HomeMy WebLinkAbout07 12 88 PC MinutesJuly 12, 1988
The Albemarle County Planning Commission held a public hearing on Tuesday,
July 12, 1988, Meeting Room 7, County Office Building, Charlottesville,
Virginia. Those members present were: Mr. David Bowerman, Chairman; Ms.
Norma Diehl, Vice Chairman; Mr. Keith Rittenhouse; Mr. Tom Jenkins; Mr.
Harry Wilkerson; and Mr. Peter Stark. Other officials present were: Mr,
John Horne, Director of Planning and Community Development; Mr. Bill
Fritz, Planner; Ms. Amelia Patterson, Planner; and Mr. George St. John,
County Attorney.
The Chairman called the meeting to order at 7:30 p.m. and established
that a quorum was present. The minutes of June 28, 1988 were approved as
submitted.
Wilson Family Division Waiver Request - Request for a waiver of Section 18-57C
of the Subdivision Ordinance which requires that a lot transferred in a
family division be held -for a period of one year prior to further transfer of
ownership. The proposed division was recorded December 30, 1986 in
violation of the Albemarle County Subdivision Ordinance. Property, located
off the east side of Rt. 616 on a private road, approximately k mile north
of the intersection with I-64. Tax Map 81, Parcel 11H. Rivanna Magisterial
District.
Ms. Patterson gave the staff report. The report explained that the
violation had been a result of an oversight by the applicants' representative.
However, the report concluded:
"Planning Staff does not support the applicant's justifications, and
recommends denial of this request —based on the following: (1) If
the applicant had proceeded in good faith and due course to correct
the subdivision Ordinance violation, the one year period would be
complete; (2) No one should be permitted to benefit from a violation
of regulations; and (3) In general, the one year time period prior to
transfer is imposed as a reasonable time period to prevent the circum-
vention of this exemption, for the purpose of short-term investment.
If the Commission does not support this 'holding period,' it should be
amended in the Ordinance."
The Chairman invited applicant comment.
The applicant was represented by Mr. Forbes Reback. Mr. Reback gave a
lengthy presentation. His comments included the following:
--He admitted that the violation of the regulations was made by him-
self, but he stated that no one would benefit from the violation.
--He gave a history of the issue.
--He explained that he had failed to realize that two parcels (one 7.055
acres and one 21.83 acres) had been combined by the surveyor and
"had lost their separate identities."
--The Wilson's son have lived in the dwelling on -the property since
December, 1986.
--He stated: "I did not tell the surveyor to go out there and make
an illegal subdivision. I merely took what I considered to be an
existing parcel from 1977 and conveyed it to Wilson, Jr. It seems
to me that I have made a common law conveyance which should stand
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July 12, 1988
Page 2
up in a court of law."
--He stressed that neither the applicants nor he intended for this to happen.
In response to :sir. Bowerman's question, Mr. Reback explained.that the Wilsons
had purchased two individual lots but they were combined on the plat by the
surveyor and he had not realized that was the case. He confirmed that the
two lots "were combined on the plat that was recorded in the Clerk's
Office, and then the Tax Accessor then combined them for purposes of taxation."
Mr. Reback pointed out that when conveyed the lot to the son, he had not
needed to have a survey done because there was already an existing survey of
the 7.055 acre parcel "which had already been put to record prior to your
adoption of the ordinance which allowed those five division rights."
M.r. Reback pointed out that "exceptions are authorized by enabling legislation
by the Code of Virginia and you have adopted that, but your Subdivision
Ordinance, in 18-58(c) says: 'No such parcel shall be transferred except by
devise , discent or operation of law to'a person otheF than the immediate
family of the transferor for a period of one year7ro�r purposes of securing
any purchase money and/or construction loan including bona fide refinancing."'
He pointed out that it did not say: "One year from the recordation of the
plat," but rather just "one year." He submitted that the Wilson son had
lived on the property for well over one year.
Mr. St. John attempted to clarify the issue. He explained that the parents
had put together two parcels of land and on the plat that went to record
these were shown as two parcels --the surveyor did not eliminate the boundary
line between the two parcels, but simply put a written note saying that
they had been combined. He.stated he understood why* :sir. Reback had not
asked that the property be re -surveyed because it was not required and
it would have been a waste of his clients' money. He stated the property
was combined in the Clerk's Office and the Tax Office. The parents
then conveyed one of these already defined parcels to their son, who
moved onto the property, and who now wants to sell it to someone else, and
the prospective buyer of the son's parcel discovered this mistake.
(Mr. Reback interjected that the property was not currently on the
market but may be sold in the future.) Mr. St. John stated he felt the
purpose of the one-year provision had not been violated, i.e. that the
spirit of the provision had not been violated, though the "letter"
may have been violated. He explained that what that provision is designed
to prevent, i.e. circumvention of the ordinance, has not happened here
and will not happen if the waiver is granted. Regarding the question
of precedent, he stated he felt this was a very unique situation and
probably would never happen again. He felt this was a totally'innocent and
understandable" mistake and was not an effort to circumvent the family
division. Mr. St. John confirmed thatthe7-acre parcel did not exist as a
separate parcel in 1986, but the two parcels had been combined "unknowingly."
Mr. Horne asked to be allowed to comment on the "tone" of the discussion.
He stated: "Just because there is a legal note, on a legally -recorded
plat, signed by the owners on a notarized statement, that they're complying
lots even though the line happens to be shown there, somehow that's less
valid than some other mechanism of combining lots. We combine lots in
this county hundreds per year in that exact mechanism and it's a perfectly
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July 12, 1988
Page 3
appropriate mechanism. I understand that there's not any attempt to circum-
vent the ordinance, but to make light of the actual legal facts of what took
place here and somehow say that that is not an important factor I think is
really a mistake. Whether you should grant this on other grounds is another
question altogether. The tone of the discussion so far is 'Well, everybody
really didn't know what we were doing even though we signed the plat, even
though we put it to record, even though our attorney did title research.'
I think the tone has really incorrectly portrayed what has gone on here,
and I think it incorrectly portrays the position of the staff so far in
this matter."
Mr. St. John stated he had not intended that his remarks would create such
a tone. He pointed out that all the applicant was requesting was to
"let the year start running from the time that deed was put to record instead
of when an approved plat showing exactly the same division may be put to
record."
Ms. Patterson pointed out that the applicant has not yet accomplished a
family division and staff has just received that plat.
Mr. Bowerman asked what approval of the applicant's request would mean.
Ms. Patterson responded: "In the spirit of the family division, we will
be granting approval of a subdivision that they would like to have the
ability to sell as a typical commercial subdivision at this time."
Mr. Bowerman stated: "And they could do that as a matter of right
anyway, correct? If they just came in with a regular subdivision, non -family,
and requested this division, it could come before us and there would be no
problem, right?" Ms. Patterson responded: "Yes, but there are some issues
that would-be involved -which do not apply to a family division."
Mr. Reback stressed that his clients dial not ask the county to combine the
lots.
There being no public comment, the matterwas placed before the Commission.
Mr. Stark questioned why a full year (54 weeks) had lapsed before the
matter was pursued. Mr. Reback stated he had contacted Ms. Patterson
after receipt of her first letter. He indicated that several delays both
in his office and by the surveyor had prolonged the matter. He stressed
that his clients would not benefit from the delay. Mr. Stark was skeptical
of this explanation.
Mr. Jenkins asked what course would be open to the applicant if the request
were denied. Mr. Bowerman explained that it would be up to the applicant to
submit a family division and proceed in that course, or, if the applicant
wishes to sell the property, "which they couldn't do within a year if it
is a family division," they could submit a regular subdivision request.
Mr. Jenkins asked if the waiver *ere ved�jratedd c uld the Commission restrict
the property from being ssol �y Of. Hofverman respondded, "If we wanted to
do that we just deny the waiver."
July 12, 1988
Page 4
Mr. Bowerman stated: "I don't have any problem with the way staff has put
together the recommendation except with the statement that 'the applicant
is benefitting.' They would be benefitting if we granted the waiver. The
only problem I'm having is ...if they did a family subdivision contemplating
selling it at the end of a year, not to circumvent the ordinance but simply
to take advantage of the provision of it, then all that's been done and I
don't think they would be benefitting any more doing this now. The thing
I would be concerned with would be the precedent of our action...."
However, he stated: "I'm not sure we would be violating anything if we
went ahead and granted this waiver." He added that he also shared Mr.
Stark's concerns about the one-year delay.
Ms. Diehl stated she agreed with the staff report, particularly in respect
to the one-year delay. She added that she was concerned about granting a
waiver request when it appears the applicant still has two viable alternatives
to proceed if the request is not granted.
Mr. Wilkerson asked fir. Horne what was meant.by staff's suggestion that
the ordinance should probably be amended if the Commission chose to grant
this request. Mr. Horne explained this meant the one-year "holding period"
should probably be removed. He further explained: "It is not something that
is mandated by State law like the family division is.. It's not unique;
many other jurisdictions have something like it.. I guess what we're trying.
to say is 'If you can't distinguish in your mind something unique about
this and you just think the 'holding period is something that is not a good
idea,' then let's not have the holding period." He confirmed the one-year
period was for protection. He stated that staff supported the holding
period. Mr. Jenkins asked if the waiver was granted would it be
absolutely necessary to eliminate the one-year.period. fir. Horne replied: "No.
If you feel there is something unique enough about the circumstances of
this that you're not going to have to generally apply it, then it's not
going to set a broad -based precedent. That is something that only you can
judge."
Mr. St. John gave an example of what the one-year period was designed to
prevent.
Mr. Rittenhouse stated he supported the one-year period, but he also could
support the waiver request. He felt the "only thing that stands between
this being a normal proper subdivision and our reviewing it tonight is
the fact that an omission was made.". He did??Eink the County would lose
ground in enforcing the holding provision by granting the waiver.
Mr. St. John asked Mr. Reback: "If you get this waiver, is it your intent
still to get this division approved as a family division? You're not
going just to forget about the requirement for official approval as a
family division?" Mr. Reback responded: "We go through with the whole
process and then I have to file a Deed of Correction... with this new
plat attached." Mr. St. John asked: "You're not going to take the
position.that if and when you get this waiver you are finished and you
can sell it directly to somebody else?" Mr. Reback responded: "No."
To get the matter before the Commission, Ms. Diehl moved that the Wilson
Family Division Waiver Request be denied.
Mr. Stark seconded the motion.
July 12, 1988 Page 5
Mr. Bowerman stated he would not support the motion because he agreed with
Mr. Rittenhouse, and he did not think it in any way would dimish the staff'=,
argument. He did not think a circumvision had occurred and he did not
think any harm would be done by granting the waiver request.
Mr. Stark stated he felt staff had done their work and anything other than
denial would be unsupportive of the staff.
Ms. Diehl stated she was in favor of denial because she felt the applicant
had alternatives (i.e. (1) Could proceed with a family division and carry
it through properly; or (2) If the intent is to sell, could treat it as
an ordinary subdivision, dividing off that portion that would be sold.)
The motion for denial failed to carry (2:4) with Commissioners Diehl and Stark
voting for denial and Commissioners Rittenhouse, Jenkins, Wilkerson and Bowerman
voting against denial.
Mr. Rittenhouse then moved for approval of the Wilson Family. Division Waiver
Request. Mr. Jenkins seconded the motion.
The motion for approval passed (4:2) with Commissioners Rittenhouse, Jenkins,
Wilkerson and Bowerman voting for approval and Commissioners Diehl and Stark
voting against approval.
Texaco Service Center, Minit Lube and Car Wash Preliminary Site Plan - Proposal
to remove the Tom Jones Citgo station and to locate 3 separate buildings as
follows: 1,800 square foot gas/convenience store with 6 gas pumps, 2,024
square foot minit-lube with 4 stalls, and 2,100 square foot single stall
car wash. The development is proposed to be served by 25 parking spaces and
three entrances (existing), of which 2 are on Greenbrier Drive and 1 on
Rt. 29. Property, located in the northeast quadrant of the intersection of
Rt. 29 and Greenbrier Drive, across from Midas Muffler and adjacent to the
west of Daly's lent All. Zoned Cl, Commercial. Tax map 61W-2-B, Parcel 3.
Charlottesville Magisterial District.
Ms. Patterson gave the staff report. Staff recommended approval subject
to conditions.
Ms. Patterson confirmed the site plan contemplated two 50-foot wide entrances
on Rt. 29.
Ms. Diehl asked if rental trucks would be parked on the site. Ms. Patterson
stated the applicant has indicated no rental trucks will be parked on the site.
Mr. Bowerman pointed out there was no room for such vehicles on the site.
The Chairman invited applicant comment.
The applicant, Mr. David Sutton, President -of Tiger Fuel Company, addressed
the Commission. His comments included the following:
--He confirmed that U-Hauls will no longer be parked on the site, nor
will any other type of "vendor -type uses" take place on the site (e.g.
ceramics, etc.). He stated those uses have already been removed from
the site. He added there was no intention to continue this type of
sales on the site.
July 12, 1988
Page 6
--He felt. this plan was an improvement over the current use of the site.
--He stated the southern entrance would be used by 90% of entering
traffic, which would then exit through the northern access.
--The car wash will be of the "quick" variety.
--The diesel pump will be identical to the one at Sth Street.
--He had no objection to landscaping in the Highway Department
right-of-way if they would allow it.
--Regarding the issue.of possible stacking problems which could block
the entrance, he explained he did not believe this would be a Problem
because there would be four bays which could accommodate an additional
four cars behind each. bay. He doubted there would ever be that many
vehicles on the lot at one time. He added that there was additional
parking area on the right. (Staff agreed.)
There being no public comment, the matter was placed before the Commission.
Regarding the possibility of landscaping in the Highway Department right-of-way,
Mr. Bowerman asked if staff anticipated problems. GIs. Patterson explained
that the permit would have to be taken out by the County. Mr. Horne added
he felt it would be wise in this location, because of the very busy inter-
section, to make every effort to contain the landscaping on site. He
added that Ms. Patterson would ensure that the area that is available
on the applicant's site would be heavily landscaped.
Mr. Sutton again addressed the Commission. Regarding the widening of Rt.
29 right -turn lane (condition 1(c)), Mr. Sutton stated this was the only
point of disagreement between the applicant and.staff. He explained that
this would be economically unfeasible because it would involve the re -location
of three utilities. Staff was uncertain as to whether the County might
possibly share the costs of this improvement.
Mr. Bowerman stated he felt this was a very intense use of the site. However,
he added: "But I think that recognizing that part of the urban area where
it's located and the traffic that's going to be by there, it probably is
going to require some intense usage to justify doing anything to it at all
which is why I'm in favor of the 4-foot improvement. That's part and parcel
of the way I look at the application. It's a very intense use, but I think
it should be done absolutely right from.the beginning, and, for that reason,
I would support the staff recommendation for the full 12 feet on the one
lane that you just discussed. I think any confusion on the site isn't one
of safety, it's one of convenience for the internal traffic flow and I
think it'.s really the applicant's responsibility to deal with that in
whatever manner he can because it will be to (his) best interest to do so."
He concluded he was in favor'of the site plan with the recommendations of
staff.
Mr. Wilkerson moved that the Texaco Service Center, Minit Lube and Car Wash
Preliminary Site Plan be approved subject to the following conditions
1. The final plan will not be signed until the following conditions
have been. met:
a. County Engineering approval of grading and drainage plans and calcu-
lations, to include plan and profile of relocated storm drain;
b. County engineering approval of stormwater detention plans and calcu-
lations;
c. Virginia Department of Transportation approval of right -of --way
improvements to include widening the right -turn lane on Route 29,
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July 12, 1988
Page 7
drainage relocation and issuance of a highway permit;
d. Issuance of an erosion control permit;
e. Albemarle County Service Authority approval of sewer lateral connection;
f. Fire Officer approval;
g. Recordation of plat which (1) creates sight easement on Tax Map
61W-2-B-2, (2) adds part of Tax Map 61W-2-B-1 to the property, and
(3) relocates drainage easement;
h. Planning and County Engineering approval of notes to plan.
2. A certificate of occupancy will not be issued until the following condition
has been met:
a. Final Fire Officer approval.
Ms. Diehl seconded the motion which passed unanimously.
SP-88-26 Michael W. Worley - Request in accordance with Section 5.6 of the
Zoning Ordinance for the issuance of a special use permit to locate a double
wide mobile home on 5.45 acres, zoned RA, Rural Areas. Property located ± 1/4
mile off the east side of Rt. 643 on a private drive, 1.6 miles east of the
intersection of Rt. 29N and Rt. 643. Tax Map 46, Parcel 94. Rivanna
Magisterial District.
The applicant had requested that the application be withdrawn without prejudice.
Mr. Wilkerson moved, seconded by Mr. Stark that SP-88-26 be withdrawn without
prejudice. The motion passed unanimously.
SP-88-35 Dana Slater - Request in accordance with Section 5.6 of the Zoning
Ordinance for the issuance of a special use permit to locate a single wide
mobile home on 21.46 acres, zoned RA, Rural Areas. Property, located on
the north side of Rt. 605, ± 1.4 miles west of its intersection with Rt. 743.
Tax Map 20, Parcel 1C. White Hall Magisterial District.
Mr. Fritz gave the staff report.
The Chairman invited applicant comment.
The applicant, Ms. Dana Slater, addressed the Commission. She presented
photographs of the proposed mobile home. She stated all the necessary
paperwork was with the "building inspections people" who are awaiting
approval of the special use permit.
There being no publiccomment, the matter was placed before the Commission.
Mr. Jenkins moved that SP-88-35 for Dana Slater be recommended to the
Board of Supervisors for approval subject to the following conditions:
1. Albemarle County building official approval;
2. Conformance to all area, bulk and other applicable requirements
for district in which it is located;
911,611,
July 12, 1988
Page 8
3. Skirting around mobile home from ground level. to base of the mobile home
to be completed within thirty (30) days of the issuance of a certificate
of occupancy;
4. Provision of potable water supply and sewerage facilities to the reasonable
satisfaction of the zoning administrator and approval by the local office
of the Virginia Department of Health, if applicable under current regulations;
5. Maintenance of existing vegetation, landscaping and/or screening to be
provided to the reasonable satisfaction of the zoning administrator.
Required screening shall be maintained in good condition and replaced
if it should die.
Mr. Wilkerson seconded the motion which passed unanimously.
The matter was to be heard by the Board on July 20, 1988.
SP-88-34 Hatfield Farms Real Estate Investment Tr.- Request in accordance
with Section 5.6 of the Zoning Ordinance for the issuance of a special use
permit to locate a single wide mobile home on 6.737 acres, zoned RA, Rural
Areas. Property, located ± .3 mile on the north side of a private.drive
off the west side of Rt. 664; .2 mile south of its intersection with Rt. 810.
Tax Map 8, Parcel 35F. White Hall Magisterial District.
The applicant had requested deferral to August 2, 1988.
Mr. Wilkerson moved, seconded by Mr. Stark, that SP-88-34 be deferred to
August 2, 1988. the motion passed unanimously.
SP-88-4_9_Wilbur J. Wright Request in accordance with Section 5.6 of the
Zoning Ordinance for the issuance of a special use permit to locate a double
wide mobile home on 2 acres, zoned RA, Rural Areas. Property, located on the
southeast corner of Rt. 663 and Rt. 664 intersection. Tax Map 19, Parcel
12C1. White HallMagisterial District.
Mr. Fritz gave the staff report.
The Chairman invited applicant comment.
Mr. James Wright addressed the Commission. He stated only those trees would
be removed which were necessary to accommodate the septic system.
The Chairman invited public comment.
Mr. Forbes Reback, representing Donald and Joan Caldwell, addressed the
Commission. He stated his clients objected to the application because
it was incompatible with the historic significance of their home.
Mr. Wilbur Wright, father of the applicant and owner.of the property, addressed
the Commission and spoke in favor of the request. He stressed that Mr.
Caldwell's office was quite a distance from the proposed site and also
that the home referred to by Mr. Reback was not occupied. He pointed out
that it was his son's intent to place a double wide mobile home on a
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July 12, 1988
Page 9
basement in a heavily wooded area. He did not feel this would devalue
surrounding property.
Mr. James Wright confirmed that the dwelling would have a peaked, shingled
roof.
Mr. Jonathan Wright, adjacent property owner and brother of the applicant,
spoke in favor of the application.
Mr. Bob Martin, developer of Quintfield, the subdivision to the north, addressed
the Commission and expressed his opposition to the proposal. He felt
the mobile home would devalue the property he was trying to sell. He
also questioned how requirements for screening would be enforced.
There being no further comment, the matter was placed before the Commission.
Mr. Horne suggested that if the Commission was concerned about screening
from the property to the north, condition No. 5 could be amended by
adding the following words: "Maintenance of existing vegetation, landscaping
and/or screening to be provided to the reasonable satisfaction of the zoning
administrator, with particular attention being provided by the Zoning
Administrator to screening from the northern property line. Required...."
Mr. Horne later restated this slightly differently as follows: ..."administrator,
with the Zoning Administrator to provide particular attention to screening from
the propeities to the north. Required...."
Mr. Bowerman asked Mr. St. John if a condition could be added requiring
that the mobile home be placed on a permanent foundation with a shingle
roof. He noted that the applicant had confirmed these were his intentions.
Mr. St. John replied such a condition was acceptable.
After a brief discussion, it was decided the original condition No. 3 would
be deleted and replaced with a new condition No. 3 as follows: "Mobile home
shall be placed on a permanent foundation and have a shingle -type roof."
Mr. Stark moved that SP-88-49 for Wilbur J. Wright be recommended to the
Board of Supervisors for approval subject to the following conditions:
1. Albemarle County building official approval.
2. Conformance to all area, bulk and other applicable requirements for
district in which it is located.
3. Mobile home shall be placed on a permanent foundation and have a shingle -type
roof.
4. Provision of potable water supply and sewerage facilities to the
reasonable satisfaction of the zoning administrator and approval by the
local office of the Virginia Department of Health, if applicable under
current regulations.
5. Maintenance of existing vegetation, landscaping and/or screening to be
provided to the reasonable satisfaction of the Zoning Administrator, with
the Zoning Administrator to provide particular attention to screening
from the properties to the north. Required screening shall be maintained
in good condition and replaced if it should die.
July 12, 1988
Page 10
Mr. Wilkerson seconded the motion.
Mr. Rittenhouse stated that he was sensitive to .Mr. Martin's concerns.
He called Mr. Martin's attention to the following which he quoted from
the Comprehensive Plan: " It is recommended that the County continue
its mobile home location policy. It is further recommended that
efforts be made to encourage the development of mobile home parks
and subdivisions to reduce the visual impact which scattered mobile
homes, like their traditional single-family counterparts, may have on
the rural countryside." fir. Rittenhouse stated he would support the
application based on the requirement for effective screening.
The motion for approval passed unanimously.
The matter was to be heard by the Board on July 20, 1988.
The meeting ecessed from 9:32 to 9:45
SP-88-38 Mark Lambert, Applicant (H. Wayne Elliott, Owner) - Request in
accordance with Section 14.2.2(11) of the Zoning Ordinance for the
issuance of a special use permit to conduct a Home Occupation, Class B for
a computer software business, on property zoned R-2 Residential. Property,
located at the intersection of Huntington Road and Carrsbrook Drive in the
NNorthfields Subdivision. Tax Map 62A3, Parcel N14. Charlottesville
Magisterial District.
Mr. Fritz gave the staff report. The report concluded:
"Staff has reviewed this petition for consistency with Sections 5.2
and 31.2.4 of the Zoning Ordinance and recommends that the use will not
be of substantial detriment to adjacent properties and that the character
of the district will not be changed. Staff recommends approval...."
The Chairman invited applicant comment.
Mr. Mark Lambert addressed the Commission. He.explained that this would
be a temporary location for his business because as the business grows
and the need for one more employee develops, he will move the business
to a larger location. He stated no sign would be displayed on the property.
He pointed out that the house is "hardly visible" from Huntington Road
and "not prominently visible" from Carrsbrook Drive. He noted that
the Tax Office address for the property was 2801 Huntington Road, but
the Postal address was 600 Carrsbrook Drive. He explained that his
business consisted of typing, writing and talking on the phone, and
there would be no change in activity from what has existed for the last
40 days. He stated he, his wife and son lived in the dwelling, and
his sister drives to the house to assist him. He noted that he had
cleared brush that was obstructing sight distance.
There being no public comment, the matter was placed before the Commission.
Mr. Bowerman noted that this was his neighborhood and he had not been aware
there was any business activity at the house. He stated the house was
totally invisible from the road. He felt this was little more than having
an office in your home.
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July 12, 1988
Page 11
Mr. Rittenhouse moved that SP-88-38 for Mark Lambert, Applicant (H. Wayne
Elliott, Owner) be recommended to the Board of Supervisors for approval
subject to the following conditions:
1. Such occupation may be conducted within the dwelling provided that not
more than twenty-five (25) percent of the floor area of the dwelling
shall be used in the conduct of the home occupation.
2. There shall be no change in the outside appearance of the buildings or
premises, or other visible evidence of the conduct of such home
occupation other than one (1) sign.
3. There shall be no sales on the premises.
4. No traffic shall be generated by such -home occupation in greater volumes
than would normally be expected in a residential neighborhood, and any
need for parking generated by the conduct of such home occupation shall
be met off the street.
5. The home occupation shall comply with performance standards set forth in
section 4.14.
Mr. Stark seconded the motion which passed unanimously.
The application was to be heard by the Board on July 20, 1988.
SP-88-45 Henry Pope & Mary L. Mikk_e_lsen - Request in accordance with section
10.2.2(31) of the Zoning Ordinance for the issuance of a special use permit
to conduct a Home Occupation, Class B for a pottery studio with kiln on .547
acres, zoned RA, Rural Areas. Property, located on the northwest side of
Rt. 601, }.2 mile northwest of its intersection with Rt. 676. Tax Map 43,
Parcel 33A. Jack Jouett Magisterial District.
Mr. Fritz gave the staff report. The .report explained: "A Home Occupation
Class A permit was administratively issued for this site on January 20,
1977 by a previous Zoning Administrator. The Zoning Administrator at that
time apparently did not consider the kiln an accessory structure. ...
The kiln is located in an accessory structure. It is because of this
discrepancy that the applicant is now seeking a Class B Home Occupation permit."
It was later determined that this issue had come to the attention of the
Zoning Administrator because an adjacent property owner had complained that
discharge from the kiln was causing damage to trees and personal respiratory
problems. Upon pursuing the complaint, the Zoning Administrator had
discovered the discrepancy and advised the applicants that a Class B Home
Occupation permit would be required. Staff explained that though Class A
permits can be issued by the Zoning Administrator administratively, a
Class B permit requires Commission review and Board approval.
Staff recommended approval of the request subject to conditions.
9171?
July 12, 1988 Page 12
Mr. Fritz explained that because of the concern about pollution which was
raised by an adjacent property owner (Bruton), the County Extension Office
had sent leaf samples to Virginia Polytechnic Institute for testing for
sulfur dioxide and fluoride, the main products of burning fuels and
ceramic products. Mr. Fritz read the following from the report received
from VPI as a result of these tests: "There were no symptoms of sulfur
dioxide or fluoride injury on any of the samples we received. The dis-
coloration of the hickory, birch and maple leaves suggested a gaseous
chemical burn but was not typical of injury caused by the more common air
pollutants." He also summarized a report received from the Department
of Forestry which concluded "they .cannot find a direct cause and effect
relationship."
In response to Mr. Bowerman's question, Mr. Fritz explained that samples
were taken at various locations on the Bruton property with .the closest
being approximately 200 feet away from the kiln. Mr. Bowerman
concluded that direct heat could be eliminated as a possible cause of
the damage.
There was some discussion as to how this matter had come to be before the
Commission since the business has been operating for 10 years. Mr. Fritz
explained that a previous Zoning Administrator did not view the kiln as
an accessory structure, but rather as a tool, and so had issued a
Class A permit. Recently, fir. Bruton had brought this :natter to the attention
of the Zoning Administrator (current) who determined that the business
was operating without the proper permit.
Mr. St. John asked if the kiln and activity was the sarre.as it had been
at the beginning of the operation and was the kiln inside another structure
or was it portable. 'sir. Fritz responded that the kiln was located inside
a structure which was plastic on three sides with a corrugated aluminum
roof. He confirmed that the current Zoning Administrator views this
as an accessory structure.
Referring to statutory process, Mr. St. John stated it was unusual for
a Zoning Administrator's official ruling to be appealed 10 years later.
Mr. St. John. asked if something unusual took place which went beyond the
previous ruling, or does the present Zoning Administrator simply disagree
with the previous decision. Mr. Fritz responded that he was uncertain
as to achy the Zoning Administrator had advised the applicant to apply
for a new permit. (Mr. Pope, the applicant, later clarified this issue
and explained that the neighbor's complaint had brought the matter to
the attention of the current Zoning Administrator who re-evaluated the use.)
The Chairman invited applicant comment.
The applicants, Mr. Henry Pope and Ms. Mary Mikkelsen, addressed the Commission.
Mr. Pope spoke and his comments. included the following:
--The business has been operating at this site for 10 years.
--A neighbor recently filed a complaint that the kiln has caused
harm to the environment, specifically to his trees.
--The kiln has not changed since originally installed, though it
has been placed on a wooden platform with a tin roof. The plastic sheeting
is simply to keep out rain. It has no actual walls.
JAD
July 12, 1988 Page 13
--The study done by VPI was done by a plant pathologist who is a specialist
in air pollution and a specialist in plant diseases.
--The trees nearest his property are some pine trees which are on the
property line on Mr. Bruton's side. These trees are all healthy. The nearest
hardwood tree on Mr. Bruton's property is 350 feet and most hardwoods are
600 feet away.
--He quoted the following from a telephone conversation with the VPI Plant
Specialist: "I didn't find any thing of consequence. There was some leaf
spot and insect damage but nothing significant, nothing that would kill the
trees."
--The VPI Plant Pathologist was uncertain as to what was causing the
stress to the Bruton trees, though tests showed no fluoride or sulfur dioxide
damage.
--If the kiln was the source of contamination, the trees closest to the
kiln would have shown more damage than those farther away as in this
case.
--If the kiln was causing contamination it would be in a southwest
direction, the direction of the prevailing winds, and the only thing in
that direction on the Bruton property is an open field and the healthy -pine
trees.
--He felt there had to be "reasonable cause" to show that the kiln is
the source of pollution.
--The kiln is fired with propane, a clean fuel,and there are no
contaminants in the clay that is used. The clay is pre -fired in a bisque kiln
before it goes into the gas kiln. (It was later determined the bisque kiln
was located inside the dwelling and was electric.)
--The process uses no poisons.
--The applicants' would like to keep the residential character of the
house and property. No additional traffic is created by the business
because no siga is posted and no advertising takes place.
--The kiln and propane tank are situated on the property so as to cause
the least impact.
---Ms. Mikkelsen stressed that there is no intention of expanding the
business or hiring additional employees, as is allowed by. a Class B permit.
She also stated the pottery would be dismantled and removed if the property
is ever sold and there was no objection to this being made a condition of
approval.
--Ms. Mikkelsen had polled neighbors and had found, "in general," no
objection.
--Ms. Mikkelsen asked that the Highway Department recommendations for
improvements be waived. (The Commission later determined that if these
items were required, i.e. a paved commercial entrance, removal of trees and
fence and enlargement of the parking area, the applicants would find it
impossible to meet the terms of the permit because an easement on Mr. Bruton's
property would be required.)
--The pottery is sold at fairs and wholesale. Only very occasionally
do customers come to the house.
--Raw materials are picked up by Mr. Pope. The materials are brought
from Richmond and he meets the truck at Barracks Road and moves the goods
to his van. No deliveries are made to the house.
--The kiln is fired twice a month, 12 hours at a time:
--The applicant had no objection to changing the appearance of the
structure housing the kiln. Regarding changing the location, he stated
that moving it would necessitate the removal of several fruit trees. He
offered to place a fence in front to obstruct the view from the road.
- 4PA- 0/
July 12, 1988.
Page 14
The Chairman invited public comment.
Ms. Elizabeth Bruton, the adjacent property owner who had brought this issue
to the attention of the Zoning Administrator, addressed the Commisson.
Her comments included the following:
--A substantial number of her trees have been lost or damaged in the last
five years.
--Trees are effected in.a direct "pie -shaped pattern" from the kiln across
her property.
--The kiln was first suspected as a source of the problem last year
when a number of white pines were found to be.heavily infested with borers
and a representative from the Division of Forestry had stated that borers
were a sympton, but not a cause, of the damage. This forester had
determined the problem.to be a result of air pollution stress.
--It was some time before the kiln was suspected,as the possible source
of the problems.
--The damaged trees begin on the south side in the prevailing wind from
the kiln.
--All family members have developed respiratory problems in the past
five years.
--Though it is impossible to prove that the kiln is the source of the
problem, it is also impossible to be sure that it is not.
--All specialists who have visited the property agree that a very
unusual set of circumstances exists.
--A 1,000 gallon propane gas tank sits within two feet of her fence and
within 20 feet of Rt. 601.
--The former Zoning Administrators ruling may have been based on the
representation to him that the kiln was "portable." his. Bruton felt that
it was not portable in the true sense of the word.
--The kiln is a non -conforming structure on a non -conforming lot.
The operation of the pottery and the kiln does not, however, come under
the grandfather clause.
Ms. Bruton_ asked that the special permit be denied.
Mr. Henry Holland, III, an adjacent property owner, addressed the Commission.
He was opposed to the existence of a Class B occupation in a rural, agricultural
area.
}Ts. Kate Lacy, a landscape architect who had examined the trees in question,
felt the damage was the result of drought.
Mr. Leroy Bruton addressed the Commission. He stressed that he felt the
former Zoning Administrator's decision was influenced by the representation
that the kiln was portable. He pointed that he had received no notification
at the time the original permit was applied for, evidently because it
was not required for a Class A permit. He distributed photographs of
the damaged and dead trees and of the kiln and propane tank.
The Chairman invited the applicant to make a final statement.
Mr. Pope explained that the kiln was portable in the sense that it was
loose -stacked brick with no mortar and could be dismantled. He also pointed
out that he would have applied for a Class B permit originally if he had
been aware that one was required. He was told a Class A was all that was
needed.
le-qz
July 12, 1988
Page 15
Ms. Mikkelsen pointed out that no other neighbors have complained of damage
to their trees, and many of these are much nearer than the Brutons.
There being no further public comment, the matter was placed before the
Commission.
In response to Mr. Bowerman's question as to what Mr..Burgess (the current
Zoning Administrator) had told the applicants, Mr. Fritz referred to
a Letter from Mr. Burgess to Mr. Pope dated May 13, 1988 which stated:
"I must request at this time that you submit a.special use permit application
for a home occupation Class B if you desire to continue use of the kiln."
The letter went on to explain the primary difference between a Class A
permit and a Class B permit was that a Class B allows for two employees
who do not reside on the premises and/or the use of an accessory structure
in the use of the business. It also explained that a Class B permit
required approval by the Board of Supervisors. Mr. Burgess' letter
concluded: "In that you are utilizing an accessory structure, a kiln,
as a part of your home occupation business, Mr. Dick (the former
Zoning Administrator) should have required a Home Occupation Class B
permit to be issued. Mr. Dick, of course, did not have the authority
to issue the Class B permit without prior approval by the Board of
Supervisors."
Mr. St. John interpreted this to mean that the issuance of the permit
was unauthorized by the Ordinance and is therefore void. He added:
"He is not saying that they have done something that went beyond what
Mr. Dick authorized."
Mr. Horne stated he felt Mr. Burgess was saying that the Class A permit
was issued in error, i.e. "it was issued to a use that was not eligible
for a Class A permit, but one that should have obtained a Class B permit."
Mr. Bowerman stated that he felt the issue was properly before the
Commission and it should be dealt with on the merits of the application.
Mr. Rittenhouse stated he was concerned about the position of the fuel tank.
He asked if it could be moved to meet the requirements of the Ordinance.
Mr. Fritz explained that the Code of Virginia requires that the location of
a tank this size be 25 feet from all buildings and property lines and
the County front setback exceeds that (75 feet). He confirmed this was
the normal setback in the rural areas.
There was a brief discussion as to why the Highway Department's recommendation
was different on this application than it had been for the previous
home occupation permit (SP 88-38 Mark Lambert). Mr. Horne indicated it
possibly was due to the nature of the roadway. Mr. Horne further
explained that VDOT has two types of entrances, a private residential
entrance and a commercial entrance without anything in between. He
thought the former application (Lambert) was the exception rather than
this application. (Note: The VDOT recommedation for the Lambert
application did not include a commercial entrance as it did for the
Pope application.) He added that the Highway Department assumes that the
Commission will use some discretion regarding their recommendations.
J449
July 12, 1988
Page 16
Referring to condition No. 6 relating to air pollution, Mr. Horne explained
it was staff's intention to point out that all occupations must comply
with Section 4.14 of the Ordinance, but because of the special concern
about air pollution with this application, the second sentence was added:
"To include a report containing a statement from the State Air Control
Board that all regulations and requirements are being met, report to be
submitted within 120 days to the County Engineer," It was determined
that the report from the Air Control Board was done only once and there
was no on -going control from time to time.
It was determined the following words would be deleted from the end of the
first sentence of condition No. 2: "...occupation,
It was also decided condition No. 8 referring to VDOT recommendations
could be deleted.
Mr. Stark moved that SP-88-45 for Henry Pope & Mary L. Mikkelsen be recommended
to the Board of Supervisors for approval subject to the following conditions:
1. Such occupation may be conducted either within the dwelling or an
accessory structure, or both, provided that not more than twenty-five
(25) percent of the conduct of the home occupation and in no event shall
the total floor area of the dwelling, accessory structure, or both,
devoted to such occupation, exceed one thousand five hundred (1,500) square
feet.
2. There shall be no change in the outside appearance of the buildings or
premises, or other visible evidence of the conduct of such home occupation.
Accessory structures shall be similar in facade to a -single-family dwelling,
private garage, shed, barn or other structure normally expected in a
rural or residential area and shall be specifically compatible in
design and scale with other development in the area in which located.
Any accessory structure which does not conform to the setback and yard
regulations for main structures in the district in which it is located
shall not be used for any home occupation.
3. All accessory structures, including fuel tank, shall conform to minimum
setbacks for the Rural Areas. Those setbacks are 75 feet from the
edge of right-of-way, 25 feet from the side lot lines and 35 feet from
the rear lot line.
4. There shall be no sales on the premises.
5. No traffic shall be generated in greater volumes than would be normally
expected in a residential neighborhood, and any need for parking gen-
erated by the conduct of such home occupation shall be met off the
street.
6. The home occupation shall comply with performance standards set forth
in Section 4.14 of the Zoning Ordinance. To include a report containing
a statement from the State Air Control Board that all regulations
and requirements are being met. Report to be submitted within 120
days to the County Engineer.
7. There shall be no employees for this home occupation.
July 12, 1988 Page 17
8. This special permit is issued to the applicant only and shall not run
with the land. (Rote: This condition was added later in the meeting.)
Mr. Wilkerson seconded the motion.
Mr. Horne asked for clarification as to the Commission's intent regarding
Condition 3 which would require that all accessory structures, including
the kiln and the gas tank, would need to conform to all the minimum setbacks
of the RA district. Mr. Stark confirmed he had considered this issue
and the intent of the motion was just as stated in condition No. 3.
Mr. Bowerman stated he would support the motion because the use exists and
this will bring it more into compliance with the Ordinance. However, he
stated if the application were a new one, he would not support it.
Commissioners Wilkerson and Rittenhouse agreed.
Ms. Diehl stated she was sympathetic to the Bruton's concerns, but there
was no proof that the problems were being caused by this use. She pointed
out that all trees in the area are under stress because of general
environmental conditions.
There was some discussion about how stringent the standards of the State
Air Control Board were and how tests were conducted. Mr. Fritz pointed
out that the kiln was too small to require a stack test or a permit from
the State Air Control Board. He also stated the SACB has no regulations
which directly address kilns. Mr. Rittenhouse asked if perhaps a certain
type of test should be required. It was concluded no test could be
required because no guidelines are available as to precisely what to test
for. Mr. Horne pointed out that condition No. 6 is requiring a
report early on, within 120 days. He explained that in other similar
requests all that is required is that Section 4.14 be complied with
with no particular time limit included.
The Chairman called for a vote on the previously -stated motion for approval.
The motion passed unanimously.
CONSENT AGENDA - Hickory Ridge Final Plat Phase III - Mr. Wilkerson moved,
seconded by Mr. Stark that the Consent Agenda be adopted. The motion
passed unanimously.
There being no further business, the meeting adjourned at 11:42 p.m.
DS
John Horne, Secretary
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