HomeMy WebLinkAbout05 11 1993 PC Minutes5-11-93
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MAY 11, 1993
The Albemarle County Planning Commission held a public
hearing on Tuesday, May 11, 1993, Meeting Room 7, County
Office Building, Charlottesville, Virginia. Those members
present were: Mr. Walter Johnson, Vice Chairman; Mr.
William Nitchmann; Mr. Tom Jenkins; Mr. Tom Blue; Ms. Ellen
Andersen; and Ms. Babs Huckle. Other officials present
were: Mr. Rich Tarbell, Senior Planner; Mr. Bill Fritz,
Senior Planner; Mr. Wayne Cilimberg, Director of Planning
and Community Development; and Mr. George St. John, County
Attorney. Absent: Commissioner Grimm.
The Vice Chairman called the meeting to order at 7:00 p.m.
and established that a quorum was present. The minutes of
April 27, 1993 were approved as submitted.
SP-93-11 James and Becky Johnston - Petition for an
additional development right to allow the creation of a 5+
acre lot for a family member [10.5.2] leaving a residue
parcel of approximately 62 + acres. Property, described as
Tax Map 47, Parcel 8, is located on the west side of Rt. 649
approximately 1.3 miles west of Rt. 20 in the Rivanna
District. This property is within the Fall Fields
subdivision and is zoned RA, Rural Areas. This site is not
located in a designated growth area (Rural Area II).
Mr. Fritz presented the staff report. The report concluded:
"Staff opinion is that the previous special use permit
authorized a modified use of the development potential of
the property and that the property has received reasonable
use of the development potential. Based on its review of
Section 10.5.2.1 and prior subdivision activity on this
property, staff's opinion is that the negative factors
outweigh the positive factors and therefore recommends
denial."
In response to Mr. Blue's question, Mr. Fritz confirmed that
staff is aware that the road presently is cabled -off at the
end and is "posted" by the adjacent owner. Mr. Blue
wondered if the adjacent owner had purchased the road as
well as the lots. Mr. Fritz explained it was his
understanding "there is still legal access" to the property
in question.
Mr. Fritz confirmed that the full development potential of
the 110 acres (9 lots) has been exhausted. Mr. Johnson
asked if this request could have been approved at the time
of the subdivision, without a special permit, if the
applicant had identified it as a family division. Mr. Fritz
replied: "No, it would still have been a request for an
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additional lot." Mr. Fritz confirmed that family divisions
are exempt from some provisions but not from others, with
the most significant exempted provision being access
requirements.
The applicant, Mr. James Johnston, addressed the Commission.
He explained that it was his desire to give the property to
his daughter. He stated that had not been part of his plans
at the time of the original subdivision. However, the
property in question had been excluded from the subdivision
because his daughter had expressed a preference for that
land in the event she did move back to the area. He
explained that he had been quite surprised to find that he
could not give a piece of his land to one of his children
without receiving special permission. Regarding the cable,
he confirmed the adjacent property owner (Mr. Watson)
installed the cable and treats the road as though it is his
private property (but it is not). In the interests of
maintaining peace with the neighbor, the cable has been
tolerated with the understanding that it will be removed
"from time to time" and with the understanding that allowing
the placement of the cable does not give Mr. Watson
ownership rights simply because the cable was not protested.
Mr. Johnston described his history with the property and the
reasoning behind the way the lots had been laid out.
Referring to discussions which would have taken place
between the applicant and County staff at the time of the
original subdivision, Mr. Blue asked Mr. Johnston: "Was
there no mention made to you at any time, by anybody in the
process, that you would not be able to do, under the law at
that time, what you want to do now? ... Did no one in the
County Planning staff point out to you that this is all the
development rights you get? You would not be allowed to do
anything else. Whereas at that time you were obviously
keeping that land out for this possibility. If nobody told
you, it seems to me that the County was remiss." Mr.
Johnston replied: "The question never came up. It never
occurred to me that if a member of our family wanted to have
a piece of the farm that this had any relationship to the
small commercial development." Mr. Blue expressed surprise
that the surveyor had not made Mr. Johnston aware of the
situation.
Mr. Johnston stated that he felt that family rights should
take precedence and that perhaps the County's regulations
need to be re-examined.
Ms. Huckle pointed out that if the daughter should decide in
the future that she did not want to keep the property, then
it could be sold and it would become "commercial" just like
any of the other lots.
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Mr. Nitchmann stated it seemed as though there had been some
purpose in leaving out the property in question from the
subdivision. He asked: "How did you end up not having that
lot No. 9?" Mr. Johnston explained that it is a
particularly attractive part of the property and he did not
want anyone other than family members to build on that lot.
It was determined that the adjoining property owner, Mr.
Watson, had purchased most of the lots (3,5,6,7 and 8) in
the subdivision and has repeatedly expressed the desire to
close the road. Mr. Blue asked if the road had been
discussed at the time the lots were sold to Mr. Watson. Mr.
Johnston indicated it had not been discussed.
The Chairman invited public comment.
Mr. Arthur Watson, an adjoining property owner, addressed
the Commission. He explained that he had closed off the
road, with the permission of the neighbors and Mr. Johnston,
because of problems with vandalism. It was determined that
the lot in question is the high point of the property and is
at the end of the road. The road runs along the ridge line
to reach the lot. He stated the road is basically in his
back yard. He pointed out that the applicant had had to
hire professionals to accomplish the subdivision and
indicated that one would expect those persons to have
advised him on the development rights issue. He suggested
that the applicant could still give his daughter a part of
the 60 acres that remains with the farm. He felt approval
of this request would dramatically impact the neighborhood.
Mr. Blue asked Mr. Watson if he had attempted to purchase
the property under discussion at any time. Mr. Watson
replied that he felt he had "closed it up as well as he
could" and was under the impression that there was no
further development possible.
Mr. Watson stated that he made no claim to ownership of the
road but he felt closing it off was for everyone's
protection. He acknowledged the applicant has access to the
road and a key to the cable.
Mr. Blue determined that since Mr. Watson owns lots 3,5,6,7
and 8, there would really be no need for the road beyond lot
4 if there are no plans to build on those lots.
There being no further comment, the matter was placed before
the Commission.
Mr. Fritz pointed out that a condition on SP-84-38 (which
permitted eight lots and a reconfiguration of the
development potential of the property and did not authorize
more lots than could have been achieved under conventional
development) is "No further subdivision rights on the 110.4
0,
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acres of land." He added that he could find no evidence of
a discussion of family development rights.
Mr. Blue made the following statement: "I am generally in
favor of granting additional development rights for good
reason because I don't believe that the zoning law in 1980
was a good law. This particular issue is something else,
... but I do want to make a couple of comments. I think
that 1980 zoning amendment to the rural areas which allowed
5 lots, 2 acres minimum, by -right, is wrong for two
counts --One is that I think it is unfair. I think this
illustrates that pretty well. If the applicant had 110 acres
and he was allowed five development rights plus the 21 acre
ones, while the person across the road, if he only owned 10
acres, he could have 5 development rights too. An so on up
the line --if you have 1,000 acres, you still only get five
development rights. You do get 21-acre lots as an
exemption, but that's essentially 21-acre zoning and I think
people realize as soon as they buy 21 acres and live on it
that it's too large to keep for a residence and too small to
farm. I realize the intention of the Comprehensive Plan was
to protect agricultural and forestal land, but I don't think
it does that. The other count that I think, in addition to
being unfair, I think it reduces the supply of land
available for housing which increases the cost which makes
it more difficult for people to be able to have affordable
housing. At the review of the Comprehensive Plan, which is
coming up this year, I intend to propose that we abolish
that law --the 5 development right law in the rural areas,
and put something in its place. I have thought about a lot
of things --whether we could use some sort of density zoning
that would make it more fair and I've also thought about
perhaps we should have some five and ten acre zones,
something contiguous to the two acres. I'm all in favor of
not having any lots developed that don't have adequate
transportation and that don't have adequate water supply and
adequate sewage disposal and septic tanks. I think that is
for protection of the public's health, safety and welfare.
I think when we've gone to this other thing of the 21-acre
minimum, from 2 acres to 21, all we've done is restrict the
use of land for housing. Maybe we have hidden it behind the
guise of protecting the environment or protecting the farms.
I don't think it really does either and I think people are
the most important things to consider here and I think this
law doesn't do it. I don't have the answers yet and I don't
know how it will be received, but I am going to propose
that."
Regarding this specific request Mr. Blue stated he felt this
was "a little different." He stated: "It stretches my
imagination to think that Mr. and Mrs. Johnston did not
realize at the time they did this that they were not going
to be able to give a piece of land to their daughter. I
have been in this business for a long time and I think most
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professional surveyors and engineers advise people that that
is the case and I think Planning staff does it. It seems
hard to believe that they weren't advised of that. They say
they weren't and I take their word at it. It just surprises
me. I will probably vote in favor of them having that right
because I don't like this law. ... This is a good way to
bring to the attention of the Commission, the Board and the
public, that something ought to be done in the rural areas
about the five development rights."
Ms. Huckle felt the time to discuss the issued raised by Mr.
Blue was during the review of the Comprehensive Plan. For
this particular request, she felt the current regulations
should be followed. She questioned voting a certain way
based on the feeling that at some time the law might be
changed.
Mr. Blue interjected: "If I vote that way (for approval)
it's not voting contrary to the law because the Board of
Supervisors set up this exception. They have come to us for
a special use permit to ask for this. It is perfectly
legal. We have the right to vote against it or vote for
it."
It was determined that the Rural Preservation Development
was not in existence at the time this property was
originally subdivided.
Ms. Huckle felt staff should not be critized for not
addressing the issue of family rights since the applicant
did not raise the question. She stated staff is not a mind
reader. She felt that this is a case of "someone who has
their cake and wants to eat it to.,, She added: "They've
had the opportunity to sell these lots and now I don't see
any reason why a family subdivision makes any difference and
I don't believe, legally, that it does." She felt the
logical solution would be to "trade" subdivision rights.
Mr. Blue expressed agreement with some of Ms. Huckle's
statements. He pointed out that the lot under discussion is
the most attractive part of the property, and therefore, he
felt "somebody must have known --the surveyor, engineer,
planning staff --that they wanted to build there someday. He
concluded: "The question boils down to whether he got bad
information, or no information or chose to ignor it and try
this route and that's one thing we have to decide on."
Mr. Blue stated he was in a quandry because he disagrees
with the law, yet in this particular instance he felt
"somebody dropped the ball" and it seems it was the owner.
However, he stated he was bothered that this type of thing
happens in family division situations. He felt that if the
"general public that lives in the rural areas" had been
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aware of the results of this law, it never would have
passed.
Ms. Huckle pointed out that it took a long time for this
issue to be decided and it went through many hearings and
work sessions.
MOTION: Ms. Huckle moved, seconded by Mr. Jenkins, that
SP-93-11 for James and Becky Johnston be recommended to the
Board of Supervisors for denial because the justification
does not meet the criteria set forth for the issuance of a
special permit.
The motion failed due to a tie vote (3:3) with Commissioners
Andersen, Huckle and Jenkins voting for the motion and
Commissioners Blue, Johnson and Nitchmann voting against.
MOTION: Mr. Blue moved, seconded by Mr. Nitchmann, that
SP-93-11 for James and Becky Johnston be recommended to the
Board of Supervisors for approval subject to the following
conditions:
1. Subdivision shall be in general accord with the attached
plat initialled WDF dated April 28, 1993.
2. The subdivision shall qualify as a family division in
accord with Section 18-57 of the Subdivision Ordinance.
Discussion:
Mr. Blue ask that the record show that he agreed with many
of Ms. Huckle's statements, but his reason for voting for
approval is to draw attention to the fact that he feels this
was a bad amendment and should be addressed during the
upcoming review of the Comp Plan.
Mr. Nitchmann stated he would support the request because he
believed that Mr. Johnston could have been unaware of the
regulations. He suggested that these types of problems
could be reduced with some type of formal checklist of items
to ensure that property owners are informed of these types
of issues and the property owner acknowledges that he
understands.
It was determined that an explicit note does exist on the
final plat which states "No further division of the lots or
residue acres without a special use permit."
Mr. Nitchmann acknowledged that such notes are placed on
plats, but still expressed an understanding that many people
might be under the impression that this would not apply to
family gifts.
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Mr. Blue felt Mr. Nitchmann's point was a good one. He
added: "If in the upcoming review of the Comprehensive
Plan, if we choose not to change this law as I would like, I
would say the minimum we ought to do, if it is legally
possible, is to make family divisions exempt (from these
provisions of the Zoning Ordinance)."
Ms. Huckle asked if those family lots would then be exempt
from sale. Mr. Blue agreed that the restriction against
sale should possibly be increased.
Mr. Andersen felt the paramenters are very specific in this
case and it would be very difficult to overlook them. She
suggested that the applicant might wish to "wait and see
what develops with the future of the Comprehensive Plan and
maybe he would stand a chance to exercise some type of
further development under a new law." She concluded she
would "stand with the staff."
The motion failed due to a tie vote (3:3) with Commissioners
Blue, Johnson and Nitchmann voting for the motion and
Commissioners Andersen, Huckle and Jenkins voting against.
The motion was passed on to the Board with no recommendation
from the Commission.
Mr. St. John made the following statement related to Mr.
Blue's previous comments: "Number one, the family division
rules are set out in the State law and we simply track that.
(He confirmed that in his opinion there would have to be
enabling legislation to make the zoning law not applicable.)
The zoning enablement doesn't include any family thing. The
Supreme Court decisions on this have said the family
provisions in the State Code do not apply to zoning, plus
there is something in the zoning enablement that says all
regulations must be uniform within the district and you
can't single out a class of people. (He confirmed what Mr.
Blue was suggesting could not be done without enabling
legislation.) The second thing is, isn't there a list of
criteria for special use permits? (Staff responded
affirmatively.) Please do not misunderstand me. I'm not
trying for a minute to suggest how you should vote or what
you should base your vote on no more than anybody would tell
a jury. But, in my opinion, the chief function of the
Planning Commission is to look at the facts of an
application and look at the criteria that is in the Zoning
Ordinance --these conditions that are to be met in judging
this kind of special use permit, or any other kind. ... And
even if your vote comes down to be based on the fact you
disagree with the law and you're openly honest in saying so,
still I think, at least, every member of the Commission
ought to verbally compare the facts of the application with
the perscribed criteria in the Zoning Ordinance. And if I
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heard correctly, no member of the Commission did that in
this case. (Staff did that) ... but no member of the
Commission even voiced a consciousness that your function is
to look at these conditions and rather the discussion went
off on the personal knowledge of the applicant --what he knew
and when he knew it, what he ought to have been informed of,
etc. It's your privilege to do that; it's your privilege to
say 'I don't care what these conditions say, it doesn't meet
any of them and I'm still going to vote for it because I
don't like this law.' But I think you ought to make a
record of how you see the application as stacking up against
the conditions. At least do that. ... It's my function to
try to draw your attention to what we think is the main
channel of procedure here that is supposed to be followed
and having done that whether you follow it or not is clearly
up to you. ... But make a record of what your thinking was
in respect to these criteria."
SP-93-10 Crown Orchard Com an WVIR Tower - Request to issue
a special use permit for an approximately 60 foot tower and
an equipment building [10.2.2.6] for use by WVIR-TV. The
proposed improvements are adjacent to the existing WVIR
tower and equipment building on Carter's Mountain.
Property, described as Tax Map 91, parcel 28 is located on
the south side of Rt. 53 in the Scottsville Magisterial
District. This site is zoned RA, Rural Areas. This site is
not located in a designated growth area (Rural Area VI).
Mr. Fritz presented the staff report. Staff recommended
approval subject to conditions.
The applicant was represented by Mr. Sidney Schumate,
Director of Engineering for WVIR-TV. He described the tower
and its function. Mr. Johnson suggested that as the towers
need painting, it would be advantageous to make them a color
which would blend with the environment.
Ms. Huckle asked questions about the quality of the
reception. She noted that her reception had worsened when
the wattage was increased. Mr. Schumate explained that a
taller tower is more susceptible to wind which may result
in reception problems.
There being no public comment, the matter was placed before
the Commission.
MOTION: Mr. Blue moved, seconded by Ms. Huckle, that
SP-93-10 for Crown Orchard Company be recommended to the
Board of Supervisors for approval subject to the following
conditions:
1. Tower height not to exceed 65 feet. Tower to be located
as shown on Attachment C initialled WDF and dated 4/19/93.
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2. Department of Engineering approval of tower design to
ensure that in the event of collapse the tower falls within
the leased area.
The motion passed unanimously.
SP-93-09 Keswick Corporation Helisto - Proposal to locate a
private helistop [Section 10.2.2(10)1 on a 11.36 acre
parcel. Property, described as Tax Map 94, parcel 42A, is
located in the northwest quadrant of the intersection of
I-64 and Rt. 616. Zoned RA, Rural Areas and EC, Entrance
Corridor Overlay District in the Rivanna Magisterial
District. This site is not located in a designated growth
area (Rural Area II).
Mr. Tarbell presented the staff report. Staff recommended
approval subject to conditions.
Ms. Huckle asked if the restriction to daylight hours only
should be made a condition. She noted that condition No. 4
seems to imply that night flights may be possible since it
refers to landing lights. Mr. Tarbell was agreeable but
noted that that is a restriction placed by the FAA. He
explained that the ARB had had no problems with the request
provided no lights are provided. (It was ultimately
decided condition No. 4 would be amended to read: "No
lighting shall be allowed as a part of this approval. Any
future requests for lighting will require amendment to this
special use permit and must be approved by the Architectural
Review Board.")
It was noted that condition No. 6 requires approval of the
FAA.
Mr. Nitchmann wondered if some type of lighting (e.g. fog
lights) might be required by the FAA. Mr. Cilimberg did not
know if there was a requirement for some type of lighting
even for only daylight operation. Mr. Tarbell explained
that there will be a restriction against flying in darkness
or inclement weather and it was his understanding there is
no FAA requirement for lighting for daytime operation only.
It was determined "a trip" is defined as a "round trip.
It was determined VDOT had expressed no concerns based on
the understanding that the flightpath would not cross I-64,
but rather would be to the northwest. (This is addressed in
the FAA regulations.)
Mr. Tarbell pointed out the location of other helistops in
the County.
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The applicant was represented by Mr. Pete Bradshaw,
representing Keswick Corporation. He answered Commission
questions as follows:
--The helistop will be used primarily by Lord Ashley's
private helicopter though it is not specifically limited to
that useage.
--The helicopter is approximately 35-feet long and
accomodates 5 passengers.
--The pad will be a 50 x 50 paved area.
There being no public comment, the matter was placed before
the Commission.
MOTION: Mr. Nitchmann moved, seconded by Mr. Blue, that
SP-93-09 for Keswick Corporation Helistop be recommended to
the Board of Supervisors for approval subject to the
following conditions:
1. Special use permit is issued to the applicant only.
2. The use shall be in accord with the Keswick Helistop
site plan dated March 22, 1993 and last revised April 27,
1993.
3. No fuel storage on site.
4. No lighting shall be allowed as part of this approval.
Any future requests for lighting will require amendment to
this special use permit and must be approved by the
Architectural Review Board.
5. Department of Engineering approval of erosion control
plan if necessary.
6. Approval/registration by/with the FAA and Virginia
Department of Aviation.
7. Compliance with Section 5.1.1 of the Zoning Ordinance.
8. Helicopter trips limited to 10 per week.
The motion passed unanimously.
There being no further business, the meeting adjourned at
8:45 p.m.
DB
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