowe's property.
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6-21-94 lI
There being no public comment, the matter was placed before the
Commission.
MOTION: Mr. Nitchmann moved that SP-94-15 for the WA Credit
Union be recommended to the Board of Supervisors for approval
subject to the following conditions:
1. Provision of a bypass lane connecting the drive --through lanes
to the parking areas.
2. Development shall be in general accord with the sketch
included as Attachment C and initialled WDF 6/9/94 except as
modified by condition one.
Mr. Jenkins seconded the motion which passed unanimously.
Mr. Dotson suggested that the applicant and staff continue to
discuss the three access points and amount of paving and if
possible to reduce that to do so. He was not recommending this
as a condition.
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SP-94-16 Health Services Foundation - Petition to establish
professional offices on 5.9 acres zoned R-15, Residential
[18/2/2(11)]. Property, described as Tax Map 46B4, Parcel 7, is
located at the southeast corner of Timberwood Blvd and Worth
Crossing in the Rivanna Magisterial District. This site is
recommended for Medium Density Residential (4.01 - 10 dwelling
units per acre) in the Community of Hollymead.
Mr. Fritz presented the staff report. The report concluded:
"Staff has consistently recommended proposals inconsistent with
the Comprehensive Plan be reviewed in a coordinated manner for
amendment to the Plan and recommends so here. Staff does
recognize this proposal is somewhat unique in terms of
surrounding land uses and the pattern of development in the area.
Should the Board of Supervisors decide the particulars of this
proposal (with the understanding, there will be a loss of
residential land) warrant putting aside a requirement for
Comprehensive Plan amendment, staff finds this request satisfies
the criteria of Section 31.2.4.1 of the Zoning Ordinance and can
otherwise support this request subject to conditions."
Mr. Fritz, at Mr. Nitchmann's request, pointed out adjacent
vacant commercial properties.
Mr. Dotson asked if the Health Services Foundation owns the
property. Mr. Fritz was unable to answer this question.
It was determined that the property, if developed to its maximum
density, could accommodate 88 units.
6-21-94
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Mr. Dotson asked if the Kessler Comp Plan Amendment proposal had
been assigned a review date. Mr. Cilimberg explained that the
proposal was in the Commission's packet but it would have to be
discussed during a work session before being scheduled for public
hearing. Staff is awaiting comments from other agencies.
Mr. Fritz noted that if the Board approves this request, staff
will be "re-evaluating the east side of Worth Crossing land use
designation during the Comp Plan review in recognition of the
existing and evolving non-residential character of the area."
The applicant was represented by Mr. Gary Lowe. He explained the
reason behind the request, i.e. "the importance of getting the
health community out into the neighborhood." It is intended that
a "residential flavor" will be maintained in the construction of
the -facility. He described the facility as "your normal doctor,
private -practice type setting."
Mr. Bill Daggett also represented the applicant to answer
questions about the site plan. He explained that the facility
will be similar to the existing Forest Lakes Club House.
There being no public comment, the matter was placed before the
Commission.
Mr. Nitchmann felt the proposal was an "excellent idea" because
it would put medical facilities "closer to people."
MOTION: Mr. Nitchmann moved that SP-94-16 for the Health
Services Foundation be recommended to the Board of Supervisors
for approval subject to the following conditions:
1. Compliance with the provisions of Section 21.0.
2. Provision of landscaping adjacent to Timberwood Boulevard
consistent with that provided on Timberwood Boulevard in the
developed commercial area.
3. Provision of vegetative screening designed to minimize
visibility of the site from the Arbor Lake Townhomes.
4. Provision of a walkway to connect the existing walkways
adjacent o the lake to the shopping area.
Mr. Dotson seconded the motion.
Discussion:
Ms. Imhoff commented: "While I understand the attractiveness of
this site ... I find, especially after all our discussion of
affordable housing, it would be, in my mind, unconscionable for
me to support this loss of this high -density residential. I
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understand you can look at it either way. I see the closeness to
the lake; I see the closeness to the recreation area; I see the
adjacent residential development and I say we are losing too many
opportunities for affordable housing, especially in the urban
area. So I would not be able to support this request. I wish to
continue to be consistent with the Comp Plan and in this case I
would stand by the Plan."
Mr. Dotson commented: "I think it is significant that it is a
use which is permitted by special permit and I would agree with
Mr. Nitchmann's comment about it being supportative and
convenient for this area of the community. ... of
The motion for approval passed (4:1) with Commissioner Imhoff
casting the dissenting vote.
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SP-94-13 Tom Kuhlman - Mr. Davis noted that the previous motion
had not addressed the issue of the waiver. He explained that in
order for the matter to be "completely" before the Board, the
Commission should include in its action a recommendation as to
whether or not to grant the waiver of the sales requirement.
It was Mr. Blue's understanding that the only way the permit
could have been approved would have been to grant the waiver,
"but the applicant never asked for the waiver, he just asked for
the home occupation.
Mr. Davis explained: "There were 2 problems. The Class B, which
requires the special use permit, was caused by the fact that he
was having sales in an out building. So, technically, the
special use permit could be granted without the waiver, but he
then could not have the sales that he is currently doing under
his method of operation. There were two issues. The denial of
the special use permit was one action that was certainly before
the Commission. The second issue was whether or not, it the
special use permit is granted, whether or not the Planning
Commission wants to waive the sales restriction. That was not
acted on by this Commission."
Mr. Blue did not feel the waiver question required action unless
the Commission's action had been to recommend approval.
Mr. Davis: "What we're trying to do is avoid having the Board
not have the complete pie in front of them if they wish to
dispose of this." He recommended that the Commission take action
on the waiver.
Mr. Blue recommended that additional action, as suggested by Mr.
Davis, take place at the end of the meeting, under discussion of
Old Business items.
-----------------------------------------
v20- f
6-21-94 14
ZTA-94-1 Accessory Apartments - Resolution of Intent to consider
amending the Zoning Ordinance as follows:
Amend 5.0 Supplementary Regulations to allow
"accessory apartment" in all single family dwellings
without regard to density and to impose certain restrictions
on "accessory apartment."
Mr. Keeler noted that the additional information contained in the
staff report had been requested by the Commission at a previous
nearing. He briefly reviewed this additional information.
Mr. Keeler pointed out that from the initiation of this amendment
the staff had assumed that, if permitted accessory apartments
would be allowed by right, and the amendment, including the
supplementary regulations, had been based on that assumption.
The report explained that if the Commission "chooses to recommend
'accessory apartments" by special use permit, staff would need a
clear understanding as to the issues to be addressed in such
review. ... If 'accessory apartment' is acceptable only under
strict control of special use permit, it may be appropriate to
abandon the concept and instead permit two-family dwellings by
special use permit where by -right density is exceeded."
Mr. Keeler quickly reviewed the additional information which
accompanied the staff report, including: (1) An explanation of
the graph of page 58 of the Housing Committee report which deals
with income and rent/purchase costs; (2) How other localities
deal with accessory apartments; (3) Review procedures of the
Virginia Department of Health as to well and septic systems; and
(4) Mapped identification of single-family subdivisions similar
in lot size to Camelot.
Public comment was invited.
The following members of the public addressed the Commission:
Katherine Hobbs (League of Women Voters) - Her statement is
attached to this record as Attachment A. Her organization was
recommending that accessory apartments be "by special use permit
in RA's, villages and communities and by right in urban growth
areas."
Kevin Cox - He felt accessory apartments were not in
conflict with the Comprehensive Plan Goal to "promote an adequate
supply of affordable housing." Regarding the issue of density,
he pointed out that it has been the experience of other
localities that the impact on density is extremely low. He said:
"It is pathetically absurb to suggest that this could
theoretically double the density in the rural areas." He
described situations where accessory apartments meet a real need.
He felt this is a "very minor thing which has been blown out of
proportion." He expressed the objection to the fee which will be
involved in the special permit process. He asked the Commission
6-21-94 15
to act favorably on the amendment because it would make "a very
big difference to a very few people in the county."
Robert Craighurst - He supported the single-family, owner -
occupied aspect of the proposal. He expressed agreement with
Mr. Cox's statements. He commented on the proposed off-street
parking provisions. (He had misunderstood the proposal and Mr_
Blue offered clarification.)
There being no further public comment, the matter was placed
before the Commission.
In Ms. Huckle's absence, Mr. Blue reminded the Commission of her
position on this issue, i.e. "she is opposed but she would
certainly want it to be done by special use permit if done at
all."
Ms. Imhoff expressed appreciation for staff's research on this
matter. She was of the impression that "everyone agrees we need
the special permit for accessory apartments," the question is
"whether we are willing to allow them by -right." She stated she
was still not convinced. Though she agreed that the impact would
be small she felt it could be a "real problem" if it becomes a
community and density issue. She felt the value of allowing them
by special permit is that it allows the opportunity for public
input. She stated she would be willing to address the density
issue as part of the special permit process and she stated she
would have no problem "with having some way of letting people, if
they don't have a development right (in the rural areas), go
ahead and add the additional unit." She also stated she would be
willing to see a reduction in fee for the special permit process,
but she felt the process provides the "safeguard of allowing
there to be sufficient public notification and it is a balancing
act." She concluded: "So I would continue to support it to be
by special permit and not be by -right at this point." She
expressed support for the League of Women Voter's comments
regarding addressing the issue of density in the context of the
Comprehensive Plan.
Mr. Dotson noted that the Board had requested that the Commission
consider the amendment and, therefore, the Commission was bound
to do so. He commented: "I think maybe we ought to use this as a
vehicle for getting into the housing issue generally. I don't
feel comfortable considering this in isolation. ... My sense is
that because the Board has directed us to do this, we should move
forward but not schedule it so immediately. Maybe give ourselves
2 months or some appropriate date so we can have a chance to
assimilate the housing background report and the kinds of things
we did on economic development and jobs. So, in that sense, I
think we might be able to move forward."
Mr. Jenkins noted that the County has committed itself to
addressing the affordable housing issue and though the impact of
A
6-21-94 16
this proposed amendment is not really known, it is one of the
tools that is availabe to move forward. He expressed
understanding of Mr. Dotson's desire to want to put all the
components together but he concluded: "I am perfectly willing to
address this one on its own and see what it does for us."
Referring to the comments of the League of Women Voters, he
stated: "We probably should do it by special permit, but the
regulations that we generate for that special permit should be
fairly lenient, particularly in terms of cost." He suggested
that the accessory apartment special permit should be monitored
to see how it is working. He confirmed that he would support
accessory apartments by special permit and though he did not
really feel they would create much of a problem if they were by
right, the special permit process will allow more control in the
event it is found they do create problems.
Mr. Nitchmann expressed agreement with Mr. Jenkins' comments. He
did not view it as a solution to affordable housing but he did
feel persons who need to provide housing for family members, or
elderly persons who may need additional income or assisted
living, should have the right to have an accessory apartment. He
stated he could support a special use permit if there were no fee
involved. He suggested it could be monitored for 12 to 18 months
to see how many applications there actually are and what the
expense and impact to the county actually is.
Mr. Blue invited comment from Mr. Leback.
Mr. Leback did not see how this would effect the university, in
terms of expansion of the student body. He noted that very little
student body expansion is planned over the next ten years. He
did not think "student housing" was an issue. He felt the issue
was more as described by Mr. Nitchmann (for family members).
Referring to problems which can occur with home occupations, he
was of the opinion that "the county does need to start off with
some regulations, and the special use permit seems to make
sense." Regarding the fee question, he felt 11$800 is a lot of
money."
Mr. Blue called for a motion.
MOTION: Mr. Nitchmann moved that staff be directed to re -write
the amendment to allow accessory apartments by "lenient" special
permit, with zero costs for 12-18 months, with the process to be
reviewed at the end of that period?
Ms. Imhoff seconded the motion.
[NOTE: This motion was later amended.]
Discussion:
AM
6-21- 94
17
Mr. Keeler asked for a clearer explanation of "lenient." He asked
if the suggestion was to do away with some of the supplementary
regulations which have been listed.
Mr. Nitchmann replied: "No, I think it has to be owner occupied.
I think most of the things here are quite acceptable... if you
just change the top 'by -right' to 'by special use permit' and
these are the requirements for a special use permit. (Mr.
Nitchmann later stated he did have some concern about the 3 off-
street parking spaces.)
Mr. Keeler explained that these would apply to a special use
permit in any case, but they could be modified or added to, in a
particular case.
Ms. Imhoff noted, also, that any of the regulations could be
waived.
Mr. Dotson asked if this could be used as a vehicle for beginning
to get into the housing issues. Mr. Cilimberg explained that
information will be coming to the Commission soon from the
Housing Coordinator.
Mr. Blue viewed the motion as "keeping this on our agenda, but it
is not a motion to recommend that this go back to the Board of
Supervisors yet."
Mr. Nitchmann agreed it was his intent that the motion was to
direct staff who will bring the amendment back to the Commission
as stated in the motion.
Mr. Cilimberg asked for clarification of intent in terms of who
will review the special permit, i.e. is it intended that the
Zoning Administrator review the applications based solely on the
need of the applicant with no land use considerations.
Mr. Nitchmann responded: "I guess that's what I meant by the
term lenient."
Ms. Imhoff commented: "Sending it to the BZA seems to take away
some degree of leniency as to how you use them. I would say, to
be lenient it really needs to go to the Board of Supervisors."
Mr. Nitchmann indicated it was his intent that it be kept out of
the public hearing process and make it very expedient for the
applicant.
Ms. Imhoff agreed that she wanted it to be expedient, but she
felt the advantage of having Commission review is the opportunity
for public comment through the notification process.
9JO
6-21-94 18
Mr. Nitchmann suggested that it might be advantageous to look at
the situation in 6 months.
Mr. Keeler continued to attempt to clarify the Commission's
intent. He stated: "If you want to recommend to the Board
tonight to allow it by special permit, I think you can do that
because that is more restrictive than what was advertised ---in any
district that allows single family dwellings as a right."
Mr. Blue asked about the fee issue. Mr. Davis replied: "That's
a separate issue." Mr. Blue asked when the fee issue would be
addressed. Mr. Davis explained that there are special
advertising requirements for a fee. Mr. Cilimberg offered: "We
could send this on to the Board of Supervisors and tell then that
there is a fee change on the way and they can waive that
altogether or if they deal with it separately they have a special
use permit with no fee." Mr. Keeler: "I think that is what Mr.
Nitchmann is saying and that simply puts it in the hands of the
Board and if they want a fee, then they adopt a resolution and
send it back to the Commission."
Mr. Nitchmann, following Mr. Keeler's comments, made the
following amended motion:
AMENDED MOTION: Mr. Nitchmann moved that ZTA-94-1, be
recommended to the Board of Supervisors for approval, with
Accessory Apartments allowed by special permit subject to the
regulations outlined as 5.1.34, Supplementary Regulations -
Accessory Apartment, and that no fee be charged for application,
with a review to take place after 6 and 12 months to assess the
impact on the community.
Ms. Imhoff seconded the motion.
Discussion:
Mr. Davis: "The way the Zoning Ordinance is set up now, unless
it is specifically provided under the fee section that there is a
different fee for this, all other special use permits, other than
those that are specially named in here, the fee is $780. So it is
going to have to be addressed, somehow, under the fee section or
it would have to be advertised as a ZTA."
Mr. Blue asked if the action being contemplated by the Commission
was contrary to law or simply means staff will have to follow up
with something else.
Mr. Davis: "The staff would have to follow up with an amendment
that would catch up with it at some point, so that there would be
no fee." Mr. Davis also commented: "On the BZA authority to
grant special use permits, the BZA could grant a special use
6-21-94 19
permit the same as the Board of Supervisors; however, typically,
what Boards of Supervisors do when they give authority to BZA's
to grant special use permits, is they try to set clear guidelines
and standards that they have to follow so that they don't
exercise as wide a discretion as the Board can exercise if they
were granting it themselves. That, generally, is a protection
that the Board of Supervisors uses to limit the discretion of the
BZA. It the Board wanted to give the BZA the authority to grant
special use permits, they could just give them legislative
authority to deal with it, but that's unusual for that to
happen."
Mr. Dotson asked for a clarification of the motion: "Are we
saying that we have discussed this as much as we are going to and
we are going to send it on to the Board and that what we're
saying is that Attachment A, the definition and the Supplemental
Regulations is what we are recommending to them and, in addition
to what's here that it be handled by special use permit?" And
with the zero fee?" This was confirmed as being accurate.
The previously stated amended motion passed (4:1) with
Commissioner Dotson casting the dissenting vote.
------------------------------------------
Enniscorth - Request to relocate a portion of Rt. 627 on the
Enniscorthy property. This request requires a Virginia Code
Section 14.1-456 review of the Albemarle County Planning
Commission to determine if the proposed change is in compliance
with the Comprehensive Plan.
Ms. Scala presented the staff report. The report explained the
applicant's justification as being "to eliminate two undesirable
right angle turns and to move the road away from the main house."
(The staff assessment of the proposal found it to be in
compliance with the Comprehensive Plan with certain conditions
outlined in the staff report).
The applicant was represented by Mr. Bob Paxton, the architect
for the project. He offered to answer questions. There were no
questions.
Public comment was invited.
Mr. George Coles, a Trustee for the Carter Family Cemetery,
addressed the Commission. He explained that he has been working
with the applicant to address his concerns, which include the
agreement that (1) The access to the cemetery will be maintained
at the applicant's expense; (2) A turnaround and parking area
will be provided; (3) Blockage of the access to the cemetery will
be allowed to make it a private access. A binding agreement has
not been reached but "we have an understanding with the
representative." (Because the owner is out of the country, a
6-21-94
20
binding agreement cannot be reached until he returns.) He
expressed no opposition to the proposal, "as long as we are in a
binding position before the Board of Supervisors meets." He
confirmed that the cemetery is still used by the family.
There being no public comment, the matter was placed before the
Commission.
MOTION: Ms. Imhoff moved that the request to relocate a portion
of Rt. 627 on the Enniscorthy property be found to be in
compliance with the Comprehensive Plan subject to the following
conditions:
1. The applicant take appropriate and reasonable measures to
retain the existing road trace as outlined by the Director of the
Virginia Department of Historic Resources.
2. The road construction plans meet all necessary run-off
control measures as prescribed by the Water Resources Manager.
3. The road plans to be approved by the Department of
Engineering should reflect the above two conditions; and should
indicate access to the Coles family cemetery.
Mr. Nitchmann seconded the motion.
Discussion:
Mr. Leback asked how a new owner of the property were to be
sold) would be aware that the road trace is to be left in place
in accordance with the Department of Historic Resources. Mr.
Blue explained: "When the Board entertains the vacation, they
are only going to vacate the portion that is not going to be
used, in other words, they are not going to vacate the road to
the cemetery or the road coming up to the other side. They are
only going to vacate the portion that we are not worried about."
Mr. Davis explained: "The procedure that this would follow is
not a vacation, it is an abandonment. What complicates this, and
I would have to think about it and look at it more closely, is
that since there is just a perscriptive easement here and there
is not a fee ownership, when you abandon it you take away the
public use of it which basically does away with the perscriptive
public use." Mr. Blue added: "I thought the fee ownership was
with the present owner." Mr. Davis: "I think that is correct in
this situation. If the state or the county own the road, then we
would have control of the fee and could put whatever restrictions
on it that we wanted to. In this particular instance, since we
don't own the fee, it may be difficult for us to dictate that
unless the owner voluntarily puts a restriction against the
property."
c2
6-21-94 21
Ms. Imhoff called attention to the first condition --that "the
applicant take appropriate reasonable measure to retain the
existing road trace." She noted that the minutes could reflect,
and the representatives of the applicant could relay back to
them, that one of the ways to do that would by covenant or by
some other action.
Mr. Cilimberg added: "I guess the Board, before it took the
abandonment action, could take testimony that they were in fact
doing that as a part of the understanding of the action."
The previously stated motion passed unanimously.
-----------------------------------------
SP-94-13 Kuhlman - The Chairman explained that Mr. Davis had
asked that the Commission's intent be clarified in terms of the
waiver related to sales.
Ms. Imhoff commented: "The only thing I was aware that the
applicant filed was a request for a Class B Home Occupation. We
got into the waiver discussion subsequently as part of the
overall picture. I would find it hard to make a motion on
something which wasn't placed before us by the applicant." [Mr.
Blue noted that he had made that same comment at the previously.
Mr. Davis agreed that there had not been a clear request and he
and Mr. Cilimberg had discussed this issue and what the process
would be for someone to make a request. He agreed that it had
not been on the Commission's agenda. He concluded, however:
"But I think it was pretty clearly stated by the applicant what
he wants to do and that would require a waiver and rather than
have it disjointed before the Board of Supervisors, it may be
cleaner if you just go ahead and give your position on the
waiver, that way if you vote for it it is available to him if the
Board grants the special use permit and if you deny it he has a
right to appeal that denial and it can all be considered by the
Board at the same time. Otherwise, it appears that if the Board
doesn't follow your recommendation, it will come back before you
again for a waiver request."
Though Ms. Imhoff felt her motion had included the issue of the
waiver, for the sake of clarity, she made the following amended
motion:
AMENDED MOTION: That SP-94-13 for Tom Kuhlman be recommended to
the Board of Supervisors for denial and that a waiver to allow
sales not be granted.
Mr. Nitchman, who had seconded the original motion, agreed to
this amended motion.
The amended motion passed unanimously.
cp l"
6-21-94
22
-----------------------------------------
There being no further business, the meeting adjourned at 10:15
p.m.
. wAyne cii- amnergr Secretary
Meeting recorded by Janice Wills, transcrib6d-.4fy Deloris
Bradshaw.
0