HomeMy WebLinkAbout12 14 1993 PC Minutes12-14-93
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DECEMBER 14, 1993
The Albemarle County Planning Commission held a public
hearing on Tuesday, December 14, 1993, Meeting Room 7,
County Office Building, Charlottesville, Virginia. Those
members present were: Mr. Phil Grimm, Chairman; 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. Wayne Cilimberg,
Director of Planning and Community Development; Mr. Ron
Keeler, Chief of Planning; Ms. Jan Sprinkle, Planner; Ms.
Yolanda Hipski, Planner; and Mr. George St. John, County
Attorney.
The Chairman called the meeting to order at 7:00 p.m. and
established that a quorum was present. The minutes of
November 9 and November 23, 1993 were approved as amended.
Mr. Cilimberg briefly reviewed actions taken at the December
1st and December 8th Board of Supervisors meeting.
Wvant (W.E. Via Estate) Subdivision - Request to waive
Subdivision Ordinance Section 18-36(f) to allow subdivision
of Lot B (4.0 acres) to use one existing entrance while the
residue (156 acres) continues to use a separate existing
entrance.
Ms. Sprinkle presented the staff report. Staff was
recommending approval based on the comments of the County
Engineer.
The County Engineering Department had determined that "to
serve two existing dwelings and the new lot from either of
the existing entrances would cause significant environmental
degradation to the site from the required grading and loss
of vegetation." The staff report also stated there were no
safety concerns in allowing the two entrances to remain.
Staff explained (in response to Mr. Blue's request) why this
requirement is in the Ordinance. Mr. Keeler explained that
the requirement was intended "primarily for larger
subdivisions."
The applicant was present but offered no additional comment.
There being no public comment, the matter was placed before
the Commission.
MOTION: Ms. Huckle moved, seconded by Mr. Blue, that the
Wyant Waiver Request be approved.
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The motion passed unanimously.
SUB- -003 - Woodburn id a Prelim na Plat - Proposal to
create five lots averaging 2.8 acres with a 21.5 acre
residue from a 35.9 acre property. The lots are proposed to
be served by a private road off Woodburn Road. Property,
described as Tax Map 45, Parcel 29, is located on the west
side of Woodburn Road (Route 659) approximately 1,200 feet
north of Rio Road (Route 631). Zoned RA, Rural Areas in the
Charlottesville Magisterial District. This property is not
located in a designated growth area.
Ms. Hipski presented the staff report. Staff recommended
approval subject to conditions.
It was clarified that this is a by -right subdivision with
the only issue before the Commission being that of private
roads.
Mr. Blue expressed frustration with the fact that this
property is in the path of the Western Bypass and is
"practically on the reservoir."
Ms. Huckle asked if the dwellings had to be placed as shown
on the plan. Ms. Hipski responded: "Technically, no. The
applicant can build, within limits, outside the blue area
and outside the setback requirements." She explained that
the "squares" referred to be Ms. Huckle represent approved
septic system locations. Ms. Huckle pointed out that many
of the soils on the property are not suitable for septic
fields. She hoped the developer would "abide" by the
locations which have been approved. Ms. Hipski noted that
the use of any other areas for septic fields would require
additional Health Department approval.
Mr. Blue asked if there had been any discussions with the
applicant about the possible reservation of an easement for
the proposed Greenway along the Rivanna River. Ms. Hipski
stated she had brought this issue up during site review but
it was her understanding that the applicant was not
interested in the reservation of an easement. (Mr. Tom
Muncaster, representing the applicant, later confirmed taht
this particular partnership "was not interested in donating
land for the walkway.") Staff explained some of the history
of adjacent properties which are also owned by this
applicant. One of those properties (the site of SAMIS) had
reserved property for the Greenway as part of the proffered
rezoning.
The applicant was represented by Mr. Tom Muncaster. He
pointed out that, historically, "it has been common practice
for the county to allow private roads when the applicant has
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shown that there is 30% more earth work required for a State
road." He stated the applicant has met that criteria.
Ms. Huckle asked Mr. Muncaster how storm runoff would be
controlled. Mr. Muncaster explained that final engineering
plans have not been completed, but "typically" a rip -rap or
paved ditch is used. He felt a rip -rap ditch would be
better in this instance because it would slow the water down
more. She asked if he was considering "permanent check
dams." He replied that those might be possible "down
towards the bottom." Ms. Huckle pointed out that this is a
very sensitive area because of its close proximity to the
"intake of the water system."
Mr. Blue noted that this is a very valuable piece of
property. He asked Mr. Muncaster: "I am just wondering if
this is just setting up something to be there when the
highway comes through to buy the right-of-way, or are they
really going to use it for these five lots?" Mr. Muncaster
replied: "My understanding is that they are going to use it
to sell them."
Ms. Huckle pointed out that comments from VDOT had stated
that there were lot alignments that would be less impacted
by the highway.
There being no public comment, the matter was placed before
the Commission.
Recognizing that this is "exclusively a request for private
roads," Mr. Johnson commented extensively on Section 18-36
of the Subdivision Ordinance and VDOT Subdivision Street
Requirements. (SEE ATTACHMENT A to these minutes.) It was
his interpretation that before private roads can be approved
they must meet both conditions (i.e. alleviation of
environmental degradation and no alternative public road
alignment available). He felt several conditions had to be
met, only one of which is related to the environment. He
stressed: "We have no information at this time, relative to
this request, that no alternative public road alignment is
available." He noted that VDOT variances have not been
granted because they have not been requested. He pointed
out that VDOT has not been asked to comment on the issue of
a public road. He concluded: "It appears to me, and
recognizing that we have followed a rather loose procedure
in the past, that we are directly violating our own
subdivision ordinance by not requiring this kind of
information at least to come to our attention."
Mr. Johnson explained that he was calling attention to this
issue because he had first brought up the issue of public
vs. private roads in March, 1993, but no answers have been
received. He felt strongly that "we need VDOT's position on
a specific request.... (including) their reason why." He
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anticipated that their reasons would be "directly related to
safety." He stated: "And if we are ignoring safety
provisions, then we ourselves are not carrying out our
responsibilities appropriately. I believe the public
deserves protection. I believe the public will be
completely unaware of the costs associated with, the
maintenance, repair of this or any of these (private) roads.
... In essence, we are putting the public in a form of
double -tax jeopardy --they are paying taxes to the state to
maintain state roads ... and then we're turning around and
saying they are going to have to pay again as a
landowner...." He acknowledged that "going to VDOT would
require more time and expense on the part of the developer"
but he felt this was an "upfront expense as opposed to a
hidden expense that the ultimate resident will run into."
Mr. Grimm pointed out that the Engineering Department has
reviewed this request in terms of meeting the requirements
of Section 18-36(a). He questioned whether they would have
recommended approval of the private road based purely on the
environmental criteria. (Mr. Johnson interjected that the
Engineering Department reviewed it only from the standpoint
of the 30% less impact on the environment. He stressed that
neither Engineering nor VDOT has reviewed it on the basis of
public road availability. Mr. Johnson felt the Engineering
Department's "interpretation" was "not a complete
interpretation." He continued to argue his point, making
reference to various sections of the Ordinance.)
Mr. Cilimberg confirmed that the private roads would have to
be built to VDOT's mountainous terrain standards, but that
is no guarantee that the roads would be accepted into the
State system at some future time. He explained that this
was a standard adopted by the Board of Supervisors and
considered to be adequate for a private road construction.
(Prior to that, private road construction had been to a
lesser standard.)
Mr. Blue interpreted that Mr. Johnson's "beef was really
with VDOT," and that he (Mr. Johnson) was suggesting that by
making an issue of one of these situations, i.e. forcing a
developer to go to VDOT with County backing him up by saying
"We think you ought to take this into consideration if the
road is safe and it does meet those standards, and you have
an out --your own policy states that you can approve it --that
it would be done." Mr. Blue concluded: "I kind of agree
with that but if I were an applicant I am not sure I would
want to bear the expense of going through this first trial."
Mr. Blue was under the impression that staff was already
addressing this issue by writing to VDOT and attempting to
get them to at least explain their policy more definitively.
Mr. Johnson agreed that Mr. Blue's interpretation was
somewhat accurate. He added: "I am saying that, No. 1, I
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think there are many reasons why, as a general rule, private
roads are not acceptable; No.2, I submit that we are not
following the ordinance; No. 3, I accept the fact that over
time in the distant past, VDOT, for one reason or another,
didn't approve certain things, and because of that the
practice got started.... I have reason to believe, in
discussing it with some of the VDOT representatives, that
they would willing to readily review ... and look with favor
on variances between the rolling and the mountainous terrain
to approve a road. I'm not willing to vote to approve this
in the absence of any information that no alternative public
road alignment is available. I'm quite sure that no contact
with VDOT has been made with respect to this road."
Mr. St. John asked if Mr. Johnson was suggesting that VDOT
review a piece of property to determine if a public road
alignment was available. (Mr. Johnson responded that was
not what he was suggesting. Rather, he was saying "there
are two different issues and they are of equal priority.")
Mr. St. John stated that a developer would have to show some
public road alignment on their plans, because VDOT would not
be looking at property and making suggestions as to the
alignment of roads.
Mr. Cilimberg attempted to clarify the issue: "As Mr.
Johnson has pointed out the allowance for private roads is
geared towards reducing environmental degradation and it
does definitely say that 'no public road is available.'
First of all, it is my understanding from the Engineering
Department, that they are now analyzing the proposed private
road alignment against a rolling terrain standard, public
road alignment and that is where they verify the difference
of 44% in this case. So they are looking at an alignment
that would meet public road standards and they are comparing
that to a proposal for private roads. So, in that sense,
that is being verified. It is based on the applicant's
submittal and reviewed by the Engineering Department, i.e. a
Certified Engineer making the submittal. Secondly, in
practice, because of the experience that the development
community and we have had, based on our own requests with
VDOT, to look at roads for mountainous terrain opportunities
or less than rolling terrain opportunities, we have, in
practice, accepted that as meeting --what we just talked
about-- a comparison of the proposed private road against
the rolling terrain standard road, which would be a public
road. We have accepted that as meeting the ordinance
because that, in practice, is what we have experienced and
what the Planning Commission, and, occasionally, the Board
of Supervisors when they have been given an appeal, have
used as some of the foundation for their decision making."
Mr. St. John asked if the Engineering Department looks at
the entire site (not just the alignment suggested by the
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applicant) to see if there is an alternative location where
a state road, rolling or mountainous, could be placed that
would result in less degradation. Mr. Jack Kelsey, an
Engineer with the County Engineer Department, replied
affirmatively. He explained: "We look at the alignment
they provide, but we also look to see if there are any
options that we could possibly recommend that would change
the vertical alignment of the road that might help ...."
Mr. St. John concluded: "VDOT will not do that and the only
way that that can be done, the only way the Ordinance can be
complied with, is for our Engineering Department to do it,
and he says they are doing it. So I think we are doing the
best we can. I don't disagree with a thing Mr. Johnson has
said, but I think the Ordinance is being complied with to
the fullest extent that it can be complied with by our
Engineering Department."
Mr. Johnson commented: "I think you're right when you say
'by our Engineering Department,' but I don't think we can
say in recognition that the foremost authority in the State,
VDOT, that by not getting an opinion from them we can say
that no alternativ is available."
Mr. St. John: "They won't give you an opinion. That's what
we're saying. They won't look at a piece of land and
suggest to you the best place to put a road, I don't
believe." Mr. Cilimberg agreed.
Mr. Cilimberg interpreted that Mr. Johnson felt there was a
responsibility for public road plans to be submitted to
VDOT, "whether they be rolling terrain or less than rolling
terrain to see if VDOT would, in fact, approve those." He
stated that staff has not "pushed that" with the applicants
because "the practice has been if it is less than rolling
terrain standards, VDOT has not accepted it."
Mr. Blue asked: "But isn't there an on -going discussion
with staff and VDOT right now?" Mr. Cilimberg replied: "I
would recommend to you, pretty strongly, that my letter is
intended to try and get some parameters established by which
VDOT would be willing to do what Mr. Johnson has indicated.
Then we could, at the beginning of the review process (not
at this late stage), tell an applicant that, based on our
discussions with VDOT, and based on our discussions with the
Commission and Board in support of this procedure --maybe we
even write it into the Ordinance --that applicants should
request this road design they're looking for with VDOT as a
public road, before asking for a private road waiver." Mr.
Cilimberg presented a copy of a letter of response (from Mr.
Askew) (SEE ATTACHMENT B to these minutes) which he had
received (by fax). He read parts of the letter, but
concluded that he did not feel it was as definitive as Mr.
Johnson felt his discussions with VDOT were. Mr. Cilimberg
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felt the letter indicated there was an "opportunity" for
cooperation.
Mr. Cilimberg continued: "Rather than trying to hold up
this application, this is what we need to do: Set some
established, written form, what that process might be and
then we can advise applicants at the beginning of the
process to take that route." He concluded: "We noted for
the Board and the Commission back when we made Private Roads
amendments in 1990, just the things you see written here by
Mr. Askew, that they had to realize that the mountainous
standard was better than we had in the Ordinance but still
was less than what was being required in cases that we knew
of by VDOT. We had our Engineering Department involved at
the time; we had a Private Roads Committee that made the
recommendation and it included the development community as
well as those who had interest in the preservation of the
landscape and the natural environment. The Board accepted
this and we are just trying to be consistent with that and
with the process that has evolved over time. It may be that
we have a point here where we are going to get some 'give'
out of VDOT and it will be an opportunity to handle this
differently and these don't have to be private roads....."
Mr. Keeler offered some of the history of the way VDOT has
looked at standards for various localities.
Mr. Johnson pointed out that progress was made when the
criteria was established. He continued to argue that if
applicants would submit their plans to VDOT first, that VDOT
would review them. He acknowledged that he did not know if
the plans would be approved. Mr. Blue stated: "That's the
point. I don't blame the applicants for not wanting to go
that extra route if they are pretty sure they are going to
get turned down. Just the fact that it is going to be
reviewed isn't good enough. I think they need something
like Wayne is trying to get from them that says not only
will it be reviewed, we agree that you don't have to meet
those rolling Piedmont standards." Mr. Johnson responded:
"They've already said that. The provisions for variances
are already in here." Mr. Blue concluded: "I guess its the
difference between what's practiced and the theory."
Mr. Cilimberg pointed out that the development community
likes to work in an atmosphere where they know the rules.
In this case, they probably feel the rule is "You're not
going to get it." He stated that staff has not encouraged
it because "in practice, we have seen the same thing, and we
haven't seen the value of sending the applicants through
that type of process which results in extra costs, and time"
which plays a part in the ultimate cost of housing.
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Mr. Grimm expressed his support for staff continuing its
dialogue with VDOT to resolve this issue. He recommended
that the Commission "move ahead with this application."
MOTION: Mr. Johnson moved that the Woodburn Ridge
Preliminary Plat be deferred "until such time as the
provisions of Section 18-36(b)(1)(b), referring to
alternative public road alignment availability and Section
18-36(c)(1) and (d)(4), which make reference to the general
public's interest and public purpose, be identified to us."
There was no second to Mr. Johnson's motion.
Mr. Nitchmann expressed admiration for Mr. Johnson's
efforts. However, he felt it would be unfair for this
applicant to be held up until this matter is resolved. He
noted that it appears that staff is making headway on this
issue. He suggested that staff could "turn up the emphasis
a little."
In answer to Ms. Huckle's question, Ms. Hipski confirmed
that the sight distance at the proposed entrance has been
check and approved.
There being no second, Mr. Johnson withdrew his motion,
saying: "With respect to the comment made, I think the
purpose has been served, I withdraw the motion, but with the
understanding that staff has accepted a period of 30-60 days
to get back to the Commission with a response as to the next
step to implement a more acceptable procedure for reviewing
the possibility of public roads in lieu of private roads."
Ms. Andersen commented: "I realize that this is a by -right
developemnt, but after seeing the response that we had with
the Meadow Creek Parkway --all the people that did not want a
road built where they were living --I find it very hard to
believe that we are going to sit here and do the same thing
that will potentially create the same kind of problem down
the road."
Mr. Blue indicated he shared Ms. Andersen's concern. He
asked if it might be possible to add a condition which would
require that the final plat include a notation showing that
Lots 1,2 and 3 may possibly be subject to the future
construction of Alternative 10 Bypass.
Mr. St. John responded that this type of item is not
required on a plat and he was "very skeptical" about such a
condition. He pointed out that there are so many consumer
protection laws in the real estate area that he felt the
Commission's concerns would fall under some of those laws.
He agreed that staff could not require that the Alternative
10 alignment be shown on the plan. He did not think it was
the role of the County government to "engage in that kind of
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consumer protection when the status of Alternative 10 is
already a matter of public record."
Mr. St. John added: "If you approve the plat with that
condition and the developer refuses to put it on there or
litigates the question of whether you had the power to do
it, I believe that I could not defend that in Court and the
Court would say that he doesn't have to put it on there."
MOTION: Mr. Nitchmann moved that SUB-93-003 for Woodburn
Ridge Preliminary Plat be approved subject to the following
conditions:
1. The Planning Department shall not accept submittal of
the final site plan for signature until tentative approvals
for the following conditions have been obtained. The final
site plan shall not be signed until the following conditions
are met:
a. Virginia Department of Transportation approval of
entrance location and right-of-way improvements;
b. Department of Engineering approval of road and drainage
plans and calculations;
c. Department of Engineering approval of the Erosion
Control Plan;
d. Staff approval of a private road maintenance agreement;
e. Provide property boundary information (metes and bounds)
for the property line bordering State Route 659 and north of
Tax Map 45, parcel 28.
2. Administrative approval of final plat.
Ms. Andersen seconded the motion.
Discussion:
Mr. Johnson: "I cannot support the motion because evidence
has not been presented to the Commission that no alternative
public road alignment is available and it has not been shown
that this particular configuration of a private road serves
the general public interest."
In response to Mr. Cilimberg's question, Mr. Nitchmann
confirmed that his motion did NOT include an additional
condition as suggested by Mr. Blue.
Ms. Huckle: "Because of the sensitive area in which this
drainage is being drained, it is hoped that serious efforts
will be made to provide appropriate method of slowing this
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runoff so that it will have an opportunity to sink into the
ground."
The motion for approval passed (6:1) with Commissioner
Johnson casting the dissenting vote.
MISCELLANEOUS
Mr. Cilimberg updated the Commission on the progress of the
following projects:
--Forums for the City -County Visioning process have
been set for January 16 (1:30 to 4:30) and February 20, at
PVCC.
--A draft of the Citizens' Survey will be presented to
the Commission the first part of January.
--Work continues on a report on Development Regulations
as they relate to building costs. That report may be
completed in January.
--The citizens' Steering Committee which has been
discussing ways to encourage public participation in the
Comprehensive Plan review process continues to meet.
Mr. Johnson reported that he continues to work with the
Daily Progress to get them to publish Commission agendas.
VDOT continues to consider the possibility of placing a
protective guardrail along Rio Road.
The Public Library has ordered a book entitled Zoning and
Subdivision Law in Virginia.
Mr. Grimm announced that he would not be applying for
re-appointement to the Commission.
There being no further business, the meeting adjourned at
8:35 p.m.
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