Loading...
HomeMy WebLinkAboutVA201900001 Other 2020-06-04Table of Contents Case No. CL20-428 (VA-2019-00001 Bufton & Maus) Memorandum from BZA Chair and Secretary Return Notarization Certificate of Service Petition for Writ Writ of Certiorari VA 201900001 February 4, 2020 Rehearing of Appeal AP 201900004 February 4, 2020 Albemarle County Board of Supervisors requested rehearing October 29, 2019 AP201900004 Hearing October 1, 2019 Page 1 Pages 2 -3 Page 4 Pages 5 — 7 Pages 8 — 9 Pages 10 — 94 Pages 95 —107 Pages 108 —142 Pages 143 - 257 lLTA I:11 kkyiIs] :7G1►1bill LTAI TO: Circuit Court of Albemarle County FROM: John Shepherd, Chair, Albemarle County Board of Zoning Appeals Marcia Joseph, Secretary, Albemarle County Board of Zoning Appeals DATE: May 11, 2020 SUBJECT: FEBRUARY 4, 2020 DECISION OF THE BOARD OF ZONING APPEALS (BZA) OF ALBEMARLE COUNTY CASE NO. CL20-428 (VA-2019-00001 Bufton & Maus) This cover memorandum is respectfully submitted in support of the BZA's return to the Writ of Certiorari entered in the above captioned case. Background: October 1, 2019: Appeal hearing Albemarle County AP 2019-00004 Button & Maus PLC- BZA overturned the zoning administrator's determination citing Virginia Code 15.2-2311(C) October 29, 2019 Albemarle County Board of Supervisors requested a rehearing of AP 2019- 00004 Bufton & Maus PLC- BZA deferred the request to rehear the appeal and possible variance request to February 4, 2020 February 4, 2020 Variance hearing VA-2019-00001 Bufton & Maus PLC - BZA approved the variance citing the criteria in Virginia Code 15.2-2309. The BZA considered but did not agree with Albemade County's position that approval of a setback variance constituted a use variance. February 4, 2020, Appeal rehearing AP 2019-00004 Bufton & Maus PLC - BZA reversed its October 1, 2019 approval of VA-2019-00001 Methodology: We have reviewed the 592-page record of the above proceedings as compiled by Albemarle County staff. We have endeavored to provide a record that is complete and as concise as possible. To that end, we have removed duplicate items that were included in the 592 pages that were part of the preliminary and final packets created by Albemarle County and presented to the BZA at the meetings noted above for both the appeal and the variance. We have also removed copies of draft minutes that were later approved. We acknowledge Albemarle County's request to remove files associated with its earlier appeal of the BZA's decision of October 1, 2019 (CL 19-1699) from this matter because those records are already in the possession of the court. However, we include them here because the BZA, by unanimous vote, referenced the appeal case as part of the basis of the decision in the variance case. The appeal record documents the communication amongst the parties and the steps of the review of the building permit and zoning clearance that were material to the BZA's decision on the variance. VIRGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF ALBEMARLE IN RE: ) FEBRUARY 4, 2020 DECISION ) OF THE BOARD OF ZONING: APPEALS ) Case No. CL20-428 OF ALBEMARLE COUNTY ) ,- IIJt The Albemarle County Board of Zoning Appeals (hereinafter, the 'BZA") respectfully makes its return to the Writ of Certiorari entered in the above -captioned case. A certified copy of the full and complete record of the proceedings before the BZA in the challenged decision, BZA Variance No. 2019-001, is filed herewith, with the exception that the draft minutes of the February 4, 2020 variance hearing in the record, prepared by a third party, have not been reviewed or acted upon by the BZA because of the COVID-19 epidemic. Once the minutes of the February 4, 2020 variance hearing have been adopted by the BZA, a certified copy of these minutes will be filed with the Court. Further, the BZA meeting recordings were prepared by the BZA Recording Secretary, Marsha Alley, without any review by me. ALBEMARLE COUNTY BOARD OF ZONING APPEALS By:{b�Gt Marcia Joseph, Secretary X 2, WRIFICATION I, Marcia Joseph, Secretary ofthe Albemarle County Board of Zoning Appeals, being duly sworn and say that I have read the foregoing return and know the contents thereof, and that the same is true to the best ofmy knowledge, information and belief. Given under my band this day of 2020. ( qa, �' - Marcia J seph, cre Albern Co un oard fZoning Appeals COMMON WEALTH OF VIRGINIA CIT COUNTY OF eharkotte5ville Subscribed and sworn to before me this } day of M U L v 12020, by Marcia Joseph, who is personally known to me. My Commission Expires: Registration number: 114 i a 15 a t� Not y u lic �pturrreer e o MYOOM��>2JS gyp: /3>/y023 .r�Q CERTIFICATE OF SERVICE I hereby certify that on a true copy of the foregoing Return, and a certified copy of the full and complete record of the proceedings before the Board of Zoning Appeals of Albemarle County in Appeal No. 2019-001 as described in the Return, was hand -delivered to James M. Bowling, IV, Esq., St. John, Bowling, Lawrence & Quagliana, LLP, at 416 Park Street Charlottesville, Virginia 22902-4738; and to Greg Kamptner, County Attorney, County of Albemarle, Virginia, 401 McIntire Road, Charlottesville, Virginia, 22902-4596. I also hereby certify that on a true copy of the foregoing Return, and a certified copy of the full and complete record of the proceedings before the Board of Zoning Appeals ofAlbemarle County in Appeal No. 2019- 001 as described in the Return, was mailed, postage prepaid, to John Maus and Evelyn Bufton, P.O. Box E, Gordonsville, VA 22942. Marsha Alley, Recording Secretary _._ .,_. VIRGINIA: IN THE CIRCUIT COURT FOR THE COi71<TWO WI.SBEWRLE r?> IN RE: FEBRUARV 4, 2020 DECISION OF THE BOARDOF ZONING APPEALS `l � Si�l�i0 l� OF ALBEMARLE COUNTY Serve: John R. Maus 7380 Gordonsville Road Gordonsville, Virginia 22942 Serve: Evelyn Bufton 7380 Gordonsville Road Gordonsville, Virginia 22942 Serve: Marcia Joseph, Secretary Albemarle County Board of Zoning Appeals 401 McIntire Road, North Wing Charlottesville, Virginia 22902 1'TDYII D7-I`FY7►mxY7 Ea crI :TYY7TN`,�I I71 Y FYI t EII I Pursuant to Virginia Code § 15.2-2314, the Albemarle County Board of Supervisors (the `Board"), by counsel, hereby petitions this Court for a writ of certiorari to review the February 4, 2020 decision of the Board of Zoning Appeals (the "BZA') of Albemarle County to grant variance #VA201900001.t In support of its Petition, the Board respectfully states that the BZA lacked any legal authority to grant a use variance. In further support of its Petition, the Board further states as follows: Back rg ound 1. On or about October 18, 2017, Applicants Evelyn Bufton and John R. Maus applied for a building permit for a new structure in the Rural Areas (RA) zoning district. 2. On or about December 7, 2017, Building Permit B2017-02431-NNR was issued, authorizing the construction of the new structure. 3. The building permit noted side and rear setbacks of six feet, consistent with County Code S 18-4.11.2(b). I The County does not object to and is not appealing the separate decision of the BZA, also made on February 4, 2020, to reverse the BZA's prior decision of October 1, 2019, regarding the issuance of a home occupation clearance. This Petition is limited to the BZA's February 4, 2020 decision to grant variance #VA201900001. Ka 5 4. Following completion of construction, on or about June 4, 2019, the Applicants applied for a major home occupation clearance, pursuant to County Code S 18-5.2A. 5. Specifically, the Applicants applied to operate a law office from the newly -constructed structure, which (by information and belief) is located within 25 feet of the side property line. 6. In an official determination (HO2019-00233) dated July 30, 2019, the Zoning Administrator's designee denied the Applicants' application for a major home occupation clearance. 7. On or about December 10, 2019, at the encouragement of the BZA, the Applicants applied for a variance to allow a major home occupation use within 25 feet of the side property line. 8. On February 4, 2020, the BZA granted the requested variance (#VA201900001). 9. As the governing board of Albemarle County, the Board has standing to file this Petition, pursuant to Virginia Code § 15.2-2314. Lack of Legal Authority for Use Variances 10. Virginia Code § 15.2-2309(2) enables BZA's to grant variances "provided that the burden of proof shall be on the applicant for a variance to prove by a preponderance of the evidence that his application meets the standard for a variance as defined in § 15.2- 2201 and the criteria set out in this section." [emphasis added] 11. Virginia Code § 15.2-2201 in turn defines a variance as "a reasonable deviation from those provisions regulating the shape, size, or area of a lot or parcel of land or the size, height, area, bulk, or location of a building or structure when the strict application of the ordinance would unreasonably restrict the utilization of the property, and such need for a variance would not be shared generally by other properties, and provided such variance is not contrary to the purpose of the ordinance. It shall not include a change in use, which change shall be accomplished by a rezoning or by a conditional zoning," [emphasis added] 12. The Applicants' application failed to meet any of the four elements of the statutory definition of a variance in that: n PT a. The strict application of the ordinance does not unreasonably restrict the Applicants' utilization of the subject property. b. The need for a variance would be shared generally by other properties. C. The proposed variance is contrary to the purpose of the ordinance. d. Most importantly, the proposed variance is based on a change in use. 13. Notwithstanding the statutory prohibition on use variances, and the application's failure to meet any of the other variance criteria, the BZA granted a variance whose sole effect was to allow an otherwise unpermitted use of a permitted structure. WHEREFORE, the Albemarle County Board of Supervisors respectfully requests that this Court (a) allow a writ of certiorari to review the February 4, 2020 decision of the BZA to grant a variance to the Applicants, (b) reverse the February 4, 2020 decision of the BZA to grant a variance to the Applicants, (c) deny the Applicants' application for a variance, and (d) order such other relief as the Court may deem just. Respectfully Submitted, ALBEMARLE COUNTY BOARD OF SUPERVISORS By Counsel Greg Kamptner, VSB # 33788 Andrew H. Herrick, VSB #37236 ALBEMARLE COUNTY ATTORNEY'S OFFICE 401 McIntire Road Charlottesville, Virginia 22902 (434) 972-4067 FAX (434) 972-4068 March 3, 2020 x 7 COMMONWEALTH OF VE01GINIA ALBEMARLE CIRCUIT COURT Civil Division 501 E. JEFFERSON ST. CHARLOTTESVILLE VA 22902 (434)972-4085 Proof Of Service Virginia: In the ALBEMARLE CIRCUIT COURT Served by: ALBEMARLE COUNTY Case number: 003CL20000428-00 Service number: 004 Service filed: March 03, 2020 Judge: Style of case: ALBEMARLE COUNTY ZONING APPEAL vs JOHN R MAUS Service on: MARCIA JOSEPH SECRETARY ALBEMARLE COUNTY BOARD OF ZONING APPEALS 2118 WOODBURN ROAD CHARLOTTESVILLE VA 22901 Instructions: Hearing date : Service issued: Friday, March 13, 2020 Attorney: HERRICK, ANDREW 401 MCINTIRE ROAD CHARLOTTESVILLE VA 22902 For Sheriff Use Only w VIRGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF ALBEMARLE IN RE: FEBRUARY 4,2020 DECISION OF THE BOARD OF ZONINGAPPEALS tS O. C L.,R r OF ALBEMARLE COUNTY Serve, Marcia Joseph, Secretary Albemarle County Board of Zoning Appeals 2118 Woodburn Road Charlottesville, VA 22901 Upon the Petition of the Albemarle County Board of Supervisors (the "Board") for a writ of certiorari pursuant to Virginia Code § 15.2-2314, to review the February 4, 2020 decision of the Board of Zoning Appeals (the "BZA") of Albemarle County to grant a variance to Applicants Evelyn Burton and John R. Maus, the Court hereby: 1. ALLOWS a writ of certiorari to review the February 4, 2020 decision of the BZA to grant a variance to Applicants Evelyn Burton and John R. Maus, and 2. ORDERS the Secretary or Chair of the BZA to make a return within 10 days of service upon said Secretary or Chair of the BZA. a. The BZA shall not be required to return the original papers acted upon by it but it shall be sufficient to return certified or sworn copies thereof. b. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified. V. W s JUDGE DATE I ask for this: �� �� LL iJ L AndrewH. Herrick, VSB #3 723 6 ALBEMARLE COUNTY ATTORNEY'S OFFICE 401 McIntire Road 1 Charlottesville, Virginia 22902 r (434) 972-4067� FAX (434) 972-4068 -,1 T` Counsel for Petitioner Albemarle County Board of Supervisors I February 4, 2020 Evelyn Bufton, John Maus Variance Request Albemarle County Board of Zoning Appeals VA201900001 Tm50P49 Variance Approved February 4, 2020 10 pF ALAn. r. Ali` COUNTY OF ALBEMARLE Department of Community Development 401 Mclatire Road, North Wing CharlottewiHe, Virginia 22902-4596 Phone (434) 296-5832 Fax (434) 972-4126 ALBEMARLE COUNTY BOARD OF ZONING APPEALS COUNTY OFFICE BUILDING 401 MCINTIRE ROAD LANE AUDITORIUM, 2:00 P.M AGENDA TUESDAY, FEBRUARY 4, 2020 Call to Order Establish a Quorum 3. Public Hearings: A. Proje__ . <. obey. VA201900001 Bufton & Maus PLC Law Offices Property Owner./Appellant: Evelyn Bufton and John R. Maus Staff Bart SvobodalKevin McCollum B. Rehearing of AP201900004 Bufton & Maus, PLC Appeal Number. AP201900004 Button & Maus TMP 50 - 49 Property Owner/Appellant: Evelyn Bufton and John R. Maus Staff: Bart Svoboda/Kevin McCollum {This item was deferred from the October 29, 2019 meeting.? 4. Approval of Minutes A. January 7, 2020 5. Old Business A. Training Update 6. New Business 7. Adjournment ALBEMARLE COUNTY BOARD OF ZONING APPEALS COUNTY OFFICE BUILDING 401 MCINTIRE ROAD — LANE AUDITORIUM TUESDAY, FEBRUARY 4, 2020 — 2:00 P.M. Board Members: Marcia Joseph Ed Robb John Shepherd David Bowerman Randy Rinehart (absent) Staff Members: Bart Svoboda, Zoning Administrator Francis MacCall Marsha Alley, BZA Clerk and Recorder County Attorney: Andy Herrick, Deputy County Attorney BZA Attorney: James Bowling, IV 1. Call to Order The meeting was called to order at 2:00 p.m. by Chairman John Shepherd. 2. Establish a Quorum The BZA established a quorum, with four members present. 3. Public Hearings A. VA201900001 Bufton & Maus PLC Law Offices MR. SHEPHERD: Are we all set with the timer? This will be a 15-minute presentation. MR. MACCALL: Thank you, Mr. Chairman. Francis MacCall, Principal Planner. This is a variance 201900001. The applicants are Evelyn Bufton and John Maus. I'll take questions at the end of the presentation, if there are any. So, as noted in the report, and in the applicant's request, the applicant requests a variance from any and all of the provisions of Albemarle County Code that would prevent them from using an accessory structure on their property for a major home occupation. So, review of the variance criteria will follow in just a moment. First, I want to just start with a quick overview of the site. The location here is, the property is located in northeast Albemarle County, is 2.4 acres, fronts on State Route 231 (Gordonsville Road), which is an Entrance Corridor, and is zoned RA, Rural Areas. There's one dwelling and one accessory structure located on the property, at 7380 and 7382 Gordonsville Road, respectively. As the applicant on the application, there were no specific sections of the Zoning Ordinance that were requested to be varied. After review of the request, staff believes that there are two applicable regulations of the Albemarle County Code that pertain to this request. First, Section 10.4, which requires a side setback for primary structures of 25 feet, and the second section, Section 5.2a, which provides that an accessory structure 12 that does not conform to the applicable setback and yard requirements for primary structures shall not be used for a home occupation. The applicable side setback here, in this case, does not appear to be met. The following slides will show you the data we currently have regarding the location of the accessory structure So, this drawing was submitted with the variance application, and it shows the structure at 14.5 feet here. Staff had visited the site in June of 2019 and found with a measurement that was recommended (as far as where the property line was) to be approximately 14 feet. And then, this is the - also, some additional information that was submitted with the building permit regarding the septic disposal that, when scaled, shows the structure being 45 feet from the side property line. So, the point of showing the three different representations of the site measurement is that staff believes that if the Board were to determine that a reasonable deviation from the setback provision is permitted, it would be best to do so with the most accurate evidence, and we do not have that at this time, as reflected in the three different representations. An updated survey of the property and improvements would shed more light on this. So now, I'd like to review some, quickly, the history that got us to this point, as far as the application for this variance today. In September of 2017, the applicant requested information about building a law office. The applicants were informed that a major home occupation was required if they were using an accessory structure for the home business and primary structure setbacks applied. In October of 2017, the applicant applied for a building permit for an accessory structure and described it as a new structure for a home office. The location plan provided showed no distances to the property lines. As noted earlier, during the review of the permit, the plan was scaled and showed the structure being approximately 45 feet from the side property line. In December of 2017, the County issued that building permit, noting the minimum setbacks. In August of 2018, eight months after the issuance of the building permit, the footing and preliminary zoning inspection were approved. In June of 2019, eighteen months after the issuance of the building permit, the applicant applied for a major home occupation clearance for a law office, to use the accessory structure as part of the home occupation. Also, in June, as mentioned before, staff had visited the site and showed approximately 14 feet to what was described to them as the property line. On July 30, 2019, staff provided the applicant with an official determination regarding the home occupation use. On August 12, the applicant submitted an appeal of that determination. On August 15, the County then issued the Certificate of Occupancy for the accessory structure described as a detached personal home office. On October 1, 2019, the Board heard the appeal, which was filed earlier in August, and overturned, at that time, the Zoning Administrator's determination. At the end of October, on October 29, at the request of the Board of Supervisors, the BZA held a special meeting to rehear the Burton Maus appeal. At that hearing, the BZA voted to defer the rehearing of the appeal so as to allow the hearing of the variance, if the applicant chose to apply. And that's where we are today, hearing the applicant's variance application. I will now outline the qualifying conditions for granting the variance, as outlined in State and County Codes, and review staffs analysis of those conditions. 13 So, under Virginia Code 15.2-2309.2, the Board of Zoning Appeals may grant, upon appeal of the original application, in specific cases, a variance as defined in 15.2-2201, provided that the burden of proof shall be on the applicant for a variance to prove, by preponderance of the evidence, that his application meets the standard for a variance as defined in 15.2-2201, and the criteria set out in this section. So, 15.2-2201 defines a variance as a reasonable deviation from those provisions regulating the shape, size, or area of a lot or parcel of land or the size, height, area, bulk or location of a building or structure, when the strict application of the ordinance would unreasonably restrict the utilization of the property; and such need for a variance would not be shared generally by other properties; and provide that such variance is not contrary to the purpose of the ordinance. It shall not include a change in use, which change shall be accomplished by rezoning or by a conditional zoning. So, the Zoning Ordinance outlines the following criteria for variances. Section 34.4 states that the Board shall grant a variance if the evidence shows of either of the following: if the strict application, in terms of the ordinance, would unreasonably restrict the utilization of the property; or, the granting of the variance would alleviate a hardship due to a physical condition relating to the property. The application must also meet all of the following: the good faith acquisition of the property and the hardship is not self-inflicted; there is no substantial detriment to adjacent properties; the condition or situation is not general or recurring; a use variance is prohibited; and a special use permit or special exception is not available. So, evaluation of those conditions are noted here and in the report. For the first standard, staff argues that the strict application of the 25-foot side setback or structure used for the home occupation does not unreasonably restrict the use of the property. The owners already enjoy reasonable use of the property through both the existing single-family residence and the new accessory structure, which may remain. For the second standard, staff argues that no physical condition of the property created a hardship. The improvement (which is the accessory structure) was constructed in 2017, well after the effective date of the home occupation regulations. Neither of these standards are met. Furthermore, the application does not meet all of the following, as required by the Code: two of the five additional criteria for the variance have not been satisfied. These are the first and the fourth criteria. As noted in the report, the proposal to use the accessory structure for a major home occupation came after the initial application and issuance of the building permit for the accessory structure. Because the applicant did not apply for the major home occupation clearance at the same time as the building permit for the accessory structure, staff issued the building permit as if it met the standard accessory structure setbacks. Only after the accessory structure was under construction and close to completion was the application for the home occupation filed for County review. As noted previously, the applicant then chose to appeal the staffs decision rather than rectify the setbacks through alternative means. Please note that even though the application meets the fifth standard, there is an alternative remedy available through a boundary line adjustment plat. 14 So, as noted earlier, there was no specific section requested for a variance, even though staff has identified two sections (10.4 and 5.2a). With that said, staff does not believe that a variance from either of these sections is possible and is recommending denial for this variance application per the following factors outlined here, and in the report. Additionally, under Virginia Code 15.2-2201, the BZA cannot approve a use variance since the accessory structure located on the property is currently not in violation of the ordinance, and the approval of this variance would allow for the use of a major home occupation. Thus, that is not permitted. The applicant may still, again, pursue a boundary line adjustment with the adjacent lot to allow the structure to meet the side setback. Staff has provided the following motions for either denial or approval and will answer any questions the Board may have. MR. SHEPHERD: Thank you, Francis. Do we want to hear from the - do we want to have questions of Francis now, or hear the applicant and then move forward? MS. JOSEPH: Chair, what's your pleasure? MR. S VOBODA: Mr. Chairman, we still have 3 minutes of our presentation left for the County Attorney. MR. SHEPHERD: Oh, okay. Even better. MR. SVOBODA: Thank you. MR. HERRICK: Mr. Chair, members of the Board. Andy Herrick. I'm the Deputy County Attorney. I'm here today representing the Zoning Administrator. So, as you all are aware, what brings the Board together today is an application for a variance in order to use a permitted structure in a way that is not otherwise permitted under the Zoning Ordinance. And, Mr. MacCall, if you could call up the slide with 15.2-2201. I believe that's a few slides back. So, you'll see up ahead of you, for better or worse, that when it comes to variances, there's actually two different parts of the Virginia Code - it's in 15.2-2309. But, it's also, as part of the definition of a variance itself, in 15.2-2201. And as Mr. MacCall has broken out, there's actually four requirements, and it's our belief that the application, as presented, does not meet any of those requirements that it has to meet to meet the definition of a variance. The first one, the strict application of the ordinance would unreasonably restrict the utilization of the property. This is intended as a safety valve for a regulatory taking. It's to prevent the applicant from being prevented from any reasonable use of the property. And, in fact, the applicant already has reasonable use of the property in that not only do they have a single-family dwelling on the property that they've used, they've since added an accessory structure, which is allowable on the property. And the County does not take issue with the existence of that accessory structure on the property, just what is being proposed, just the use for which it's being proposed. So, again, the first criteria, the first standard of a definition of a variance is not met. 4 15 The second one, such need for a variance would not be shared generally by other properties. And again, that standard isn't met because any other Rural Areas owner, wanting to use an accessory structure for a home occupation, would face the same requirements. Anybody in the same situation would require the same home occupation use clearance. The third criteria: such variance is not contrary to the purpose of the ordinance. Well, the Rural Area Zoning Ordinance is meant to discourage commercial use of Rural Areas. It's meant to allow it in certain, very limited circumstances, and the Zoning Ordinance spells out the circumstances under which it can be used for commercial purposes. One of those restrictions is that the commercial uses through a home occupation not take place within a certain distance of the property line. So, again, allowing a use variance, in this case, would be against the purpose of the ordinance. And then the last one, and probably the most significant one: it shall not include a change in use, which change shall be accomplished by a rezoning or conditional zoning. That's exactly what's before you today. The applicant is seeking a use variance. The County has no issue with the structure. The structure is fine and does not require a variance. It's the use that requires a variance, and that's what's before you today, is an application for a use variance which the definition specifically restricts. So, we appreciate the good intentions of the Board. We appreciate the good intentions of the applicant; but unfortunately, this simply doesn't meet the definition of a variance that the Board can grant. And I'd be happy, and I'm sure Mr. MacCall would be happy, to answer any questions you might have. MR. SHEPHERD: Let's, Mr. Maus, let's hear from you now, and then we will - just try to keep your questions in mind for staff so we can cover everything later. MR. MAUS: Can you clear the computer? Okay, thank you. Mr. Chairman, members of the Board. My name is Jack Maus. Good to see y'all again. We were here, as Mr. Herrick and staff noted, in August and October, and we are here today on the application of, I'm sorry, for a variance from the enforcement of the side setback. The history is pretty much, is very similar to, what the County has indicated. We submitted a permit application for the building permit in October of 2017, paid the fee on that date. It was approximately two months later that the County issued the building permit showing that a 6-foot side setback was applicable. We did begin the construction in October of 2018. We finished it in 2019. And again, just to refresh your recollection, this is the building that we're talking about. At the time when we submitted the building permit application, we submitted a floor plan which showed approximately a 1,000- square-foot building, along, which consisted of two offices and a conference room. Clearly, our intention at the time was that we were going to use this as a law office to which clients and other personnel related to our practice would be able to come and confer, which is why we had a conference room. This is the comer of the building that has raised the County's concerns. It is about 14 feet from the side line. As you can see, the boundary line focuses on, adjoins a cow pasture. See the cows back there in the background. Alright. So, we moved the office from rented space in Orange County, applied for a business license. We're told, well, you can't get that until you have a home occupation or zoning clearance. Then, the department refused to give the clearance. It was too close to the property line. We filed the appeal. 16 During our hearing on October 1, several members of the Board asked why we hadn't applied for a variance and at that point, we told you what we had been told by the Department of Community Development, that variances were not meant to cover situations like this. So, of course, as the County indicated, the Board overturned the decision of the Zoning Administrator and continued the matter until today, (inaudible) request for a rehearing to give us the option, if we were so advised, to file the application for a variance. The Board's decision overturning the Administrator's zoning clearance denial is currently on appeal to the Albemarle Circuit Court. We have a hearing date on March 11. And we have filed the application for a variance, which is what brings us here today. Now, unlike the zoning clearance, which was an exercise of the Board of Zoning Appeal's appellate authority, the application today, the variance application, is an exercise of the Board's original jurisdiction. Now, certainly, the County, the State law does say that a variance is defined as a reasonable deviation relating to the size, area, bulk, or location of a building or structure where the strict application of the ordinance would unreasonably restrict the utilization of the property; not shared by other properties; not contrary to the purpose of the ordinance. This is how a variance is defined in the Code of Virginia 2309. This was significantly, significantly amended in 2015. There are no appellate authorities yet that we could find that would address the amended statute. Again, the powers of the Board include the power to grant an appeal, provided that we make a showing by preponderance of the evidence that the application meets the standards. And for those who are not lawyers in the room, a preponderance of the evidence is probably the very lowest standard you can have. It should be more to like than probably about 51%. Okay, and then, a variance shall be granted if the evidence shows the application of the ordinance will unreasonably restrict the property. And these are all the same things the County has mentioned to you. The property was acquired in good faith; no hardship created by the applicant; no substantial detriment to the adjacent property; it's not a recurring nature to make, to necessitate an amendment to the Zoning Ordinance; and does not result in a use that's not a (inaudible) permitted on the property. So, here's what we think are the elements. Number one, good faith acquisition. We relied on the building permit that the County gave us. We submitted this application in October, fully disclosed what our intent was. Almost two months later, the permit comes out. We have no idea who said what to whom, or how it was determined that the side setback was 6 feet. Again, we submitted a floor plan with the application, and we have a reason to believe that the County considered that in deciding what the zoning or what the side setback would be. So, we believe that we acquired the right to put the building where we did, in good faith. Now, as to whether or not this hardship was self-inflicted, the County seems to suggest that it was. Staff report says that the hardship was created by the applicant and says that's because we didn't submit the application for a major home occupation at the same time. We were not told that they had to do that, and as a result, it is impossible for us to comply with requirements that we do not know exist. This hardship was not self-inflicted. We relied on the building permit. We put exactly, even further away from the property line than the County told us we had to. And we didn't find out until the building was completely done that there was a problem. As to whether there is substantial detriment, the staff report concedes that the application meets this requirement, or this element. Condition of the situation not recurring or general. Again, the staff report, in this case, we've met this criteria. Use variance prohibited. Now, the County has said today that, well, what they're asking for is a use variance. This is not a use variance. The County has said previously that if this building were 25 feet away from the side line, we could use it as a law office to which people could come. We're not asking for a different use other than 0 17 what is authorized by the statute. All we're saying is that because we put the building closer than the County now says it should have been does not mean we're asking for a change in use. And finally, the Special Use Permit or Special Exception is not available. As the County's Zoning Ordinance states, a Special Use Permit is one that's for a use that's not permitted in a particular district. Having a home occupation, having a law office for a home occupation is permitted in our district. So, this is not a situation which a Special Use Permit is available. And the conference room, my office. We remind that, you know, the Board of Zoning Appeals is a body of citizens who is intended to exercise their own independent judgment in resolving disputes between the County and its citizens. And what you have here is a situation where we, as citizens, have relied on the representation of the County. We've acted in good faith, acted, we believe, appropriately, and the County has now said, oh no no no, you can't do that. Well, I'm sorry. It's too late for that. The problem you're faced with is one that we believe the County government is making. It issued the building permit upon which we relied. So, what we're asking you today to do is to grant our application for variance with respect to the structure. Thank you. That's all I have to say at this point. If you have any questions, I'd be glad to answer them. MR. SHEPHERD: Thank you very much. MR. MAUS: Yes, sir. MR. SHEPHERD: Ms. Alley, how are we doing with time for Mr. Maus? MS. ALLEY: Mr. Maus has 5 minutes and 48 seconds. MR. BOWLING: I have one housekeeping matter. Mr. Maus moves that the evidence submitted at the hearing on October 1, 2019 be admitted before this Board for consideration, so we do not have to go over it again. The same Board that is here today was also present -- MS. ALLEY: Excuse me, Mr. Bowling. Can you please speak into your mic? MR. BOWLING: The same Board that was here on October 19 -- October 1, 2019 is here today. In addition, you've received minutes of that meeting, and I think you've approved those minutes. But I think if that's what the Board wants to do, it's appropriate to have that proceeding of October 1, 2019 put into the record for today. There's a tape of that proceeding, also. And certainly, the County may be heard on this, and they may have some objections to this. MR. SHEPHERD: That seems like a good idea to me, in that, there may be references to that prior action. I do wonder, just -- we are going to hear that again today. I wonder if we reversed ourselves or changed anything about our prior decision, would that make a difference for the variance. MR. BOWLING: I don't know that knotty little question, but I would recommend that you either accept the record before you or not, as you see fit, as really -- that's part of his -- he's moved that that be considered, and I don't think that what you've voiced just a second ago would enter into what you decide to do today. I mean, the record speaks for itself It's not going away. It exists. 7 18 MR. SHEPHERD: Alright, well, I would, I think that is good. Does the County have a response to that? MR. HERRICK: We have no objection. If the evidence that was presented at the prior hearing was accepted for purposes of today's application, there's no objection. MR. BOWLING: Okay, thank you. I apologize for interrupting, Mr. Chairman. MR. SHEPHERD: Okay, well, I think it's helpful to have that in the record. Does that require a motion? Or just a statement? MR. BOWLING: You can vote -- I thought that the Board vote on that. I was paying -- listening to Mr. Herrick. Do we have a motion, to that effect, by the Board? There's no objection -- MR. HERRICK: It's up to the Board to decide that. Again, the County does not object, if the Board wishes to accept that evidence from last time. MR. SHEPHERD: Okay. Why don't we just make a motion and vote on that, just to -- with an abundance of caution. MR. ROBB: Mr. Chairman, I make a motion to accept the record, for the record, the actions of this Board taken on October 1, 2019. MR. BOWLING: Not the actions, Mr. -- MR. ROBB: Related to -- MR. BOWLING: It's the evidentiary matter that was set out in the record. MR. SHEPHERD: The evidence presented in that -- MR. ROBB: Evidence presented. MR. BOWERMAN: Second. MR. SHEPHERD: Those in favor of that, just say "Aye." Aye. MS. JOSEPH: Aye. MR. ROBB: Aye. MR. SHEPHERD: Okay, so that's -- so, it's part of the record. So now, we're at the point where we would have a public hearing. I think both parties have more time, if you wish to add to your statements. MR. HERRICK: Well, if there are no public comments, then this would be the County's, actually, both parties' opportunities to offer rebuttal. And by way of rebuttal, I would respond in much the same way that we did at the prior hearing which is, in his argument, I think Mr. Maus is confusing the permission needed for a building versus the permission needed for a home occupation clearance. The County has no objection to an accessory 91 19 structure in this location. It was properly approved in its current location. But the standards for allowing a home occupation use are different. We would suggest that both applications were properly handled and properly analyzed by the County. I fully sympathize with the Board's desire to find, basically, a simple solution for this problem. Unfortunately, the variance application that's been filed today really isn't the simple solution that's available to the Board. The simple solution, and one that staff has suggested both to Mr. Maus previously, and in its presentation today, is to have the property surveyed. A survey might show that no variance was needed if, in fact, the building was more than 25 feet from the property line. Conversely, it might show that a 14.5-foot variance is inadequate if, in fact, the structure is even closer to the property line. But we're missing some crucial information that we won't have without a survey, and the survey will show exactly how far it is from the property line. And then, a decision can be made as to whether a boundary line adjustment with the neighboring property is available, or how wide a variance might be appropriate to be applied for. But again, I would suggest that the simple solution is not appealing the prior finding, is not getting a use variance today, but is to get a survey and then to seek a boundary line adjustment with a neighboring property to allow a full 25-foot setback that will allow qualification for a home occupation use. That would be the simple solution, rather than the application that's pending today. So, that would be all I have in the way of rebuttal. I don't know whether the Zoning Administrator or Mr. MacCall have anything else to add. MR. MACCALL: I do not. MR. SHEPHERD: Mr. Maus? MR. MAUS: Thank you, Mr. Chairman. I understand what the County is saying, and maybe in the County's mind, this is simplest. But at what point does the County stop trying to bleed its citizens -- an application for this, an application for that? Now, what they're talking about is, well, maybe what you ought to do is spend more money for a survey to see whether or not there's a problem. Now, the survey that we've included in our materials is the last survey that was done of the property. It was done in 1917, when General George Patton, actually, it was Colonel back then, Colonel Patton and his family donated these 2.4 acres to Albemarle County School Board to be used for public use. The property's never been surveyed since then. We don't know. Obviously, things were more imprecise than they are today. But, you know, first, the County said, well, go ahead and appeal the zoning determination. Now, let's try for a variance. Now, well, maybe let's go ahead and spend $4,000-$5,000 for a surveyor, and then see whether or not the fence really defines a property line. And if it does, then we could spend some more money and see about buying some property from your neighbor, if the neighbor's willing to sell. I mean, at what point does this stop? It should stop right now, when the Board says, look, you know, they relied on the building permit. They put the property -- they're not looking for a use variance. All we're looking for is the right to use the property for what we told the County from the very beginning we wanted to use it for. And it's a legitimate use in our district. It is for the use to have a law office at which people can come and meet with their lawyer. I understand the concern about rural districts. On our road, several miles down, is Keswick Winery. They have more people in a day there than we have in a month in our office. You know, we are not doing anything that is going to disrupt the nature, the rural nature, of this district. We're just trying to, you know, rely on -- we've 20 relied on what the County had told us. We built an office, and we're just asking for the ability to use that to meet with our clients. And the easiest way to do that is for this Board to grant the application for a variance. It's not a use variance. It is the right -- it's a side setback variance. It's the right to use that building for the purpose for which it was always intended, for which had been disclosed to the County from the get -go. Thank you. MR. SHEPHERD: Thank you. Also, as a matter I've overlooked, I want to open the public hearing. Seeing no one present from the public, I'm now closing that public hearing. Thank you, Mr. Svoboda. Okay. So, the matter is now before us. I have things I want to say. I'd like to hear others hop in first. MS. JOSEPH: Okay. I'd like to ask Mr. Svoboda, Mr. Herrick -- when was the ordinance amended to add major home occupations? Do you know? Can you recall? MR. SVOBODA: 2011, I believe, is when we updated that. MS. JOSEPH: So, it was nine years ago. Okay, thank you. I honestly feel that this is not changing the use. The use is approved for, in this district, as long as you comply with the setbacks. I mean, that can happen in a commercial zone. You can have setbacks that you're invading, but it doesn't mean that you're changing the use in any of this. And I'm maybe not making sense with that, but I don't honestly see this variance as changing the use of the property. I do really agree with staff that this should have been surveyed. We should know what we're talking about. We have 15 or 14 feet with a question mark. We don't know. We don't know whether it's 6 feet, 5 feet, 4 feet. We don't know it's 25, as Mr. Herrick said. We really don't know. This is something that really needs to be done, and the building needs to be shown with a survey line that shows somebody went out there and checked with this and made sure that they were in compliance. I mean, that's what we do. I mean, I have sold houses, and I've always had to have a survey done. So, I don't know -- and built things. And we know people have to have surveys done, so I don't consider that, I know it's an extra expense for you, but I think it's a really important piece of information that Albemarle County needs to have. So, I appreciate what you're saying. As far as hardship is concerned, I do consider it a hardship because there's been so much miscommunication between the applicant and staff, and I don't think it was intended on either part. I don't think the applicant looked and said, oh, great, now it's only a 6-foot setback. I mean, that's what the information that they received from the County, and I think that they acted in good faith, and just went ahead and did what they were doing. And I don't think the County is to blame for not continually reminding Mr. Maus that he had originally come in looking for a major home occupation. So, I can see where this happened. I think when the Board -- the intent of this portion of the ordinance was what Mr. Herrick was talking about, is commercial activities within the Rural Areas, and needing to meet some sort of setback so that it wouldn't be imposing upon the neighbors. I understand that there's a cow field. I get that. But I also don't know what's going to be there in the future. And I also think that we should be cognizant of the fact that your neighbor may be affected by this. We don't know. I mean, we don't know what happens to cows when there's a lot of traffic next door. Probably nothing, but the point is, is that we have to protect your neighbor's interest also, and I think that when the Board constructed this ordinance, that's exactly what they were trying to do. So. MR. SHEPHERD: I'd like to actually hit some of the same points from a slightly different angle. But, just to get my own thoughts on the record, here. 10 21 For starters, I want to put this all in the context of the history that Mr. MacCall laid out that went through all of the steps, beginning with the application for a building permit that made reference to a home -- I think it was a home business. I'm not looking at it, at the moment. And it indicated, to me, that there had been discussions with the County, from the beginning and throughout, that at least from the, from Mr. Maus' point of view clearly stated his intention of wanting to have an office on the property that was going to have clients visiting there. I also remember from that record that he had received an email from staff that indicated that there was a 25-foot setback for a major home occupation. To me, that adds up to miscommunication on both sides. But I definitely see this as being on both -- that the miscommunication was on both sides and therefore, it cannot be wholly self- inflicted by one side. I divide the blame, or the explanation, or whatever you want to call it, based on the communication. We also have to talk, well, I also want to address the question of this being a use variance. I'll start by saying, I think whether this is reasonable, whether this is a hardship, whether this was self-imposed or self-inflicted, all of those things are matters of opinion where reasonable people can disagree about how hard is a hardship, how much blame to apportion for, you know, the root of the problem. But I think this, the concept of calling this a use variance, is just wrong. When you look at the State definition for a variance, it makes a distinction between deviations in the location of a building as being one of the things that is allowed under a variance, and as a -- mentions a prohibition against anything that would require a rezoning. This is -- Ms. Joseph said, the use -- a major home occupation use is permitted in the Rural Areas. The term that I recall using was a use variance would be, "tantamount to a rezoning," and this is not a rezoning. This is -- this use is permitted within the vast confines of the Rural Area zoning district. And the defect here is the distance of the building from the property line, which is remedied by a variance, not a rezoning. I think that that's just -- you know, I appeal to a higher authority to have that resolved. I just don't think we're dealing with a use variance, here. And I just want to really say that. I also want to make -- the other criteria that we're facing, as they consider this, has to do with the reasonable use of the property. Mr. Herrick, you had mentioned something about, you know, sort of, if we did -- that if we granted this, then everyone -- anyone with an accessory building, you know, closer than 25 feet to the property line would have this available to them, from -- a consistent practice would lead to that. But I think that also going back to the long history of the review of this permit, and all the communication on all sides that went into it, this thing started as a request for a use that was reasonable. And to say that it -- to now say that they have -- I think it's unreasonable to say that what was a reasonable use of the property is now an unreasonable use of the property because of this misunderstanding, if that makes sense. But I just don't -- I feel like a distinction has to be made between this use of the property, with the history of the decision making leading to the building being 14 feet, or whatever it is, from the property line, is different from an accessory building that exists next to a property line. Those are my three points. I would like to hear more about how to address this -- you know, the exact location of the building, and the survey. I agree that we should address that in some way, just as the County has -- offers that up as a situation. Ms. Joseph has also indicated -- I think that's -- I think -- my looking at that is that -- I mean, clearly, my thinking is trying to take both sides of this into account. I think part of the obligation here is to look at the intent of the setback -- and, you know, it's there for a reason. And I think to the extent possible, 11 22 we should, you know, provide no more, you know -- if we extend the approval for the variance, it should be for no more than what's already there, and I would also see a benefit in actually mitigating that setback encroachment with some kind of a barrier landscaping, or something. I'd like to think about that some more. MR. ROBB: Mr. Chairman, I have -- you know, I sympathize, as I think everybody knows, with the applicant, but I remember precisely making a big point back on October 1 out of not having a provable property line. There needed to be a survey, and how do we know -- if we don't know where that line is, how can we rule on anything? And I, of course, voted the way I did. But the second thing, which I was adamant then, this property should be surveyed. The County doesn't know where the property line is, and neither does the applicant, so how can we deal with the problem that was created by the property line? Now, it would seem to me that to ignore that advice, which we all seem to agree was appropriate -- or maybe we don't, but to ignore it is bothersome, troublesome to me. And secondly, I look at the, page 4 here of the information we have received in our packet that says under 15.2- 2201, the BZA cannot approve a use variance. Is that still the law? And then, which the BZA is not authorized to grant. Is that still the law? MR. BOWLING: The statute specifically says that you're not to approve a variance for a change in use. MR. ROBB: Therefore, how can we possibly -- if the statute, the law said we can't grant a variance, what are we doing trying to talk about granting a variance? MR. SHEPHERD: I would like to take a shot at that. I am very confident, and I believe that this is not a use variance. A use variance would be permitting the activity, the use, that was not otherwise permitted in the district. A use variance would be to have a restaurant in this house. That would be a use variance. Or, a movie theater. If you're showing movies at night and selling tickets, that would require a use variance because movie theaters are not permitted in the Rural Areas. You'd have to do your movie theater in a Commercial zoning district. But a major home occupation is a permitted use in the district. So, we're not granting a use variance. We're changing the location of the variance -- of the use. MR. BOWLING: And where the staff disagrees with the Chairman, Mr. Robb, is that the staff is saying that granting a change in location by approving 6 feet -- or 14 feet instead of 25 feet would be a change in use. And so, the issue is, do you take the fact that, at the time that the application was made, a major home occupation was a permitted use, which it was at that time, since major home occupation came into existence in 2011, and the application was made after 2011. And do you interpret that word to mean the purpose for which the property is going to be used, or do you go more broadly as the County staff suggest? One of the problems in this area is that, I think as Mr. Maus pointed out, is that there was a major change in the language for variance in the State Code in 2015, and there really hasn't been much in the way of interpretation in fleshing it out. All the cases that people argue about are based upon prior statutory language, which is different than what's set out in the Code today. I don't know if I helped you or hurt you, Mr. Chairman, Mr. Robb. MR. ROBB: Is there a legal definition of use? 12 23 MR. BOWLING: Well, I think it's a commonsense definition, but -- MS. ALLEY: Mr. Bowling -- MR. ROBB: The sentence is not common. MS. ALLEY: Excuse me, Mr. Bowling? If you could please speak into your mic. MR. BOWLING: One of the things that a Board of Zoning Appeals is is a quasi-judicial body. You're not an administrative body. You're a quasi-judicial body, and it's for you, as a whole, the majority of a quorum, to determine what things mean based upon the facts that are brought before you in this particular situation. MR. ROBB: Mr. Chairman, are you arguing that, therefore -- I think you've already said it, that this isn't a use issue. MR. SHEPHERD: That is my opinion. I would like to read the definition of a variance -- of the State Code definition of variance in the record here. It's about seven lines. Variance means, in the application of a zoning ordinance, a reasonable deviation from those provisions regulating the shape, size, or area of a lot or parcel of land or the size, height, area, bulk, or location of a building or structure. It's a variance. When the strict application of the ordinance would unreasonably restrict the utilization of the property and such need for a variance shall not be generally shared by other properties, and provided such variance is not contrary to the purpose of the ordinance. Here comes a use variance. It shall not include a change in use, which change shall be accomplished by a rezoning or a conditional zoning. There's a very clear distinction between a use variance and a permitted variance, I think. I'm not trying to be argumentative here, but I'm -- this is one where I'm trying to make a strong point. Well, you know, I just hope I'm doing this in a respectful way and not being argumentative. MR. ROBB: Mr. Chairman, in the event that the property that we're dealing with now were to change hands, would that affect anything related to our decision? MR. SHEPHERD: I believe a variance runs with the land. MR. BOWLING: That's correct. MS. JOSEPH: Right, so -- MR. BOWLING: You could put restrictions on it. MS. JOSEPH: Right. MR. BOWLING: You're allowed to put -- in granting a variance, the Board may impose such conditions regarding the location, character, and other features of the structure or use as it may be necessary in the public interest. 13 24 MR. ROBB: What happens if the -- I guess you could ask this question of any property in Albemarle County -- the property, adjacent properties were sold and surveyed, and found that the property in question, Mr. Maus' property is, in fact, on the property of -- on the adjacent property. MR. BOWLING: If that were the case, sir, then the problems that the landowner's having with the County and the Board of Zoning Appeals are the least of his problems, and he would have a private -- MR. ROBB: That's true. I'm looking at -- MR. BOWLING: He would have a private dispute with the adjoining landowner, who would claim that he was trespassing, and please move your structure, which is outside of the purview of the Board of Zoning Appeals' ability to grant a variance. MR. ROBB: I understand and agree. I was just looking at the crystal ball to see what could happen. MR. BOWLING: I don't know why a survey -- I thought the County required a survey in these kinds of situations. I don't know enough -- I mean, I don't, off the top of my head, I don't know whether that was required or not. I know the applicant didn't want to do a survey, and the County didn't require one, in this particular case. MR. MACCALL: What's required at the building permit is that -- for them to submit a plat of the property, or a legal description. MR. BOWLING: Which he did MR. MACCALL: Right. MR. BOWLING: Okay. And you generally accept that as -- MR. SVOBODA: That's correct. MR. SHEPHERD: Excuse me. Was that submitted with the building permit, or later, only with this variance? I thought that the building permit and the -- all of the issues that flowed from it were based on GIS maps that were based on the tax map, not -- I think the survey was the first we saw -- MS. JOSEPH: Yeah. If you look back at the minutes, I asked for the survey and why it wasn't submitted with the building permit, and was told that you all could not find that within the records, so that the building permit, nor the legal description, had been submitted. MR. MACCALL: And that may have been the case, but I believe that there are usually reasonable exceptions that are made, and the sketch that was provided with the Health Department showed the location. I can't speak to exactly how that was interpreted. MS. JOSEPH: It doesn't -- that part doesn't matter at this point, Francis. I mean, I guess the point is is that when you look at the application for a building permit, it clearly states that you either need the plat, or you need a legal description. And neither of those -- so, I guess I'm back to my miscommunication discombobulation amongst everybody that was dealing with this. 14 25 So, I do want to ask Mr. Bowling a question. It was intriguing that you said that there are conditions that can be placed upon the variance. Is that correct? I VAI' : 611AU C911V[- MS. JOSEPH: Okay. MR. BOWLING: And Mr. Herrick talked about that. MS. JOSEPH: Okay, so, you actually could place a condition on this that it could never, ever be used for an Airbnb. Is that correct? Or as a rental unit? MR. BOWLING: Off the top of my head, that's a tough one. MS. JOSEPH: Yeah, it is a tough one. MR. BOWLING: But that's -- but basically, you say we're granting this. You know, I think that's a reasonable condition that the applicant stated before you that he wants to use the property for a law office. MS. JOSEPH: And this runs with the land, so that looking at the layout myself, it looked like a little apartment to me, or a little house, because there's all kinds of wonderful things in there. MR. BOWLING: And the question is, is that something you deem necessary in the public interest? MS. JOSEPH: Well, yes, because there's all kinds of regulations concerning homestays now that this would definitely not meet the setbacks. MR. BOWLING: Alright, well then, that's -- maybe if you can give justification for it, then that's something you could impose. MS. JOSEPH: Okay. Am I right, Francis? MR. MACCALL: You are correct. — MS. JOSEPH: Thank you. MR. MACCALL: And the same is for major home occupations. There are regulations that regulate setbacks. MR. BOWLING: Is it the staffs position that if the Board grants the variance, that it would not have the requirements of a major home occupation, unless the Board sat those requirements out by reference? MR. SVOBODA: Bart Svoboda, Zoning Administrator. Say that again so I can understand. MR. BOWLING: Is it staffs position that the Board needs to set out the requirements of a major home occupation that's set out in the ordinance if it grants the variance -- if it wants to have those requirements applicable to any granted variance? MR. SVOBODA: That still may be a little too wordy for me. I don't quite understand. 15 26 MR. BOWLING: Does the staff-- if the Board grants the variance, would the staff like to see the requirements of the major home occupation attached to that variance as a condition? MR. S VOBODA: If you are -- I'll answer it probably generally, which is if the Board wishes to place conditions upon the variance, they need to be clear as to the distance to the property line, and also what uses would be prohibited that may be a detriment to the public that they would not want to see in there. So, the example that -- MR. BOWLING: So, staff position is that the major home occupation conditions are self -enforced, and we don't need to deal with that. Is that correct? MR. SVOBODA: Staff's position is that I don't make determinations up here in the microphone. MR. BOWLING: How about the Zoning Official's? MR. S VOBODA: Yeah, the Zoning Administrator doesn't make determinations at the microphone. But our position in this hearing is that we don't believe it qualifies for a variance. MR. BOWLING: I understand that, but that isn't what we asked. MR. S VOBODA: Right. If the BZA wishes to place conditions upon the variance to mitigate the impacts, they just need to be clear to what those are, whether it's setback, whether it's screening, or whether it's the type of use that would be permitted, or not permitted, in that particular structure. MR. SHEPHERD: I would suggest, if we're sort of sensing a consensus coming here, that if we approve this, that it would be clearly for only what is shown on the building permit. MS. JOSEPH: Okay. MR. SHEPHERD: For one thing. And not -- I'm reluctant to try to imagine other things that could happen in the building, even though when I look at it, I can certainly move in there -- MS. JOSEPH: Yep. MR. SHEPHERD: It just needs a -- it's a three-day job to put a shower in there, and that's a house. It's a dwelling. MS. JOSEPH: Yup. MR. SHEPHERD: But it could be other -- but other things could happen to that building as well, I think, to try to imagine things that could go wrong. But to -- MS. JOSEPH: So, totally restricted to this, to a major home occupation. MR. SHEPHERD: Yes, as shown in the building permit. So, the building can't get any bigger towards that line. And I would also -- I have not formulated this condition yet, but I'm sensing support on all sides for either a survey, or at least identification of where that line is so if the building -- MR. BOWLING: If you're going to do a survey, do a survey. If you're not going to do it, don't do it, because - 16 27 1�1.71h9ad�ad.71i��fiitID MR. BOWLING: (Inaudible) the survey, you haven't identified where the location of the building is. MR. SHEPHERD: Yes, I was only offering that you could survey that one line of the property. I don't know why you would do that once they're out there, why you wouldn't set two more -- MR. BOWLING: That's certainly reasonable. MR. SHEPHERD: But what we're -- but what I would be interested in requiring is to verify that the building -- my minimum requirement would be that the building is at least 6 feet from the property line, which is a number that comes from the ordinance as the absolute minimum any building can be built relative to a side property line. And I'd also -- MR. BOWLING: And that's certainly a condition you can put on this. MR. SHEPHERD: Yes. I mean, we can talk about whether or not that should be a survey of the four comers, or just the line. And also, in another part of the condition would be some kind of a screening to mitigate the impact on the adjacent property, which is caused by the setback encroachment. I don't have the exact language figured out, but I think we're heading in that direction. MS. JOSEPH: Mr. Chair, when you reference the building permit, are you referencing this? Because the building -- I guess what I'm trying to figure out is what are you referencing? I mean, if -- MR. SHEPHERD: I was referencing the whole -- all the information that's shown in the file. But now, that might be contradictory, and I'm not sure that works. MS. JOSEPH: That's what I'm wondering. MR. SHEPHERD: I hadn't thought it through that far. MS. JOSEPH: Okay, because the permit itself really sort of says that it's going to be a home office, and then it says the setbacks are 6, or whatever. So, I'm -- what are we trying to regulate, here? MR. SHEPHERD: So, maybe it's not the building permit, but it's the building. MS. JOSEPH: Yes. MR. SHEPHERD: It's that a major home occupation is allowed in the existing building. The building can't get any bigger, and it can't move. MS. JOSEPH: Okay. MR. SHEPHERD: Does that address it? MR. BOWLING: That's already the status of it without sticking it in there. MR. SHEPHERD: Without -- 17 28 MR. BOWLING: Can't expand upon the use without going back to the County, can you? MS. JOSEPH: No. You're right. That's (inaudible). I do -- I know it's been repeated several times. I live next to cows, and that's what would be seeing the building. But I still feel that in other instances, when setback variances have been granted, there's been some mitigation. So, instead of some sort of fence that may be gone, I would like to see vegetation. I don't know if the County still uses that old list of suggested screening trees, et cetera. And I don't know -- 90 something it came out? I don't know when it came out. 2002? Whenever. But if you still use that, it's something that -- I'd like to see something from 4 to 6 feet in height planted. The public hearing is closed right now. MR. BOWLING: Excuse me, the public hearing is closed. MR. MAUS: Mr. Chairman? MS. JOSEPH: Can he still -- it's up to the Chair. MR. BOWLING: You can ask -- you can direct questions to the applicant and the County staff. MR. SHEPHERD: I would like to just hear your comment on the landscaping. MR. MAUS: All I was going to say is that -- MS. ALLEY: Excuse me, Mr. Maus? Please address them through the microphone. MR. MAUS: I don't know it would show a picture, we have -- we've already planted landscaping bushes there that are going to ultimately grow from 4 to 6 feet tall and wide. But they came in buckets, so they're only about this big now. They're working on growing to height. MS. JOSEPH: Where were they planted, sir? MR. MAUS: Along the fence. Let me see where I can get back to the -- oh, you've got the -- alright, so let me go back to -- we have planted bushes here, here, and here, and there. There are four along the way already that are in the growing process, but they're very young. It's going to take a little while to grow out of the buckets they were in when we put them there. We started planting vegetation along there, and we have no problem with putting more. MS. JOSEPH: Okay. MR. MAUS: We've already done that. MR. SHEPHERD: Thank you. I think what we want to do is, for one, I feel like the comments that have come from here have addressed the three points in the staff report that were justifying the denial of the variance. You address the reasonable clause, 18 29 the self-imposed clause, and the use clause. Are there any other -- and I want to just leave a clean record that could be understood in the future. I think those are covered. Does anyone want to reinforce any of those points, or add to them in terms of just the justification for an approval? So, I guess we're covered that way. So, I think I'm now -- I think we've come to the point where I would ask for a motion, which is going to require the formulation of a condition. MR. S VOBODA: Mr. Chairman, I have a question, if it's appropriate. On the -- if you choose to reduce the setback to a certain distance from the property line is how I've heard it talked about, can we specify which property line -- whether it's side, or rear, or front? MR. SHEPHERD: Yes. Thank you. MR. SVOBODA: Yes, sir. MS. JOSEPH: Well, looking at this World War I plat here, it's designated as North 32, and a quarter West. It's 300 feet. I don't know if that's enough to describe that. MR. BOWLING: Oh, no, you just refer to the plat. MS. JOSEPH: Refer to the plat. MR. BOWLING: Refer to it for the record. Remember, you're just talking into a machine, so you need to identify the plat that you're referring to, and then identify the point at which you want to put your distance limit. MS. JOSEPH: Okay. I'm trying to identify the -- there is no deed book and page reference on this. MR. BOWLING: But it's in the record, and you can read it. MS. JOSEPH: But it's in the record. Okay. It's in the clerk's office of Albemarle Circuit Court, September 22, 1917. It was -- "this deed was presented to me at said office with certificate annexed and plat attached admitted to record. Signed --" I think it's W. Maupin, Clerk. It's indicating a line -- it's -- how do I define this line? It's just defined on this plat as North 32, and a quarter West, 300 feet. MR. BOWLING: The point closest to the fence is what you're referring to? MS. JOSEPH: I'm referring to that line and in reference, how close is this building. So, the building also needs to be located on something that is submitted to County staff that shows the distance from this property line. MR. BOWLING: Is this something, what you're referring to, is a plat or a survey, or -- MS. JOSEPH: Well, a plat normally has the -- MR. BOWLING: At least one side of the building? MS. JOSEPH: At least one side of the building, yes. MR. BOWLING: Alright. Would that be the side of the building closest to the adjoining property line? I'm sorry. 19 30 MS. JOSEPH: That would be the side of the building closest to the property line showing the distance that has been surveyed by a licensed surveyor from that side of the property to the property line that is found by the surveyor. MR. BOWLING: Of the adjoining property. MR. SHEPHERD: It's the nearest property line to the comer of the building. MS. SHEPHERD: Well, what building are we referencing? I guess we're referencing that. I'm just trying to relate back to this so that we have some reference plat. MR. BOWLING: And it's not the Board's fault that neither the County nor the applicant submitted the survey, and part of the problem, as Mr. Herrick said, is that it really calls out for a survey of some kind. MS. JOSEPH: Yeah. And, the building can be not closer than 6 feet from that property line at any point. MR. SHEPHERD: Okay, so, I want to reduce this to writing. So, let me make sure -- are we all on board that we are moving towards an approval, but we're working on the -- MR. ROBB: I'm thinking. MR. SHEPHERD: Okay. MR. ROBB: And I'd like to ask another question or two. MR. SHEPHERD: I don't want to jump ahead. MR. ROBB: Had this -- well, I'd like to grant it, but -- I'm still struggling with this matter that relates to use. I'm still struggling with trying to understand quite what the -- I'm reading the ordinance, the Code, here. If this building was not being built -- had not been built -- if the addition had not been built, if it was a piece of vacant land, and the applicant came before this Board, there was no building there, and asked for a variance, would the Board grant a variance? MR. SHEPHERD: I would vote against it because it was self-imposed. They could move it over. MR. ROBB: That's right. Exactly right. He could correct the location of the building. Then, there would be no further problem, before he built it. Yes. And we're arguing, I guess -- what I was sympathetic with the applicant about was, he built it, I believe honestly thinking he was -- he had the right information from the County, and inspectors, and so forth. So, I don't think there was a devious -eyed plan to get into this situation. MR. BOWLING: No, and from the record that's before you, and certainly you can also find that there wasn't any devious plan on the part of the County. There wasn't any deviousness in this process at all. MR. ROBB: Exactly right. But we're still stuck with -- MR. BOWLING: You're stuck with an existing law office. 20 31 MR. ROBB: My argument, from going back to October 1, is that property should be -- should have been surveyed. You say, okay, well, it would cost $5,000 -- or I have no idea what the survey would cost. But I submit that's -- I'm using the commonsense argument. That's what I would have done. I would have made sure that there was -- that where the property line -- I wouldn't want to build a property -- build on a property that I didn't know for sure whether I owned it. So, now, we're trying to -- excuse the expression -- "bail out" this good man and his business over this misunderstanding. The use hasn't changed since the time that he built the building. So, I seek, Mr. Chairman, to make it easy for me. MR. SHEPHERD: I think our conditions are going to address your -- MR. ROBB: Well, if the conditions are based on the question related to identifying the conditions for a major home occupation, that should be enough. Weren't there conditions for that particular description of property? MR. SHEPHERD: I guess we don't have to say anything else as far as the regulations pertaining to home occupations. That's all in the supplemental regulations. MR. ROBB: It's all spelled out in the ordinance. ICI' 9:IId.71iY MR. BOWLING: It wouldn't hurt to say that they apply here, if that's what you want to do. MR. ROBB: The value's starting to set some sort of precedent that -- we are bound to miss something. MR. BOWLING: I understand, too, but it's hard to figure out how we'll have to worry about a precedent like this one. I suppose it's theoretically possible. MR. ROBB: If this Board, Mr. Chairman -- if this Board has the authority, and I'm getting the information that we do have the authority, to grant this variance, then it just seems to me that the variance should be enforced, or our decision should be enforced, by the definition of a major home occupation, period. You start adding more to it, more detail to it, like -- it just opens the door for more issues. MS. JOSEPH: Mr. Robb, do you agree that a survey needs to happen here? MR. ROBB: Absolutely. MS. JOSEPH: Okie dokie. I think that's what we boil this down to. MR. ROBB: And if we're -- Mr. Chairman, if we're talking about hedges and, you know, partitions and all the rest of it, that has nothing to do with use. And if we're arguing that the reason we're going to make this our position to grant this variance is based on use, what does a hedge have to do beside the property? What does a fence have to do? MS. JOSEPH: Well, if that is your stumbling block -- MS. ALLEY: Excuse me, Ms. Joseph? Can you use your mic? 21 32 MS. JOSEPH: If that's your stumbling block, then that can be removed, okay? MR. ROBB: My stumbling block is I would like to see -- I'm agreeing with you. I think there should be a survey. MS. JOSEPH: Okay, okay. I'm just going to say this in a short sentence. A lot of times, when you're mitigating the effects of something, you will ask for something additional from the appellant because it relates to the setback issue itself. If you feel totally uncomfortable about anything additional other than the survey showing the exact distance, and not going closer than 6 feet, then I'll remove my thoughts on any kind of vegetation between there. But that's what I was thinking. MR. ROBB: First of all, vegetation is not permanent. MS. JOSEPH: And neither is a fence. MR. ROBB: Fences aren't permanent. MS. JOSEPH: Right. MR. ROBB: Property lines are permanent. MS. JOSEPH: That's fine. Okay. However, if you make it a condition that vegetation has to stay permanent -- just saying. If it's a condition the vegetation has to stay there. If it's a stumbling block, I will shut up right now. MR. ROBB: Well, I'd like to solve the -- MR. BOWERMAN: Is there anymore that needs to be solved? MR. SHEPHERD: Just the -- MR. BOWERMAN: I think it's pretty clear. MR. SHEPHERD: The wording of the two -- MR. BOWERMAN: Did it meet your concern? I mean, is there anything more that needs to be that changes the ultimate outcome of this? It seems to be pretty clear, at this point, what we're doing. MR. BOWLING: Well, you need to -- somebody needs to make a motion. You need to accept the merits, or not approve it. And then, somebody needs to make a second and then, the Board can have further discussion, at this point. That may be appropriate, Mr. Chair. MR. SHEPHERD: That will make sure that we're -- we will establish a sense of the Board, at this point. Is there a motion? There's actually a motion suggested in our -- at the end of the staff report that we might do so -- MR. BOWLING: There's two motions -- one to approve, and one to not approve. MR. SHEPHERD: Right. We get to pick one. MR. BOWLING: Actually, they're up on my screen. 22 33 MR. SHEPHERD: Is there a motion? MS. JOSEPH: I move to grant the variance application VA201900001 Bufton and Maus, and staff requests the Board to explicitly -- MR. BOWLING: Well, let's -- now, we need a second. MR. SHEPHERD: Is there a second for that? MR. BOWERMAN: Second. MR. SHEPHERD: So, now we need further discussion. MR. BOWLING: One of the things that staff has requested that the Board explicitly state the variance terms and the legal basis. I think that's a reasonable request. But to do that, the Board -- it seems, to my mind, the Board's going to have to make certain findings, which are addressed in the findings of fact, that they declare that they found, which are the legal findings to support their decision. Do you want me to guide you through this, Mr. Chairman? MR. SHEPHERD: That would be good. I think I'm prepared to do that. I think -- so, we're on the standards that we're agreeing with staff on several of the criteria. MR. BOWLING: Well, I'm going to go directly to the Code and the findings that you're required to make under Virginia Code Section 15.2-2309, okay? MR. SHEPHERD: Okay. MR. BOWLING: And where I'm going to read from is the findings that are set out in 15.2-2309, Section 2, beginning with the second paragraph, okay? I can start reading, if that would be a help to the Board, or I can just be quiet at this point and proceed. What's the Board's pleasure? MR. SHEPHERD: So, I think we have -- by identifying the criteria, I think we know what we are looking at. MR. BOWLING: Well, the first thing you need to find -- you have to find that the evidence shows that the strict application of the terms of the ordinance would unreasonably restrict the utilization of this property, or that the granting of the variance would alleviate a hardship due to a physical condition relating to the property; or improvements therein, at the time of the effective date of the ordinance; or alleviate a hardship by granting a reasonable modification to a property or improvements thereon requested by, or on behalf of, the landowner. That's the first statutory requirement, as far as your findings go. MS. JOSEPH: They were all "or's," right? MR. BOWLING: Right. So, which one of these findings is amenable to the Board? There's three of them. If the evidence shows that a strict application of the terms of the ordinance would unreasonably restrict the utilization of the property; or, that the granting of the variance would alleviate a hardship due to the physical condition relating to the property, or improvements thereon, at the time of the effective date of the ordinance; or, alleviate a hardship by granting a reasonable modification to a property, or improvements thereon, requested by, or on behalf of, a person with a disability. 23 34 MR. SHEPHERD: I would suggest that, as I said earlier, that I think that with the building permit and the understanding that the applicant had of the building permit application, that he established that constructing a major home occupation is an additional reasonable use of the property. And I think -- MR. BOWLING: And that would go to Section I, in the next line -- the property interest for which the variance is being requested was acquired in good faith, and any hardship was not created by the applicant for the variance. MR. SHEPHERD: And I, again, go back to the building permit and say that it was -- this whole situation was created by miscommunication on the part of both sides. MR. BOWLING: Right, and then, the statute goes on to say, the granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area. MR. SHEPHERD: I agree with the County's opinion that it does not -- that it meets that criteria. MR. BOWLING: And, of course, the entire Board -- the majority of the quorum of the Board has to agree to that. But then, and then, the next is that the condition or situation of the property concerned is not of general or recurring in nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance. MR. SHEPHERD: No. MS. JOSEPH: Agree. MR. BOWLING: And lastly, or almost lastly, the granting of the variance does not result in the use that is not otherwise permitted on such property or change in the zoning classification of the property. MS. JOSEPH: Agree. MR. BOWLING: And finally, the relief or remedy solved by the variance application is not available through a Special Exception process that is authorized in the Zoning Ordinance. MS. JOSEPH: Agree. So, could you specify that Code section again, please? MR. BOWLING: It's defined -- well, we just talked about them. They are the findings in Virginia Code Section 15.2-2309(2) beginning with the second paragraph -- set out in the second paragraph. MS. JOSEPH: And I think you said it was "H." MR. BOWLING: No, not "H." 15.2-2309, subparagraph 2. MS. JOSEPH: Subparagraph 2, but there was one specific in there within the "or's" that I think you referenced. MR. BOWLING: I can't -- MS. JOSEPH: Okay, never mind. 24 35 MR. BOWLING: There isn't any "H." MS. JOSEPH: Okay, I'm making that up. Sorry. MR. BOWLING: Probably not making it up. MR. BOWERMAN: Does the maker of the motion except all those changes? So does the second. MR. BOWLING: One final question: is the survey part of the motion? As I understand it is, or -- MR. SHEPHERD: I think we have -- I assume that that is going to be a condition. MR. BOWLING: (Inaudible) outlined by one of the Board members as to what point the distance be established. But is the survey to be a complete physical survey of the property, or is it to be a line only on the sides of the property that are adjacent to the adjoining property? MS. JOSEPH: It would be to the line that's specifically impacts the home occupation building. MR. BOWLING: Is that the entire -- all sides of the building? Physical surveys would involve locating -- MS. JOSEPH: Right. MR. BOWLING: The building on the property itself. MS. JOSEPH: It is the side of the building that is closest to that particular line that is located on this plat. MR. BOWLING: That you described previously. MS. JOSEPH: That I described previously that was submitted by the applicant. MR. BOWERMAN: Agree. MR. SHEPHERD: And do we still want a condition that says it is limited to only this -- only what's in front of us, which -- MS. JOSEPH: I think that's -- I mean, that's something that I think is understood, yes? MR. BOWLING: Well, I might -- MS. JOSEPH: Maybe not? MR. BOWLING: I can't speak for you, ma'am. MS. JOSEPH: Okay. MR. MACCALL: Mr. Chairman -- MR. SHEPHERD: Add a condition that runs along this line, subject that this approval or a major home occupation per 5.2a in the supplemental regulations is limited to the existing structure shown on Building 25 36 Permit 201702431NNR. Does that --earlier, we were talking about wanting to clarify and limit it to just what we -- what was before us and wanted to make sure that it didn't allow any other activities in the building that would require a variance. MS. JOSEPH: Francis said something -- MR. MACCALL: I wanted to make sure that was clarified so that we don't, as Mr. Robb had pointed out, if somebody buys the property in 10 years, comes back to us, and wants to use the structure for something else, that this doesn't affect that in that way. So, it's not -- for some reason, however this is worded that it's interpreted that we can't allow it just to be used as a standard storage building, which would be, an accessory structure use. So, I think Ms. Joseph noted as far as maybe not allowing it to be used for a BnB or a homestay, now, is what BnBs are referenced as. So, I just wanted to make sure that's clarified so that we can review that to that point, so we can be comfortable that we're not going to have to make another decision in 10 years on something else. MR. BOWLING: So, is that -- what Mr. Shepherd just said, does that satisfy you, or would you like to see more? MR. MACCALL: Well, one point, as far as referencing 5.2a, that is the section that specifically references any accessory structure that does not conform to the applicable setback and yard requirement for a primary structure shall not be used for a home occupation. So, if you refer to 5.2a, I think there's some crossover there, that unless it's specified that's what's being granted as a variance from that line, is that particular one. — I don't know if that's the appropriate way to address that or not. But if you just reference 5.2a, you're conflicting with actually what we would still more than likely want to apply, as far as the regulations for major home occupations. MR. SHEPHERD: So, do you want another sentence that says something like, all other applicable -- all other regulations in 5.2a must be met? I mean, the variance is the bridge from -- MR. BOWLING: I think what I'm hearing you saying, sir -- if you're going to do a variance, you want it to go to what they say in the -- it's an unnumbered page of the staff report -- "Written Description or Request for Variance." From the owners themselves, they request a variance from 18-10.4 of the Albemarle County Code, which provides that a side setback for primary structures in Rural Areas is 25 feet, except the (inaudible) limits it to 6 feet; and Albemarle County Code, Section 18-5.2a, which provides in relevant part that any accessory structure that does not conform to the applicable setback and yard requirements for primary structures shall not be used for a home occupation. That's from the applicant's submittal to you. Is that correct, Mr. Maus? MR. MAUS: Could you repeat that, please? MR. BOWLING: I'm just reading from your application. You understand where we are? Mr. Shepherd incorporated the home occupation requirements, and the staff brought up the point that one of the home occupation requirements is to meet the setback requirements, so you have to accept, as modified, by the language that you've asked for in your request for variance. MR. MAUS: Right. I mean, I understand that -- I'm not sure, Mr. Bowling, I'm grasping exactly what you're saying, but, you know, part -- I mean, all we're asking for is we be allowed to use the 6-foot side setback -- actually, just the 25-foot side setback not apply to this use of our building for a law office. 26 37 MR. BOWLING: But except for that, all other requirements under the major home occupation ordinance of the County would be in full force and effect? MR. MAUS: Yes, sir. As far as we know, we're fully compliant with this. I'm not aware of any other reasons the County's going to come back and say, well, sorry, you got the variance, but you still can't use this home occupation, or major home occupation. MR. SVOBODA: I can't guarantee you don't meet the other property line setbacks without the survey, so, you know, that's -- there's no guarantees on what those distances are until they're measured and certified by a surveyor. I don't know that, so I think what Mr. Shepherd and Mr. Bowling are trying to get at is we want to narrow the variance to the use -- not the use, to the building as identified at 6 feet on the information that was submitted in regards to the property line, as identified by Ms. Joseph. MR. BOWLING: Okay, that's correct. Six feet or more. MR. MAUS: So, when you're talking about the setbacks from the property lines, you're also talking about the front property line, too? The roadway? I mean, do we have to have that part surveyed as well? Or is it just the side? MR. SVOBODA: From my understanding of the condition of the variance that they're -- the conditions for the variance that they're discussing is the side line. MR. MAUS: Okay. MR. BOWLING: But also, what he's saying, if that they go out there and measure the front setback and find out you're short, then he can come back and say that you're in violation of that. MR. MAUS: I understand. And we're pretty sure that that's okay -- the 75-foot setback. MR. SHEPHERD: That was the only violation that the County identified before -- MR. MAUS: Was the side setback. MR. SVOBODA: The only thing that was identified is that it did not meet the primary structure setback for the side setback. So, again, how far -- right off the front, it's -- I can't remember if the exact distance was pulled for that, either, but the inspection that was made by the building inspection office identified that it appeared that it met the 6 and the 75. So, whether distances were fully pulled, I don't know, but per their approval of the preliminary zoning inspection, that's -- it's understood that it did meet those setbacks -- the 75 and the 6, at least. MR. SHEPHERD: Does an accessory structure have to meet the primary 75-foot setback? MR. SVOBODA: Yes, yes it does. MR. SHEPHERD: So, that has been inspected, and that should be something you can rely on. MR. BOWLING: What the gentleman just said, though, that I heard -- 27 38 MR. SVOBODA: And it has been CO'ed, so what inspection was done at that time for the Certificate of Occupancy -- again, without seeing the exact record of that, but the inspector is understood to be measuring those distances to make sure it meets at least the minimums that are identified -- the 75 and the 6, at that time. MR. BOWLING: Why don't you just require that it won't be running to the road, too, just showing that the setback distance from the road be part of this? MS. ALLEY: Mr. Bowling, if you could speak into your mic. MR. BOWLING: You can require that the setback -- that the survey also show the setback from the road of the comer of the building closest to the road. MR. SVOBODA: And I would reference that as the front property line. MR. BOWLING: I think it is called the front property line. Thank you, sir. Do you see what we're talking about? MR. SHEPHERD: Or you could say -- I think, also, this is -- so, what we are -- to state it in the reverse, we are only approving a variance of a setback encroachment of the side property line that is no greater than 6 feet. I mean, that is that the building is at least 6 feet -- that the existing building is at least 6 feet from the side line. MS. JOSEPH: Any portion of the existing building. MR. SHEPHERD: So, a licensed surveyor must certify that any portion of the existing building is at least 6 feet from the side property line? So, it seems like we're -- would you like me to read that again, just to make sure, and I think we can set that in concrete? So, one condition of this approval is that a licensed surveyor must certify that any portion of the building of the existing building is at least 6 feet from the side property line. MR. ROBB: That's on the east side. MR. BOWERMAN: Didn't you classify it as the front someplace? MR. ROBB: On the east side of the building, right? MR. MAUS: Okay, did you say each side, or east? MR. ROBB: East. MR. MAUS: East. Okay, east or northeast, probably, because 231 runs -- MS. ALLEY: Mr. Maus, if you're going to address them, can you please go through the mic? MR. MAUS: I guess, Mr. Robb, east is close enough. 231 runs in a northeast direction from Shadwell up to Gordonsville. It's actually the north -- 28 39 MR. ROBB: (inaudible) MS. JOSEPH: North. MR. MAUS: More than north side. MS. JOSEPH: Well, according to the plat -- MR. MAUS: It's east. MS. JOSEPH: It's the east side. MR. MAUS: Okay. I'll go with east. MS. JOSEPH: We have to be more specific about the building? Or is it implied that the building is what we're talking about? MR. BOWLING: I think, if it's clear in your mind -- MS. JOSEPH: It's clear in my mind. MR. SHEPHERD: I think that if we reference the building permit, that's -- the plans are all there as part of the application. I think -- MS. JOSEPH: Tbat's fine. MR. SHEPHERD: Alright. So, I think I'm close to having that -- we're working on two conditions, right? Or only the survey? Are we -- MS. JOSEPH: It's the other one. MR. SHEPHERD: So, are we no longer limiting this just to the home occupation? I mean, just to -- MR. BOWLING: I thought you did limit it to the home occupation, sir. MR. SHEPHERD: And that would be the other condition. MS. JOSEPH: Okay. MR. SHEPHERD: Right? MS. JOSEPH: Okay. MR. SHEPHERD: And this approval is for a major home occupation, per 5.2a -- or, no. This is where we want to get into Mr. Bowling's other code sections, that that's what we are varying. Right? MR. ROBB: 5.2, 201. MS. JOSEPH: Do you want to look at home occupation? 29 40 MR. SHEPHERD: Yeah, I'm not quite sure of what I'm trying to write, here. No, we were -- I started it as just referencing the home -- the supplemental regs, and the building permit. But the comment from Mr. Bowling was that we should be referencing the -- that the variance is confined to -- MR. BOWLING: No, the staff -- if you're talking about that the staff asked you to explicitly state the variance terms and the legal basis. And that's the discussion that I'm (inaudible). Virginia Code Section 15.2-2309(2), second paragraph. MR. SHEPHERD: Mm-hmm. MR. BOWLING: And you made those findings. MR. SHEPHERD: We made those findings. MR. BOWLING: And adopt those findings into your resolution, your motion. MS. JOSEPH: Staff was saying that if we reference the major home occupation, then we're also referencing the fact that it has to meet the setbacks that are listed in there. So, that was something that you either need to reference that, minus that. MR. SHEPHERD: So, this approval is for a variance of the side setback? MS. JOSEPH: Yeah. MR. SHEPHERD: Or a home occupation -- MS. JOSEPH: Major. MR. SHEPHERD: Major home occupation, per 5.12a, or -- I guess, the supplemental regulations found in 5.2a, and limited to the existing structure shown on Building Permit 201702431NNR. Does that work for staff? MR. SVOBODA: Would you like to read it one more time? MR. SHEPHERD: I'll try. I can't read my own writing. This approval is for a variance of the side setback to -- MR. BOWLING: Of not less than 6 feet. MS. JOSEPH: Do you -- does staff do an action letter to the applicant after this, because you don't seem to be writing any of this down. MR. SHEPHERD: I mean, are we going to just pull this off the tape? Alright, I feel like -- okay. This approval is limited -- is a modification -- is that off to a good start? I've got to start over. Too many changes. This approval is limited to a modification of the side setback to allow a major -- 30 41 MR. BOWLING: Well, of -- you need to say a side setback of not less than 6 feet. MR. SHEPHERD: I was leaving that out because it's in the next condition. I mean, it's going to be right there. MR. BOWLING: Alright. Well, then, I've lost the track. I'm sorry. MR. SHEPHERD: I think we have an approved condition for the survey line and the minimum 6 feet. MR. BOWLING: Well, the variance is for the 6 feet. It's not a condition. It's a variance of not less than 6 feet. MR. SHEPHERD: Okay. MS. JOSEPH: Just put it in there so it's clear. Please. Thank you. MR. SHEPHERD: This approval is limited to a modification of the side setback of not less than 6 feet to -- MR. BOWLING: I guess it should be -- instead of "of," it should be "to not less than 6 feet." MR. SHEPHERD: Modification of the side setback -- MR. BOWLING: To. MR. SHEPHERD: To. MR. BOWLING: Not less than 6 feet. MR. SHEPHERD: Not less than 6 feet to allow a major home occupation -- MR. ROBB: Mr. Chairman? MR. SHEPHERD: Yes. MR. ROBB: Can I throw a monkey wrench into that verbiage, here? Suppose they get out there and survey and find out that that building is now 5 feet. MR. SHEPHERD: That's a problem. MS. JOSEPH: He's got a problem. MR. ROBB: So, I'm willing to accept the present position of the building as of this date. MR. BOWLING: The trouble with that, sir, is that it's floating out there in space, and nobody knows where it is. MR. ROBB: Nobody knows where what is? MR. BOWLING: The present location of the building. 31 42 MS. JOSEPH: In relation to the property line. MR. BOWLING: That's why you want to have a survey and tie it to this point. MR. ROBB: So, we have a survey and find out it's 2 feet from -- MR. BOWLING: Well, then he's going to have to come back. MS. JOSEPH: Because then, he really didn't comply with what he thought staff was telling him, that it had to be 6 feet. MR. ROBB: Okay, as long as that's under -- MR. BOWLING: What's up to you is what you're going to do with it. MR. SHEPHERD: Almost got this -- This approval is limited to a modification of the side setback to not less than 6 feet to allow a major home occupation as described in the supplemental regulations, in 5.2a, and shown on the building permit. You think you have that? MS. ALLEY: I do. Would you like for me to re -read that? MR. SHEPHERD: That would be perfect. MS. ALLEY: So, I have Ms. Joseph making a motion to grant the variance application VA2019-00001 Burton and Maus. I have Mr. Bowerman seconding that motion, with discussion taking place, and a condition being applied to read, "This approval is limited to a modification of the side setback to not less than 6 feet to allow a major home occupation as described in supplemental regulations, in 5.2a, and shown on the building permit." MR. BOWLING: What about the conditions for the survey? Where does that come in? MR. SHEPHERD: Do you have, "The licensed survey must certify... " MS. ALLEY: I did not have that. I started with what you were doing there. MR. SHEPHERD: Alright. Ready for that? The other -- the second condition is subject to a licensed survey -- a licensed surveyor must certify that any portion of the building is at least 6 feet from the side property line. MR. BOWLING: Is that the motion, Mr. Chairman? MR. SHEPHERD: So, those are the two conditions. So, it's a motion that we approve the variance -- MR. BOWLING: Well then, you also need to add the Board makes the finding set out in Virginia Code Section 15.2-2309(2), as previously discussed. 32 43 MS. ALLEY: Would you like for me to take votes? MS. JOSEPH: I thought we had already acted on that. No? MR. BOWLING: No, you need to do it as part of your motion. MS. JOSEPH: Okay. MR. SHEPHERD: So, can you state that again and just make sure that Marsha's got it, and then -- MR. BOWLING: Well, first -- MS. JOSEPH: Okay, I'm going to amend the motion to include -- okay? MR. BOWLING: The Board makes the following findings set out in Virginia Code Section -- findings of facts set out in 15.2. The Board finds that the facts before it satisfy the requirements set out in Virginia Code Section 15.2-2309.2, second paragraph. MS. JOSEPH: 15 point what, second paragraph? MR. BOWLING: Second para -- 15.2-2309.2, second paragraph. MS. JOSEPH: Anything additional? MR. BOWLING: That's enough. Previously, as previously discussed in the Board's meeting. MR. SHEPHERD: Because the minutes will verify that discussion. MS. JOSEPH: Okay. I will amend my motion to include the following: that the Board finds that it satisfies Section 15.2- -- MR. BOWLING: That the facts before it. MS. JOSEPH: That the facts before it satisfy Code Section 15.2-2309.2, the Code of Virginia. MR. BOWLING: Second paragraph. MS. JOSEPH: Second paragraph, as previously discussed at the Board meeting. This approval also contains the two conditions that were described by Chairman Shepherd. MR. BOWERMAN: Second agrees. MR. SHEPHERD: Okay, so, can you call a roll? MS. ALLEY: Mr. Bowerman? MR. BOWERMAN: Yes. MS. ALLEY: Ms. Joseph? 33 44 MS. JOSEPH: Aye. MS. ALLEY: Mr. Robb? MR. ROBB: Yes. MS. ALLEY: Mr. Shepherd? MR. SHEPHERD: Yes. Whew. Thank you very much. Where the small things are the hard things. Okay. MS. JOSEPH: Okay. Now, do we negate this rehearing, at this point? MR. SHEPHERD: Well, we have a couple more things to do, and that is one thing. We have that, and we also have to approve the minutes. MS. JOSEPH: Well, shouldn't we just deal with this? MR. SHEPHERD: What is the next thing? MS. JOSEPH: The next thing is a rehearing of that appeal. B. Rehearing of AP201900004 Bufton & Maus, PLC MR. SHEPHERD: Okay. So, I would like to make -- I'm not sure what the County's position might be on this, but I want to suggest that in light of this variance, which I believe is a much -- is one that is consistent with the appeal that we -- as we dealt with it before. But I feel like the variance is a much more direct, straightforward way of dealing with this. And I also appreciate the opportunity to put conditions on it. I feel like this is -- that we've handled this, that the variance handles the whole situation in a good way. And with that, I would like to -- with -- work towards just reversing our prior decision having to do with the Zoning Administrator's determination. I don't know if we want to actually have a hearing on this. If staff has a different position, then we can make a presentation, or if that's -- if we can do that without a discussion. MR. HERRICK: Mr. Chair, members of the Board. Andy Herrick, again, on behalf of the Zoning Administrator. If the Board is inclined to reverse its decision of October 1, the County has no objection. I did not come prepared for a presentation on it today. The petition that we had filed in October is before you all, but again, if the Board were to reverse its decision of October 1, the County would not object. MR. SHEPHERD: Thank you. Yeah. Is there a motion? MS. JOSEPH: I move that the Board -- MR. SHEPHERD: Oh, wait a minute. MR. BOWERMAN: Let's hear from the applicant, too. 34 45 MR. SHEPHERD: Oh. MS. JOSEPH: Sorry, sorry. MR. SHEPHERD: Good point. Sorry. I shouldn't make assumptions. MR. MAUS: That's okay, (inaudible). Jack Maus for the applicant. I think I concur with your conclusion, Mr. Shepherd, that the variance is a cleaner way to do this, and that there would be -- we wouldn't object to the Board's reversing its decision, reversing the Zoning Administrator and just -- end that part of the process. I think the variance covers what we needed done. Thank you, sir. MR. SHEPHERD: Okay, thank you. MR. BOWLING: So then, you need to make a motion to that effect, if that's what the Board agrees to. MS. JOSEPH: To reverse the decision? MR. BOWLING: Yes. MR. SHEPHERD: Okay, do you want to go in now? Sorry, we're going to have to take a quick break. Actually, why don't we take a recess for everybody? Let's take a five-minute break. Come back here at ten after. (Recess ends at 4:11 p.m.) The next item on the agenda, which is the reconsideration of the appeal 201900004. And I understand there is no staff report for this, at this point? MS. JOSEPH: They gave us one. MR. SHEPHERD: Yeah, okay. So, I'm now going to open the public hearing. Hearing no one wanting, or seeing no one wanting to speak, the public hearing is closed. So, now it's in front of us for a decision. And, as I say, I would entertain a motion that would reverse our prior decision of October 1, and of appeal 201900004, and uphold the Zoning Administrator's determination. MR. BOWLING: And part of that, I think it's all in the record, if I'm correct. It's all in the record that both -- that the applicant and the County agree to that procedure? MR. SHEPHERD: Mm-hmm. MR. BOWLING: Madame Clerk, is that correct? MS. ALLEY: That is correct. MR. SHEPHERD: Yes. So, both went on the record, spoke to that. 35 46 MR. HERRICK: Actually, if I could just clarify, the County did not object to that. MR. SHEPHERD: Okay. MR. BOWLING: The County did not object to it. MS. JOSEPH: Did not object. MR. SHEPHERD: And for the -- I mean, I invite the motion for the reasons I stated earlier. Anyone else have any comments? Don't have a motion yet. Is there a motion? MR. BOWLING: I thought you made one. MS. JOSEPH: So moved. MR. SHEPHERD: Okay. Call the roll? MS. ALLEY: I'm sorry. I missed the second. MS. JOSEPH: David? MR. SHEPHERD: I think Mr. Bowerman made the motion, and Ms. Joseph seconded. MS. ALLEY: Mr. Robb? MR. ROBB: Aye. MS. ALLEY: Ms. Joseph? MS. JOSEPH: Aye. MS. ALLEY: Mr. Bowerman? MR. BOWERMAN: Aye. MS. ALLEY: Mr. Shepherd? MR. SHEPHERD: Aye. MR. BOWERMAN: Well, does the Board of Supervisors take any action on this? It was their decision to give it back to us, to appeal it. MR. HERRICK: So, as Mr. Maus had indicated, the Board had appealed that determination to the Circuit Court, and it's pending. We have a hearing date pending for the Circuit Court on that. It's pending. It's pending in the Circuit Court. 36 47 MR. BOWERMAN: What will they do? I mean, the Court. MR. HERRICK: That will be up to the judge. MR. BOWERMAN: Okay. MR. SHEPHERD: Okay. So, I would hope that the variance, that the action today, the record of this meeting would be attached to that. Alright. MR. MAUS: Mr. Chairman? MR. SHEPHERD: Yes? MR. MAUS: If the basis for the County's taking the -- overturning the Zoning Administrator's opinion to Circuit Court was based on this Board saying they were wrong. If the Board's now saying they're right, then really, that moots the matter that's in the Court. There's nothing for the Court to decide, anyway. So, I would anticipate filing a motion to dismiss the current proceeding because there's no adverse -- no decision adverse to the County that can now appeal before the Court. Thank you. MR. BOWLING: When are the minutes prepared for the meeting? I would think both attorneys could notify the Court of what happened here today. Am I correct, Mr. Herrick? MR. HERRICK: I'll wait for further instructions from the Board of Supervisors. MR. BOWLING: Okay. No, I mean, I understand your further instructions, but this is what the Board of Zoning Appeals just did. But they'll be -- the Court will be notified that the Board met and rescinded its previous action of -- MR. HERRICK: That may or may not come up in the scheduled hearing. MR. BOWLING: Okay. Well, it's the part -- then, you know, the Secretary has some duty under the statute to send the record. And then, I don't -- MR. HERRICK: Mr. Bowling, with all due respect, I don't want to try the case in front of the BZA again. MS. JOSEPH: Well, that's fine. I'm the Secretary. What do you want me to do? MR. BOWLING: Well, we won't have the minutes by then. MS. JOSEPH: Okay. MR. BOWLING: I'm not following the point, but that's fine. MR. SHEPHERD: Well, I think we've made our ideas clear. MS. JOSEPH: Okay. 4. Approval of Minutes A. January 7, 2020 37 48 Mr. Shepherd said he understood that Ms. Alley made a couple of small corrections to the minutes. Ms. Alley said yes. She said the Board members were provided earlier with a draft copy of the minutes, and since that time, she had identified two minor corrections that she wanted to note. She said the first of the revisions would be on page 8, in the last two paragraphs where they see the word "rules" should be revised to "roles." Ms. Joseph asked who was speaking. Ms. Alley replied that Mr. Shepherd was speaking in one sentence and Mr. Rinehart in the other. She said both were interpreted as "rules" when both of those words should have been "roles." Mr. Shepherd said this seemed right. Ms. Alley said the other revision was on page 12, paragraph 6. She said Mr. Herrick was speaking, and he made a reference to the "close of the meeting," which should actually read "close of the hearing." Ms. Alley said those revisions had been made on the copy that was submitted for approval and were ready for signature, if so approved. Ms. Joseph asked Ms. Alley about page 4, where there was an interesting sentence that never stopped which read, "There was a discussion regarding training sessions being recorded. There was some concern that... " and it ended. Ms. Alley said evidently, the concerns were discussed in the next paragraph. She said the paragraph was modified and that the partial sentence was not removed. She said this sentence could be removed as well. MOTION: Mr. Robb moved that the Board approve the minutes from the meeting of January 7, 2020, 2:00 p.m. Ms. Joseph seconded the motion, which carried unanimously (4-0). (Mr. Rinehart was absent.) 5. Old Business A. Training Update Mr. Svoboda said everyone had agreed to a May 5 training date. He reminded the Board members to check the date they marked on their calendars. Ms. Joseph asked if the training would take place at the regular time in that room. Mr. Svoboda replied yes. 6. New Business There was no new business. 7. Adjournment MOTION: At 4:21 p.m., Mr. Bowerman moved to adjourn the meeting. Ms. Joseph seconded the motion, which passed unanimously (4-0). (Mr. Rinehart was absent.) (Recorded by Marsha Alley and transcribed by Beth Golden) Respectfully Submitted, 38 49 Marcia Jos4ph, S�cretary Bard of Zoning Appeals 50 STAFF: Kevin McCollum and Bart Svoboda PUBLIC HEARING: February 4, 2020 STAFF REPORT: VA2019-001 Bufon & Maus, PLC OWNER/APPLICANT: Evelyn Burton and John "Jack" R. Maus PARCEL ID: 05000-00-00-04900 ZONING: Rural Areas, RA ACREAGE: 2.40 acres LOCATION: The property is located in eastern Albemarle County and fronts on State Route 231 (Gordonsville Rd), an entrance corridor. There is one dwelling and one accessory structure located on the property at 7380 and 7382 Gordonsville Road, respectively. Please refer to the Map of the Property (Attachment A) for reference. TECHNICAL REQUEST AND EXPLANATION: The applicants request a `variance from any and all of the provisions of the Albemarle County Code" that would prevent them from using the approved accessory structure constructed on their property for a Major Home Occupation (Attachment B). The applicable provisions of the Albemarle County Code are (1) § 18-10.4, which provides that the side setback for primary structures in the Rural Areas is 25 feet, and (2) § 18-5.2A, which provides that "any accessory structure that does not conform to the applicable setback and yard requirements for primary structures shall not be used for a home occupation." Currently, the accessory structure does not appear to meet the applicable 25- foot side setback in order to be used for a Major Home Occupation, and the applicant is requesting a variance to do so. BACKGROUND: On October 17, 2017, the applicant applied for a building permit, B2017-02431-NNR (Attachment C) for an accessory structure. On December 7, 2017, the County issued that building permit for an accessory structure now located at 7382 Gordonsville Road, with the following accessory structure setbacks for the RA; Front - 75', Rear - 6', and Side - 6'. On June 4, 2019, the applicant applied for a Major Home Occupation Clearance to use the accessory structure as a law office (Attachment D). After inspecting the property to verify that the proposed Major Home Occupation met all the applicable regulations, staff sent an advisory email on June 17 noting that the side setback did not appear to be met and informing the applicant that the proposed Major Home Occupation Clearance could not be approved until they could confirm that the structure met the applicable setbacks (Attachment E). On July 30, 2019, staff wrote an official determination that the Major Home Occupation Clearance application could not be approved until staff determined that the accessory structure complied with the primary structure setbacks for the Rural Areas zoning district (Attachment F). On August 12, 2019, the applicant submitted an appeal of"the decision of the Zoning Administrator to deny them a Major Home Occupation approval" (Attachment G). On August 15, 2019 a certificate of occupancy was issued for B2017-02431-NNR with a condition that the structure was for personal use only. 51 On October 1, 2019, the Board of Zoning Appeals (BZA) heard appeal AP2019-00004 Burton & Maus. The BZA voted to overturn the Zoning Administrator's determination of July 30, 2019. On October 29, 2019, at the request of the Board of Supervisors, the BZA held a special meeting to rehear AP2019-00004 Burton & Maus. At this public hearing, the BZA voted to defer the rehearing of the appeal to allow the hearing of a Variance if the applicant chose to apply. QUALIFYING CONDITIONS: Under Virginia Code § 15.2-2309(2) (Attachment H), the Board of Zoning Appeals may "grant upon appeal or original application in specific cases a variance as defined in § 15.2-2201, provided that the burden ofproof shall be on the applicant for a variance to prove by a preponderance of the evidence that his application meets the standard for a variance as defined in § 15.2-2201 and the criteria set out in this section. " Virginia Code § 15.2-2201 defines a variance as a "reasonable deviation from those provisions regulating the shape, size, or area of a lot or parcel of land or the size, height, area, bulk, or location of a building or structure when the strict application of the ordinance would unreasonably restrict the utilization of the property, and such need for a variance would not be shared generally by other properties, and provided such variance is not contrary to the purpose of the ordinance. It shall not include a change in use, which change shall be accomplished by a rezoning or by a conditional zoning. " County Code § 18-34.4(i) (Attachment I) provides: The board shall grant a variance if the evidence shows: (i) that strict application of the terms of the ordinance would unreasonably restrict the utilization of the property; or (it) that granting the variance would alleviate a hardship due to a physical condition relating to the property or improvements thereon at the time of the effective date of the ordinance; and all of the following: 1. Good faith acquisition and hardship not selnflicted The property interest for which the variance is being requested was acquired in good faith and any hardship was not created by the applicantfor the variance. 2. No substantial detriment. Granting the variance will not be a substantial detriment to adjacent property and nearby properties in the proximity of that geographical area. 3. Condition ofsituation not general or recurring. The condition or situation of the property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance. 4. Use variance Prohibited. Granting the variance does not result in a use that is not otherwise permitted on the property or a change in the zoning classification of the property. .2" E9 Sz 5. Special use permit or special exception not available. The relief or remedy sought by the variance application is not available through a special use permit or special exception authorized by this chapter when the application is filed. STAFF ANALYSIS: Staff has evaluated this application against the above variance standards. Standard: The strict application of the terms of the ordinance would unreasonably restrict the utilization of the property; Staff: Strict application of the 25' side setback to structures used for Major Home Occupations does not unreasonably restrict the use of the property. The own8rs already enjoy reasonable use of the property through both the existing single- family residence and the new accessory structure, which may remain. Or Standard: Granting the variance would alleviate a hardship due to a physical condition relating to the property or improvements thereon at the time of the effective date of the ordinance; Staff: No physical condition of the property creates a hardship. The improvement (accessory structure, B2017-02431 NNR) was constructed in 2017, well after the effective date of County Code § 18-5.2A. And 1. The property interest for which the variance is being requested was acquired in good faith, and any hardship was not created by the applicant for the variance. Staff: This application does not meet this standard. The property was acquired in good faith, but the hardship was created by the applicant. As outlined in the Background section, the proposal to use the accessory structure for a Major Home Occupation came after the initial application and issuance of the accessory structure. Because the applicants did not apply for a Major Home Occupation clearance at the same time as the building permit for the accessory structure, staff issued the building permit as if it met the standard accessory structure setbacks. Only after the accessory structure was under construction and close to completion was the application for the Major Home Occupation fled for County review. As stated above, the applicant then chose to appeal staff s decision rather than rectify the setbacks through alternative means. 2. Granting the variance will not be a substantial detriment to adjacent property and nearby properties in the proximity of that geographical area. Staff: This application meets this standard. 3. The condition or situation of the property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance. Staff: This application meets this standard. n 53 4. Granting the variance does not result in a use that is not otherwise permitted on the property or a change in the zoning classification of the property. Staff: This application does not meet this standard. The granting of this variance would in fact permit a use that is otherwise not permitted within the defined setbacks. 5. The relief or remedy sought by the variance application is not available through a special use permit or special exception authorized by this chapter when the application is filed. Staff: Though this application meets this standard, an alternate remedy is available by a boundary line adjustment plat. STAFF RECOMMENDATION: Because (a) the zoning ordinance does not unreasonably restrict the use of the property, (b) no physical conditions of the property create a hardship, and (e) not all five of the additional criteria required for granting a variance are met, this application does not meet the standards for variance approval. Additionally, under Virginia Code § 15.2-2201, the BZA cannot approve a use variance. Since the accessory structure located on the property is currently not in violation of the ordinance, and the approval of this variance would allow for the additional use of a Major Home Occupation, this would be a use variance, which the BZA is not authorized to grant. Therefore, staff must recommend denial of this variance application. The applicant may still pursue a boundary line adjustment with the adjacent lot to allow the structure to meet the 25' side setback required for Major Home Occupations. PROPOSED MOTIONS: If the Board chooses to deny this variance (Stafrs recommendation): I move to deny the variance application VA201900001 Button & Maus If the Board finds legal grounds to grant this variance: I move to grant variance application VA201900001 Button & Maus sas Attachments: Attachment A: Map of the Property Attachment B: Variance Application VA201900001 Bufton & Maus Attachment C: Building Permit B2017-02431-NNR Attachment D: Major Home Occupation Clearance Application Attachment E: Staff Email to the Applicant dated June 17, 2019 Attachment F: Official Determination "RE: HO2019-00233 Major Home Occupation Clearance" S9 A � N N O _ o A > w V 1a �o 'gm S$ m� mg s gE �a 55 4p 4� m$ L w t{ r V 8 P N 41 �k RS £1 N O 8 41 2U 'm1 O S cR a R W£ Y(rn 4 i q td[ .vx B 5:' it 4¢ �im4'a�t R '3_ t m m a all gs S FOR OFFICE USE ONLY VA # JzLr2�-"elO(-) ( SIGN # ZONING ORDINANCE SECTION: Fee Amount$ Dale Paid By rvho? ReceiptH Ckft By.c r Application for Variance ❑ Variance = $538 to be paid once application is deemed complete Ll Initial notice fee to be provided in conjunction with an application, for preparing and mailing notices and published notice — $435 FEES for re -advertisement and notification of nq!k�u a ter adyet'fj$eMLH 4���d a dlefterra� is made at the ➢ Preparing and mailing or delivering each notice after fifty (50) S215 ➢ Preparing and mailing or delivering each notice after fifty (50) $1.08 for each add itinnal notice + actual cost of first-class postage ➢ Published notice (published twice in the newspaper for each public hearing)avera Actual cost based on a cost quote from the publisher es between $150 and $250) Project Name: Button and Maus PLC law office Parcel ID Number: 05000-00-00-04900 Zoning: Rural Areas (RA) Physical Street Address (if assigned): 7382 Gordonsville Road, Gordonsville, Virginia 229442 Contact (who should the main contact about this project): John R, Maus Street Address 7380 Gordonsville Road Phone Number 540-894-1006 Emailjackmauslaw@gmaii.com Owner of Record: Evelyn Button and John R. Maus Street Address7380 Gordonsville Road City Gordonsville State Virginia Zip Code22942 Phone Number 540-894-1006 Applicant (if different from the owner): same as owners Street Address.. _.. Phone Number County of Albemarle Department of Community Development 401 McIntire Road Charlottesville, VA 22902 Voice: (434) 296-5832 Fax: (434) 972-4126 Variance Application Revised 11/02/2015 Pa@g4 of 3 57 Variance is defined as follows A variance is defined as a reasonable deviation front those provisions regulating the shape, size or area of a lot, or the size, height, area, bulk or location of a structure when the strict application of this chapter anuld unreasonably rest rio the utilization of the property, and the need for the variance would not be shared gencr.illy by other Iots_ and prodded that the variance is not contrary to the purpose of this chapter, provided that a variance shall not iucIude a change in use, (,AIbemaiie County Code Chapter 18 Section 3) OTHER INFORMATION TO BE PROVIDED for THE APPLICATION TO BE CONSIDERED COMPLETE AND OFFICIALLY SUBMITTED EfINine (9) folded copies of any and all plans or additional information tLA One (1) copy of a recorded plat or boundary survey of the property requested for the variance. If there is no recorded plat or boundary survey, please provide legal description of the property and the Deed Book and page number or Plat Book and page number. U9 Drawings showing all existing and proposed improvements on the property, with all dimensions and distances to property lines, Itland any special conditions on the property that mayjustify the request. LJ written description of your request (include dimensions, measurements or sizes in feet). This is to also include evidence as noted below. EEl As the owner/applicant I certify that any delinquent real estate taxes, nuisance charges, stonnwater management utility fees, and any other charges that constitute a lien on the srbject property, which are owed to the County of Albemarle and have been properly assessed against the subject property, have been paid. Please be aware that the board shall grant a variance if the evidence shows: (i) That strict application of the terms of the ordinance would unreasonably restrict the utilization of the property; (ii) That granting the variance would alleviate a hardship due to a physical condition relating to the property or due to improvements thereon at the time of the effective date of the ordinance; or (iii) That granting the variance would alleviate a hardship by granting a reasonable modification to a property or improvements thereon requested by, or on behalf of, a person with a disability and lie) All of the following: 1. Good faith acquisition and hardshin not self-inflicted. The property interest for which the variance is being requested was acquired in good faith and any hardship was not created by the applicant for the variance. 2. No substantial detriment. Granting the variance will not be a substantial detriment to adjacent property and nearby properties in the proximity of that geographical area. 3. Condition of situation not general or recurring. The condition or situation of the property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance. 4. Use variance prohibited. Granting the variance does not result in a use that is not otherwise permitted on the property or a change in the zoning classification of the property. 5. Special use permit or special exception not available The relief or remedy sought by the variance application is not available through a special use permit or special exception authorized by this chapter when the application is filed. Variance Application Revised 05/23/2019 PaggtiZ of3 ili Owner/Applicant Must Read and Sign I hereby certify that I own the subject property, or have the legal power to act on behalf of the owner in tiling this application. I also certify that the information provided on this application and accompanying information is accurate, true, and correct to the best of my knowledge. By signing this application I am consenting to written comments. letters and or notifications regarding this application being provided to me or my designated contact via fax and or email. This consent does not pi eclude. such written &immunisation from also being sent via first class mail. Signature of Owner/Appli nt Date 't 111 J hn R. Maus 540-894-1006 tint Name Daytime phone number of Signatory Board of Zoning Appeals Action/vote: Board of Zoning Appeals Chairman's signature: Date: Variance Application Revised 05/23/2019 Pagge1 of 3 5ry L� Plans 13()F('ON& I It . A . 0 S I L , A " W 01;FICF- 40 C 4 90 H CF • rn u : � Y u b 13 M • O 0 N O • tT [f c+ SB to �- Cy • O I•y k% � Y T" 4° C+ \ Co-c € 1 E co • C+ CM \ m J N T w \ 5,47 n I • H F+ \C A � opV i d PV \ iJ � � • r m (0 WRITEN DESCI19Pt ON OF REQUEST FOR VAi gAKI7CE The owners request a variance from any and all of the provisions of the Albemarle County Code that would prevent them from using the law office constructed on their property for a Major Home Occupation. As far as the owners know, the applicable provisions of the Code are (1) Albemarle County Code §18-10.4, which provides that the side setback for primary structures in Rural Areas is 25 feet, and (2) Albemarle County Code §18-5.2A, which provides, in relevant part, that "[A]ny accessory structure that does not conform to the applicable setback and yard requirements for primary structures shall not be used for a home occupation." There may be additional provisions of the Albemarle County Code on which the County Attorney's Office may rely on in order to oppose the owners' right to use their law office for the purpose for which it was always intended, namely to conduct a law practice that involved, among other things, meeting with clients and other professionals in their office. At its nearest point to the side fence (which is presumed to be the property line), the owners' law office is 141/2 feet from the property line. At its farthest point, the law office (which parallels the house rather than the property line) is 301/2 feet from the side fence line. Evidence in Sumoort of Request for Variance Under Sec. 34.4(i) of the County's Zoning Ordinance, the applicable criteria for the Board of Zoning Appeals to grant a variance are: 1. The strict application of the terms of the ordinance would unreasonably restrict the utilization of the property, 2. The property interests for which the variance is being requested was acquired in good faith and any hardship was not created by the applicant for the variance, 3. Granting the variance will not be a substantial detriment to adjacent property and nearby properties in the proximity of that geographical area, 4. The condition or situation is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance, leo 03 S. Granting the variance does not result in a use not otherwise permitted on the property, and 6. The relief or remedy sought is not available through a special use permit or special exception authorized by the Code. The owners adopt all of the evidence that they previously submitted to the Board of Zoning Appeals on October 1, 2010 ini connection with their appeal of the adverse decision of the Zoning Administrator denying them a zoning clearance for a Major Home Occupation. Furthermore, the owners state that: 1. It is self-evident that the owners' inability to use a 1020 square foot office building, the floor plans for which included a conference room and two offices as a place at which to meet clients and other professionals in connection with their practice of law, would unreasonably restrict the owners' utilization of their property, 2. As previously proven to the Board, the property interest for which the variance is being requested WAS acquired by the owners in good faith reliance on a building permit issued by Albemarle County. Any hardship was not created by the owners, 3. Granting the variance will not be a substantial detriment to the adjacent property or nearby properties. When the owners initially appealed to the Board of Zoning Appeals, notices were sent to all adjoining landowners and none voiced any objection to using the subject property for a major home occupation. The property on the other side of the fence to which the County alleges that the owners' building is too close is a cow pasture, 4. The condition or situation is the result of miscommunication with the County's Department of Community Development that the owners hope is not so recurring in nature that a general regulation should be adopted by amending the zoning ordinance, S. Granting the variance does not result in a use not otherwise permitted on the property. The County has conceded that, if the owners' law office were no closer to the property line than 25 feet, the owners would be entitled to pursue a Major Home Occupation, and 6. The remedy or relief sought is not available through a special use permit or special exception. Le + Mtt ` Count of Albemarle A ~� 1prcPt4r>!T Attachment C: Building Permit B2017-02431-NNR TMP 05000-00-00-04900 I Curr In tI BUFT ON, EVELYN 2t JOHN R MAUS u n w rs; "'man" Rural Areas- Zonmg tl aior =ubdi.,!Acre age i Building permit d 13�01 -®Ta4,31—tllIM P 41 t d1% Entared By: Jennifer Smith on ,'0,'15'7027 --- __ - I Associated Building Sub npvlicauoi i rP: Sto rage building/accessory structure (new or C_ _ Permit Street Ljdre,t7�TLLERD GORDONSVILLE, 22942 _ l:ork Cla�� Frl eT",F� I T, pe Sizvi�„DsE ITpe-__ Focro hcrTi F P1zW INood 'Cartesian Well 'Private ',Other York Valuation Jurisdictional Area Other Foot/ Found. Desc.-. $ 48,OOO.00 ;No Service D esc (NEW STRUCTURE FOR HOME OFFICE DEsariptiom . Directions 7380 GORDONSVILLE RD Attachment B: Building Permit B2O17-02431-NNR L=_gal Dascrivtiori USE Group Construction Type iSquara Footages. tt of Stories 1 parches 504 unfinished BasEmen[ 1stloar 792 Decks lhernished Sq. 2nd Floor Garage Total UnfinishedSq. 3rd Floor Footage Srlmming pool Finished Basement Other Habitable Total Habitable Sq. Footage Total Building Sq. Footage �J Set backs: L—ZoningPre-Comtruction? I-- Land Use? — Front 7 Back Fire harms REquired? ' Bldg Pre -Construction? I' Laft Sid, Right Sid, F r p rk IJ-Pn C d' cifng Unit; --ce-; St t ros II b,1 'Prefab Hor,,z Inbn, ORi �Pletab, Units Carports Bedrooms Baths 1.0 Pam lSpray Eooths Garages Kitchens 'clmming gaols Hot Other ElE• ator•'-a T°b >'pas jRea_Onh;l .. - -.., latna\Elks ca iStata Izi _cdi rI FL^n '.,el bukeni el r,;.phnr ren. �'PO E3,E - _ _ _ ......,.. ........... ............. a �_-.logy � SameiONne(iagEnt � - � ..t A5114 m r f Count v1/ of Albemarle „ , I 1if[ , a 2- \r ,le 3Uic41'.iT- `,6Ce 2 TMP 05000-00-00-04+900 CLIfPht BURTON, EVELYN & JOHN R MAU5 J �2.,O Priffiefi, uning Rural Areas of 5ut�!�Acreage -- -- Building Per,,,,= � ��7 �3 3i-3�f��3� Er,f r o Ey� Jo,o er5;,,ren on o, s/_ov sub. -Police, o, r,pe Storage building/accessu+V str'uc ure (new c Associated Building - Permit _,r=sr drrss.. i360 GOR LLs RC COROcIIs LLE. C-942 1 S teLicdl-setivo Ftr J_ Ucior-. _lees Sepal r to peIini ts nsybe-ajute! for Electrical, Plw;b in1 N e a an of, enElaf;aan 6 e I- r em d i if a I I n g. This permit becomes null and doid ifv:oij or consh-uc5nn authorized is not commenced ,vithin 6 months, or if construction or work is suspended or abandon ed far a pi ied of 6 months at arvy time aftasorl< is ru,nmenced, I hereby cei cry that! hate read and examined this apPiicaton and knIns the same to be true and correct. All provisions of laws and m dmances governing this type of'oworl<',^nil be compiled with whether speclh-d herein of not. The granting of a permit does notpresum_ to give autbni hi to v"I't, or C'ic 1 C"s provisions of any other to .-sr locai lass regulating construction or the By signing this building p i iiih, Chi, T:%l andior bi _i agent her b front eirpl e_ of th h ri 1,,I In , cuntCanmunit✓ r; elopmcut Taal Estat_ Depa, anreiiLe this_ 1ht toe cr and inspert the sub2 c of ope bN I Toliddyr through Friday between the hours of 8:00 a.m. and 5:00 ti holidays excepted. If you are not the owner of record, please checkwhich applies: I certify that I am the agent for BUFTON, EVELYN & 7OHN R MAUS ❑ , the o,vner, and am authorized to submit this application on behalf of the Owner under the agency granted to me. I am neither the O-a;ner in the Own errs agent. I certify that',vi itten notice of this application, by providing a copy of this alepficafion, ,+nil be mailed to the Ovrner atthe fnlfovVing address ❑ P O BOX E GORDONSVILLE VA 22942 within 10 days of today's date as required by V;i ginia Code fi 15.3-2204(Hl, I understand that, if I do not provide the notice to the Owner as provided herein, the building permit spflfat'on hina, Lei, other subsequent: c,yrov al, permit or certificate related thereto could be determined to be aoid. E7C, 9'lIC RECORDS STkTEh9 EI`:T: ::Ibemarle County is creating and using electronic records and electronic signatures as ahorred by th- Uniform Ele ctron i c in a nsa I no n s Act f iirgin1a Code § 59.1-479 et seq.), As an applicant to the Building Permit Pi us, ynu ma consent to I ecei,. e, r he so Di Tine re.ss to sluibr_nic records and recei, and create records having -1sCL Qnic signatures I elated to Building Permits, CoIi ,so and e nee, Inspection Tickets and Certificates of Occupancy Ithe Building Please initial here if you AGREE to receive and/or use electronic race,ds and alecu onic signatures for Building Permit transactions. r our ayre ern e of to conduct B,fd it ing Permit transactions by electronic means does not preVent You from refusing to conduct other trarsa coons bV elect life means. m \ \ / 3 ( x ) ( \ ( j / \ § � k \ � : 0 � � Q7 Attachment E: Staff Email to the Applicant on June 17, 2019 l(evitt McCollum From: Kevin McCollum Sent: Monday, June 17, 2019 8:25 AM To: lack Maus Cc: Rebecca Ragsdale; Keith Bradshaw Subject: Major Home Occupation Clearance Jack, Thanks for allowing us to come out and visit the property again on Thursday. Since then, Keith and I have met with the Zoning Administrator, along with the County Attorney's office, and have concluded that the Major Home Occupation Clearance cannot be approved until we can confirm that the structure meets the applicable setbacks, which are: Front — 75' Side — 25' Rear — 35' We can confirm that these setbacks are met by either seeing a physical survey that shows the location and distance of the structure to the property line or visibly seeing the property line in the field by clearly marked stakes. If the structure does not meet the required 25' side setback a boundary line adjustment is a possible solution to the bring the structure into compliance with the required Major Home Occupation side setback. The Building Permit (B2017-02431-NNR) was correctly approved given the information we were given at the time. The building was permitted as an accessory structure and no Major Home Occupation clearance was submitted alongside the building perm"'. Therefore, the setbacks were front — 75, side — 6, and rear — 6. V-eApi.w MC4COUV4W Planner, Zoning Albemarle County Community Development lor,,( (' :i)crr-, org 434-296-5832 x 3141 Attachment F: Official Determination RE: H0201900233 COUNTY OF ALSEMAI1LL Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902-4596 Phone (434) 296-5832 July 30, 2019 John R. Maus 7380 Gordonsville Rd Gordonsville, VA 22942 Fax (434) 972-4126 RE: H02019-00233 Major Home Occupation Clearance - Bufton and Maus, PLC Parcel ID 05000-00-00-04900 (2.40 Acres) (the "Property'), 7380 Gordonsville Rd, Gordonsville, VA 22942 Mr. Maus: In response to your request for a Major Home Occupation Clearance for the above referenced Property in the Rural Areas, please be advised of the following: Based on the information provided with the application and the site inspection conducted on June 13, 2019 the accessory structure on the Property, proposed with building permit B2017- 02431 NNR, does not meet the applicable setback and yard requirements for primary structures required by Section 5.2A(c). Thus, the noted accessory structure cannot be used for the proposed Major Home Occupation until it is determined to comply with the primary structure setbacks for the Rural Areas zoning district. Therefore, in accordance with Albemarle County Code § 18-5.2A(c) and Albemarle County Code § 18-31.5(b) the above referenced Major Home Occupation Clearance cannot be approved at this time. Additionally, if the proposed Major Home Occupation operates on the Property without an approved Zoning Clearance it will be considered in violation and subject to Albemarle County Code § 18-36. If you are aggrieved by this determination, you have a right to appeal it within thirty (30) days of this notice, in accordance with Virginia Code § 15.2-2311. If you do not file a timely appeal, this determination shall be final and unappealable. An appeal may be taken only by filing an appeal application with the Zoning Administrator and the Board of Zoning Appeals, in accordance with Albemarle County Code § 18-34.3, along with a fee of $258. Additionally, a separate fee is required for the cost of providing notice and advertising of the appeal for a public hearing. Applications for Appeal of the Zoning Administrator's Determination are available at the Department of Community Development located at 401 McIntire Road, Charlottesville, Virginia 22902 or online at . This form applies to the appeal of a decision of the zoning administrator or any other administrative officer pertaining to the Zoning Ordinance. 0 m July 30, 2019 H0201900233 Page 2 Regulations pertaining to the filing of an appeal to the Board of Zoning Appeals are located in Chapter 18, Section 34.3 of the Zoning Ordinance. They may be reviewed online at (Please note that our online documents are in Adobe Acrobat PDF format and must be viewed with the Adobe Acrobat Reader or an equivalent. A link to download the free plug-in is available at the bottom of Please contact me if you have questions or require additional information. Sincerely, Kevin McCollum Planner Authorized Designee to the Zoning Administrator Attachments: Links shown can be copied and pasted into web browser Albemarle County Code § 18-5 (See Section 5.2A for Major Home Occupation requirements) bemarle, County Code Ch18 Zoning05 Supplement Reoulations pdf Albemarle County Code § 18-31 (See Section 31.5 for Zoning Clearance requirements) http://www.albemarle.org/upload/images/Forms CenterlDepartments(County Attorney/FormslAl bemarle County Code Ch18_Zoning3l Admin Enforcement_gdf Albemarle County Code § 18-10 - Area and Bulk Regulations Sec. 10.4 (°applicable setback and yard requirements for primary structures" ref. 5.2A(c)) _�epartments/County Attorney/Forms/AI bemarle County Cade Ch18 Zoning10 Rural Areas.pdf Albemarle County Code § 18-36 htti)://www.albemarle.onluploadlimages/Forms Center/Departments/County Attomey/Forms/AI bemarle County Code Ch18 Zoning36 Violations. pdf /�W 70 yo CD- Gi cr CD e' C �z a 11 f ®7 PJ/➢ 3 Y.�9 � � =b e Y" m ca 0 �A10 o < CD. c D M. 3 O ®� 3 v o w o � � ® 8 ' `n s' cn o UO 0 D c 0 EFko CD CD �n a 3 e v s� e � CD C) g ®� 3 �o CD 0 a 0 o 0 a m � o m CD c ^� 0 � 3 3 m -73 "j4 (En 3 O) (n CD —_ (D M WCD N G O U) (D , w Q (O O Co 7 A CF E m A ... Lr, Old Dominion Engineering p 7 O 0 ((DD 0 0 c O 7 D V x a' w c CO 0 ul }.9b O � (D O (D 3. O N = 0 0 3 �. CD O 0 0 N 0 0 0 0 CD CD C) 0 Q (9) )"� t w�A W ¢b Ca N D N CD Q —PI 0 r I CD O I 0) N 7 Q 7 .O CD O v 9v 0 N N N O 1,2 U) C Q 0 I) 0 v CD 0 t cD cn v a3 v 0 2 0 CD K 0 11 ro (D 75- (' Gib Kd� 5 aka co— 0) 0 K. 73 a (D 6tli u KA � O CD PO co w `t bb Tj GAD Q Gu W �3 ab tlL ® 0) 0 0 Ef C) v Kr; e» 0 O 1-1 fli �b Kp '5 K/d K� 0 Co CD (A) 3 mom. 0 3 G/lA� dl/F f' Gtl:p K,8 a M ..kl 0 (7) 6 e� �b 0 m 0 K�7 7 O (D 0 78 le K N ® < 0 — N� (D (D CD 7 C. N 0 o �® U) CL O v -6 �n 0 �a O C < �. W m 0. s °< CD M �D . v ZF W (D 0 0� CD ®; CL(a U) CD EE ® M -- ® O C O Q vC: C. ®�D n 07 `D CD �n ® U C v -0 0 ® (D cn CD v ® 0 l< 07 3 O N 0 n ® ZY, to ® fD 3 v CD U) 7, �( CD v v� CD CD v Q a) a c 01 K) tV N -31 0 OL 0 m m n O a> (D as CD Q- 0 a � n' 0) p ® < CD (D fD 3 O Q 7 v (DDCO O (p N (D 9)� ® o CD O v O 0G) p (D CD O 0 O 0 (D CD CD CD p (D CD p cDOQ CD �3 G in v O � (D ® rt 0 G G CD CD CD O 3 wCD Q CD ? (n O DD 0 rt Q 3 (n (D CD CD CD -0 O C)- 7 C O O CD p -r C ZT O O O -a w 3 cn CD O N cr l< a o � m e S (D ° v P Cv � v` p n cD � (n N CD C CD C) O cn O Fam (D 3 Cn -0 O C o s-0 0 p z n 3 n> n CD o a cn a cD ® o c: o m o =3 cD<cD -O n BCD N < �°�a� O (D 0- m O v<o N Q Q � N M. W Pi: CD(D N C O O ® ® N O ® o = CD O 0 p� 0 W S (D Fn. a (D p. (D 8 p ® < (D (p rn N �. CD .-: (D 3 O 0 fll - �. o 0 �0 ° �3 0(D ° 7 O rt 9m CD �CD ® en O ga° O (D o' U) 3 O 0 CDCD a)M X V �. (Q Z3 .T O_ c 0 CD (O (Q < 0) 3 N N `G 0) o o -a CD v cn — O u CD 6 3 O v< �. (D < ro 0 � � ® 0 v. Cy v N C N CD N _� 7 3 (D -fin fl9 a O O_ o -O CD Z) �. '0 p 7o CD a ®� (p 0 -0 (D P« =r cn CDNCL O 0 = 3 0m m CD � N p O p O O- CD® N CD 3 Q- � 0 a- (D 3 N p N N 3- (n T. = '+ a)O O (D O O: N 7cn (n (o w ;- W � - O 3 0 N W W (a O s' .O N CD 'p`Qj l< ® aC Q=' N (1) (D 0) O (D C ®(n m 3 N O N CD® M cn � s O p o 3 a] 0 M C: Cf) CD ® N� 7 n D 0Z3 0— ® v_s = � —I CD ® 0) CD 73 CD m 0 C n ® G ® D = 3 G ® U 0 � ca a ci CD c o o W (D `" ® 0 ca 0) CD 0' N® aM' � - 0) n 0 (D zT (D , 7 m N v ®' D m � Q 6 - O ® D CD Q) (D Q �� 0 (D lyro CD � CD �<0 CD �cn o v - �CD (D CD � v « U) CD (D D (D a) 3 D Q wQ CDy Q w C(n fD l< � 6' 0 ro CD (D CD CDn ® Nro 0 7 Q w (D CD :y U) CD CD s -i a ® -q cl) -i ® -I ® a --I D` C a CO) a�w�n a D a ®� v ca m o v a o v 0- en CD M -ti r4 l v° r p� 0 CD N a) (b 6� ®� o— C> m o w 3 3 —� Q® va (® m ro n �. A 3 m v w cU a- Z ro CD 0 m rt m w (!1 a yr ® v o v ® (n ® i Q R $i 0. Z CL a- � ® CDR cn Q N 0 m PP N m �ro m rt A wF CD y0 I CD CL C ::r S Q w adh l< SU C 0 CD w� �v CD ICJ a c� w ®D o 0 0 � 0 0CD C _0 N 0 2) CD — � 0 ( ® 0 r CD3 n `Q :3 0 w 0. CD® ® a n o � m �, 7 CL (D CL v 0 ® 3 o n CL S 0 � CL (D ®_ <op 3 U) 0 CD D CD eu _0® ® cn 0 v 7 :3v o Q CD � 2 Q C 0 o to ro v C a ® U w o �. 0 v v D n n` $ U) o CD -a w C v En 0 D o < CL o — n 0 0 w 0 D 0 m v � M2 m IN m Attachment C: Major Home Occupation Clearance Application FOR OFFICE USE ONLY HO # r/ Ili 1 I u v v - !'l � � r~ Fee Amount $�'l ` Date Paid By who? r ���U�S Receipt k Ck# I By: �r Aygplir,00'o" for Mao or Home Ocempati®n Clearance (Only for parcels in the Rurni Am'eas Zoning District) Major Home Occupation Ciealrance = $27.00 + applicable fees This application may require additional review by the Foe Marsha]. rces in addition to those shown on this application maybe required by the Fire Prevention Code Fee schedule_ A conv of the schedule is available from the Fire Marshal_ Home Occupation, Major: An occupation, not expressly prohibited by section 5.2A, conducted for profit within a dwelling unit solely by one or more members of the family residing within the dwelling unit and up to two (2) additional persons not residing within the dwelling unit, with or without the use of accessory structures; provided that nothing herein prohibits the occupation from engaging other persons who work off -site and do not come to the dwelling unit or to any accessory structure to engage in the occupation. Applicant MUST HAVE the following information to apply: 1) Tax Map and Parcel Number (or Address) and a description of the Home Occupation. [3) ) A Floor Plan Sketch on the next page with the following: a) The total square footage of the dwelling; b) The square footage of area within the home being used for the occupation (note this cannot be more than 25% of the gross square footage of the dwelling). If applicable, a survey, plat, or aerial map showing accessory structures and parking associated with the home occupation. The GIS Web /enables easy viewing and printing of aerial maps. Name of Business: y,%! ;-�-q Type of Business: (its/ � Tax map and parcel: 95(A)6 '00 — �U� t. U c) Contact Person(who should we cail'wrile concerning this /pprojj�ect?):\ // Nt t/'t y Address<< 61e WC State �4—Zip Daytime Phone U�� ����' r��-� Fax- !'-'Y ) �UD �% E-mailE-mailia C�Ma4t- -I—Owner � � Owner of Record �i/B�ti _. - �µ fvt S, Address Daytime Phone Fax #( ) State DESCRIPTION OF USE (If necessary, attach an additional sheet. Include information about the number of vehicles and number of employees associated with the use, hours of operation, use of accessory structures, etc.): County of Albemarle Department of Community Development 401 McIntire Road Charlottesville, VA 22902 Voice: (434) 2%-M32 Fax: (434) 992-4126 4232018 Page I of4 A&� m Each major home occupation authorized in the Rural Areas zoning district is subject to the following: uINDEPSTAND THE IdE•�IiLNJ RFIMFCS_tiOR THIS CLEARANCE LOtC:A'ft ON & APEA This home occupation shall be conducted within the dwelling unit or accessory structures, or both, provided that not more than twenty-five (25) percent of the gross floor area of the dwelling unit shall be used for the home occupation and further provided that the cumulative area used for the home occupation, including the gross floor area within the dwelling unit or any accessory structure and the area used for outdoor storage as provided in section 5.2A(g), shall not exceed one thousand ve hundred (1500) square feet. Plants that are planted in the ground that are to be used for a major home occup"rbon do not count toward the one thousand five hundred (1500) square feet limitation. [Section 5.2A (b) (1)] NJ EXTERIOR APPEARANCE There shall be no change in the exterior appearance of a dwelling unit or other visible evidence of the conduct of the home occupation, except that one home occupation sign may be erected as authorized by section 4.15. Accessory structures shall be similar in fagade to a single-family dwelling, private garage, shed, barn or other structure normally expected in a residential area and shall be specifically compatible in design and scale with other residential development in the area ' which it is located. Any accessory structure that does not conform to the applicable setback and yard requireTdnts for primary structures shall not he used for a home occupation. [Section 5.2A (c) (I)] VVISITORS & SALES Customers, clients and students are permitted to visit the property where the home occupation is conducted. Only goods that are hand-crafted on -site and goods that are directly related to the home occupation, including but not limited to tools for pottery making and frames for artwork are permitted to be for sale to customers who comes to the site. [Sectio .2A (d) (1)] Nov met-1 i }r`PS tree���- c�no�fi �� cvs{er�e�S 2 the traffic generated by the home occupation shall not exceed ten (10) vehicle round trips per day or more than thirty (30) vehicle round trips per week. For the purposes of this section, a "vehicle round trip" means one vehicle entering and exiling the site. [Section 5.2A (e)] L[,Z PA KING Lo C-t�, o All vehicles used in the home occupation and all vehicles of employees, customers, clients or studentsrelated to the home occupation shall be parked on -site. [Section 5.2A (I)] L.,_t/QU, ll_, b AI ;STORAGE The storage of goods, products, equipment other than vehicles used in the home occupation, or any materials associated with the hole occupation, other than natural landscaping materials such as mulch and plants, outside of an enclosed structures prohibited. [Section 5.2A (g)] ''HOURS OF OPERA➢'][ON [v cr+`fe fhe. 4-?PiCCd L-,0© ,rV The home occupation may operate up to six (6) days per week and the hours of operation shall be between 7:00 a.m. and 8:00 p.m. for those home occupations that have employees, customers, clients or students visiting the site. ,[SSecti�on 5.2A (h)] LKNUMSER OF VEHICLES The number of vehicles that may be used in the home occupation that are parked or stored on -site shall not exceed two (2) motor vehicles and two (2) trailers. [Section 5.2A (1)] UMBER OF HOME OCCUPATIONS More than one home occupation is permitted on a parcel, provided that the area occupied and the traffic generated by the home occupations shall be considered cumulatively and all requirements of this section shall apply. [Section 5.2A (j)] Mato, H,nne Oecupnaon Cle.mma 423/2018 1ii, 2,n 4 C�l ORMANCE STANDAPWD The home occupation shall comply with the performance standards in section 4,14 (Section 5.2A (k)] Goes the use involve P10Ce jiurff,s Tnaac-Iftbrt ry vir chwlTIINDI E Chat nia.y cause t1w following? NOISE V I If RATION GLARE HEAR' AIR POLLUTION WATER POLLUTION RBADI OAQ.`H VI'R'Y ELECTRICAL MSTURBANCE NIOt4'-DONJES'rIC WAS'IT DISCHARGED TO A SEPTIC FIELD OR SEWER ZE'S, then applicable standards must be addressed with a Certified Engineer's Report (available from staff). t PI'OIId BI'I'Eit I1SES (I) any use requiring a special use permit under section (10) shooting ranges 10.2.2 (2) animal rescue centers (11) commercial stables (3) automobile graveyards (12) mmmage or garage sales other than those (4) restaurants determined by the zoning administrator to be occasional (5) storage yards (13) veterinary clinics or hospitals (6) gun sales, unless the guns are made on -site by one or (14) pyrotechnic (fireworks or bomb) device more family. members residing within the dwelling unit manufacturing or sale (7) on -site pet grooming (15) Any other use not expressly listed that is (8) hody shops determined by the zoning administrator to be contrary (9) equipment, trailers, vehicles or machinery rentals to the purpose and intent of section 5.2A. Section 5.2A (1)j IFICATiONS&: INSPECTIONS I will Ue 5eiki t71+5- OV4 5�+0/t-I� Wrif]en notice that an application for a zoning clearance fora major home occupation has been submitted will be sent to the owner of each abutting parcel under different ownership than the parcel on which the proposed home occupation . would be located The notice will identify the proposed home occupation, its size, its location, and whether there is a request for a waiver or modification. The notice shall invite the recipient to submit any comments before the zoning clearance is acted upon. The notice shall be mailed at least five (5) days prior to the action on the zoning clearance as provided in section 32.4.2.5. In addition, a public notice sign will posted on the property for the duration of the review. [Section .2A (u)] SIGNAGE A41 rilvial One sign that does not exceed four) (4) square feet in sign area and only states the name of the person occupying the dwelling and identifies the product or service offered by the home occupation is permitted. No additional permit is required for this sign, however, it must not exceed 6 ft, in height and must be setback at least 5 ft, from the public road right-of-wa Section 4.15.2 (25) and 4.15.81 DDITIONAL IMPROVEMENTS AND REVIEWS FROM OTHER AGENCIES A zoning clearance shall not be issued if, after review of any site, additional improvements are necessary to protect public health or safety. [Section 31.5 (c)] Other state and local resources, including but not limited to the Health Department, Virginia Department of Transportation, Building Official, and County Engineer are commonly asked to comment on Home Occupation applications. ,Ui ajor Home Occupation flearanoe 4i232018 Page 3 of 4 0 mu- WAIVERS OR MODIFICATIONS MAY BE SOUGHT ONLY FOR THE FOLLOWING: AREA The area requirements in section 5.2A(b) may be waived or modified, provided that the waiver or modification shall not authorize the home occupation to occupy more than forty-nine (49) percent of the gross floor area of the dwelling. In granting a waiver or modification of the area requirement, the commission shall make the following findings in addition to those findings in section 5.1: (1) the nature of the home occupation requires storage or additional space within the dwelling unit to conduct the home occupation; (2) the primary use of the dwelling unit as a residence is maintained; and (3) the waiver or modification would not change the character of the neighboring agricultural area or the residential neighborhood. [Section 5.2A (m) (1)] TRAFFIC The traffic limitation in section 5.2A (e) may be waived or modified. In granting a waiver or modification of the traffic limitation, the commission shall find, in addition to those findings in section 5.1, that the waiver or modification would not change the character of the neighboring agricultural area or the residential neighborhood. [Section 5.2A (m) (2)] KIA W FTIIOUT WAIVER REQUEST ($27 + notice fees) 1. Submit Home Occupation application ($27). 2. Staff will review for completion and mail abutting owner notification (Fee varies based on number of letters). 3. Staff will visit property to post public notice sign, review parking areas, proposed location of sign, and storage areas (if applicable). 4. Staff will approve application if requirements have been met and pick-up public notice sign. WITH A SPECIAL EXCEPTION ($27 + $457 + notice I. Submit Home Occupation application and Waiver application ($25 + $457). 2. Staff will review for completion and mail abutting owner notification (Fee varies based on number of letters). 3. Staff will visit property to post public notice sign, review puking areas, proposed location of sign, and storage areas (if applicable). 4. Staff will coordinate date of next available Planning Commission meeting to process special exception 5. Staff will approve application if requirements have been met and Dick -up public notice sign. Owner/Applicant Must Read and Sign I hereby apply for approval to conduct the Home Occupation identified above, and certify that this address is my legal residence. I also certify-Nrat I have read the restrictions on Home Occupations, that I understand them, and that I will abide by them.nh�r6/"� a �onj unction with a business license, represents zoning approval to conduct the Major Home Occupa Ll"fr kit Inc:%a4fo d� gr t-rc nr 11kIFcant Date flthe Official Date Building Official Date Zoning Official Date ENGINEER'S REPORT ATTACHED: YES NO CONDITIONS: ko,or Hcanc Occnpaiion Clearmce 4,23, 2018 Pape 4 of 4 Air Plans BUFTON & MAUS LAW OFFICE ALBEMARLE COUNTY CODE 5.2A HOME OCCUPATIONS IN THE RURAL AREAS ZONING DISTRICT Each home occupation authorized in the rural areas Zoning district shall be subject to the following: Purpose and intent. The purpose for authorizing home occupations in the rural areas zoning district is to encourage limited home -based economic development, balanced with the need to protect and preserve the quality and character of the county's agricultural areas and residential neighborhoods in the rural areas zoning district. The regulations in this section are intended to ensure that authorized home occupations will be compatible with other permitted uses, the agricultural areas, and the residential neighborhoods by regulating the scale, hours, external activities, external appearance and other impacts that may arise from a home occupation. b. Location and area occupied by a home occupation. A home occupation shall be located and sized as follows: Major home occupations. A major home occupation shall be conducted within the dwelling unit or accessory structures, or both, provided that not more than twenty-five (25) percent of the gross floor area of the dwelling unit shall be used for the home occupation and further provided that the cumulative area used for the home occupation, including the gross floor area within the dwelling unit or any accessory structure and the area used for outdoor storage as provided in section 5.2A(g), shall not exceed one thousand five hundred (1500) square feet. Plants that are planted in the ground that are to be used for a major home occupation do not count toward the one thousand five hundred (1500) square feet limitation. 2. Minor home occupations. A minor home occupation shall be conducted entirely within the dwelling unit, provided that not more than twenty-five (25) percent of the gross floor area of the dwelling unit shall be used for the home occupation and further provided that <� the gross floor area used for the home occupation shall not exceed one thousand five hundred (1500) square feet. C. Exterior appearance. The exterior appearance of a parcel with a home occupation shall be subject to the following: 1. Major home occupations. There shall be an change in the exterior appearance of a dwelling unit or other visible evidence of the conduct of a major home occupation, except that one home occupation sign may be erected as authorized by section 4.15. Accessory structures shall be similar in fapade to a single-family dwelling, private garage, shed, barn or other structure normally expected in a residential area and shall be specifically compatible in design and scale with other residential development in the area in which it is located. Any accessory structure that does not conform to the applicable setback and yard requirements for primary structures shall not be used for a home occupation. 2. Mmor home occupations. There shall be an change in the exterior appearance of a dwelling unit or other visible evidence of the conduct of a minor home occupation. d. Visitors and sales. Visitors and sales related to a home occupation shall be subject to the following: 1. Major home occupations. Customers, clients and students may visit a major home occupation. The sale of goods by the major home occupation to a customer who comes to the site is prohibited except for goods that are hand-crafted on -site and accessory goods that are directly related to a major home occupation, including but not limited to tools for pottery making and frames for artwork 18-5-22.46 Zoning Supplement #116, 8-7-19 t2r, 1) t ALBEMARLE COUNTY CODE 2. Minor home occupations. No customers, clients or students may visit a minor home occupation for a purpose related to the home occupation. The sale of goods or the provision of services by the minor home occupation to a customer, client or student at the site is prolubited. e. Trade generated by a major home occupation. The traffic generated by a major home occupation shall not exceed ten (10) vehicle round trips per day or more than thirty (30) vehicle round trips per week For the purposes of this section, a "vehicle round trip" means one vehicle entering and exiting the site. f. Parking. All vehicles used in a home occupation and all vehicles of employees, customers, clients or students related to a major home occupation shall be puked on -site. g. Outdoor storage. The storage of goods, products, equipment other than vehicles used in a home occupation, or any materials associated with a home occupation, other than natural landscaping materials such as mulch and plants, outside of an enclosed structure is prohibited. h. Days and hours of operaion for major home occupations. Major home occupations may operate up to six (6) days per week and the hours of operation shall be between 7:00 a.m. and 8:00 p.m. for those home occupations that have employees, customers, clients or students visiting the site. i. Number of vehicles used in a home occupation. The number of vehicles that may be used in a home occupation that are parked or stored on -site shall not exceed two (2) motor vehicles and two (2) trailers. j. Number ofhome occupations. More than one home occupation is permitted on a parcel, provided that the area occupied and the traffic generated by the home occupations shall be considered cumulatively and all requirements of this section shall apply. k. Performance standards. All home occupations shall comply with the performance standards in section 4.14. 1. Prohibited home occupations. The following uses me prohibited as home occupations: (1) any use requiring a special use permit under section 10.2.2; (2) animal rescue centers; (3) junkyards; (4) restaurants; (5) storage yards; (6) gun sales, unless the guns are made on -site by one or more family members residing within the dwelling unit; (7) on -site pet grooming; (8) body shops; (9) equipment, trailers, vehicles or machinery rentals; (10) shooting ranges; (11) commercial stables; (12) rummage or garage sates other than those determined by the zoning administrator to be occasional; (13) veterinary clinics or hospitals; (14) pyrotechnic (fireworks or bomb) device manufacturing or sales; and (15) any other use not expressly listed that is determined by the zoning administrator to be contrary to the purpose and intent of section 5.2A. in. Waivers and modifications. The waiver or modification of any requirement of section 5.2A is prohibited except as provided herein: Area. The area requirements in section 5.2A(b) may be waived or modified, provided that the waiver or modification shall not authorize the home occupation to occupy more than forty-nine (49) percent of the gross floor area of the dwelling. In granting a waiver or modification of the area requirement, the commission shall make the following findings in addition to those findings in section 5.1: (1) the nature of the home occupation requires storage or additional space within the dwelling unit to conduct the home occupation; (2) the primary use of the dwelling unit as a residence is maintained; and (3) the waiver or modification would not change the character of the neighboring agricultural area or the residential neighborhood 18-5-22.47 Zoning Supplement #116, 8-7-19 / Z. ALBEMARLE COUNTY CODE 2. Traffic. The traffic limitation in section 52A(e) may be waived or modified In granting a waiver or modification of the traffic limitation, the commission shall find, in addition to those findings in section 5.1, that the waiver or modification would not change the character of the neighboring agricultural area or the residential neighborhood. It. Zoning clearance required; notice of request. No home occupation shall commence without a zoning clearance issued under section 31.5. For each zoning clearance requested for a major home occupation, the zoning administrator shall provide written notice that an application for a zoning clearance bas been submitted to the owner of each abutting parcel under different ownership than the parcel on which the proposed home occupation would be located The notice shall identify the proposed home occupation, its size, its location, and whether any waiver or modification is requested The notice shall invite the recipient to submit any comments before the zoning clearance is acted upon. The notice shall be mailed at least five (5) days prior to the action on the zoning clearance as provided in section 32.4.2.5. (Ord 11-18(1), 1-12-11; Ord. 19-18(3), 6-5-19) 18-5-22.48 Zoning Supplement #116, 8-7-19 9' 3 ALBEMARf.E COUNTY CODE c. Provisions of section 10.3.3, rural preservation development, shall be applied to the entire parcel. Combination of conventional and Waal preservation development within the parcel shall not be permitted, provided that the total number of lots achievable under section 10.3.1 and section 10.3.2 shall be permitted by authorization of more than one (1) rural preservation tract. Nothing contained herein shall be deemed to preclude the director of current development and zoning from approving a rural preservation development for multiple tracts of adjoining land, or on land divided or otherwise altered prior to the effective date of this provision; provided that, in either case, the provisions of section 10.3.3 shall be applicable; d. The area devoted to development lots together with the area of roadway necessary to provide access to such lots shall not exceed the number of development lots multiplied by a fiictor of six (6) expressed in acres; e. No rural preservation development shall contain less than one (1) rural preservation tract. The director of current development and zoning may authorize more than one (1) rural preservation tract in a particular case pursuant to the various purposes of Waal preservation development as set forth in section 10.3.32 or in accord with section 103.3.3.c, as the case may be; No rural preservation tract shall consist of less than forty (40) acres. Except as specifically permitted by the director of current development and zoning at time of establishment, not more than one (1) dwelling rout shall be located on any rural preservation tract or development lot. No rural preservation tract shall be diminished in area. These restrictions shall be guaranteed by perpetual easement accruable to the County of Albemarle and the public recreational facility authority of Albemarle County in a form acceptable to the board. In accordance with Chapter 14 of the Code of Albemarle, the director of planning and community development shall serve as agent for the board of supervisors to accept such easement. Thereafter, such easement may be modified or abandoned only by mutual agreement ofthe grantees to the original agreement, g. Each application for a rural preservation development is subject to the review and approval of the director of current development and zoning. (§ 20-10.3.3.3, 11-8-89; § 18-10.3.33, Ord. 98-A(1), 8-5-98; Ord. 04-18(1), 5-5-04 effective 7-1-04) Sec.10A Area and bulk regulations. Area and bulk regulations within the RA, renal areas, zoning district are as follows: REQUIREMENTS DIVISIONS BY DIVISIONS BY SPECIAL RIGHT USE PERMIT Gross density 0.5 dulac 0.5 dulac Minimum lot size 2.0 acres 2.0 acres Minimum frontage existing public roads 250 feet 250 feet Minimum frontage internal public or private roads 150 feet 150 feet Yards, minimum: Front (existing pubhc roads) 75 feet 75 feet Front (internal public or private road)(Amended 11-13-91) 25 feet 25 feet Side 25 feet 25 feet Rear 35 feet 35 feet Maximum structure her ht 35 feet 35 feet Q 20-10.4, 12-10-80; 8-14-85; § 18-10A, Ord. 98-A(1), 8-5-98; Ord. 08-I8(7), 11-12-08) 18-10-8 Zoning Supp. 9113, 6-549 PMI February 4, 2020 Rehearing Evelyn Bufton & John Maus Appeal Albemarle County Board of Zoning Appeals AP201900004 TM50P49 Approval of October 1, 2019 Rescinded 95 GREG KAMPTNER COUNTY OF ALBEMARLE RICHARD A. DELORIA COUNTY ATTORNEY Office of County Attorney AMANDA E. B. FARLEY 401 McIntire Road, Suite 325 SUSAN BAUMGARI \1 ER Charlottesville, Virginia 22902-4596 g ANTHONY R. BESSEI-I F ',I ANDREW H. HER NIOR nssi,� I Vy r DEPUTY COUNTY ATTORNEY PHONE (434) 972-4067 (la VV A 110RVCYS FAX (434) 972-4068 Marsha Alley, Recording Secretary Albemarle County Board of Zoning Appeals 401 McIntire Road Charlottesville, Virginia 22902 Re: Motion for Rehearing of Bufton & Maus appeal (AP201900004) Dear Marsha: Please find enclosed a Motion for Rehearing of the Board of Zoning Appeals' October 1 decision in the Button & Maus appeal (AP201900004). This Motion is being filed pursuant to Rule 5(J) of the BZA's Rules or Procedure, on behalf of the Albemarle County Board of Supervisors. Though this decision has not yet been appealed to the Circuit Court, we strongly suggest that the Chair call a special meeting of the BZA, pursuant to Rule 2(C), before October 31. Though Virginia Code § 15.2-2308.1 precludes BZA members from certain direct communications with County staff, I'd welcome any questions that you or counsel may have. Thank you for accepting the Board of Supervisors' filing of this Motion. Enclosure Cc: James M. Bowling, IV, Esq. John R. Maus and Evelyn Button Sincerely, tLL Andrew H. Herrick Deputy County Attorney M 19 (P OCT 0 9 2a15 COMMUNITY DEVELOPMENT io g7 VIRGINIA: BEFORE THE ALBF.WARLE COUNTY BOARD OF ZONING APPEALS IN RE: BUFTON & MAUS LAW OFFICE APPEAL AP2019-00004 tti O B0',,J FOR REHLAMNG Pursuant to Rule 5(J) of Rules of Procedure of the Albemarle County Board of Zoning Appeals (the "BZA"), the Albemarle County Board of Supervisors (the "Board"), by counsel, respectfully moves for a rehearing of the BZA's October 1, 2019 decision in the above -captioned appeal. In support of its Motion, the Board respectfully states that the BZA (a) lacked any factual evidence that the proposed home occupation use in fact complied with the applicable (25 foot) setbacks, and (b) lacked any legal authority to waive those setbacks. In further support of its Motion, the Board further states as follows: The Board incorporates by reference the materials previously submitted on its behalf, including (but not limited to): a, letter of Kevin McCollum, designee of the Zoning Administrator, to John R. Maus, dated July 30, 2019 (the subject determination of the present appeal); b. staff report of Kevin McCollum and Bart Svoboda, dated October 1, 2019; and c. memorandum of the undersigned counsel, dated September 19, 2019. Lack of Evidence/Burden of Proof 2. Under 6 Mona ('ode 4 15.2-2309(1): "The determination of the administrative officer skill be presumed to be correct. At a licaring on an appeal, the administrative officer shall explain [lie basis for his determination .dicr which the appellant has the burden of Proof to rebut such presumption of correctness by a preponderancc of the evidence." Icniphasis added) 3. Because the appellants failed to produce aoc evidence that the proposed home occupation use in fact complied with the applicable (25 foot) setbacks, the BZA should have affirmed the administrative determination, rather than insisting that the Zoning Administrator bear the burden of proving the appellants' non-compliance. X rr39711r{�7 OCT 0 8 2010 COMMUNITY an4m DEVELOPMENT pg z J 4 m M Lack of "Written Order. Requirement. Decision or Determination" Subject to Change 4. Though the BZA relied heavily on the "remedial nature" of Virginia Code § 15.2- 231 I(C), the BZA failed to identify any specific "written order, requirement, decision or determination made by the zoning administrator or other administrative officer" that was being changed or restored. 5. Because no zoning administrator or other administrative officer was seeking to change, modify or reverse any such order, requirement, decision or determination, there was no such order, requirement, decision or determination for the BZA to restore. 6. Because all such orders, requirements, decisions and determinations remain unchanged, Virginia Code § 15.2-2311(C) simply does not apply to the subject appeal. Change in Relevant and Material Conditions or Situations 7. The BZA's October I decision on this appeal has not already been appealed to the Circuit Court. 8. However, following the BZA's October I decision, the Board has indicated its strong concern and intent to further appeal the BZA's October 1 decision by October 31 unless the BZA first takes corrective action. 9. This change in one or more relevant and material conditions or situations bears on the BZA's original decision and justifies a prompt rehearing. WHEREFORE, the Albemarle County Board of Supervisors respectfully requests that the BZA promptly rehear its October 1, 2019 decision in the above -captioned appeal. Respectfully Submitted, ALBEMARLE COUNTY BOARD OF SUPERVISORS By Counsel .E RECEIVED QCi 0 8 mi9 COMMUNITY DEVELOPMENT lot i Greg Kamptner, VSB # 33788 Andrew H. Herrick, VSB #37236 ALBEMARLE COUNTY ATTORNEY'S OFFICE 401 McIntire Road Charlottesville, Virginia 22902 (434)972-4067 FAX (434) 972-4068 October 8, 2019 CERTIFICATE OF SERVICE I hereby certify that on this 81� day of October, 2019, a true copy of the foregoing Motion for Rehearing was sent by first-class mail, postage prepaid, to: James M. Bowling, IV, Esq. St. John, Bowling, Lawrence & Quagliana, LLP 416 Park Street Charlottesville, Virginia 22902 John R. Maus and Evelyn Bufton Post Office Box E Gordonsville, Virginia 22942 R Andrew H. Herrick ( of. RECEIVED kn_ e OCT a 9 2010 -4anaes3 COMMUNITY DEVELOPMENT Io3 Evelyn Bufton John R. Maus B=ON & MAUS, PLC Attorneys at Law Post Office Box E 7380 Gordonsville Road Gordonsville, Virginia 22942 phone: (540) 832-6172 fax: (540) 406-5911 October 11, 2019 BY EMAIL TO MALLEY30ALBEMARLE.ORG Ms. Marsha Alley, Recording Secretary Albemarle County Board of Zoning Appeals 401 McIntire Road Charlottesville, Virginia 22902 Re: County's Motion for Rehearing of Bufton & Maus appeal (AP201900004) Dear Ms. Alley: Enclosed herewith is our Objection to the County's Motion for Rehearing. Because (1) Mr. Herrick chose to send our copy of his motion by the slowest means available (i.e., by US Postal Service), rather than by fax or email, each of which addresses he had, (2) Mr. Herrick suggests that the BZA must act quickly on the County's motion and (3) we are about to enter a 3-day holiday weekend, I am sending a copy of this letter and our Objection to the BZA chairman, John Shepherd. Thanking you for your continuing courtesy, I remain i lohne tru13'yoms R. Maus Enclosure Cc: Mr. Herrick (by first class mail) Mr. Bowling (by first class mail) Mr. Shepherd (by email) La+ In Re: Bufton & Maus Law Office Appeal No AP2019-00004 Objection to Motion for Rehearing Applicants respectfully move the Albemarle County Board of Zoning Appeals (hereinafter, "the BZA") to deny the motion of the Albemarle County Board of Supervisors for rehearing pursuant to Rule 5(J) of the BZA's rules and, in support hereof, state that: 1. Rule 50) provides that the BZA may grant a motion for rehearing provided that an appeal has not been taken to the Circuit Court only if: A. new evidence can be presented that, in the opinion of the BZA, is relevant and material to the decision but could not have been presented at the original hearing, or B. in the opinion of the BZA, one or more relevant and material conditions or situations have changed so as to bear on the BZA's original decision. 2. On its face, the County's Motion for Rehearing does not allege that new evidence has been discovered that could not have been presented at the original hearing, nor does it allege that there has been any change of circumstances since the BZA hearing and decision. EN 1695 3. Instead, the County's Motion for Rehearing suggests that the BZA acted improperly by: A. Shifting the burden of proof from the Applicants to the administrative officer, and B. Misinterpreting the application of Virginia Code §15.2-2311(C). 4. Neither of the grounds set forth in paragraphs 3A and 3B above is grounds for rehearing under Rule 5 (J). S. The Motion for Rehearing also curiously - and incorrectly - alleges that the County's decision to question the BZA ruling somehow constitutes a change in relevant and material conditions or situations. WHEREFORE, Applicants respectfully move the Board of Zoning Appeals to deny the County's Motion for Rehearing. John R. Maus, Attorney at Law Virginia State Bar No. 13420 Bufton & Maus, PLC Post Office Box E Gordonsville, Virginia 22942 Phone: 540-832-6172 Fax: 540-406-5911 M (O (o Certificate I certify that, on October 11, 2019, I sent a copy of the foregoing pleading by first class mail, postage prepaid, to: Andrew W. Herrick, Deputy County Attorney Albemarle County Attorney's Office 401 McIntire Road Charlottesville, Virginia 22902 And James M. Bowling, IV, Esq. St. John, Bowling, Lawrence and Quagliana, LLP 416 Park Street Charlottesville, Virginia 22902 M 167 October 29, 2019 Special Meeting of Evelyn Bufton & John Maus Appeal Requested by Albemarle County Board of Supervisors. Albemarle County Board of Zoning Appeals AP201900004 TM50P49 Decision made to rehear at a future date, and time allowed for the applicant to request a variance for set back requirements. so a COUNTY OF ALBEMARLE Department of Community Development 401 Mclntue Road, North Wing Charlottesville, Virginia 22902-4596 Phone (434) 296-5832 Fax (434) 972-4126 ALBEMARLE COUNTY BOARD OF ZONING APPEALS COUNTY OFFICE BUILDING 401 MCINTIRE ROAD SPECIAL MEETING AGENDA LANE AUDITORIUM, 10:00 A.M TUESDAY, OCTOBER 29, 2019 Call to Order 2. Establish a Quorum 3. Motion for Rehearing: AP201900004 Bufton & Maus, PLC 4. Scheduling of Rehearing, if granted 5. Rehearing, if scheduled for this Special Meeting A. Appeal Number: AP201900004 Bufton & Maus TMP 50 - 49 Property Owner/Appellant: Evelyn Bufton and John R. Maus Staff: Bart Svoboda/Kevin McCollum Adjournment 16C' GREG KAMPTNER COUNTY OF ALBEMARLE RICHARD A. DELORIA COUNTY ATTORNEY Office of County Attorney AMANDA E. B. FAR -LEY 401 McIntire Road, Suite 325 SUSAN BAUMGARTNER Charlottesville, Virginia 22902-4596 g ANTHONY R. BESSETTE ANDREW H. HERRICK SFNIOR %SsJsTANT DEPUTY COUNTY ATTORNEY PHONE (434) 972-4067 �p1 N I Y iA I t'OR NEYS FAX (434) 972-4068 Marsha Alley, Recording Secretary Albemarle County Board of Zoning Appeals 401 McIntire Road Charlottesville, Virginia 22902 Re: Motion for Rehearing of Bufton & Maus appeal (AP201900004) Dear Marsha: Please find enclosed a Motion for Rehearing of the Board of Zoning Appeals' October I decision in the Bufton & Maus appeal (AP201900004). This Motion is being filed pursuant to Rule 5(J) of the BZA's Rules or Procedure, on behalf of the Albemarle County Board of Supervisors. Though this decision has not yet been appealed to the Circuit Court, we strongly suggest that the Chair call a special meeting of the BZA, pursuant to Rule 2(C), before October 31. Though Virginia Code § 15.2-2308.1 precludes BZA members from certain direct communications with County staff, I'd welcome any questions that you or counsel may have. Thank you for accepting the Board of Supervisors' filing of this Motion. Enclosure Cc: James M. Bowling, IV, Esq. John R. Maus and Evelyn Bufton Sincerely, t 0 ) Andrew H. Herrick Deputy County Attorney 1 (D OCT 6 6 zolo ` --O-c -2 COMMUNITY DEVELOPMENT i'°s lj4 Nw' lit VIRGINIA- BEFORE THE ALBEIkIA RLE COUNTY BOARD OF ZONING APPEALS IN RE: BUFTON & MAUS LAW OFFICE APPEAL AP2019-00004 MOTION FOR REHEARING Pursuant to Rule 5(J) of Rules of Procedure of the Albemarle County Board of Zoning Appeals (the "BZA"), the Albemarle County Board of Supervisors (the "Board"), by counsel, respectfully moves for a rehearing of the BZA's October 1, 2019 decision in the above -captioned appeal. In support of its Motion, the Board respectfully states that the BZA (a) lacked any factual evidence that the proposed home occupation use in fact complied with the applicable (25 foot) setbacks, and (b) lacked any legal authority to waive those setbacks. In further support of its Motion, the Board further states as follows: The Board incorporates by reference the materials previously submitted on its behalf, including (but not limited to): a. letter of Kevin McCollum, designee of the Zoning Administrator, to John R. Maus, dated July 30, 2019 (the subject determination of the present appeal); b. staff report of Kevin McCollum and Bart Svoboda, dated October 1, 2019; and c. memorandum of the undersigned counsel, dated September 19, 2019. Lack of Evidence/Burden of Proof 2. Under I7rXinit 0)de4 15. 2309(l): "The determination of the administrative ollicer si:dl be presumed to be correct. At a lmcarinn on an appeal, the administrative officer shill expkun the basis for his determination after i+hich the appellant has the burden of drool to rebut such presumption of correctness by a preponderuice of the evidence." leniphasis added( 3. Because the appellants Ftilcd to produce any evidence that the proposed home occupation use in fact complied with the applicable (25 foot) setbacks, the BZA should have affirmed the administrative determination, rather than insisting that the Zoning Administrator bear the burden of proving the appellants' non-compliance. ve OCT 9 4 7919 COMMUNITY DEVELOPMENT ?�, Z J 4 p^' 105 Lack of "Written Order, Requirement. Decision or Determination" Subiect to Change 4. Though the BZA relied heavily on the "remedial nature" of Virginia Code § 15.2- 2311(C), the BZA failed to identify any specific "written order, requirement, decision or determination made by the zoning administrator or other administrative officer" that was being changed or restored. 5. Because no zoning administrator or other administrative officer was seeking to change, modify or reverse any such order, requirement, decision or determination, there was no such order, requirement, decision or determination for the BZA to restore. 6. Because all such orders, requirements, decisions and determinations remain unchanged, Virginia Code § 15.2-2311(C) simply does not apply to the subject appeal. Change in Relevant and Material Conditions or Situations 7. The BZA's October l decision on this appeal has not already been appealed to the Circuit Court. 8. However, following the BZA's October 1 decision, the Board has indicated its strong concern and intent to further appeal the BZA's October I decision by October 31 unless the BZA first takes corrective action. 9. This change in one or more relevant and material conditions or situations bears on the BZA's original decision and justifies a prompt rehearing. WHEREFORE, the Albemarle County Board of Supervisors respectfully requests that the BZA promptly rehear its October 1, 2019 decision in the above -captioned appeal. Respectfully Submitted, ALBEMARLE COUNTY BOARD OF SUPERVISORS By Counsel re 1 l 4" RECEIVED ou 0 B ?01§ COMMUNITY DEVELOPMENT tie Lj1 /VV VVt, l V it Greg Kamptner, VSB # 33788 Andrew H. Herrick, VSB #37236 ALBEMARLE COUNTY ATTORNEY'S OFFICE 401 McIntire Road Charlottesville, Virginia 22902 (434)972-4067 FAX (434) 972-4068 October 8, 2019 CERTIFICATE OF SERVICE I hereby certify that on this 81� day of October, 2019, a true copy of the foregoing Motion for Rehearing was sent by first-class mail, postage prepaid, to: James M. Bowling, IV, Esq. St. John, Bowling, Lawrence & Quagliana, LLP 416 Park Street Charlottesville, Virginia 22902 John R. Maus and Evelyn BuBon Post Office Box E Gordonsville, Virginia 22942 N Andrew H. Herrick tl(0 RECEIVED S�1^Gcic 2 OCT o 9 toll �cnt,o COMMUNITY DEVELOPMENT `Z Evelyn Bufton John R. Maus BUFTON & MAUS, PLC Attorneys at Law Post Office Box E 7380 Gordonsville Road Gordonsville, Virginia 22942 phone: (540) 832-6172 fax: (540) 406-5911 October 11, 2019 BY EMAIL TO MALLEY3@ALBEMARLE ORG Ms. Marsha Alley, Recording Secretary Albemarle County Board of Zoning Appeals 401 McIntire Road Charlottesville, Virginia 22902 Re: County's Motion for Rehearing of Bufton & Maus appeal (AP201900004) Dear Ms. Alley: Enclosed herewith is our Objection to the County's Motion for Rehearing. Because (1) Mr. Herrick chose to send our copy of his motion by the slowest means available (i.e., by US Postal Service), rather than by fax or email, each of which addresses he had, (2) Mr. Herrick suggests that the BZA must act quickly on the County's motion and (3) we are about to enter a 3-day holiday weekend, I am sending a copy of this letter and our Objection to the BZA chairman, John Shepherd. Thanking you for your continuing courtesy, 1 remain Ve trul'youts Sohn R. Maus Enclosure Cc: Mr. Herrick (by first class mail) Mr. Bowling (by first class mail) Mr. Shepherd (by email) 1lt V". WMI BEFORE THE ALBEMARLE COUNTY BOARD OF ZONING APPEALS In Re: Bufton & Maus Law Office Appeal No AP2019-00004 Objection to Motion for Rehearine Applicants respectfully move the Albemarle County Board of Zoning Appeals (hereinafter, "the BZA") to deny the motion of the Albemarle County Board of Supervisors for rehearing pursuant to Rule 5(J) of the BZA's rules and, in support hereof, state that: 1. Rule 5(J) provides that the BZA may grant a motion for rehearing provided that an appeal has not been taken to the Circuit Court only if: A. new evidence can be presented that, in the opinion of the BZA, is relevant and material to the decision but could not have been presented at the original hearing, or B. in the opinion of the BZA, one or more relevant and material conditions or situations have changed so as to bear on the BZA's original decision. 2. On its face, the County's Motion for Rehearing does not allege that new evidence has been discovered that could not have been presented at the original hearing, nor does it allege that there has been any change of circumstances since the BZA hearing and decision. 'Wr ►Lq 3. Instead, the County's Motion for Rehearing suggests that the BZA acted improperly by: A. Shifting the burden of proof from the Applicants to the administrative officer, and B. Misinterpreting the application of Virginia Code §15.2-2311(C). 4. Neither of the grounds set forth in paragraphs 3A and 3B above is grounds for rehearing under Rule 5(1). S. The Motion for Rehearing also curiously - and incorrectly - alleges that the County's decision to question the BZA ruling somehow constitutes a change in relevant and material conditions or situations. WHEREFORE, Applicants respectfully move the Board of Zoning Appeals to deny the County's Motion for Rehearing. John R. Maus, Attorney at Law Virginia State Bar No. 13420 Button & Maus, PLC Post Office Box E Gordonsville, Virginia 22942 Phone: 540-832-6172 Fax: 540-406-5911 r'i Certificate I certify that, on October 11, 2019, 1 sent a copy of the foregoing pleading by first class mail, postage prepaid, to: Andrew W. Herrick, Deputy County Attorney Albemarle CountyAttorney's Office 401 McIntire Road Charlottesville, Virginia 22902 James M. Bowling, IV, Esq. St. John, Bowling, Lawrence and Quagliana, LLP 416 Park Street Charlottesville, Virginia 22902 leg Plans � 6UFTON & MAUS LAW OFFICE l Zti st Pll�ltl\C A, of, Aupust 16,'019 7:34 PM Z t W o f Snpervi.cors of Richmond Cry. h. Rhoctets Supreme Court of Virginia August 31, 2017, Decided Record No. 161209 Reporter 29a Va.43 �; 803 S.E.2c1329 ": 2017 Va. LENS I10 °,`°; 20t7 WL 3765193 determination, BOARL) OF SLJPERV ISc.)RS OF RICHMOND COUNTY v. JANIE L. RHOADS. ET AL. Prior History: [***I] FROM THE CIRCUIT COURT OF RIC:HMOND COUNTY, Harry T. Taliaferro, III, ,fudge. Bd_ of Suncrvlwt i v_Rhortd�_)016J ct /IBIS 202 Wo Dec. _1; 1016) Disposition: Affirmed. Case Summary Overview HOLDINGS: [1]-Va. (,'ode ,qrn_ ,5 1?.I-2371( ) was correctly applied to conclude that a certificate issued by a zoning administrator was not void alb initio where, due to its plain language n}Id remedial nature, b' 15.==_'311((') manifestly created a legislatively -mandated limited exocptiu❑ to the general principle that a building permit issued in violation of apphuible zoning orclivanees vvas void, [2]-The signed ecrlific9te was a written order by the zoning achninia'traltor as it clearly constituted a determinelion that the ownersbuilding plans for a garage complied with the zoning ordinances; [3]- Pnl'Sn211t to § 1.5.2-231 JL the owners had a vested right to use their property in the manner originally approved by the zoning administrator where approval was within the administrator's delegated authority, more than 60 days had p;issetl, and the owners materially relied upon the John M Outcome Judgment affirmed. Counsel: For BOARD OF SUPERVISORS OF RICHMOND COUNTY, Appellant: MC'ROBERTS, ANDREW RAY, (ESQ.), 1VIACKENZIE, CHRISTOPHER MIC;HAEL, (ESQ.). For RHOADS, JANIE L., RHOADS, EDNIUND, RHOADS, CRYSTAL, RHOADS, MLADE, Appellees: MONDAY. MONK A TAYLOR, (ESQ,, N RIGHT, KATI ILEEN LYNCH, (ESQ,). BUGG, ALBERT DAMS, JR., LEW),BUGG, ALBEIZT DAVIS. III, ('ESQ.). Judges: OPINION BY JUSTICE S. BERNARD GOODWYN, Opinion by: S. BERNARD GOODWYN (**331] [*46] PRESENT: All the Justices OPINION BY JUSTICE S. BERNARD GOODWYN In this appeal, we consider whether the circuit court erred in applying (ur/le S i 2-'31I(C') and ruling that property owaerS had a vested right to the use of their property ill violation of a zoning ordinance. When more than 60 days elapsed after the zoning administrator issued a cletet'mivatio❑ which ❑Mowed AUS F " l23 294 Va. 43, *46: 803 S.E.2d 329. "331; 2017 Va. LEXIS 110, ***l Piloe 2 of 7 that use, nlicl the pronerry owners materially chane-cl taco p.tsitioi: i❑ ;god fiuth reliance upon that determination. [*47] BACKGRCJLINU Janie Rhoads, Edmund Rhoads, Crystal Rhoads. and Meade Rhoads (collectively, the RLomdses) owl" property in Richmond County (the Property).' On November 13, 2013, the Rlfoaci,es filed an appiication for a Zoning Certificate o1' Compliance (Application) [***2] to build ar "2-story s.11 untinis:icd detached garage" (Garage) ou the Propcny, and l:lltoched archilcctural ch-ii' rings of ti.e proposed Game c. The Richmond Coanty (( oawv) zuuireg administrator, Morgan Quicke (Quicke), visited the Property, which has a one-story prim,uy hvehhig, before checking the box for "Approved" on the Application and signing the Certificate of Compliance (Certificate) o❑ November llt, 2013.' The Ceitificsrte included instructions how to appeal if the Apphca.tiou was denied. The Rhoadses completed the Garage in June 2014 at a cost of approximately $27,000. In hiiy 2014, .loseph Quescabcrry, the new Cor.nty zonii» administrator (Qucsenbcny), infonned the Rho.idaes that the previously :i.pproved Garage was in violaton o±Richmond County Zoning Ordinance (Zouing Ordnance) Section 2-3-6 (Uie Ordinance), bet Luc it vvao tel,cr tian the prima) stlu�trre oil the Piopc9y. O❑ Scpte,nbci 24, 20i4; a written notice of zoeiny viniat;on was sent to the Rh.oacLcs, advising them that the Garage was in violation of the Ordinance (Notice). The Rhoadses appealed the Notice to the County Board of Zoning .Appeal, (BZA) by letter dated Octo'-ez 13, 2014_ The stated grounds for rite appeal i tVler lc likids tar not rim ,Ik nsav to the two Imvsvih discussed hrety, tut he Inter becnote tun owner of the Property and avas coded Jctardeu: to ilie injunction case brought by the Board bV 0rdedated October19. ]0!S. 'Quicke was both the Coanty mehninisnator mall the actin" County' zoning ot7icial at the time. were 0iot the [***3] Rhoadses had received a Ceftificatc of Compliance signed by the County's zoning administrator, Ilse Rhoadses had relied IM011 the Certificate in building the (iarage, mud, under Chiles tt I5.Z--)3JI(Q, their"iigh.ts [had] vcsled atr:d the permits for erection of. the [GarugeJ nut stthject to revocatiolli nr reversal." The HZA cltmccl Life Rhoadses' appal. and "fflrcled Que'-liberry's decision that the Gs.rnge violated the Ordinance. On February 23, 2015, pursuant to Coole_F I5.%- 2374, the Rhoadses appealed the BZA's decision 6v filing a p.,tltion for [*48] certiorari in the Circuit Court of Richmond County (Rhoadses' Appeal). The County Board of Supervisors (Board) filed an answer to the Rhoadses' Appeal and also filed a complaint for declatatory and injunctive relief against the Rioadsea. requesting a declaino.i .liar the Cinrnge is in violation of the Ordinanxc acd im illjunctio❑ to prevent the continued violation of tl;e Ordinance (Board Case). Oil October 19, 2015, the circuit tour: !reid ar, are /Afros hceI:ing to address Soth th", Rhoadses' Appeal and the 11om-d Case, and admitted into cvidence a joint stipulation of undisputed facts and cvidcnce regarding the history of the Pioi,rerty ,:id the Gaiagc project. The Rhoadses stipnlatcd drat the Gamgc [***4] violated the Ordinnnce, beat for the approval of the zoning a dministrrtor, and the Itoard stipulated that Quicke visited the P!lmcrly in September 2013, and "knew, as on ihot site vjilt., that the primary structure was offe-story in height ' Meade Rhoads testified that, prior to beginning the Garage project, lie and his contractor met with the County code compliance officer at the Property; and the code compliance officer suggested a two- story garage. The two-story Garage design was submitted in the Application; for tic zoning administrator's approval. Quicke aclaiowled,cd twat the [**332] Application showed a 14 by 32 feet, two-story garage, but testified that he (lid not read the Application or look at the plan attached to the Application before igning tiie Certificate, in his capacity as t11e County's zoning administrator. After John MAUS 24 294 Va. 43, '48; 803 S.E.2d 329, '*332; 2017 Va. LEXIS 110, **"4 recci, nc the C'eiuficale, the Rhoadses built the Galage, ,according to L IC plan,a approved by the Certificate. The Rhoadses asserted that the BZA erred by failing to find that their rights, in the Zoning administrator's initial determination, vested pursuant to Code, ti 17 2311((). The Board asserted that t ode � IS > '3111Z.1 did not apply and that the BZA's decision should be affirmed. On Nl,i� Itf, 2016. the circuit 1***51 court entered its final order in Both cases and held that "Code I5___231IiCl applies, and the Rhoads[es] have established their entitlement to relief under that provision." Accordingly, the circuit court iLnL td the BZA decision, and entered judgment in t:ma of the Rhoadses in the Rhoadses' Appeal. IT. also denied the Board's requests for declaratory and in relief, and entered judgment in favor of the Rhoadses in the Board Case as well. [*491 The Board appeals both cases.3 ANALYSIS The Board argues that Code 4.1 S 2-?31_ I (C). does not apply, because Quicke "licked the enuhority to apProve a plain violation of the Zoning Ordinance, and the Certificate he issued Wit, tltcreCo:e c;tid ub initio," The Board also claim, tI,t C'r,J. /52- ?3t1/f'i does not apply .n flue rase occnuse the Certificate was not a "detern iusuion' wtti»n the mea❑ice Of the statute. Additionally, it asserts [flat the circuit court erred because ('or/[5.2-7311rr.i only applies to bar the subsequent actions of a zoning administrator or other administrative officer, and not those of any other body, inch as the Board or a court. The issue on appeal is whether the circuit court correctly m[erpreted and applied the terms of ( ode This Court re�'icros -..the 'The hv0 cesas, which were tried together but nut rurmaay consolidated in the circuit court. have beenjnined in this appeal. John M Page 3 of 7 interpretation of a statute de nova Volle tV. ArLJf 1'e�7r h'Wers. L1,C, 2W Ma. 90 89 72651?.,7d 339. When the language of [***61 a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature's intention es explerscd by the Ian u-tze used unless a literal interprctation of the laueua_e \,ould result in a manifest absurdity. It it srant.e is subject to more than one interpretation, we must apply l'he interpletation that will carry out the legislative intent behind the statute. W. al ,ti 40, 72o S k.3cl ul 344, Code §i.52-23,11 governs appeals to a hoard of zoning appeals. C.'odej!>.�''3111L_ specifically provides: In no event shall a written order, requirement, decision or determinetio❑ made by the zoning administrator or other administrative officer be subject to change, mat/tficalion or reversal by all zoning adrninisholor or other odrninislru[lve officer after 60 dco::a Ln:a elup.ced /i um rl;e date o/ die written nrricr, requirenu'ttr, f~s Oj cleci,t'iur+ ar delerrninulion w'ncre the person tt�rieeed has materially changed his posaio❑ in good faith reliance rat the action of the zoning adminishrator or other adhninistrative officer unless it is proven that such written order, requirement, decision or determination was obtained throat=l malfeasance of the zoning administrator or other administrative officer or through baud. The 60-day limitation [***71 period shall not apply in any case where, with the concurrence of the attorney fQx' the governing body, modification is required to correct clerical errors (Emphasis added,) By its plain terms, the prerequisites for Code ;4 I S_2•lilJ(C'1 to apply are: (1) it "written order. requirement. decision or determination made by the AUS 2 V3 294 Va. 43, *50; 803 S.E.2d 329, "332; 2017 Va. LEXIS 110, ""7 Page 4 of 7 zoning administrator;" (2) the passage of of least 60 days from the zoning admintstrator'> deiu raiccrtion_ and (3) a maternal change u1 po it ,j in Good ftith retiance on the action of thC 701).ng act listrator ' [**333] It is agreed that more than 60 days elapsed between the zoning administrator's initial approval of the zoning and his successor's later assertion of a zoning violation; Quesenlicrr), did not advise the Rhoidscs that the Garage violated the Ordinance until more than 240 days after Quicke signed the Certitcate, approving the Garage. It is also undisputed that the Rhoodses materially changed their position in good taith reliance of the zon u., adutini.n rn'S stprot=at of the zoriug for their 1cJd!ng p r. s, because they built the Crarage at a cos[ of nearly $27,000. The Hoard claims that the circuit court erred in apg N'trl ['tt7h 7 >_ O(( ) because the zoning administrator _ranted a Certificate that was in clear violation of the Zoning Ordinance, and that the Certificate was therefore void ah im to and could not be a "written order, requirement, clec)si.in or determination" under Cod,! § 1_52 27N( . In supporr of its position, the C'o--tnty notes that [iris Court has previously held that a. landcta'ner had no rights in a building pertnit 'L•-at wq° issued in violation of applicable zoning ord'.oanccs. See S.1 '09, 900-01('19"),l), (ho`.din tl: trl a buading perm t t",rted et t auaucc W:..th the Toning uldinanee was "gold ah ini/ro" auto "no ven ed ciohts were acquired ;'tit(2_etinder] by the permittee"); [*jl] CF:�I ttl t„c._v. (lonff. 219 Va 37 G> i '41 ' 700, '01 (071, (r onch:ling that a building permit issued in Viotalion of tle zoning ordinance wtts "voi "); and hr at/oL( nt gj \Jilpoi t V'<tt,_.. 209 Va ] 59.__261 b? 1_6_3_ S / „2d 135, . 131 0968) (same). As noted by the Board, prior to 1995 administrative zoning decisions that violated the zoning lazes were void and property owners bore the sole responsibility for the consequences of a government's zoning mistake. Sec, e.g., Segcrlo%,_ 209 Vo nt m1 /,7 163 S 7 2d al J 7 However. in 1995, the Genulil Aot,cillbly enacted the ec� right, _,urrcnttr ..c ;if'd l ,r 231 ! Cj. 1995 Act9 c'i 424. The p„ur language of C'oi6° �� /5,2_r','[/C') indicates Il:at the statute is intended to eliminate the hardship property owners have suffered when they rely to their deuirient upon erroneous or void zoning decisions. We have characterized [***9] as rcmediat those statutes that pt or ode protections to tl'c'sc othc_"' ire not in a positio t.o effcc h e! deter d thenoelc es See, e.g., Gout nr c tul (" Dunn' .S'pec tulhec. Inc v _1C'14 (atts(r_ tl ruf Cur/> '!2 f u R)?_ OG, 405 S l -<1 ,c5?t547_I%n Inrv_hcp t�71J91) (conch ding that a statute reeardiu; bond requhements for contractors who contact with public agencies was remedial, because it was designed to protect subcontractors and materiahnen who could not peaecl mechanic's liens ag.t'. nst Publicptoperty): In, Co » Cfrfrad x i i_s, ttw ,1 O'n 281 1'a 0,/7 hr;y 'OS S'.1 '1 h77, 8L't; ('0tlJ. (cxplcoo nin,_, ,hit "Code $ 38.2-2204,the. omnibus clause, is a remedial watt[" enaetccl to serve the public policy of broaikni:r, the coverage of automobile liability insurance for 'he protection of the injured persons"). Cod,, S 1.5,2- 231 LL(i is a remedial statute. The remedial purpose of C ndc z_ / ' 1' ir"C') is to pro[ tde r lip and piot<ctiou to pr tp try c vners who rel, in good fa".th upon eMmeous zoning determinations and wao vouk otherwise suffer loss because of their reliance upon the zoning administrator's error. A statute that is remedial in nature is "liberally construed so that the purpose intended may be accomplished," and is to be "read so <ts to promote the abilt:y oC the enutmrnt to iemedy dtc tn:schief at %vhicli it is directed." illn>_tn._... (,/ 4 (? ( Nc_,( 389 7.98 S.1 _`u i()b', COe--- �2M_71 (citations and internal quotation marks omitted). [*52] Considering the plain language and remedial nature of the [***10] sr itutc, t Ind t 1 .2=232.11(Cl manifestly creates a legislatively -mandated limited John MAUS 12 (o 294 Va. 43, *52: 803 S.E.2d 329, —333: 2017 Va. LEXIS 110, "'10 exception io dx jtr iciully-created gencrel principle that it bi;iidiug pmint issued in viol,uiat of apphc, blti Zoui to on iustnces is void, .See l vaoicl, v. l'nrrh�tn:ur Prllupe llomconwrrt A,.s'n, 21)i I-u_ _' 9 74 n.4 784 S• PjiJ SO- 283 n4(2010( ) (noting that "[a]brogation of the common law requires that the General Assembly plainly manifest an intent to do so") (citation end internal Quotation marls omitted). As this Court has previously noted, ode S 15.2 n311lC) . . , provide[s] for the potential vesting of a right to use property in a mariner ['Y334] that 'otherwise would not have been allowed,"' Ggncmq a ,,_p_ Bgioz'l of !(milts, Ap/w( /, 5 Va L 7, : -t / 657 A l W 153 t 6, 0 (20(IYt tcituiion omitted). "hhe circuit court did not err in rejecting flIC Hoard's clvlm th,it the Certiticntc was void ah unitO hoctu.tse the C'CIO licete grunted n right to use property in a manner that otherwise would not have been allowed under the Zoning Ordinance. The Board claims that even if the Certificate was not void ah initio, the signed Certificate was still not a "written order, requirement, decision or determination" by the zoning administrator. We disagree, h1 issuing the Certificate, the znuing ndmmiatrwtor necessarily nuide ai determination drat the building Plans complied ccidr the 7oning Ordinance in all respects..See Zoning Ordinance Section 3-7-1(A) (providing that a certificate of"["',"11] compliance will be issued "fix those proposals which have obtained all necessary approvals and permit, and comply with this [Zoning] Ordinance") and Section 5-3 (dutimnp the term %,Itificute of comptionce" as "[c] ertifictihon by the Land Use Administrator that t ae ,items are lit compliance with thin [Zoniuc] Ord in�:nce"). Aldrouglt the Board argues to the contr,rv. it i, in-elevnnt that the decision or detennutation evidenced by the Certificate makes no reference to the height of the Garage or to the zoning ad:ninis irntor's intent to waive the requirements of the Zoning Ordinance. Sack specificity is not requirecl by � ucle ? 22311,q The issuance of the Certi ftcate clearly constitutes a Page i of 7 decision or determination by the zoning administrator that the building plans complied with the Zoning Ordinance. [-53] The conclusion that the Certificate constitutes a determination by the zoning administrator is consistent with our prior cases involving C'o,le C /5-' 1311((;),. In l%nrjb/k /(1J. Il,(' � ( r1_,/ v, /nik S,7 I•cr. �-�U 7j4i� ,p R_l n 1JI 9't� 'RLi1, we held that / did not nppv to a "Cash Receipt" mgned by a zoning admim tiator, because that document "was not a specific determination by the zoning administrator or any other City official that either of these businesses could use their respective premises in a manner ❑ot otherwise allov,Cd [ --- 121 under the zonin ordinances in effect at that time," Similarly, i❑ '(laic r._ (.'iAc_q/ l ulls!hrnrh b0 Va.; 1, 114, 691 S7. 2d 564. 57�5 001(j, we held that a zoning odhnmrshator's mere "interpretation" of a zoning ordinance "Izci<cd the finality of an order, requimment. decisicm or determination' under (-w, such that no vesting occurred. In contrast, the Certificate vests a written determination by the zoning administrator that a particular building plan on a p.ucticular property complied with the applicable zoning ordinances, it affirmatively approved the zoning for the Garage prgject at issue. The Certiticnte was a final determinasion, as this Court has required, See Jamey S9 V,r rrt 11 69! LS I':'rl i.d, -575 (a zoning interpteiauou licks the finality of an "order. requirement, decision or determination" under C'orh, _/_>,_v z;11((:-)j, The Certificate itself Provided notice that the. zoning administrator's decision was mppealable, which demonsiratr,: [hut the zoning administrator's invohement tuns f„cal after 6e signed t,te Ccrificate. Thu,, the Ccrli wai a detcrutivatiun by the zoning administrator Which satisfied that requirement under Code_ The Board also claims that only binds a zoning administrator,, but need not and John MAUS IZ7 294 Va. 43, "53; 803 S.E.2d 329, "'334; 2017 Va. LEXIS 110, `**12 Page 6 of 7 should not be consideredby any other body such as a. board or a court in determining if there is an [***13] enforceable violation Of a zoning ordinance. In support of its position, the Botlyd notes that this Con't stated in Jolrrl?,y that (nde ft S,7 , f , rC;i o to :units the subsequent , ejions of a zoning admlll s:::,tor or OCICr admitr.istrative officer,"' and [t]he Planning Commission, however, is neither." k/. al 4:i. 6)4 $. C _ �d art Si . The quoted pan£ tLc from Jamesshould not be interpreted as allowing the BZA and the Board to ignore the requue!nents of and to evade the application of l'rtli_1 IS__'.411rC1 in making the [*541 detctnrivation of whether there is an enforceable violcltitm of a zoning ordinance. In Jermre.,, the lllreIlli coauemed a decision made by a planning couunission, The planning commission, not the zoning administrator, had authority over the issue of approving the subdivision and consolidation [**3351 of properties which the landowner requested. We noted that ('ode - I5.2- 23J 1(('j [was] not applicable" to project a property owner against an adverse decision by ❑ plaur_in& commission rettat iirnt1 the subdivision and consolidation of several properties after the zoning administrator issued an "interpretation" that such a consolidation was permitted by the Zo inn:, Ordi mcc ?k;0 I a. 43-4 r (594 S.It ?d ar J r >. Be,;I there teas only to nterptet. ion; and :io determination by o "zoning acimir,istrator or other admini,h-etive officer," we concti:ded that [***14] this �Ircrcq.lisite for the application of Code,j 15.2- 2311 f(') was not present intl�; t case. Therc was no vestinrr. of a zoning de renal illation, becallse no zoning determination [tale made by the zocing achninistretot. '3)1 /Lr) only provides for vesting after a zoning determination. Code u 15.2 °51Z coutd not possibly apply to limit the subsequent actions of the planning commission. The issue of whether ('ode tip 15.2-2 (IJ(C) must be considered by otL-er entities invoh°ed i❑ the enfor emeat oh a zoning o dimmcet aEer lt zoning administramr makes a decision of determinatio❑ which is relied upon by a property owner, was not before the Court in ,%alrrlt,r, By its tereis, Code 7 13C� and nd its vesting provisions Insist be considered and enforced by a BZA, a boarc; of supervisors, or a court in malting a zoomg determination or reviewing its correctness, if th, prerequisites for the application of the statute are satisfied.4 [*551 A zoning administrator is a representative of Ills of her board of supervisors.' liaard r,>/ 8t111)u r,tol s L' 71tuo ,/ o/ /otung [Ippecrh, '(R 6'r,r. 441. = )0 51, 604 S L ?d l /'OCd�, 'A] principal is bound by representations of his agent, [Wade either in the scope of his employment or in furtherance of the object for which he is emptoyed." rArahorelowk, Irly. Co. l Tnnrr'colr. 27q !_a. G'y437y>31 S ! .'u Ff)o j()3 IGd'5) (hnteina. quote.tion marks omiCcd). Titus, "vheu a zoning administrator has acted within the scope of pus employment and [—L'151 made a. "decision'' or "determination" within the meaning of Co69e_jt 15..' t, 17(C), he or she has also bound the bo,.:cl of supev tIoi, If Cade t_ 15 2311((') did not hind the board of supetvisors as the zoning administrator's principal, it would afford scant, if any, protection to the properly owner, and would not serve to "remedy the mischief at which Ric statute] is directed." Alu lip 29a I a al 51-2d sir 003. The remedial purpose of the statute requires the .tattite to be interpreted so as to provide relief and protection to property ownc:, 'By way of eaao-.pI,, lf)m,dm ter kraal, s zit tg edmin ;ttalrn`5 notice of I fit t rd nt it -u r>peal I, t I I ion," of 1,m;11g appeas , I , IItp lot nsl hvlh t ❑evouhg iitt lI ItIC the fight i "St', such cio iGou nit" ("7_} ) I ir(, /\stee uotetl L: Gnvon the propclt, III, the "hurdmL of esfah' hing tirz v u ''�ht t. eu tattle a in itcanissiblc .'Se ofpopelt undort i tl ri y91 to lj tF?d ,it 160 11 the Znmiq_ 1,11111srral, I b•-rod frtm dvi , Ind :It, or her prior dttl,o nim1oI 1,L ( .d ?. 'illI ' W laud o' Zama_ appen vl9 aocsl Statute a deferiniw I tt'.tc pier the zoning adnul a tar erce uiiue t', r- gas an enforceable tion of the wit I Iir )Ilium , 111 tie 11 nil", ),,I. `Zon r 0 oid label <cabon > 1 ti f cs J.' "' d tItc rdmi iir.ruol" as ti-je Q])IIIIIIIII'.oe oihr R1_hnlond Couuly BlIld of Supervisors ttl - has Sacu up,>oictod to serve as the agerft of the ('rote.nine C3odv! I rt<terine flIs Or<it:nnce." John MAUS Pw— !28 294 Va. 43, '55: 803 S.E.2d 329, "335: 2017 Va. LEXIS 110, —15 who rely in good faith upon erroneous zoning determinations. In this instance, the approval of the Certificate was an action within the scope of the authority delegated by the Board to the zoning administrator, The issuance of rile Certificate constituted a cletermination within the meaning of (')(i, 15'- /5l rit t_ [Akn. more thin 00 doVs ifter the zoning hi. tleterminutior that the Garage compiled with the Aoning Ordinance, and the Rlwadses materially Changed their position in reliance upon that determination. Thus. the prerequisites for the application of C:'odc � 1.5 2. )PH() are present in this case. The Rhondses' rights in using their property in the manner u1ir:111'.y app] by the zoning adtniniy, m,10r \-csicd upon fulfillment 1-161 of the requircinenls of Loa _.'itlll_;. Once their rights vested uncler C,,,k r.L ,; l 1 fCi, they were not subject to alteration ["1336] by the zoning administrator, the BZA or the Board. Therefore, the circuit court did not err in applying, Code 4_/s._'�_. ///C1 to uphold the Rho,uk'es, vestecl tights to tuc their propmy in the manner ori;inally approved by the 7ouinEr ;�dminislruor. ["56] CONCLUSION Accordingly, for the foregoing re;vsons, we wilt aftirnt the judgments of the Circuit Court of Richmond County. -affirmed. John MAUS Paye 7 of 7 pw- IZ ) ALBEMARLE COUNTY BOARD of ZONING APPEALS COUNTY OFFICE BUIIAING 401 MCINrtRE ROAD - LANE AUDrroRIUM TOESDAY, OCTOBER 29, 2019 —10:00 A.M. Board Members: Marcia Joseph Ed Robb John Shepherd Randy Rinehart David Bowerman (absent) Staff Members: Bart Svoboda, Zoning Administrator Marsha Alley, BZA Clerk and Recorder Kevin McCollum County Attorney: Andy Herrick, Deputy County Attorney BZA Attorney: James Bowling, IV 1. Call to Order The meeting was called to order at 10:02 am. by Chairman John Shepherd. 2. Establish a Quorum The BZA established a quorum with four members present. 3. Motion for Rehearing: AP201900004 Bufton & Maus, PLC MR HERRICK: Thank you, Mr. Chair, members of the Board. First of all, I want to thank the Chair for calling the special meeting. Pursuant to the rules of the BZA, a special meeting has been called, and I would like to echo the Chair's thanks to the members of the Board for having scheduled this on somewhat short notice. The reason for the short notice is, as I think I've laid out in the County's motion for rehearing, is that the deadline for appeal to the Circuit Court is 30 days. So, if the Board of Supervisors were to appeal the October 1 decision of the BZA, it would need to do so by October 31. So, that was the time sensitivity of entertaining a motion for rehearing on such short notice. As the agenda for today's meeting spells out, there would potentially be up to three items on the agenda today, and so, we'll take them one at a time. The first of which is the motion for the rehearing. And if that motion for rehearing is granted, then the BZA would need to decide when to schedule that rehearing, again, keeping in mind the fact that the deadline for any appeal to the Circuit Court would be October 31 (day after tomorrow). And then, if the Board were to choose to schedule that rehearing for the special meeting, it has the ability to do so because the notice requirements have been met. With that, the County had filed a motion for rehearing pursuant to Rule 5-J of the BZA's Rules of Procedure, which allow for a rehearing to be made on motion of any party. And it provides that the standard for granting a rehearing is that the decision has not already been appealed to the Circuit Court (which it has not), and either (1) new evidence can be presented that, in the opinion of the BZA, is relevant in material to the decision, but could not have been presented at the original hearing, or (2) in the opinion of the BZA, one or more relevant and material conditions or situations have changed so as to bear on the BZA's original decision. M 1 30 Now, I had filed with the Secretary of the BZA, and I trust you all have seen it by now, a motion for rehearing that outlines the substantive grounds for why the County is seeking a rehearing. We believe that there were a couple elements of the October 1 decision that were problematic, namely, the shifting of the burden of proof in that case, or at that hearing, and the lack of a written order, requirement, decision, or determination that was subject to change. For purposes of strictly the motion for rehearing, again, and focusing on Rule 5-J of the BZA's Rules of Procedure, we think that there has been a material change that justifies a rehearing and that the Board of Supervisors has alerted staff that it does intend to appeal the October I decision, if it's not corrected I know that past Boards have asked that, or past BZAs have asked that, staff alert the BZA if, in fact, the Board intends to appeal a BZA decision. And that's what we've done in this case. I do think that's a material change in circumstances that was unknown at the time of the October 1 deliberations. And again, we also believe that the arguments that are laid out elsewhere in the motion for rehearing justify the granting of a rehearing and, in fact, a reversal of the October 1 decision. But again, I may be getting ahead of myself there, and I will reserve further argument for if and when a rehearing is granted. But for purposes of granting the rehearing in the first place, again, we think we come within the requirements of Section 5-J of the Rules of Procedure and would ask that the Board grant a rehearing and schedule it for today in time for it to be reheard before the appeal deadline. With that, I'd be happy to answer any questions that any of you might have. MS. JOSEPH: Mr. Shepherd, I'd like to ask a question. Mr. Herrick, what I've always been confused about is why wasn't this a variance request. MR. HERRICK: Because there's no such thing as a use variance. Variances are allowed, for example — MS. JOSEPH: But there is a setback variance, and this is what this use is predicated on what the setback is. So, why was there not a variance request for the setback? MR. HERRICK: That would have been up to the applicant. As I'm sure you're aware, the BZA is a creature of statute. It can only do what the Code of Virginia allows it to do, and so the BZA can't rule on applications that aren't before it. The — MS. JOSEPH: That part, I understand. I just wonder why this wasn't considered as a variance. MR. HERRICK: Because the applicant didn't apply for a variance. MS. JOSEPH: Mr. Svoboda, when you talked to the applicant, did you ever talk about a variance? MR. S VOBODA: I'd have to — I don't recall. I think we did have discussions about what different options would be, and possibilities. MS. JOSEPH: Okay. Can I ask Mr. Maus, then? MR. SHEPHERD: Sure. MR. MAUS: [Away from the microphone] Ms. Joseph, the board, thank you for -- x P2' 131 MS. JOSEPH: Get over here. MR. MAUS: Sorry. MS. JOSEPH: 'Thank you. MR. MAUS: Thank you, Ms. Joseph. That's a good question. In fact, we did talk with them, and I don't know if it was Bart, maybe it was Kevin, but we were told that a variance was not available. It could not be used to fix the problem, so that's why we didn't apply for it. MS. JOSEPH: So, you were told by staff that a variance would not fix the problem. MR. MAUS: That's correct, ma'am. MS. JOSEPH: Okay. Kevin? MR. McCOLLUM: I don't recall mentioning anything about a variance to Mr. Maus. MS. JOSEPH: So, you all never talked about a variance. MR. McCOLLUM: I remember talking about it with staff but I do not remember. MS. JOSEPH: What was the conclusion that staff came to about the variance, then? MR. McCOLLUM: I'm not sure. MR. HERRICK: Ms. Joseph, I could attempt to answer your question. I think that even if a variance were applied for, my suspicion is that staff would recommend against it because, in fact, a variance, at least, in my opinion, would not be justified under the standards for variance. For there to be a variance, the applicant would have to show that there is an unreasonable restriction on the utilization of the property, and I would say to you that I don't think that there is an unreasonable restriction on the utilization of the property, that the applicant is currently using the property as his dwelling, has the ability to have accessory structures on the property. So, I don't think that, if a variance had been applied for, that it would be justified, and I think that staffs, consulting with staff, I suspect staff would be recommending against a variance, if a variance had been applied for. MS. JOSEPH: Well, you're already recommending against this application, so — MR HERRICK: That's connect. MS. JOSEPH: I'm just very confused as to what's the difference. An applicant comes before the BZA for the BZA to make those sorts of decisions and determinations. MR. HERRICK: Correct. MS. JOSEPH: So, that's where I'm really confused about how this whole process went down. MR. HERRICK: Well, again, what's before the BZA — l3z MS. JOSEPH: I totally understand what's before me right now. What I would like to reiterate is, it's this whole process that is disturbing to me. That, in the one case, the applicant has been told, "Oh yeah, you can go, even though we disagree with you on this determination, you can go before the BZA. But don't go before the BZA for a variance." I guess that's what I'm hearing, and that's the part that I really don't like to hear. MR. SVOBODA: As staff, we try to lay out all the options before the applicant, and what we understandand the legislation, the guidelines, and the law to say. And so, whether it's something that the applicant would like to hear, and we've had this discussion with this particular applicant probably many times, versus what we look at within the ordinance, and what their options are and what they feel like they have a better shot at getting. When you look at some of the variance criteria, and if we talk about variances specifically, not this case, but variances specifically talk about different criteria that you have to do or not do to qualify, and they're generally land -specific. They're not use -specific. They're generally not building -specific, meaning if the lot is such that it doesn't allow for this building to be located somewhere else, for a setback variance. For instance, if I don't have enough room to have it somewhere else due to the shape of the lot, and the regulation and the setback makes me put it in a place where it'll only be 6 feet wide and 6 feet long, and it won't work. So, this particular lot, as is, or any lot that has enough room to locate structures somewhere other than in the setback, it would be difficult. This is how we would explain it to an applicant. It would be difficult to receive a variance if you had built a building into a setback where you have another location on your lot where that building would be located. MS. JOSEPH: Okay, you just said it would be difficult to receive a variance, but if Mr. Maus had come in and asked for a variance hearing, would you have accepted that application? MR. SVOBODA: We have to accept the application. So, that's different than whether or not it meets the criteria to receive a variance. Accepting an application is what we have to do. Same thing with a building permit. I can apply for anything. That doesn't mean if it doesn't meet the regulation or the rules that we have to approve it, but we have to accept the application. MS. JOSEPH: Okay, thank you. MR, HERRICK: Staff doesn't refuse or reject any applications. Now, that doesn't mean that staff is required to approve any of the applications that are brought. MS. JOSEPH: I totally understand. MR. HERRICK: And I think that staff, again, I wasn't present for the conversations, but I imagine that staff was just counseling the applicant that staff would not be recommending a variance, if it were applied for. MR. SHEPHERD: I might be putting too small a point on it, but I think it's, that staff should preserve the role of the BZA and the decision -making process about a variance, that certainly, it's proper to point out the criteria. It's proper to point out, and if you wanted to go so far as to say you were going to recommend against it, is proper, but I think the applicant should always, the citizens should be just given the process and make a judgment about that. Just the fact that you're going to recommend against it shouldn't be completely persuasive. MR. HERRICK: Again, I wasn't present for the conversations, but again, staff does not reject or refuse applications. If an application is filed and the filing fee is paid, it gets brought to the BZA regardless of what merit staff thinks it has or lacks. A, ..alr I's 3 MR. SHEPHERD: Okay, it's — thank you. MR ROBB: Mr. Chairman, can I just make an observation? It would seem to me that everybody that's involved in this picture, whether it's the appellant, the staff, the County, the County Attorney, all of us are here to do what's fair and what's right, and it seems to me we ought to be able to come up, meaning, before it becomes a question for BZA, it seems to me that there should be a solution to this issue without us being involved in that particular process. I submit that because that we're all honest and decent people trying to help and look after one another, that we could do that. I'm just wondering if there isn't — MR. BOWLING: Mr. Chairman, do you have any thoughts on that matter? MR. SHEPHERD: Yes. We've been talking about the variance. The difference between the determination and the appeal, which was before us originally which, I think in the meeting I expressed, and I think others expressed as well that it was a difficult set of facts to deal with as an appeal, that I would have preferred that to be a variance. I had made the effort, made a call to Bart asking if things could, this could be shifted over into a variance but at that point, it was too late. And so, what was before us was a, the appeal of the determination. And I understand that there was, and faced with that situation, I feel like our approach to it, and our decision, was valid, was a rational choice, under the circumstances, to deal with it, citing 5.2-2311, a remedial statute to take care of situations like this. That said, I would still like to be able to deal with this as a variance. I think that would meet the concerns of the County to not make 5.1-2311 a precedent, which I imagine is a concern. It's something, in the criteria for a variance, to me, was much clearer, and it might have fit the case much better and directly in ways that we are all familiar with. It seemed like the right, the best way to take this thing on. It's clearly; at some point, I just have to step back and say, "This is a mess, and we're trying to fix it as best we can." With that, I would like to think about the possibility of deferring this matter so that a variance could be heard, analyzed, and decided upon in lieu of letting it end on this appeal. MR BOWLING: Chairman, is that a motion to defer the matter until such time as, reasonable time for allowing the applicant to make a variance request to the County so that it could come before you? MS. ALLEY: Excuse me, Mr. Bowling, could you speak into the mic? MR. BOWLING: Is that a motion, Mr. Chairman? MR. SHEPHERD: Yes, I will make that motion, but I certainly entertain a lot of discussion on that. Is there a second? MR ROBB: I second. MR. SHEPHERD: But, discussion. MR. MAUS: Okay, Mr. Chairman. At this point, sorry, procedurally, the County has made a motion to rehear. I've not had an opportunity to respond to that motion before the Board before you get into, do we want to rehear this, what's the best way to do this? 134 MR. BOWLING: What's before, what the Chairman has just made a motion on is to defer the matter to give you an opportunity to pursue a variance, if that's what you decide you want to do, and that's the Chair, that's a Board member's prerogative. It has to be voted on. The deferral has to be voted on by the BZA members and pass, of course, but that's his prerogative at this point. The weakness that is before the BZA and the dilemma they have is that there is a, their decision on October 1. The application was for a building permit, and the building permit, to the Building Official, does not, on its face, state that the home office is for a major home occupation. It's only when you look at the materials submitted with the applications, the plan showing a large conference room, etc. that one can assume that the applicant wanted more than a home office. This case, as I think I said at the last meeting, is a mess, procedurally. It should, as the Chairman has said and as one of the other Board members just said, they wish that it would come before them as a variance so that they could deal with everything at once. MR. MAUS: I understand, Mr MR. BOWLING: What could happen in this case is that the Board could decide to hear the request of the County, or they could not. They could hear the request and keep their decision or change their decision. Assuming that the Board decides to keep their decision, the County will then appeal. Then, we could have a hearing before the Circuit Court. Then, it's certainly possible that the BZA's decision will be overturned by the Circuit Court, and then, the BZA could find itself back, at some considerable time in the future, addressing a variance that you then applied for as an afterthought, after going through this whole process. MR MAUS: Okay, Mr. Bowling. I understand what you're saying. A variance was not an afterthought on our part. The County staff initially has said today, "We don't remember talking to the applicant about it, or maybe we did advise the applicant of all the options." It's not really clear, but the Board's own rules, the Board's own rules, say that before it can reconsider, or consider the County's application for rehearing, that three of its members have to find, number one, that facts that are available today were not available back when the original hearing was held, or the Board has to find that there's been a change in circumstances between the last hearing and now that justify the rehearing. Excuse me. If the Board cannot find either of those, then it has no authority, by its own rules, to rehear this matter. MS. JOSEPH: Mr. Maus, we do understand that We do. We do understand that. MIL BOWLING: You are absolutely correct, Sir, but you're ignoring Rule 3, which gives the Board the power to defer any matter. MR. MAUS: Certainly, the Board can defer it, Mr. Bowling. Mr. Herrick has told the Board that if the County loses on the rehearing, they're going to appeal. If we lose, we're probably going to appeal to Circuit Court, too. So, that's where it's going in either regard. The question is, at this point, whether or not in accordance with the Board's rules that it has the power, the authority, to rehear this and make a decision to do something else. MR. BOWLING: You're misunderstanding. There's been a motion before the Board, and it's been seconded to defer the matter to allow you to apply for a variance. If you don't want to apply for the variance, that's your prerogative. The Board can't apply for a variance. MR. MAUS: I understand that MR. BOWLING: You can bring it back. But they would like a reasonable period of time for you to have that choice, having heard from you that you asked about a variance and were under the understanding from the staff. l5t5 Again, it seems to me that there's been a big mix-up. You were understanding you could not apply for a variance, and then you've also heard from two Board members that the proper posture, what they'd like to see in this case before them, is a request for variance for the setbacks. You then, of course, can decide not to do a variance, and then we can come back here and address the Board's issue, which is before it today, whether they want to reconsider the matter of its decision on October 1. MR. MAUS: Alright, thank you. MR. SHEPHERD: Thoughts? MR.14ERRICK: Mr. Chair, if I might be heard, just briefly. I would point out that if this matter is deferred past October 31 that the Board of Supervisors would have no choice but to go ahead and file its appeal with the Circuit Court. MR. BOWLING: That may well be so, but the statute only requires that the BZA make its decision within 90 days. The Board has made a decision on October 1, 2019 and they're here today solely at the motion of the County of Albemarle. You'll have to let the Circuit Court and maybe the Supreme Court work out this knotty little procedural problem. MR HERRICK: And I'm not questioning the ability of the BZA to grant a deferral. I'm just alerting the BZA as to what the County's procedural posture would be if a deferral is granted. MR BOWLING: We understand. MS. ALLEY: Mr. Bowling, if you could just speak into your mic. It's so far, so good, but... MR. BOWLING: You're going to have to change the design of these mics, ma'am. [Laughter] MR. BOWLING: The mic has control of me. I guess I can pull it closer, can't I. Does that do it? MS. ALLEY: That's good, thank you. MR. BOWLING: Alright. MR. SHEPHERD: Part of my thinking about the deferring and bringing this, revisiting this as a variance is, for me, it's an offer, I see it as an offer to all sides to regroup and take this on with a better process. And to me, it's a reasonable compromise and puts things on a stronger, to me, it puts all sides on a stronger footing, and I hope it would also be a more efficient way of dealing with this time -wise. I would ask both sides to consider that as we, would endorse the idea. I think the variance criteria can wrap its arms around the issues provided here. I think, in a way that is similar to many variances that have, I know about from the past, and some have been approved, and some have not been approved. But they didn't cause the sort of controversy that we find ourselves in now. MR RINEHART: Mr. Chairman, I just want to ask this technical, if this motion should pass, the likelihood the appellant would ask for a variance of simply the setback. Is that correct? W� ME QTAI[t�Y:l:4U:l:43► WAM MR. RINEHART: Thank you MR. SHEPHERD: But I do not think that this is a use, a variance of the use. A home occupation is permitted in the Rural Areas. The use, however, it has to meet certain criteria, including a 25-foot side setback. MR. MAUS: Mr. Chairman, if I could respond. That's exactly what the County is saying is not the case, that 25-foot setback applies to the location to the building, does not apply to the use. Their position has constantly been that even though the building permit allowed us to put that property within 6 feet of the side setback, we actually put it near 14 feet. What the County is saying is that the building permit deals with the construction of the building; it does not deal with the use. And that, that's one of the reasons why they think that this is kind of a mess because the building permit was applied for with the understanding there's going to be a home occupation in which clients, other lawyers, were going to come in the conference mom that Mr. Bowling has talked about that, in the County's mind, use is different from the building permit. MR. SHEPHERD: Well, I believe that this is, that taking the variance approach fixes that problem. That was my open remarks in the hearing at the beginning of the month, that we were looking at a building permit, at the building, but we weren't dealing with the use of the building. But that's not, what the prohibition against a variance being used to change a use is, that has to do with going to the, saying you can do something in a zoning district that's not provided in the ordinance. That would be a use variance. Marcia, do you agree with that? MS. JOSEPH: Yes, I do. MR. SHEPHERD: That we are not, that having a home occupation in the Rural Area, in an accessory building, does not require a variance from the use. That is a permitted use, so that's why the fact that that issue has vexed us up until now is why I am suggesting, as others here are, the approach with the, of going after a variance, accommodates that. MR. MAUS: I understand entirely, Mr. Shepherd. Unfortunately, Mr. Svoboda has just said to you within the last 15 or 20 minutes, variances don't apply to uses. MS. JOSEPH: This could be another conversation if you decide that you'd like to apply for a variance. MR. MAUS: I understand. MS. JOSEPH: We can't really do this here. It's not before us, but we want you to know that that is an option for YOU. MR. MAUS: I understand, Ms. Joseph. Thank you. MR. RINEHART: A call for the question. MR. BOWLING: Can you state the motion, please? MR. SHEPHERD: I move — I can't do this. Someone else has to make the motion. But the motion is, what I'm looking for is to defer to the, to a date when a variance could be heard on the same day. U a MR. BOWLING: Well, you can't really say that because the applicant has to file the variance, not the Board. So, you need to defer the matter to a certain date to give the time for the applicant, if the applicant so desires, to apply for a variance and start the variance process. MR SHEPHERD: Can we determine, from the schedule, what that would be? What meeting? I think at one point, I thought — MS. JOSEPH: Do either staff members have a schedule before them? Do you have a schedule for submission and — MR. SVOBODA: Submission schedule is the month prior. MS. JOSEPH: Say that again? MR. SVOBODA: Excuse me, two months prior. MS. JOSEPH: Two months prior. MR SVOBODA: Yes ma'am. MS. JOSEPH: Okay. MR. BOWLING: When would he have to submit, and when could the matter be heard at the earliest, giving the applicant a reasonable period of time, if the applicant so desires, to request, submit an application for a variance? MR. HERRICK: We currently have scheduled meetings on December 3, January 7, February 4, are the next, well, there's one, I guess there's a date reserved in the first week ofNovember. Obviously, that wouldn't be heard then, but in terms of the next three after that, again, the dates would be December 3, January 7, and February 4. MS. ALLEY: We cannot make legal deadlines for November 2019. MR BOWLING: When's the earliest you could meet the legal deadline? MS. ALLEY: That would be December. MR. BOWLING: The December meeting. MS. ALLEY: Yes sir. MR. BOWLING: And what's that date, again? MS. ALLEY: The third. MR. HERRICK: December 3. MR. BOWLING: Does that help, Board members? ['.)C% MR. SHEPHERD: And that's, okay. There's, deferring to December 3 gives time to apply and advertise, so it could be heard on that date. MR BOWLING: And at that point, if the applicant applies for a variance, you could hear the variance, but you could also hear the County's motion. If the applicant doesn't apply for the variance, then you can take up the County's motion. And if you decide to reconsider, then you can reconsider the action that you took on October 1. MR. SHEPHERD: Preserves everyone's options. MR BOWLING: Well, it's been murkied up because, as Mr. Herrick says, he'll go ahead and appeal. This all creates an interesting little procedural issue, which is Mr. Herrick's realm because the Board doesn't participate in the hearing before the Circuit Court. I think the Board, as the BZA, can proceed as it's outlined in the motion, if that's what it wants to do. Does that meet the intent of your motion, Mr. Chairman? MR. SHEPHERD: Yes, it does. MS. ALLEY: Can I clarify the schedule? The application would need to be submitted by November 4 to be heard in January 7. It would have to be submitted by December 2 to be heard February 4 of 2020. MR. BOWLING: So, what you've just said is not December, it's January. That's what I thought. MS. ALLEY: The January, we could meet legal deadlines for, to hold the meeting, but the submission for December would have been October 7. MR. BOWLING: So, he's already past that deadline. MS. ALLEY: Yes, sir. MR. BOWLING: So, he would have to meet — MS. ALLEY: That's why I wanted to clarify that submittal date. MR. SHEPHERD: So that date would be January 7? MR. BOWLING: January 7 for the hearing, but the applicant would have to, if the applicant deems it's appropriate, it's up to the applicant. He would have to make application for a variance by — MS. ALLEY: November 4. MR. BOWLING: November 4. MR. MAUS: Mr. Shepherd, if it please the Board, I am in the middle of a one -week, week-long jury trial in Greene County starting January 5, that Monday. I'm not available on January 7. MR. SHEPHERD: Could a representative stand in for you? Perhaps your wife? MR. MAUS: I did not bring her calendar. I do not know if she's available that day, Sir. MM MR. BOWLING: So, what's the next date that's available? MR. SHEPHERD: Well, can we — MS. JOSEPH: Well, couldn't we have a special meeting? Couldn't we have it not necessarily on the 7" but declare that we're going to have one on the 141 of January? Can we do that? Is this all set in stone, the dates, because we haven't even determined the dates that we can have meetings, I don't think, in 2020. MS. ALLEY: We have not set our schedule for 2020. Policy though, as far as room reservations, they are generally scheduled for the first Tuesday of the month. If we alter that schedule significantly, I'd have to check with them to make sure that we would have room availability. MS. JOSEPH: Well, we got this mom today. MS. ALLEY: We did We did. MS. JOSEPH: We got this mom today, and there are other moms in the County Office Building. MS. ALLEY: I just mean if you decide today that it's January 14, I can't guarantee that Lane will be available. I will do my best to see what dates we could, we'd be able to get Lane. MR. SHEPHERD: I'm not sure that there's an, I don't have a sense of urgency. I wanted to schedule this as soon as possible, primarily for the benefit of the appellant. It can, if it wants to wait until February, I don't think that changes our position or the concept behind any of this. MS. JOSEPH: I guess what I'm thinking of, John, is that we have these two things going in tandem here. We have the County that is requesting a hearing by the Circuit Court, and I don't know how long it takes to get on their docket. MR. BOWLING: It would be a miracle if it could get that heard by February. MS. JOSEPH: Okie duke. Then, I think - MR. BOWLING: You're talking probably in the summer, maybe. MR. MAUS: I'd agree with Mr. Bowling on that. MS. JOSEPH: Okay. Okay, then we're in better shape. I didn't know how long it might take. That's why I was kind of rushing this. MR. MAUS: It would take a while, Ms. Joseph, because once the County files a pleading with the Circuit Court, we would have 21 days to respond. The Circuit Court would then, at its term day, which comes once every other month, in all likelihood, set a hearing date, and — MR. BOWLING: Here, it's once a month. MR MAUS: And honestly, they have to give priority to criminal cases, so civil cases come second, kind of second-class citizens on the Circuit Court's docket. ele 4W MS. JOSEPH: Okay, thanks. So, February? MR. SHEPHERD: What's the first Tuesday in February? MS. ALLEY: The meeting date in February is February 4, 2020. That submittal date is December 2, 2019. MR. SHEPHERD: Is there a motion? MS. JOSEPH: I move that we defer this hearing to our meeting on February 4, 2020, and if the applicant so desires, we consider the variance request at the same time. MR. BOWLING: You need to meet the criteria set out for deferring a meeting, Mr. Chairman. Do you want to read to the members what those criteria are? It starts on the preceding page. MR. SHEPHERD: "Deferrals. The BZA may defer any matter, at the request of a member of the BZA, the County staff, or the applicant or appellant, that the request may be made either orally at the meeting or in writing, and may be made at any time prior to the vote on the matter. The person making the request shall state the reasons, therefore. in considering a request for a deferral of a hearing of an appeal or an application for a variance pertaining to a zoning violation, the BZA shall consider the reasons for the deferral, if the request is submitted by the appellant or applicant, the recommendations of staff and members of the BZA." For this particular thing, I, is there a particular criteria that we'd be looking at to base this deferral on, beyond that? Seems like this is within our purview. MR. BOWLING: Well, that's up to the BZA. It's not my decision to make, Sir. MR. SHEPHERD: Does this seem, to me, it's saying that I, or anyone on the BZA, can request this deferral, and I think that's what's before us. MR. BOWLING: Yeah, but it's the number of criteria set out there. You might want to read them all, just to, then if the — MR- SHEPHERD: Well, we consider the — MR. BOWLING: If the criteria have been met, you can move forward on the motion. MR. SHEPHERD: The factors are whether deferral would promote fairness in the process; whether the deferral would be solely for the convenience or personal benefit of the applicant or appellant; whether the deferral would delay the enforcement or abatement of a violation that is adversely affecting an abutting property, a neighbor, or the neighborhood, or the public; whether the deferral would allow the appellant or applicant to resolve the underlying issues so that the BZA action may be unnecessary, and whether the deferral would allow the BZA to make a decision within 90 days of the filing of the application or appeal. To me, this is very much on target in that it promotes fairness in the process. MS. JOSEPH: And resolves underlying issues, is what — MR. BOWLING: And you've already made your decision within 90 days of the applicant's request, made on October 1, 2019. MR. SHEPHERD: So, can we restate the motion? Or is there further discussion on that? Well, let's restate the motion, and if there's further discussion, we will have it. MS. JOSEPH: I did move to defer this item, which is AP201900004 Bufton & Maus, PLC, defer it to our meeting scheduled for February 4, 2020 with also a hearing of the variance, if the applicant so desires to submit an application for a variance. Having read into the minutes the criteria, we had agreed that this promotes fairness and also resolves some underlying issues for us to defer this item. MR. SHEPHERD: Thank you. MR. ROBB: I'll second the motion. MR. SHEPHERD: Further discussion? Let's call the roll. MS. ALLEY: Mr. Robb? MR ROBB: Yes. MS. ALLEY: Mr. Rinehart? MR. RINEHART: Aye. MS. ALLEY: Ms. Joseph? MS. JOSEPH: Aye. MS. ALLEY: Mr. Shepherd? MR SHEPHERD: Aye. Thank you. Hope this moves us toward a resolution of this. 4. Adjournment At 10:45 a.m., Mr. Rinehart moved to adjourn the meeting. Ms. Joseph seconded the motion, which passed unanimously (4-0). (Recorded by Marsha Alley and transcribed by Beth Golden) Respectfully Submitted, Board of Zoning Appeals 0 I j?, October 1, 2019 Evelyn Bufton, John Maus Appeal Albemarle County Board of Zoning Appeals AP201900004 TM50 P 49 Request Approved October 1, 2019 1 Or4- COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902-4596 Phone (434) 296-5832 _ Fax (434) 972-4126 ALBEMARLE COUNTY BOARD OF ZONING APPEALS COUNTY OFFICE BUILDING 401 MCINTIRE ROAD LANE AUDITORIUM, 2:00 P.M AGENDA TUESDAY, OCTOBER 1, 2019 1. Call to Order 2. Establish a Quorum 3. Public Hearing: A. Project Number: AP201900004 Bufton & Maus TMP 50 - 49 Property Owner/Appellant: Evelyn Bufton and John R. Maus Staff: Bart Svoboda/Kevin McCollum 4. Approval of Minutes A. June 4, 2019 5. Old Business & New Business 7. Adjournment Thank you for attending the Board of Zoning Appeals (BZA) meeting. The following information is provided to help ensure the meeting proceeds as efficiently and effectively as possible. As a courtesy to others, please turn off all cell phones during the meeting. General Information: This meeting is recorded and later transcribed into minutes approved at a later meeting date Each item set for public hearing will begin with a presentation of the staff report. Next, the applicant or appellant for that item will be invited to speak. During the course of the process, the Chairman will open the public hearing to comments from the public. At the end of these proceedings the Chairman will announce that the public hearing is closed. Once the public hearing is closed, no further public comments will be allowed unless the Board asks for additional information from the applicant or appellant. The BZA reserves the right to digress from these guidelines in any particular case. To Members of the Public: If you wish to address the Board, please raise your hand or stand when the Chairman asks for public comments for that item. When it is your turn for comment, please come to the microphone and state your name for the record. For uncommon spellings, please spell your name for the recording secretary. If you are with a group of people, you may want to have a spokesperson present your position to the Board. In order to give all speakers equal treatment and courtesy, the Board requests that speakers adhere to the following guidelines: ® Come forward to the speaker's podium and state your name; ® Address comments directly to the Board as a whole - open public debate is prohibited, ® State your position and give facts and other data to back it up — keep in mind that there is a 3 minute time limit for public comment ® Give written statements and other supporting material to the Recording Secretary (written comments are also welcome if you do not wish to speak). Additional Guidelines for Applicants and Appellants addressing the Board: ® Please contact staff in Community Development ahead of the meeting to make any necessary arrangements for your presentation. The Recording Secretary will also need copies of any ® Be clear in stating your position and do not repeat information that has been previously submitted to the Board. ® Stay on topic by addressing the questions in the application or by responding directly to staffs determination(s). Focus on presenting facts and data that support your position. ® bleep in mind there is a 15 minute time limit for presentations and a 5 minute time limit for rebuttal comments. The Board will ask any necessary follow-up questions to clarify points made during the presentation. ® Understand that the Board of Zoning Appeals cannot change County ordinances. The BZA reserves the right to place additional time limitations on speakers, as necessary. EM b STAFF: Kevin McCollum and Bart Svoboda PUBLIC HEARING: October 1, 2019 STAFF REPORT: AP2019-00004 APPLICANVAPPELLANT: Evelyn Bufton and John "Jack" R. Maus Description of Property: According to current real estate assessment records, Tax Map 50, Parcel 49 contains 2.40 acres+/- and is located in eastern Albemarle County along State Route 631 (Attachment A). There is one dwelling and one accessory structure located on the property at 7380 and 7382 Gordonsville Rd, respectively. The property fronts on State Route 631, an Entrance Corridor, and is zoned Rural Areas, RA. Background: On October 17, 2017, the appellant applied for a building permit, B2017-02431- NNR (Attachment B) for an accessory structure. On December 7, 2017, the County issued that building permit for an accessory structure now located at 7382 Gordonsville Rd, building permit B2017-02431 NNR (Attachment B). The building permit application described the structure as a storage building/accessory structure with a work description of "new structure for home office." Based on the information provided, staff applied the following accessory structure setbacks for the RA; Front - 75', Rear - 6', and Side - 6'. On June 4, 2019, the Applicant applied for a Major Home Occupation Clearance to use the accessory structure as a law office (Attachment C). After inspecting the property to verify that the proposed Major Home Occupation met all the applicable regulations, staff sent an advisory email on June 17 noting that the side setback did not appear to be met and informing the applicant that the proposed Major Home Occupation Clearance cannot be approved until they can confirm that the structure meets the applicable setbacks (Attachment D). Determination and Applicant's Appeal: On July 30, 2019, staff wrote an official determination informing the applicant that the Major Home Occupation Clearance application could not be approved until staff determines that the accessory structure complies with the primary structure setbacks for the Rural Areas zoning district (Attachment E). On August 12, 2019, the Applicant submitted an appeal of "the decision of the Zoning Administrator to deny them a Major Home Occupation approval" (Attachment F). Grounds for Zoning Administrator's Determination: The Zoning Administrator based the determination on the information provided with the application as well as the site inspection conducted on June 13, 2019. During that inspection, staff noted that the accessory structure did not meet the applicable setback and yard requirements for primary structures required by Section 5.2A(c). Therefore, in accordance with Albemarle County Code § 18-5.2A(c) and Albemarle County Code § 18-31.5(b), the proposed Major Home Occupation cannot be approved until it is determined to comply with the primary structure setbacks for the Rural Areas zoning district The Appecant's Justification for Appeal: The justification for the Applicants' position is that (1) they fu I ly disclosed to the Department of Community Development their intended use for the building, (2) the Department issued a building permit approving the placement of the building, (4-t (3) the Applicants relied on the building permit in locating the building, and (4) the Applicants' reliance on the building permit and their expenditure of substantial funds to construct the building is to their detriment if they are unable to use the building for its intended purpose. Staff Response: Staff responses to the four major points of the Appellant's justification. 1. The Appellants' first argument is that the intended use of the accessory structure, a commercial law office, was fully disclosed to the Department of Community Development. Staff contends that the information provided on the building permit does not indicate in any way the use of the accessory structure for a commercial law office Major Home Occupation. The building permit was issued for a "storage building/accessory structure" with a work description of "new structure for home office." Based on this information staff correctly applied the accessory structure setbacks for the Rural Areas zoning district which are Front - 75', Rear - 6', and Side - 6'. Because "home offices" can exist as part of a single-family dwelling in the Rural Areas and are significantly different than a Major Home Occupation, there is not enough evidence to support the claim that use of the accessory structure as a commercial law office was fully disclosed to the Department of Community Development. Additionally, a Major Home Occupation Clearance was not submitted until over a year and a half after the building permit was issued. If the applicant submitted the Major Home Occupation Clearance alongside the building pemrit, the County would have known the intended use and would have applied the appropriate setbacks on the building permit. 2. The Appellants' second argument is that the County issued a building permit approving the placement of the building. Staff agrees with this statement. The County issued a building permit for the accessory structure at the correct setbacks. The accessory structure that exists on the property right now meets the applicable accessory structure setbacks. The accessory structure does not, however, meet the applicable setbacks to be used as a Major Home Occupation. The appellant was notified, by email (Attachment G), on September 29, 2017 of the required setbacks for a Major Home Occupation. 3. The Appellants' third argument is that they relied on the building permit in locating the building. Staff contends that the intended law office use was not known to staff and that given the information provided (Attachment H), the appropriate setbacks for an accessory structure were applied. 4. The Appellants' last argument is that the applicants' reliance on the building permit and their expenditure of substantial funds to construct the building is to their detriment if they are unable to use the building for its intended purpose. e) Staff contends that the intended purpose of the building, based on the information provided on the building permit application, was an accessory structure. Therefore, the structure is able to be used and is no detriment to the Appellants. Summary: On July 30, 2019, the Zoning Administrator issued a determination that the proposed Major Home Occupation cannot be approved until it is determined to comply with the primary structure setbacks for the Rural Areas zoning district. The Applicants of that Major Home Occupation are appealing "the decision of the Zoning Administrator to deny them a Major Home Occupation approval." Despite the Appellants' grounds for the appeal, presented above, staff contends that the determination made was correct and that the Board of Zoning Appeals should affirm this determination. Prouosed Motions: Staff recommends that the Board of Zoning Appeals upholds the Zoning Administrator's determination regarding Major Home Occupation Clearance, HO2019-233. Attachments: Attachment A: Current GIS Map of the Property Attachment B: Building Permit B2017-02431-NNR Attachment C: Major Home Occupation Clearance Application Attachment D: Staff Email to the Applicant dated June 17, 2019 Attachment E: Official Determination "RE: HO2019-00233 Major Home Occupation Clearance" Attachment F: AP201900004 Application Attachment G: Staff Email to the Applicant dated September 29, 2017 Attachment H: Building Permit Layout ee 14g �» I a .- \ / m _ 44 E ! _ + m | � | \ � ! a - ( :! % | § < ! . ee r �i County of�hll�r�7all ti i/ BUTDiNG PER(i6'' Page i TMPI 05000-00-00-04900 _ 77 �40 Primary ''Rural Areas `` Zoning �017-02431_K M / t-�°j storage (buildengJ accessory structure Attachment B: Building Permit B2017-02431-NNR BUFTON, EVELYN & JOHN R MAUS 71 Flajor subdis, I�tArreage Aork Valuation Jurisdictional Area Other Foot/Found. Oesc, $ 48,000.00 ;No Service ��- 4\ork NEW STRUCTURE FOR HONE OFFICE Oesaiptmrn Entered By: 3ennfter Smith on 10,'181201: Associated Building Permft i Directions 7380 GORDONSVILLE RD Attachment B: Building Permit B2017-02431-NNR Legal ACREAGE — — ---- _—�-- Dascriptiow Use Group I Construction Type xagss. # of Stories 1 1st Floor 792 2nd Floor 3rd Floor Finished Basement Other Habitable Total Habitable Sq, Footage Porches SO4 De;ks Garage Sv raring Pool Unfnieasement OthO er Unfinished Total Unfinished Sq. Footage Total Building Sq. Footage Front Zoning Pre -Construction' I' Land Use, 1 Bad. © Fire alarms Required? ? �y� � q Bldg Pre -Construction? Lafr side �' i Ptght Side LSD Fire Sprinkler V1.=.v1. Code;^tear O•welling units Accessory Structures � FlobdelPre Fab. li mnr� Carports B Bedrooms B,,h, LD Garages K,fl,,nz oth Elw tc i E. Ial Fs Lifts Mobil= Offices',.Pr=fan. Units valor svray tlf �thHot B Poo L'Ho[ Tub-lspa-yR=r onlyl ^crams Cit otata Ii� ca - l r F'-on buften.e,elnc:johnrmaus iP O 80XE --- 161 Ali\i CoI of Alherr� rle R \,•_-r„ BUii0l1t;PE41.1T-�'age2 TMPI 05000-00-00-04900 icres 2.40 Primacy Rural Areas Zoning nimcnit, De.E,nwjiniDepartirsi: 4071 cm it lfad CIr1111ttes, ill- (' 22r o -EE: c �4?2 322 Fax :i434i 2412E Current BURTON, EVELYN & JOHN R MAUS SuSd sub Application Type', Storage building/accessory structure (new orl- Str=_e, J.dd - '380 GORDONSVILLE RD GORDONS 'ILLE, 22 4' Contractor Mcn'-bet Entered By; 7annh`er Smith on PUNS/2017 Associated Buildino�-- '1 Separate permits maybe required for Electrical, Plumbing, Heating, Ventilating and Air Conditioning. This permit becomes null and void if eaork or Construction authorized is nct coma enced rdithin 6 months, or if construction or worl< is suspended orabandoned fora period of 6 months at any time afterr%sri 1, is commenced, 1 hereby certify thatl have read and examined this application and knavrthe same to be true and correct. All pi o•aisions of laws and ordinances governing this type of'work -,a'dl be complied with whether specified herein m-notThe granting of a permitdoes not presume to give authority to viciate nr cancel tha Provisions of anv other state or local lao, regulating construction or the By signing this building permit, the or;nei and/crtheir agent hereby grant employees of the Albemarle COunty COlmmLnitJ Development Real Estate Departments the right to enter and inspect the subject pro pe :� olonday through Friday d.tween the hours of 8:00 a.m. and 5:00 p.m., holidays ex ceoted. If you are not the owner of record, please check ,,hid7 applies: I certify that I am the agent for BUFTON, EVELYN & JOHN R MAUS ❑ , the Owner, and am authorized to submit this application on behalf of the Owner under the agency granted to me. I am neither the Owner not the Owner's agent. I certify that written notice of this application, by providing a copy of this application, will be mailed to the Owner at the following address ❑ P O BOX E GORDONSVILLE VA 22942 within 10 days of today's date as required by Virginia Code § 15.2-2204(H). I understand that, if I do not provide the notice to the Owner as provided herein, the building permit application and every other subsequent approval, permit or certificate related thereto could be determined to be void. Dvz l EL CTRO JIC RECORDS STA EI ILNT Albemarle County is creating and using electronic records and electronic signatures as all .ed b; the i11ILOtm Elect oni,T a rsactions Act (bu ginia Cade § 59A-479 et seq.). As an applicantto the Building Permit process, you map consent torecelve, orha;e online access to, electronic records and receive and create records having _lech-onc signatures related to Building Permits, Correspondence, Inspection Tickets and Certificates of Occuoancy (the Buildinq Please initial here if you AGREE to receive and/or use electronic records and electronic signatures for Building Permit transactions. your agreement to conduct Building Permit transactions by electronic means does not preventyou from refusing to conductother transactons by electronic means. 115 -& tTlMz Ino rz Cl as d m p cc o � prA m ® O .-� n a CD ¢ < CD O C CD ei � N n November 15, 2017 1317085 1 53 MAN k n F - n n mza �yZy r gAO r\ 3 n O y r z A i :3 3 ' y_ZyN e A O � 2 n 1 1 1 1 \\ \ 1 \ 1 \ 1 1 \ 1 \ \\ S 1 1 / K \ S II £y \ Fn I \ \ \ m � i y nrKy yx]>a o ioUm n �L� v 9y=y m A sm'n A� z >93 s w Old Dominion Engine in 1J 2036 Forest Drive Waynesboro, VA 22980 (540) 942-5600 olddomeng@ntelos.net � - }21, - ; [ . �� \« ®\ \ \ | | \ ^ ) Id \ � L- O\d DQl\n{S2 E ngme2/}A& ri M, F > m o n cm. zy r o D+1 n' 3 m K> m a A >N T 1 3 3 w = z � In j ' ox n z C y E� > A z an F 3 aF / =F B+ � £ 2x H 323 MCI DOMR'nion, EngtoluleeTrRong \ \ f Q B § ( 2 ( / 0 IBe Attachment C: Major Home Occupation Clearance Application FOR OFFICE USE ONLY (J ql HHo # J/ IL I 1 - VV v Fec Amount $ � ` Date Peid �Il By who? J i wv.✓L'J Receipt # 5A CIL (� By: 'gd24 Application, for Major Home Occupation Clearance (Only for parcels in the Rurai Areas Zoning District) it Major Home Occupation Clearance = $27.00 + applicable fees This application may require additional review by the Fire Marshal. Fees in addition tc those shown on this Lipp]ication maybe required by the Fire Prevention Code Fee Schedule. A copy of the schedule is available from the Fire Marshal. Home Occupations. Major: An occupation, not expressly prohibited by section 5.2A, conducted for profit within a dwelling unit solely by one or more members of the family residing within the dwelling unit and up to two (2) additional persons not residing within the dwelling unit, with or without the use of accessory structures; provided that nothing herein prohibits the occupation from engaging other persons who work off -site and do not come to the dwelling unit or to any accessory structure to engage in the occupation. Applicant MUST HAVE the following information to apply: 1) Tax Map and Parcel Number (or Address) and a description of the Home Occupation, 2) A Floor Plan Sketch on the next page with the following: a) The total square footage of the dwelling; b) The square footage of area within the home being used for the occupation (note this cannot be more than 25% of the gross square footage of the dwelling). 3) If applicable, a survey, plat, or aerial map showing accessory structures and parking associated with the home occupation. The GIS Web enables easy viewing and printingof aerial maps. Name of Business: //b�yU� ,���,%/ /�/ f t� L � may- �.,, ^� Type of Business: L-i //�/ . �—Tax map and parcel:y�'"7(cX))6— C)O— Contact Perrs.sjjon y((Who should we call/write concerning this sppro/ject?): 11L%�rI VJ /r-y �/ Address /00OD G Stn7 �P (C.r't�`-r� /Citity6C1 _C(e21"-r r"I /(e State k/0 Zip Daytime Phone (6 r4 / L; Fax # (�-' y 6 ))-�0V 6 -" r�% E-maily Q C�M"S_/44r Q Owner of Record t�(/(/ir f/I {�1 't— f `/C��L /'� f'�t *7 C 9 Address State Zip i Daytime Phone ( Fax # E-mail DESCRIPTION OF USE (If necessary, attach au additional sheet, Include information about the number of vehicles and number of employees associated with the use, hours of operation, use of accessory structures, etc.): County of Albemarle Department of Community Development 401 MOntdre Road Charlottesville, PA 22902 Voice: (434) 296-5932 Fax: (434) 972-4126 4/23/2018 Page 1 of �;L_ ,0191-1 159 Each major home occupation authorized in the Rural Areas zoning district is subject to the follm ing: 0 LOCATION & AREA This home occupation shall be conducted within the dwelling unit or accessory structures, or both, provided that not more than twenty-five (25) percent of the gross floor area of the dwelling unit shall be used for the home occupation and further provided that the cumulative area used for the home occupation, including the gross floor area within the dwelling unit or any accessory structure and the area used for outdoor storage as provided in section 5.2A(g), shall not exceed one thousand ve hundred (1500) square feet. Plants that are planted in the ground that are to be used for a major home occup Ion do not count toward the one thousand five hundred (1500) square feet limitation. [Section 5.2A (b) (1)] E ,i ERIOR APPEARANCE There shall be no change in the exterior appearance of a dwelling unit or other visible evidence of the conduct of the home occupation, except that one home occupation sign may be erected as authorized by section 4.15. Accessory structures shall be similar in fagade to a single-family dwelling, private garage, shed, barn or other structure normally expected in a residential area and shall be specifically compatible in design and scale with other residential development in the area ' 'which it is located. Any accessory structure that does not conform to the applicable setback and yard requirep6mas for primary structures shall not be used for a home occupation. [Section 5.2A (c) (1)] r/][MTDRS & SALES Customers, clients and students are permitted to visit the property where the home occupation is conducted. Only goods That are hand-crafted on -site and goods that are directly related to the home occupation, including but not limited to tools for pottery making and frames for artwork are permitted to be for sale to customers who comes to the site. [Sectioin,51A (d) (1)) T..AFFIC Hurd I^Ctn t 1 trips J The traffic generated by the home occupation shall not exceed ten (10) vehicle round trips per day or more than thirty (30) vehicle round trips per week. For the purposes of this section, a `vehicle round trip" means one vehicle entering and exiting the site. [Section 5.2A (e)] ®.1PAiEa,N(; Low},o� Pam ho� nu�� rP�ceS All vehicles used in the home occupation and all vehicles of employees, customers, clients or students related to the hoo�meoccupation shall be parked on -site. [Section 5.2A (l)) �QlVi'E'GPOCila STiT&RACE The storage of goods, products, equipment other than vehicles used in the home occupation, or any materials associated with the hone occupation, other than natural landscaping materials such as mulch and plants, outside of an enclosed structur prohibited. )Section 5.2A (g)] HOURS OF OPERATION GAci+'f 'ham t1pP (Cz( The home occupation may operate up to six (6) days per week and the hours of operation shall be between 7:00 a.m. and 8:00 p.m. for those home occupations that have employees, customers, clients or students visiting the site. [Section 5.2A (h)] BINUMBER OF VEHICLES The number of vehicles that may be used in the home occupation that are parked or stored on -site shall not exceed two (2) motor vehicles and two (2) trailers. [Section 5.2A (i)] UMBER OF HOME OCCUPATIONS More than one home occupation is permitted on a parcel, provided that the area occupied and the traffic generated by the home occupations shall be considered cumulatively and all requirements of this section shall apply. [Section 5.2A (j)] Major Homu Owupation Cle&ranee 4/23/2018 Pqg 2o1`4 ,4 (0o ARii'dP NCE STANDARDS I he home occupation shall comply with the performance standards in section 4.14. (Section 5.2A (k)l Does the use involve procedures, Ifilar, hiiQnery or chemicals that may cause the follmo ing? NOISE VIBRATION GLARE HEAT AIR POLLUTION WkTER POLLUTION RADIOAC'i1VITY ELECTRICAL DISTURBANCE NON -DOMESTIC WASTE DISCHARGED TO A SEPTIC FIELD OR SEWER If )%EIS, then applicable standards must be addressed with a Certified Engineer's Report (available from staff). 0/pROHIBITED USES (1) any use requiring a special use permit under section (10) shooting ranges 10.2.2 (2) animal rescue centers (11) commercial stables (3) automobile graveyards (12) rummage or garage sales other than those (4) restaurants determined by the zoning administrator to be occasional (5) storage yards (13) veterinary clinics or hospitals (6) gun sales, unless the guns are made on -site by one or (14) pyrotechnic (fireworks or bomb) device more family members residing within the dwelling unit manufacturing or sale (7) on -site pet grooming (15) Any other use not expressly listed that is (8) body shops determined by the zoning administrator to be contrary (9) equipment, trailers, vehicles or machinery rentals to the purpose and intent of section 5.2A. [Section .2A (1)] 'On,vWATIONS&INSPECTIONS I will be 5elkvy filnr5- Ov"f 5k+�/j—I% Written notice that an application for a zoning clearance for a major home becupation has been submitted will be sent to the owner of each abutting parcel under different ownership than the parcel on which the proposed home occupation would be located. The notice will identify the proposed home occupation, its size, its location, and whether there is a. request for a waiver or modification. The notice shall invite the recipient to submit any comments before the zoning clearance is acted upon. The notice shall be mailed at least five (5) days prior to the action on the zoning clearance as provided in section 32.4.2.5. In addition, a public notice sign will posted on the property for the duration of the review. [Sect ime .2A (n)] SIGP AGE A�� ft�n�y� Unc sign that does not exceed four (4) square feet in sign area and only states the name of the person occupying the dwelling and identifies the product or service offered by the home occupation is permitted. No additional permit is required for this. sign, however, it must not exceed 6 ft. in height and must be setback at least 5 ft. from the public road right-of-wa '(Section 4.15.2 (25) and 4.15.81 DDITIONAL IMPROVEMENTS AND REVIEWS FROM OTHER AGENCIES A zoning clearance shall not be issued if, after review of any site, additional improvements are necessary to protect public health or safety. [Section 31.5 (e)] Other state and local resources, including but not limited to the Health Department, Virginia Department of Transportation, Building Official, and County Engineer are commonly asked to comment on Home Occupation applications. Major Home Occupation Clearance 4@3'2018 Page 3of4 i (CA WAIVERS OR MODIFICATIONS MAY BE SOUGHT ONLY FOR THE FOLLOWING: AREA The area requirements in section 5.2A(b) may be waived or modified, provided that the waiver or modification shall not authorize the home occupation to occupy more than forty-nine (49) percent of the gross floor area of the dwelling. In granting a waiver or modification of the area requirement, the commission shall make the following findings in addition to those findings in section 5.1: (1) the nature of the home occupation requires storage or additional space within the dwelling unit to conduct the home occupation; (2) the primary use of the dwelling unit as a residence is maintained; and (3) the waiver or modification would not change the character of the neighboring agricultural area or the residential neighborhood. [Section 5.2A (m) (I)] TRAFFIC The traffic limitation in section 5.2A (e) may be waived or modified. In granting a waiver or modification of the traffic limitation, the commission shall find, in addition to those findings in section 5.1, that the waiver or modification would not change the character of the neighboring agricultural area or the residential neighborhood. [Section 5.2A (m) (2)] WITHOUT WAIVER REQUEST ($27+notice fees) 1. Submit home Occupation application ($27). 2. Staff will review for completion and mail abutting owner notification (Fee varies based on number of letters). 3. Staff will visit property to post public notice sign, review parking areas, proposed location of sign, and storage areas (if applicable). 4. Staff will approve application if requirements have been met and pick-up public notice sign. WITH A SPECIAL EXCEPTION ($27 + $457 + notice 1. Submit Home Occupation application and Waiver application ($25 + $457). 2. Staff will review for completion and mail abutting owner notification (Fee varies based on number of letters). 3. Staff will visit property to post public notice sign, review parking areas, proposed location of sign, and storage areas (if applicable). 4. Staff will coordinate date of next available Planning Commission meeting to process special exception 5. Staff will approve application if requirements have C,i;aer/Applicant Must Read and Sign 1 hereby apply for approval to conduct the Home Occupation identified above, and certify that this address is my legal residence I also certiIY' at I have read the restrictions on Home Occupations, that I understand them, and that I will abide by them. is ceanfy O.'�'rn-onjuncfion with a business license, represents zoning approval to conduct the Major Home Occupa ' n rflie,, ra xv igna a of Applicant Date Official Official Zoning Official ENGINEER'S REPORT ATTACHED: YES Date Date Date NO ,Major Hmnc Occupation Clearance 4r2312018 Page 4of4 I (02 -------------- -7-7— —TT 77f— 7-1—�--- ----------------------------- : ---------------------- ----- ------ —1 --------------------- -- ----------- - ------------------------------------ \ \ \. _� �� §� � \ � §. � _� � -� � � � � /� , � / \ © ©�,�� \ , �� �� �|� �\ �� //( \ . � / BUFTON & MAUS LAW OFFICE Plans I (p 03 Attachment D: Staff Email to the Applicant on June 17, 2019 i�eviii N Bill_. LAi N'M From: Kevin McCollum Sent: Monday, June 17, 2019 8:25 AM To: Jack Maus Cc: Rebecca Ragsdale; Keith Bradshaw Subject: Major Home Occupation Clearance Jack, Thanks for allowing us to come out and visit the property again on Thursday. Since then, Keith and I have met with the Zoning Administrator, along with the County Attorney's office, and have concluded that the Major Home Occupation Clearance cannot be approved until we can confirm that the structure meets the applicable setbacks, which are: Front — 75' Side — 25' Rear — 35' We can confirm that these setbacks are met by either seeing a physical survey that shows the location and distance of the structure to the property line or visibly seeing the property line in the field by clearly marked stakes. If the structure does not meet the required 25' side setback a boundary line adjustment is a possible solution to the bring the structure into compliance with the required Major Home Occupation side setback. The Building Permit (82017-02431-NNR) was correctly approved given the information we were given at the time. The building was permitted as an accessory structure and no Major Home Occupation clearance was submitted alongside the building permit. Therefore, the setbacks were front — 75, side — 6, and rear —6. K.e v+.w m cr_.&� Planner, Zoning Albemarle County Community Development kmccollumPalbemarle.ora 434-296-5832 x 3141 le� 1-50- Attachment E: Official Determination "RE: H02019-00233 Major Home Occupation Clearance" off' d1.Il�,r �e IIIII � 1a M � h t �RCit���" COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902-4596 Phone t434)296-5832 Fax (434) 972-4126 July 30, 2019 John R. Maus 7380 Gordonsville Rd Gordonsville, VA 22942 RE: HO2019-00233 Major Home Occupation Clearance - Bufton and Maus, PLC Parcel ID 05000-00-00-04900 (2.40 Acres) (the "Property"), 7380 Gordonsville Rd, Gordonsville, VA 22942 Mr. Maus: In response to your request for a Major Home Occupation Clearance for the above referenced Property in the Rural Areas, please be advised of the following: Based on the information provided with the application and the site inspection conducted on June 13, 2019 the accessory structure on the Property, proposed with building permit B2017- 02431 NNR, does not meet the applicable setback and yard requirements for primary structures required by Section 5.2A(c). Thus, the noted accessory structure cannot be used for the proposed Major Home Occupation until it is determined to comply with the primary structure setbacks for the Rural Areas zoning district. Therefore, in accordance with Albemarle County Code § 18-5.2A(c) and Albemare County Code § 18-31.5(b) the above referenced Major Home Occupation Clearance cannot be approved at this time. Additionally, if the proposed Major Home Occupation operates on the Property without an approved Zoning Clearance it will be considered in violation and subject to Albemarle County Code § 18-36. If you are aggrieved by this determination, you have a right to appeal it within thirty (30) days of this notice, in accordance with Virginia Code § 15.2-2311. If you do not file a timely appeal, this determination shall be final and unappealable. An appeal may be taken only by filing an appeal application with the Zoning Administrator and the Board of Zoning Appeals, in accordance with Albemarle County Code § 18-34.3, along with a fee of $258. Additionally, a separate fee is required for the cost of providing notice and advertising of the appeal for a public hearing. Applications for Appeal of the Zoning Administrator's Determination are available at the Department of Community Development located at 401 McIntire Road, Charlottesville, Virginia 22902 or online at . This form applies to the appeal of a decision of the zoning administrator or any other administrative officer pertaining to the Zoning Ordinance. EN M July 30, 2019 HO201900233 Page 2 Regulations pertaining to the filing of an appeal to the Board of Zoning Appeals are located in Chapter 18, Section 34.3 of the Zoning Ordinance. They may be reviewed online at u s, _aloemarle.orglcountycodebza. (Please note that our online documents are in Adobe Acrobat PDF format and must be viewed with the Adobe Acrobat Reader or an equivalent. A link to download the free plug-in is available at the bottom of _____' emarle.org/cdapps.) Please contact me if you have questions or require additional information. Sincerely, Kevin McCollum Planner Authorized Designee to the Zoning Administrator Attachments: Links shown can be copied and pasted into web browser Albemarle County Code § 18-5 (See Section 5.2A for Major Home Occupation requirements) http_j4,,,,w albe.rnerie.org/uploac!.Iimacies;Forms Center/Departments/County Attorney/Forms/Al ma !.e Co,.;nty Code Ch18 Zoning05 Supplement Regulations.pdf Albemarle County Code § 18-31 (See Section 31.5 for Zoning Clearance requirements) httt)://www.albemarle.org/upload/ima.ges/Forms Cen` Departments/County AttomevlFormslAl bemarle County Code Ch18 Zoning31 A - ament.pdf Albemarle County Code § 18-10 -Area and Bulk Regulations Sec. 10.4 ("applicable setback and yard requirements for primary structures" ref. 5.2A(c)) httoa n.albeer �la.orglupload(mageslFcrms Center/Departments/County Attorney/Forms/AI bemarle County Code Ch18 Zoning10 Rural Areas.pdf Albemarle County Code § 18-36 http:/lwww.albemarle.org/upioadlimages/Forms Center/Departments/County Attorney/Forms/AI bemarle County Code Ch18 Zoning36 Violations.pdf OUnty Attachment F: AP201900004 Application a .:! PIztEtiing 1-pplica eion P-'ARcvL OWIgEP EPIFow-4ZT oN - TMP 05000-00-00-04900 0,,;ner(s): BUFTON, EVELYN & JOHN R MAUS Application# PROPERTY INFORMATION Legal Description ACREAGE Magisterial Dist, Rtivanna Land Use Pnmarr Residential -- Single-family (incl. modular homes Current FO Not in A/F District Current Zoning Primary Rural Areas -_ APLI PCAiYON IIJrOPd`-IATrdfg Street Address 17380 CORD ONSIILLE RD GORDONVILLE, 22942 Entered B, Application Type Appeal of LmmuU %dimnistrator's Deternunation -- Bucksmith o Project EVELYN BUFI 0H AND JOHN R M1911U Received )ate j n8/12/19 Received Data Final �— submittal Date OB/12/19 Total Fees 258 Closing File Gate submittal Date Final 256 �L I Total Paid Re:isien Humber Comments I i Legal Ad •"-_=_=- LUFION. E1'ELi74; J CHII F.FIP.US IPO BOXE J-t611-.Us- _. . _....... ... N .; P.O. 80X E G ma"—•t - E.EII GUEION AND IOHhI RI-0iUS Signature of Contractoror Authorized Agent C''r b U HU U I JSt ILLE't '22942 GORD0115OLLE ,22942 540994100E FOR OFFICE USE ONLY AP # .sry l C�i_"'1il3 �i SIGN # ZONING ORDINANCE SECTION: Fee Amount Date Paid3 121 By who? 6 C Receipt # Ck4 By: AfipNeafion for Appeatl of :mooning A( unifdisty--hair's Determ m Appeal of Zoning Administrator's Determination = $258 .FFF 3 W rbe J,f9-qf d Ydf e vll,�Eu R"C91Cyfi'_ for i9G�auQ'_Bk Oi(lce: Appeals of the Zoning Acbronistrator i equire a public hearing by the Board of Zoning Appeals. Virginia State Code requires that notice for public hearings be nmdc by publishing a legal advertisement in the newspaper and by mailing letter's to adjacent property, owners. The total fee for public notice will be prosrided to the applicant after the final cost is determined and must be paid before the application is heard by a public body. Staff estimates the total cost of legal aderrtisetneuk and adjacent oovner uotflcation to be beriveen S350 ant] S450. This estimate reflects the average cost of public notice fees, but the cost of certain applications may !i higher. Preparing and mailing or delivering up to fifty (50) notices S215 i- Preparing and mailing or delivering each notice after fifty (50) $1.08 for each additional notice+ actual cost of first-class postage i Legal advertisement (published twice in the newspaper for each public Actual cost hearing) (averages between $150 and $250) Contact Person ( Who should we call/write concerning this project?): Jack Maus Address Post Office Box E City Gordonsville State VA Zip 22942 Daytime Phone (540) 894-1006 Fax # (540) 406-5911 E-mail jackmauslaw@gmail.com Owner of Record Evelyn Button and John R. "Jack" Maus Address Post Office Box E City Gordonsville State VA Zip 22942 Daytime Phone ( 804) 432-0920 Fax # ( 540) 406-5911 E-mail ebuftonlaw@gmail.com Applicant ( Who is the Contact person representing?): Evelyn Bufton and John R. Maus Address Post Office Box E City Gordonsville State VA Zip 22942 Daytime Phone ( 540) 894-1006 Fax # ( 540) 406-5911 E-mail jackmauslaw@gmail.com Count'of A.lbemarte De_parfrnent of Community Development 401 McIntire Road Charlottesville, VA 22902 Voice: (434) 296-5832 Fax: (434) 972-4126 Revised 11/1/2015 PX1 or2 Project Name: Burton & Maus Law Office Tax map and parcel: 050000-00-00-04900 Physical Street Address (if assigned): 7380 Gordonsville Road, Gordonsville Virginia 22942 Zoning: rural Location of property (landmarks, intersections, or other): Rt. 231 approximately 2 miles north of the intersection with Lindsay Road - across from Fielder's Choice Farm The following information shall he submitted with the application and is to be provided by the applicant•. I ) Completed application including subject of appeal. 2) Justification for applicant's position, including error in Zoning Administrators determination. You may use the space below to provide this information or submit an attached sheet. 3) If applicable, a copy of the latest deed for the property involved, and the approved and recorded plat. 4) If applicable, the appropriate drawings showing all existing and proposed improvements on the property and any special conditions for the situation that may justify the appeal. S) Reference to the relevant Zoning Ordinance section or other applicable regulations or case precedence tojustify the appeal. 6) Appropriate fee made payable to the County of Albemarle. Explanation of error in determination and justification of applicant's position: As further explained on the attachment the iusitification for applicants' position is that (1) they fully disclosed to the Department of Community Development their intended use for the building (2) the Department issued a Building Permit approving the placement of the building (3) the applicants relied on the Building Permit in locating the building, and(4) the appli- cants' reliance on the Building Permit and their expenditure of substantial funds to construct the building is to their detriment if they are unable to use the building for itif0wrier/Applicant Must Read and Sign intended purpose. I hereby certify that the information provided on this application and accompanying information is accurate, true and correct to the best of my knowledge and belief. Date: �- Slgn4tula of Owner or Contract Purchaser, Agent �IItit`1Te Daytime phone number of Signatory Board of Zoning Appeals Action/vote: Board of Zoning Appeals Chairman's signature: Date: Reeised 11/1/2015 Page of t ATTACHIVIENT TO APPLICATION FOR APPEAL OF ZONING ADIVHNISTRATOR'S DETERMINATION Background When the applicants applied for a building permit, they submitted a copy of the architectural plans for the structure, which called for a building of approximately 1000 square feet with 2 offices, a conference room, a bathroom and a small kitchenette. The applicants' clear intention was to use the building as a law office and to meet there with clients and other professionals incidental to their law practice. The Department of Community Development (hereinafter, "the Department") issued a building permit that required the building to be set back only 6 feet from the side property line. A copy of the building permit is attached as Exhibit 1. The foundation for the building was staked out so that it is parallel to the residence rather than the side property line. So, at its nearest point, the building is set back 14 feet away from the side property line. At its furthest point, the building exceeds the 25 foot side setback requirement. When the foundation was staked, the applicants asked the Department to send a representative to visit the site to make sure that the stakes were properly placed. When that representative said that the location was correct, the applicants constructed the building in that precise location. The building was constructed in full compliance with the Statewide Building Code as enacted by Albemarle County and has passed the final inspection. The applicants have been told by the Department of Community Development that they are entitled to a Certificate of Occupancy.' Indeed, within hours after the final construction inspection was done, the County's Tax Assessor visited the property to ascertain its effect on an increased property tax assessment. Now, the Zoning Administrator has determined that he cannot approve a Major Home Occupation Clearance because the entire building is not set back 25 feet from the side property line. ' The Department has indicated to the applicants that, although the building has been completed in full compliance with the building code, the Department has, at the time of filing of this Application, withheld the Certificate of Occupancy because it did not want to influence the zoning process. Those are two entirely different issues and the Department's refusal to issue a Certificate of Occupancy under these circumstances is arbitrary and capricious. 170 Case Precedent to Support the Appeal The applicants have been unable to find any legal precedent that precisely deals with this situation. However, there are other legal precedents that are instructive about the appropriate resolution of this appeal. The law in Virginia is clear that, if one person relies on the representations of another to their detriment, the person making the representation is prevented (or estopped) from later taking a different position. Allowing one party to change positions under certain circumstances would be unfair. That's why the doctrine is called "equitable estoppel." said: In Stewart v. Lady, 251 Va. 106, 465 S.E.2d 782 (1996), the Supreme Court of Virginia To establish equitable estoppel, it is not necessary to show actual fraud but only that the person to be estopped has misled another to his prejudice (internal citation omitted) or that the innocent part acted in reliance upon the conduct or misstatement by the person to be estopped. Khoury v. Memorial Hospital, 203 Va. 236, 123 S.E.2d 533 (1962) ....Elements necessary to establish equitable estoppel, absent a showing of fraud and deception, are a representation, reliance, a change of position, and detriment. 2S1 Va. at 112- 113, 465 S.E.2d at 785. All of those elements necessary to prove equitable estoppel are present in the applicants' case: • There was a representation (that the side setback was only 6 feet), • The applicants relied on the representation, • The applicants changed their position (they spend over $120,000.00 to build the office where it was permitted), and • The applicants have suffered a detriment (that the County will not allow them to use the building for its intended purpose). The principle of equitable estoppel applies to zoning issues as well. In Chapel Creek, Ltd. V. Mathews County, 12 Va. Cir 350 (1988), a developer had acquired a parcel of land on which he intended to build a 6-unit apartment building. He received approval for that and, when he learned that the County was going to enact an ordinance that prevented expansion x. I I i of that project, took additional steps to increase the size of his project before the ordinance became effective. When the Zoning Administrator denied the building permit for the expanded project, the developer sued and lost. However, the Court said this: The doctrine of equitable estoppel provides that the right to use or develop land cannot be infringed upon by legislative action when the owner or developer of such land has in good faith relied upon some act or failure to act by a governmental body and made a substantial change in position. (Internal citations omitted) ...[A] property owner may acquire a valid nonconforming use or acquire a vested right to complete construction of a nonconforming building where, in good faith and in reliance upon a validly issued building permit, the property owner has begun substantial construction or has incurred substantial expenses relating directly to the construction. (internal citations omitted) The most obvious missing link in petitioner's case is the threshold government act, the issuance of a building permit. 12 Va. Cir. At 353. Unlike the developer in Chapel Creek, the applicants in this case had a validly issued building permit and constructed the building in accordance therewith. The applicants have finished construction of the building as it was permitted and, as indicated above, have spent in excess of $120,000.00 to do so. As a result, Albemarle County is estopped from denying the applicants a zoning clearance. Furthermore, the Supreme Court of Virginia, in Lee v. City of Norfolk, 281 Va. 423, 706 S.E.2d 330 (2011) applied language from Jones v. Board of Governors, 704 F.2d 713 (4th Cir. 1983) in which that Court said: [S]ignificant departures from stated procedures of government and even from isolated assurances by governmental officers which have induced reasonable and detrimental reliance may, if sufficiently unfair and prejudicial, constitute procedural due process violations. 281 Va. at 436. The decision of the Zoning Administrator is so unfair and prejudicial that it violates the applicants' due process rights under both Article 1, §11 of the Constitution of Virginia, and under the Sth Amendment to the Constitution of the United States as made applicable to the States through the 14th Amendment. Finally, it appears that the Zoning Administrator takes the position that the setback requirements in Code §18-10.4 are mandatory. However, the heading at the top of the setback table merely says that "Area and bulk regulations within the RA, rural areas, zoning xlr 112 district are as follows:" That's not enough to make the setback requirement mandatory. Even if the word "shall" could be inferred from the ordinance, the Supreme Court of Virginia has recently ruled that "shall" is not always mandatory, but that it can also be directory. Rickman v. Commonwealth, 294 Va. 531, 808 S.E.2d 395 (2017). In fact, the Court said that: Under Virginia law, the use of the term "shall" in a statute is generally construed as directory, rather than mandatory, and, consequently, no specific, exclusive remedy applies unless the states manifests a contrary intent. (internal citations omitted). 294 Va. at 539. In fact, one of the decisions cited in Rickman, was Tran v. Board of Zoning Appeals, 260 Va. 654, 536 S.E.2d 913 (2000). In Tran, the Board of Zoning Appeals issued a ruling outside of the 90-day period prescribed by Virginia Code §15.2-2312. The Supreme Court of Virginia ruled that the word "shall" in the statute was directory, not mandatory so that a BZA decision outside the 90-day limit was valid. As indicated above, the County Assessor has determined that the structure adds value to the property. The Department of Community Development recently visited the property and assigned the office building a separate 911 address. The applicants were told that, so long as the building was going to be visited by third parties, it needed a separate 911 address in case of an emergency. The applicants don't understand why the County needs to plan for the presence of third parties if the applicants are not allowed to have them in the building. In summary, for all of the reasons set forth above, the applicants submit that the decision of the Zoning Administrator to deny them a Major Home Occupation approval was incorrect and should be reversed by the Board of Zoning Appeals. Ael ►1 3 M 10,7 017-0224 u_-N%NP „1 County of Albemarle 7-n AC� BUiLD,IAIGPtFbt'T Pagel TNIp I 05000-00-00-04400 ;ryes t 440 Prim,; Rural Areas Loring C, l i ding pe nn it Sub P. p pli: a t ion SveetFdd. ommumP DevelopirentlDeparinant si1-1h,111ttes;112-4E95 64iue 2.4120 BUFTON, EVELYN Rt JOHN R NAU5 f Halt, Subdi:. �creage Entered By: Jennifer Smith on 1011612017 Associated Building Permit ffA,rk Valuation Jurisdiction. l Area Other Foot; Found. Des-.. I— $ 48r0OO.0O iNo Service Worksc I NEW STRUCTURE FOR HOME OFFICE Description! , Directions 7380 GORDONSVILLE RD Legal ACREAGE Description: Use Group Construction Type _ 1 # of Stories 1st Float 2nd Floor 3rd Floor Finished Bas e m e at Other Habitable Total Habitable S, Footage J Front % S Left Side D'aalling Units Carports B Garages otbar F_ Porches 504 Decks Garage Swimming Pool Unfinished Basement Other Unfinished Total Unfinished Sq. Footage Total Building Sq. Footage Zoning Pre -Construction? Land Use? Back t: Fire Alarms Required -,Bldg Pre -Construction? Rght Sid Ft, Sprinkle II'PACoderearFI kc-lsory Struclnre5 Bedrooms Mobile+Prefab. Homes = Baths L0 l(iechan- EI=_vatur'. Es:slatc's'. Lift• = Ploblla Gf£ II U t, F'_int Spray Booths - mming Pools[Hot Tubs'Gpas litter only) buken. a,el,n G.john r:n a u s 'PO BORE - _ce . cu same,'onnulagme I /- Tlf i - .r51 III 1 I[ ❑ !,DIDa r t D J9 ti u: U01, ii% of Albel ie�Y�� 4dl1 en hsn n :w 15 ,r y�l -lS ti 3n FS "1 7741ec ta u LJ' 1G PE41 T-Pace 2 - TMP 05000-00-00-04900 I anent BUFEON EVELYN R-JOHN R MAUS Owned') <r , 2A61, ono Rural Areas i-bdIaloJAcreage tE ! ri vi Building Permit =1 8,201 70243, 11 Entered By: Jennifer Smith an 1011612017 Sub Application TypeiSiora a building/ - I � Associated Building mit g g�aCC@SSOYY �Itet•/ gY Permit Street Address: 73E0 GORDOIJSVILLE RD GORD OPI StiiLLE, 22942 oepai ace ii wits ndy ue requtreo for Electrical, Plumbing, 1l aatina, Vcntila5ng and Air Conditioning, This permit becomes null and void if-,•;orl: ormnstruction authorized is not commenced -within 6 months, ol-if construction orwork is suspended or abandoned for a period of 6 months aP any tine after rro rh is commenced. I hereby certify that I have read and examined this application and ]toga; the same to be true and correct. All provisions of laws and ordinances coves ning this type of work will be complied with whether specified herein or not. The granting of a permit does Pat presume to give authority to violate or cancel the provisions of any otherstate or local law regulating construction or the „ ,Fv rn,anro �f —nrrrrri„„ Ey signing this building permit, the owner and/or their agent hereby grant employees of the Albemarle Cminty Community Development Real Estate Departments the right to enter and inspect the subject property I ondav ths-ough Fi iday between the hours of 8:00 a.m. and S:00 p.m., holidays excepted. If you are not the owner of record, please check which applies: I certify that I am the agent for BUFTON, EVELYN & JOHN R MAUS ❑ , the Owner, and am authorized to submit this application on behalf of the Owner under the agency granted to me. I am neither the Owner nor the Owner's agent. I certify that written notice of this application, by providing a copy of this application, will be mailed to the Owner at the follotsinn_ address ❑ P O BOX E GORDONSVILLE VA 22942 within 10 days of today's date as required by Orgluia Code g 15.2-2204i(H1, I understand that, if I do not provide the notice to the Owner as provided herein, the building permit appliratinn and every other subsequent approval, permit or Del related thereto could be determined to be void. fC c. .Ira Oat= m ELECTRO 41C REC STATEMENT! Albemarle Cgunby is creating and using electronic records and electronic signatures allowed by the IJrtifo rm Electronic Transactions Act Pv'irDiu, Code § 59.1-479 et se ldingPe m _q.}. As an applicant to the Building Permit plgcess, youMay co nsentto tecritle,ofhareai ISne access to, elech gnic 1 ceps is and rer.ePaa a nd create records having _cl,ltron c signatc res related to building Perini- , Con esPondenr,, Inspection Tidcels and Certificates of Occupancy (the Building Please initial het e if you AGREEto I ccei,, and/or use electronic records and elechonic signatures ForBuildingPermit transactions. I Ihsts of Gimer. Corl'acmr cr AV, comes Ag=_r; Your agreement to conduct Building Permit transactions by electronic means does not preventyou from refusing to conduct other transactions by electronic means. !?S CD C Cl. CD 0 sm O-T 4 ounty of Alberr+arieDepartment or CommunityDevelopPrient401 McIntire Road, North Wing Charlottesville, Virginia 22902' DATE: 08/05/2019 TO: BUFTON, EVELYN & JOHN R MAUS P0BOX E GORDONSVILLE VA 22942 CC: Post Office, GORDONSVILLE FROM: Geographic Data Services (GDS) www.albemarle.ora/ads 434-296-5832 SUBJECT: Physical Address Notification - NEW CONSTRUCTION TMP: 05000-00-00-04900 PERMIT#: B2017-02431NNR PHYSICAL ADDRESS: 7382 GORDONSVILLE RD As of the date of this letter, the physical address located at the above Tax Map Parcel (TMP) and/or Building Permit# is currently in our addressing system. To ensure proper location by emergency service providers, timely mail delivery, and the accuracy of other County records, please do the following: If applicable, contact your telephone company to ensure this physical address is associated with your landline telephone number; �. .h r .., : .: ca with Albemarle County's Road Naming and Prol i Aumbering Orc,.,lance an 11a ival;* To rec; _ of Jar i, rc your post. If this is an address change and you did,: , r o:c ^ot srhr t a Change of Address form with the USPS. Any ei ,! on ab I_ ,-r it (' . !very, i. code li r '.on, rind determining where a mailbox should )e , v.ik be handled by Ihu c,st office; If at;',; I'cable, onsuic U e y< -rods are up to with Vv_cr RegL.raticn (434-972- 4173), School Transportation (434-973-5716), and the County's Finance Department (434-296-5851); Alert other Countyand non -County entities (e.g. credit card, utilities, etc.) as necessary. Note: any change in your physical address does not require the deed to your property to be re- recorded at the courthouse. *The County's Road Naming and Property Numbering Ordinance requires that this physical address number be posted so it is easily visible from the named street or road. The number .n., _ _... .,,.,, T1 I , ^ named street or road, the address number and road name roust appear on the i i, oox, The numerals displayed should be at least three inches in height on a contrasting background and any previously displayed numbers, which could be confused with or mistaken for the address assigned, shall be removed from the mailbox and property. If you should have any questions regarding this physical address, please do not hesitate to contact our office. z3l� 17Z Attachment G: Staff Email to the Applicant on June 17, 2019 Kc'vun 6 ac�tH9le r7B From: Rebecca Ragsdale Sent: Wednesday, June 12, 2019 3:39 PM To: Kevin McCollum Subject: FW: Building Law Office on Home Property From: Rebecca Ragsdale Sent: Friday, September 29, 2017 7:21 PM To: Jack Maus <maus48@gmail.com> Subject: RE: Building Law Office on Home Property Mr. Maus, We allow small offices as a home occupation as long as the requirements of the major home occupation checklist are met: http://www.albemarle.org/upload/images/forms center/departments/Community Development/forms/applications/ Major Home Occupation Clearance.pdf If you would like to build an accessory structure to accommodate the home occupation, it may be no more than 1500 square feet in size and must be 75' from the front property line/edge of VDOT right of way, 25' from the side property ',. lines, and 35' from the rear property line. If the structure for the home occupation is not yet built, you would need to apply for a building permit. The home occupation could not be approved until after the structure gets its CO. We can set up a time next week to chat about this in more detail if you would like. I'm free to meet or give you a call any time after 2:30pm on Monday and have other scattered openings throughout next week. Rebecca From: Jack Maus [mailto:maus48@gmail.coml Sent: Wednesday, September 27, 2017 7:37 PM To: Rebecca Ragsdale <ragsdale@albemarle.org> Subject: Building Law Office on Home Property Dear Ms. Ragsdale: My wife, Lyn Button, and I live in the northeastern corner of Albemarle County at 7380 Gordonsville Road. We are both lawyers and recently formed a law partnership. We would like to build a law office in a corner of our 2.4 acre lot. I stopped by the Community Development Office yesterday without an appointment and was given your name as a contact person to see whether that's possible and, if so, what we need to do to get started. � {d Please let me know when it would be a good time to explore this further. My cell phone number is 540-894- 1006. Thank you, Jack Maus lf� ME }avMaiu�nj5uawopplo 0099-Z46(Ob5) 086ZZ VA'wogsauXRM anud Isaioj 9foZ O _ J l i co 32 1 11 t 00 - nU kt t - I i I U II I Q11 Z` y II aQ G Y 1 I I � 1 i l\ s c _ — _ 3 Z ey vZ— _ _ � C V� L _ Y VO MEMORANDUM TO: Albemarle County Board of Zoning Appeals FROM: Andrew H. Herrick, Deputy County Attorney DATE: September 19, 2019 RE: Bufton & Maus Appeal; No. AP 2019-4 On behalf of the County, the County Attorney's Office submits the following summary of legal issues raised in the Bolton & Maus Appeal Oqo. AP 2019-4). Appellants Evelyn Bolton and John R. Maus are appealing the denial of a home occupation clearance H02019-00233. 1. Summary of Facts On or about October 18, 2017, Appellants Evelyn Bufton and John R. Maus applied for a building permit for an accessory structure in the Rural Areas (RA) zoning district On or about December 7, 2017, Building Permit B2017-02431-NNR was issued, authorizing the construction of the accessory structure. The building permit noted side and rear setbacks of six feet, consistentwith County Code § 18-4.11.2(b). Following completion of construction, on or aboutJune 4, 2019, the Appellants applied for a major home occupation clearance, pursuant to County Code S 185.2A. Specifically, the Appellants applied to operate a law office from the newly -constructed accessory structure, which is located within 25 feet of the side property line. In an official determination dated July 30, 2019, the Zoning Administrator's designee denied the Appellants' application for a major home occupation clearance. On or about August 12, 2019, the Appellants filed the present appeal. 2. Applicable Standards A. Standard of Review: Presumption of Correctness / Appellants Burden of Proof Virginia Code § 15.2-2309(1) enables the Board of Zoning Appeals (BZA) to "hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement of [the zoning ordinancel. The decision on such appeal EN Ie'l shall be based on the board's judgment of whether the administrative officer was correct" See Board ofZoningAppeals ofjames City County v. UniversitySquare Associates, 246 Va. 290 (1993). Virginia Code § 15.2-2309(1) further provides: "The determination of the administrative officer shall be presumed to be correct At a hearing on an appeal, the administrative officer shall explain the basis for his determination after which the appellant has the burden of proof to rebut such presumption of correctness by a preponderance of the evidence." [emphasis added] B. Applicable Zoning Ordinances 'Phis appeal primarily involves two provisions of the County's zoning ordinance: 1. County Code § 18-5.2A outlines the standards by which major home occupations may be conducted in the Rural Areas (RA) zoning district Most notably for the present case, County Code § 18-5.2A(c)(1) provides: "Any accessory structure that does not conform to the applicable setback and yard requirements for primary structures shall not be used for a home occupation." (emphasis added) 2. County Code S 18-10.4 in turn provides that the applicable side setbacks for primary structures in the Rural Areas zoning district are 25 feet At its core, this appeal misunderstands the critical distinction between structures (on the one ' hand) and uses (on the other). Building permits and use clearances (such as for home occupations) are analyzed and issued by separate offices under separate standards. The County's Building Official issues building permits, following the standards of the Uniform Statewide Building Code (USBC). By contrast, the County's Zoning Administrator issues zoning clearances for certain uses, following the standards of County Code S 18-31.5 and (in the case of home occupations in the Rural Areas) County Code § 18-5.2A. Note that these requirements address the use of a structure or property. A structure meeting the structural requirements of the USBC may not necessarily meet the separate requirements needed to qualify for a certain use, such as an approved home occupation. In this case, the newly -constructed accessory structure did and does meet all applicable USBC requirements. 'Therefore, the new accessory structure was properly issued a building permit, despite being within the side setback applicable to primary structures, and may still be used for any use permitted in accessory structures in the Rural Areas zoning district Unfortunately for the Appellants, a major home occupation simply isn't one of those permitted uses, at least where the accessory structure is within a setback applicable to primary structures. Though the Appellants have other potential use(s) of the accessory structure or may seek a boundary line adjustment (among other potential remedies), County Code S 18-5.2A(c)(1) simply does not permit home occupation use within the setbacks applicable to primary structures, as here. 4. Rebuttal The appeal objects to the determination on two grounds. Neither is legally persuasive. G 16z A. FEguitable estoppel does not aooly. Despite the Appellants' argument, equitable estoppel does not apply to die County's zoning determination in this case. As the Vhginia Supreme Court has ruled: "To establish equitable estoppel, it is not necessary to show actual fraud, but only that the person to be estopped has misled zuothet to his prejudice, Securih, Co. v. Juliano, Inc., 203 Va. 827, 834, 127 S.E.2d 348, 352 (1962), or that dic irmocent put,acted in rctiance upon the conduct or misstatement by the person to be estoppcd. Khour v. Alcinorial hospital, 203 �'a. 236, 243,123 S.E.2d 533,538 (1962)." T. v. T., _Z t �.r..<_ _iz Uyi[i?. (emphasis added) In this case, the County -issued Building Permit was neither misleading nor a misstatement The Building Permit properly allowed the construction of the proposed structure in the proposed location. However, as noted above, the use of that structure was and is a separate matter. As a result the Building Permit did not (and could not) give zoning approval for a home occupation use. The Appellants apparently inferred a home occupation use approval from the Building Permit where none was actually granted. The County's approval of the Building Permit and disapproval of the subsequent home occupation use application are consistent and do not represent a change in position on the County's part Therefore, equitable estoppel does not apply. Even if equitable estoppel did apply, it would only preclude the County from revoking its initial Building Permit which the County has not sought to do. Despite the Appellanes argument, the setback requirement in the County's zoning ordinance is plain, unambiguous, and mandatory. Before outlining specific dimensions, Albemarle County Code § 18-10.4 begins: "Area and bulk regulations witbin the RA, rural areas, zoning district are as follows:" (emphasis added). The Appellants attempt to confuse the issue by introducing the distinction between the mandatory ("must") and directory ("will") uses of the ambiguous term "shall." Fortunately, the ordinance in question actually uses the clear and unambiguous term "are." The alternative, a "directory" setback, would eliminate defined setbacks altogether. As the Virginia Supreme Court noted (in the case cited by the Appellants): [A] "shall" command in a directory statute caries no specific, exclusive remedy. Instead, it enrporr cis the court to excirise discretion in fashioning a tailored remedy, if one is called for at all." Ric In arguing for a "directory" setback, the Appellants are arguing (perhaps without realizing it) that courts should "exercise cscretion in fasluoning a tailored [setback], if one is called for at all." That clearly is not the meaning or intent of the County's setback requirements, as written. Setbacks are in fact mandatory requirements, not directory guidance. S. Conclusion For the reasons stated above, the denial of a home occupation clearance HO2019-00233 was correct Because the Appellants have failed to rebut the presumption of correctness, their appeal should be denied, and the denial of the zoning clearance affirmed. Cc: Bart Svoboda, Zoning Administrator Z 163 Information Requested by John Shepherd COUNTY OF ALBEMARLE �eiui4, r - Department of Community Development 401 3lclntirt Road, Noah Wing Charlottesville Virginia 22902-4596 Phone (434) 296-5532 - Fax (434) 972-4126 C .10 ;1 %-,/I E OF OCCUPANCY This is to certify that the detached personal home office, as further described below, has been inspected and found to be in compliance with the 2012 edition of the Virginia Uniform Statewide Building Code. Constru aion Information Buildiag r�errait # 620170243INNR 6�0e 01 I-Onstrt-wrfion 5-B t s r S iea TVs' �tv None Designated �,'ial CdJ ri�i`tiCB rBS Or 6'✓J 0 ei isd'CVaY For personal use only, use Gtmkid R-5 erq, lrwtorinnation rI7O 05000000004900 Ovutaer BUFiON, EVELYN & JOHN R MAUS a bcli i i0: Acreage Prnprerh,, Address 7382 GORDONSVILLE RD GORDONSVILLE 22942- i�e��9. t2rlai I�.Dlstrlci Rivanna Zonin Ctesignation Rural Areas Date: August 15, 2019 Building Official: Zoning Administrator: 165 Residential Inspection County of Albemarle - Inspections Division - (434) 296-5832 TMP: 05000-00-00-04900 Owner: SUFTON EVELYN & )OHN R MAUS � Phone: Cell Phone: Permit Number: B2017-02431-NNR y � New Owner: i P" 11/r�1;.1P Power Company: Central Virginia Phone: LegalDescription: Acreage Street Address: 7380 GORDONSVILLE RD GORDONSVILLE Directions: 7380 GORDONSVILLE RD Work Description: NEW STRUCTURE FOR HOME OFFICE DateScheduled: 2/ 15/2019 Type' Administration COMMENT Insulation 989-4324 Printed: 2/14/2019 4.28 PM Scheduled By: Eileen Wittwer Inspectors Comments: Cell Phone: Re -Inspection APPROVE REJECTED ❑ IV c ilG L .G'ps� — Inspec Name ��/JyL(�G� f.���4///Jt J�N7L�� Ci%t �(i�? f� �,/G��O ✓1'K-ZdCpf (� L1n/J'•(Y �.-G`%L VLL�YU1�°Ci.' l.� Av J21� dam VRGINIA hitrnle ��nHealth Departm17I' ent 1 _ DEPARTMENT 1 !38 Rose Bill Drive OF HEALTH cnan,ue',fit229o3 (434) 972-6213 Voice Pro(F(:lwy ) (w inn Ybot Enwronment (434) 972-43!.0 Fax Sewage Disposal System Operation Permit 1'rn �ertiOumer [,-och'n Button Ileahh Dept. ID: 101-17-0590 7380 (lwdnn clue Road Bldg Permit ': B2017-02431-NNR Gordonsville, A A'2942 lag Mop/GPI NI: 50-49 Phone: (804) 432-0920 Locality: Albemarle Comity ProLwal, Location hoperty Address: 7380 Gordonsville Road F�, - ---- Gordonsville, VA 22942 L J Evelyn Buftmh is hereby granted permission to operate :t Residential Conventional Onsite Sewage System at the above relerenced location, under he tbl lo�v lw pnranicters: Daily Plow: 300 gallons Number of 13edvomus: 2 This permit is issued in accordance wiih the provisions of l isle 32.1. Chapter 6 of the Code of Vireinia as Amcnd d. and Secilon 13VAC 5-610 t0 of I' n c. ;oec [t:'Iinta m,j Ci,posal R-2uluiions of the Virginia Pcpartmcnt of I Iculth. 'File issuance of an operw ion pannit does not denote or inhplp any guuranlcc by the department that the sewage dispo,id system kill liinctlon for any specilled penud of lima. It shall be the responsibility of the owner or any subsequent owner to maintain, repair, ar replace any schvage disposal system that ceases to operate in accordance with the regulations. July 9.2019 Travis Davis ViTeclive Dale Environnhental Ilealtlh Specialist, Sr. Signature m 161 Residential Inspection County of Albemarle - Inspections Division - (434) 296-5832 i r Owner. BUFTON EVELVN & ]oHN R MAuS TMP: 05000 00-00-04900 °ntl All ? Phone. Cell Phone' i t� Permit Number: B2017-02431-NNR Nawowner �� Power Company. Central Vlriturn Phone LegalDescrlption Acreage Street Address 7380 GORDONSVILLE RD GORDONSVILLE Directions. 7380 GORDONSVILLE RD Work Description. NEW STRUCTURE FOR HOME OFFICE Type Final Building Final Electric Final Mechanical Final Plumbing Printed5/21/2019 4.26 PM Scheduled By Eileen Wittwer Inspectors Comments' Date Schedu led: 5/2 2/2019 Administration COMMENT Cell Phone'. Re -Inspection APPROVE REJECTED 540-894-1006 A.M. ❑ Dl/' ❑ ❑ LI ❑ ❑ �� ❑ Inspectors Name Residential Inspection County of Albemarle - Inspections Division -'111, 296-5832 Owner BUEON EVELYN & JOHN R MAUS TMP: 05000-00-00-04900 V III' Phone: Cell Phone: l ' Permit Number: B2017-02431-NNR New owner ✓ Phone' Cell Phone Power Company. Central Virginia legalDescription : Acreage Street Address 7380 GORDONSVILLE RD GORDONSVILLE Directions: 7380 GORDONSVILLE RD Work Description NEW STRUCTURE FOR HOME OFFICE DateScheduled: 4/25/2 019 Type Administration COMMENT Re -Inspection APPROVE REJECTED Final Building Final Electric Final Mechanical n X 1-1 Final Plumbing Lj Final Zoning am please.. Printed- 4/24/2019 4.14 PM Scheduled By: Keith Huckstep Inspectors Comments rqY n4/ (if, i Inspectors Name hILI- L8q Residential Inspection County of Albemarle - Inspections Division - (434) 296-5832 � 1-MP: 05000-00-00-04900 Owner & BUFTON. EVELYN JOHN R MAUS NaB I1�r, Phone. Cell Phone Permit Number: B2017-02431-NNR New Owner: §,. y Power Company. Central Virginia Phone Cell Phone: Legal Description: Acreage Street Address: 7380 GORDONSVILLE RD GORDONSVILLE Directions: 7380 GORDONSVILLE RD Work Description: NEW STRUCTURE FOR HOME OFFICE DateScheduled: 2/19/2019 Type. Administration COMMENT Re -Inspection APPROVE REJECTED Insulation Printed 2/15/2019 4:06 PM (` Scheduled By. Keith Huckstep r In peclors Name Inspectors Comments- 3� II 'l I// Igo Residential Inspection County of Albemarle - Inspections Division -'434, 296-5832 CY 4/�Ji• TMP: 05000-00-00-04900 Owner BUFTON. EVELYN & JOHN R MAUS R Phone: Cell Phone Permit Number: B2017-02431-NNR New Owner Phone: Cell Phone Power Company: Central Virginia Legal Description: Acreage Street Address: 7380 GORDONSVILLE RD GORDONSVILLE Directions: 73BO GORDONSVILLE RD Work Description NEW STRUCTURE FOR HOME OFFICE DateScheduled 2/5/2019 Type: Administration COMMENT Re -Inspection APPROVE REJECTED Insulation Printed: 2/4/2019 4 13 PM Scheduled By: Cindy Dotson ` Inspectors Comments: 'n�U gA7.�"t'.-✓-1 n4L l I C) L Residential Inspection County of Albemarle - Inspections Division - (434, 111-5832 Dr�Gll'�12t TMP: 05000-00-00-04900 owner. BUFroN, EVErYN & JOHNR MAUs Phone_ Cell Phone Permit Number: B2017-02431-NNR New Owner. Phone: Cell PhonePower Company. Central Virginia LegalDescription: Acreage Street Address: 7380 GORDONSVILLE RD GORDONSVILLE Directions: 7380 GORDONSVILLE RD Work Description: NEW STRUCTURE FOR HOME OFFICE DateScheduled: 1 /2912019 Type: Administration COMMENT Re-Inspeclion APPROVEREJECTED Rough -in Mechanical A.M. J Printed 128/2019 4:14 PM Scheduled By: Eileen Wittwer Inspectors Comments: d C 78 Icyz Residential Inspection County of Albemarle - Inspections Division - (434) 296-5832 lion TMP: 05000-00-00-04900 Owner: BUFTON. EVELYN & JOHN R MAUS lid G r Phone: permit Number: B2017-02431-NNR Cell Phone. y i' New Owner: t'//tV1P Power Company'. Central Virginia Phone: Cell Phone. LegalDescription: Acreage Street Address: 7380 GORDONSVILLE RD GORDONSVILLE Directions: 7380 GORDONSVILLE RD Work Description: NEW STRUCTURE FOR HOME OFFICE DateScheduled 1/22/2019 Type: Administration COMMENT Re -Inspection APPROVE REJECTED El ❑ ❑ Framing Walls pcgcln �' ` m 804-432-0920 ,_ KF c. � "✓' i'litiy6 •u pU z 1 � 1 V�..1 ❑ Inside Gas Line j� n\� V , �� 5 (,� �.� ❑ M El Printed: 1/18/2019 4:13 PM / ; l ' Scheduled By: Eileen Wittwer i ' ;a �p¢ctgrs ( Name Inspectors Comments: /r 193 Residential Inspection County 01 Albemarle - Inspections Division - 11141 111-5832 11 a Zt67 TMP: 05000-00-00-04900 & Owner: BUFTON EVELVN ]OHN R MAUS �'. : j permit Number. PhoneCell Phone B2017 02431 NNR NewOwner. Power Company. Central Virmnia Phone: LegalDescription: Acreage Street Address: 7380 GORDONSVILLE RD GORDONSVILLE Directions: 7380 GORDONSVILLE RD Work Description: NEW STRUCTURE FOR HOME OFFICE DateScheduled:_ 1/18/2019 Type: Administration COMMENT Outside Gas Line Underground Tank t Printed 1/17/2019 4 13 PM Scheduled By: Eileen Wittwer Inspectors Comments: i4 D�_ N[� I 540-832-0090 A.M. Cell Phone. v Z3I 5 J�r.��wk Re -Inspection APPROVE REJECTEC L 9 4- Residential Inspection County of Albemarle - Inspections Division - (434) 296-5832 SOY{/ip/ Owner. BUFrON EVELYN k JOHN R M_A.US TMP: 05000-00-00-04900 Phone. CeltPhene 1 Permit Number: B2017-02431-NNR New Owner: Power Company: Central Virginia Phone: Cell Phone Legal Description: Acreage Street Address: 7380 GORDONSVILLE RD GORDONSVILLE Directions: 7380 GORDONSVILLE RD j Work Description: NEW STRUCTURE FOR HOME OFFICE DateScheduled: 1/11/2019 Type: Administration COMMENT Re -Inspection APPROVE REJECtED C VcC Framing Walls I �ce-5 604 432-09 o AM, is �. (•y,_�{z { tJat( ,p�u"�S l_.l Rough -in Electric �l- I ❑ Rough -in Mechanical qutit_ dg � ❑ [�i Rough -in Plumbing Printed: 1/10/2019 4.16 PM l Scheduled By Eileen Wittwer l specter Inspectors Comments'. F�__s I gti Residential Inspection county of Albemarle - Inspections Division -'434, 291-5832 TMP: 05000-00-00-04900 Owner: BUFTON. EVEIYN & JOHN R MAUS 1siJ )J G Phone'. Cell Phone. /I PermitNumber B2017-02431-NNR New New Power Company: Central Virginia Phone: Celt Phone LegalDescription, ACREAGE Street Address: 7380 GORDONSVILLE RD GORDONSVILLE Directions. 7380 GORDONSVILLE RD Work Description: NEW STRUCTURE FOR HOME OFFICE DateScheduled: 8/30/2018 Type'. Administration COMMENT Re -Inspection APPROVE REJECTED Footing A.M. 804-432-0920 ❑ 2-_�❑ Preliminary Zoning t�._75J 6-b) SS— ❑El Printed: 8/29/2018 4:11 PM Scheduled By: Eileen Witlwer = r rPcl ors Name Inspectors Comments: ew j9(P .......I C n i U ,pmcnl aol pl Io il, I d ( IiImo, vA 22902-459e BuildingJPP A ligation �dGt Im:psl I (IIJ; .. I r9 Vul:a t i .tiSG'3'_ Can: tJi)91e114e l'4�PfTIiT.'/�:l li' s o nl 70�1� I i<17n7a�7=' _ _ TMP CurrSum ne eel Name Apt / Suite an Orts) G 'il'/L1,)I!',�1761��Y) P• �I I t i I W7h' ClaeS: ❑ Adddron ❑ _A!mretio� ❑ Demol pion New ❑ Other ❑ Remodel lurkdiclio od Area Work Valuation Work Dearipwin Directions I Group Conclmnion Type Frame Type: J ❑ Concrete ❑ Masonr ❑ Other ❑ Steel ❑ Vin I ages: _., p D/Slol I Floor ?nd Floor ird Floor Finished Basement Other Habitable Total Hiddlable Sq. Fomage Wate�SUPpIy TVPe Sewng D pml i i ny/Fountlation '� ❑ Artesian Well ❑ None ❑ easement ❑ None ///''��` Private ❑ Crawl 5 ace \ \`���)_✓` ❑ Private ❑ Public ❑ ® Central Well ❑ 91 Other ❑ Public ❑ ❑ Slab ❑ ❑ ❑ Other Foot/ e Found Deso I - % Power Conpan9 �L 1 Porches C�. Z Decks Garage Brimming Pool, Colilh"he(I Hscrl WI Oi hn nn it,, 7Tnt'nliniel�rq. d filnorage �j q'olnl Building Sq. Feutage Setback I ---_ �Fmm J� Zoning Pre-Constivction,i I Bank Pire Alarms Required? Left Side Right Side —� � Fire Sprinkler NAPA Code Year? rl Irnd Use? I Bldg Pre-Conrwnian? 419•-F9 ­Z-"l ,n y1 «1 Dwcllln@ Uni[, U Aceexenpy Slmelurec = Mobile / Pre[al, Hnn.es Mobile O(fces/P dA, Units = Carport, Bedrooms RaOs IT—] PainiSPrm Rnulhs Garages Knch,ni+I / Swimminvl""k im '—i—' TahJSp , tAc.. onitl O!hu 71VtG{4d1 Ph i7 d1 I L�"7,1'Y1 a lq .. Prin iary C'nmaat .Name �.. i f ct LSi,�oe %cL hGl tI I of%� lL'.�C�l'✓'J I' Owner/Ari cool Name SI«et Name City / Smie E-mail Sneer Name Cily / State E-mail Name Saw Name City / Slaw Mechanics Uen General Contractor Phone# LLr-I— ltgeii cdy �' Fax # Zip Code Z Cellular# Phone # Fax # Zip CrMe 1 cellular # Phone Fax # i `Lip Code Cellular # �! Phone# I_ _ Fax # Zip Code cdlana# I 1 S:ruv. License Types, Sne, Llra: e 4 Loralia Lirense # 00� DOD 00� ODD O�U 19& Separate permits may be required for Electrical, Plumbing. Heating, Ventilating, and Air Conditioning This permits becomes null and void if work or construction authorized is not commenced within 6 months, or if construction or work is suspended or abandoned for a period of 6 neal at any time after work is commenced. I hereby certify That I have read tied evmiitied This ipplicelion mid kno,c the s,unc m ne Iru o,: ;,nd rrrect_ All provi- sions of t„ s snd ordinances �u rene Pothis' tvpe of teotk „111 be a,mplied m'ith whether sl•.eu ifmcl herein at not. The erantin; of a perm/ duet onl pi, ,.t.- to give aathot ity to violate orcancel dne provisulls of:m othr, .,tare or local loot icguh,tiva cunshucroll nr the performance of construction_ By signing this huilding permit, the owner and/or their agent hereby grant employees of the Albemarle CmInly CnmmunigDcvel,,poem Sz Real Estate Uepanntcnts the neht to enter and Inspect the subject property M,fiday through Pridav behveen it, hours of 9 00 ano. and 5:00 pro , hnlhdncs ezccpted- if you are not the owner of record, please check which applies 1 certifv that I am the agent fur The Ot,-ncr. erred am :,uth,mzed to submit this application on behalf of the Owner under the agency I am neither the Owner nor the Owner's agent. I certify that written notice of this application, by pro- viding a copy of this application, will be mailed to the Omer at the following address: \1'ithin Ill der„ of I...Lit t late as regained by Virginia Codr j 15 °-'_?O4(H). 1 undci,olid that, it l do not provide the notice to the Owner as provided herein, the building peirnit application and eoen' mhu subsequent approval, permit or certificate related thereto could be determined to be void. S' azure of Owner, C tractor. or Authorized Agent Dam 0 Sienauue of Owner. Con [factor, or .Authorized Agent Dar, ELECTRONIC RECORDS STATEMENT: Albemarle Carl is creating and using electronic records and electonic signatures as allowed by the 11nifonm Electronic Transactions Act (Virginia Code $ A.I—i79 et. Scq_). As an zpplleznl to the building Permit pi ncrs,. v, u n ) it n to remits, err ha, e ,,flint acres, lo. clrevonic records and receive and creme records hnaing electronic signatures related Ill Eaildung Pcn:nil s. Correspondence, Inspection Tickets and Certificates of Occupancy (the Building Permit o'cractions). O Initials. of Owner. Coauacmr or Authorized Agem Date Your agreement to conduct Building Permit transactions by electronic means does not prevent you from refusing to conduct other transactions by electronic means. lK %W VIRGINIA DEPARTMENT ip OF HEALTH Protecting You and Your Environment Page I of 3 Albemarle County Health Department 1138 Rose Hill Drive Charlottc�ille. VA 22903 (434)972-6219 Voice (434) 972-17 10 Fan PE Coiedrittaiuca 10wilit Well and Sewage Coni:ractors: Please notify Health Department and OSE or PE 48 hours prior to installation to arrange for inspection November 30, 2017 Evelyn Button 7380 Gordonsville Road Gordonsville, VA 22942 RE: Site Address: 7380 Gordonsville Road, Gordonsville, VA 22942 Tax Map/GPTN: 50-49 (Albemarle County) 101D: 101-17-0590 Reserve: 100% reserve area provided Usage Desseription: Detached office with bathroom Dear Evelyn Button : This letter and the attached drawings, specifications- and calculations (8 pages) dated November 15, 2017, constitute your permit to install it sekeage disposal system and on the property referenced above. Your application for a permit was sobmined pursuant to §32.1-163.5 of the Code of Virginia, which requires the Health Department to accept private soil evaluations and designs from an Onsite Soil Evaluator (OSE) or a Professional Engineer n•orking in consultation with an OSE for residential development. VDH is not required to peiionm it field check to verify the private evaluations of OSEs or PEs and such a field check ma% not have been conducted for the issuance of this permit The soil absorption area (`-site'), sckvage system design, it were certified by Michael Craun, PE as substantially complying with the Board of Health's regulations (and local ordinances if the locality has authorized the local health dcpar(mcnt to accept private evaluations for compliance with local ordinances). This pcimit is issued in reliance upon that certification. VDH hereby recognizes that the soil and site conditions acknowledged by this permit arc suitable for the installation of an onsite sewage system. The attached plat shows the approved area for the sekvage disposal system; there are additional records on file kvith the Albemarle County health Department pertaining to this permit, including the Site and Soil Evaluation Report. This construction permit is null and e oid if any substantial physical change in the soil or site conditions occurs where it ,ewage disposal sysrcm is to he located. If modifications or revisions are necessary behk cen nook and kahen ynu construct your dwelling, please contact the OSE/PE who performed the ck aluation and design on which this permit is based. Should revisions be necessary during construction, your contractor should consult with the OSE/PE that submitted the site evaluation or site evaluation and dcsian The OSE/PE is authorized to make minor adjustments in the location or design of the system at the time of construction provided adequate documentation is provided to the Albemarle Coum Health Department. The OSE/PE that submitted the certif icd design for this permit is required to conduct a final inspection of this sewage s� stem when it is in,talled and to submit an inspection report and completion statement. As the owner, yuu are responsible for giving reasonable notice to the OSE/PE of the need for a final inspection. If the designer k unable to perform the required inspection, you may provide an inspection report and Tax Map/GPIN: 50-49 Page 2 of 3 HDID: 101-17-0590 completion statement executed by another ( NUPE. The Albemarle County Health Department is not required to inspect the installation but may perform an inspect ion at its sole discretion . No part of this installation shall be covered until it has been inspected be the OSF /PE as noted herein. The sewage system may not bn placed into operation until you have obtained an Operation Permit from the Albemarle County Health Department. This Construction Permit is mull and void if conditions are changed from those shown on your application or if conditions are changed from those shown on the Site and Soil Evaluation Report and the attached construction drawings, specifications. and calculations. VDH may revoke or modify any pennit if, at a later dateif f-inds that the site and soil conditions and/or design do not comply Nc th the Sewage llandlinr and Disposal Regulations, 12 VAC 5-610-20 et seq., or if the system would threaten public, health or the em ironm m. This permit approval has been issued in accordance with applicable regulations based on the information and materials provided at dic time of application. There may be other local, state, or federal laws or regulations that apply to the proposed construction of this onsite sewage system. The owner is responsible at all times for complying with all applicable local, state, and federal laws and regulations. If you have any questions, please contact me. This permit expires: June 01, 2019. This permit is not transferable to another owner or location. Sincerely, Josh Kirtley Environmental Health Technical Specialist Albemarle County Health Department CC: Craun, Michael PE ,W- z01 Tax Map/GPIN #: 50-49 HDID#: 101-17-0590 SEPTIC SYSTEM OPERATION PERMIT Page 3 of 3 • Your system must have a satisfactory inspection at the time of installation. This will be done by either a representative of the local Health Department. a private OSE. or a PL. depending on the designer of your permitted system, if your system is designed/inspected [)),,in OSE or PE, they must submit a cope of the inspection results, complete with an as -built diagram, to the Health Department. • Please ensure that your contractor turns in a Completion Statement to the local Health Department after installation. If your permit is for an alternatirc system, you must sign, have notarized, and record the attached Notice of Recordation in your locality's land records. Please bring proof of this recordation to the local Health Department Allow 5 business days after the last piece of documentation is received for the Operation Permit to be issued. To avoid delays, clearly label each piece of documentation with the property Tax Map/GPIN number and HDID number shown above and on your construction permit. Please note that due to the individual cireumslances ofyour permit there may be additional required items not covered by this checklist. If you have any questions about any of the items on this list, please do not hesitate to contact the Albemarle County Health Department at (434) 972-6219. M 2oe. w b,marle County VIRGINIA [DEPARTMENT OF HEALTH Louisa cwup, Pc: Cox 7546 Thomas Jefferson Health District Po 6o, 33r, Cl,arlollesville, VA 22906 Revised March 29. 2009 Loui,z, VA 3(93 (434) D78 E6Y - Office (540) 967-3707 - Office (434) 972-4510 Fa) ENVIRONMENTAL HEALTH SERVICES (540) 967-3733 - Fax Fluvanna County Greene County Nelson County Po Box 136 PO Box 38 �'+ yy66rr � PO Box 98 n ^ Palmyra, VA 22983 y Stanardsville, VA 22973 lnr�u Uui ingslon, VA 22949 (434) 591-1965 . Office (434) 985-2262 - Office r'� � 4) 263-4297 - Office (434) 591-1961. Fax (434) 965-4822 - Fax 434) 253-4304 - Fax REQUEST FOR NEW CONSTRUCTION WITH EXISTING SEWAGE DISPOSAL 0 Address ii Zip Horfie Phone: _)Horne Phone: Uirork C'hone: „r_ ., r ry -_ ,>!-_ �. F-. �liuDik Phone: p aggetl �� reposed New Consul 0 1.) Was your septic system installed and approved within the last 1D Years? YES J 2.) Does proposed addition or replacement come within 20' of the drain field or reserve area? 3.) Does proposed addition or replacement come within 50' of your well? YES I.) Are there wef spots in your yard, slow running drains, backups, or discolored spots in lawn? YES ND 3y signing this statement you are requesting that the Environmental Health Specialist evaluate your ystem and are grantingf l�imlkres_ rmisslon to enter your property. If a site visit is needed, ou may be required io uncovpi "onr ep ' tank and distribution box lids. `i SEE PAGE 2 FOR HEALTH DEPARTMENT FINDINGS PAGE 1 of 2 Za3 PAGE 2 of 2 HEALTH DEPARTMENT USE ONLY Site Visit WAS NOT made and existing water supply WAS NOT evaluated, unless otherwise noted under comments. ADEQUATE DESIGN A review of our records indicate the existing sewage disposal system (SDS) and reserve area (where indicated) appears to be adequately designed for the proposed use. This does not imply that the existing SDS will continue to function properly for any minimum period. No conflicts were noted when the attached site plan (including footprint) was compared to those records. Exact locations may vary from records and it is suggested that the exact location of the SDS be confirmed before beginning construction. INADEQUATE DESIGN Existing SDS inadequate. Applicant must apply at the Health Department for a sewage disposal construction permit. Permit must be issued and a copy submitted to building inspections before Building/Zoning permit is issued. COMMENTS: f-k ril. 6g, toit 10O%S F-o JCw(IG�VvI qS t_1 &iC,W 6. (�P yPH )--0 101—L7—o-f-Ta /e✓ al ✓a tlesr�o7` c✓r�f�rri /I I ealth Dena Official Revised March 29, 2009 3o�vo�1� Date ?'of K'6 U -, I q 0E ALBEMARLE P)mnI mhent of ConkolIm it Ov% dopment •101 Nlc� zaPive Rond, 1'4(orih *AIng haOwie,si Me, Vb nhoi,) 22902-4596 Phone (434) 296-5832 Fax (434) 972-4126 CONTRACTOR/SURCONTRACTOR LICENSURE EXEMPTION AFFIDAVIT Section 108.4 of the Virginia Uniform Statewide Building Code requires that any person applying for a building permit be duly licensed as a contractor/subcontractor under the terms of Chapter l l of Title 54.1 of the Code of Virginia, or be exempt from such licensure. "Contractor" means any person, that for a fixed price, commission, fee, or percentage undertakes to bid upon, or accepts, or offers to accept, orders or contracts for performing, managing, or superintending in whole or in part, the construction. removal, repair or improvement of any building or structure permanently annexed to real property owned, controlled, or leased by him or another person or any other improvements to such real property. I have applied for the building permit identified above. I affirm that I am familiar with the Virginia Uniform Statewide Building Code requirement for contractor/subcontractor licensure under the terns of Chapter 1 I of Title 54.1 of the Code of Virginia, and that I am exempt from such licensure. The basis for my exemption is the following (applicant must initial at least one): 1. The work is performed by a goverment agency with its own forces 2. _ The work is bid upon or undertaken for the United States armed services under the Armed Services Procurement act 1, The work is bid upon or undertaken for the United States government on federal property 4: The work is bid upon or undertaken for the Virginia Department of Transportation on state highway and/or bridges,. The applicant is excluded by another law, such law being: & The applicant is a material supplier rendering advice but not providing construction or installation sen?roes 7. j, le applicant is performing or supervising work on no more than one primary residence owned by n er for his/her own use during any 24-month period 8. The applicant is perfmoin,g or supervising work on his/her own property as a gift to an immediate family member, provided that such family member (mother, father, son, daughter, brother, sister, grandchild, grandparent, mother-in-law or father-in-law) lives in the house paw ZOCj 9. The applicant is performing or supervising work on industrial or manufacturing facilities, or on a commercial or retail building for his/her own use 10. _ The applicant is performing or supervising work on residential dwelling unit(s), subject to the Virginia Residential Landlord and Tenant Act, owned by him/her 11. _ The applicant is an owner -developer, provided that any third -party purchaser is made a third -party beneficiary to the contract between the applicant and a licensed contractor whereby the contractor's obligation to perform the contract extends to both the applicant and the third -party purchaser 12. _ The work is undertaken by students as part of a career and technical education project, established by any school board, on the construction of portable classrooms or single-family homes I understand that any reference to me in this document also includes the company or entity that I own, work for or represent. I understand that even if i am exempt from licensure pursuant to the provisions of Exemptions 7, 8, 9, 10, 1 I or 12 above, I must comply with all other provisions of the Virginia Uniform Statewide Building Code. I understand that even if I am exempt from licensure pursuant to the provisions of Exemptions 7, 10, 11 or 12 above, I shall obtain a certificate of occupancy, or other evidence of building code compliance, prior to conveying the property described in the building permit application to a third -party purchaser, unless such purchaser has acknowledged in writing that no certificate of occupancy, or other evidence of building code compliance has been issued and that such purchaser consents to acquire the property without a certificate of occupancy or other evidence of building code compliance. I understand that working without a valid contractor's license, or without being duly exempt from such licensure, subjects me to criminal prosecution. tie - printed) (applicant's signature) Signed and sworn to before me by: Lu�li�n `0IFtrl-) (applicant's name — printed), COMMONWEALTH F VIR IN CITY/COUNTY OFULK) '�Sy') I The foregoing instrument was acknowledged before me this ' 0 day of�, 20 + My Commission Expires: ( ��� I tV'6 �); i���1, `V \.�lld f}D �!�LIb11C Revised: 05201 1 2 D Cp Ilk I,K&, A °ati5e' 'J" Construction ❑ Permit OSE/PE Report For: Repair ❑ Voluntary Upgrade Permit Permit ❑ Certification Letter Page of e ❑ Subdivision r r I Apprpval Location: ress: 7380 Gordonsville Rd. City: Gordonsville Section F Subdivision Tax Map # TM 50-49 Health Dept ID # Latitude Longitude Applicant or Client Mailing Address: Name: Bufton, Evelyn & John R Maus „r Street: P O Box L LVJ r,: r lido-0) City: Gordonsville State VA Zip code 22942 Prepared by: OSE Name License # Address City State Zip Code PE Name IC F Craun License # 036859 Address 2036 Forest Drive city Waynesboro State VA Zip Code 22980 Date of Report 11/16/17 Date of Revision 41 OSE/PE Job # 1317057 Date of Revisio Contents/Index of this report (e.g., Site Evaluation Summary, Soil Profile Descriptions, site' see table of contents on next page Plans - 11 "x1 T - Separate - 5 pages Certification Statement 1 hereby certify that the evaluations and/or designs contained herein were conducted n ac:ordar the Sewage Handling and Disposal Regulations (12 VACS -610), the_ Private VIA R< ,.Jations (IL V, Alternative Onshe Sevtage Systems (12VAC5-613) and all othr - spllca bie laves regulations and p Department of Health. 1 further certify that I curren0t w,ssrss any protessiu,i icense required t Commonwealth that have been duly issued by the applicable agancy gcd va th licensure to pe ❑t The work attached to this,yover page has been conducted under an exemption to the practice of engineering, specifically he exemption in Code of jirginia Section 54.1-402.AA1 I recommend that a (select one) unstruction permit Elcertification letter Elsubdivision approval ❑be (select one) Issued D fi 11// ®, /~;pair permit ❑ voluntary upgrade ❑ Denied ❑ Date jL__ [S This form curtains personal information subject to disclosure under the Freedom of Information Act. Revised 12/I/2014 IV/c S07 Table of Contents Page L of'`' ( m cr iw,,,;Certification Statement I I ablc of,( ontents 2 Ap plicution Page 3 Suphlcmuual Calculations q_g sob C'u,t r iiU I ,,1 _e iP��"If�I,TG�iI Application tor. LvjSefsage System ❑co`ate¢ $ttppl5 Owner Bufton, Evelyn & John R Maus Mailing Address P O Box E Gordonsville, VA 22942 Agent Mailing Address �f � o VDH Use anh P thDeparlmem IDkDate Phone Phone Fax Phone Phone Fax Site Address 7380 Gordonsville Rd Gordonsville, VA 22942 R 1) Email lynbun@gmail.com Directions to Property: Subdivision Section Block Lot Tax Map TM 50-49 Other Property Identification Dimension/Acreage of Property 2.4 acres Sewage System Type of Approval: Applicants for new construction are advised to apply for a certification letter to determine if land is suitable for a sewage system and to apply for a construction permit (valid for 18 months) only when ready to build. ❑Certification Letter Proposed Use: Construction Permit ❑ Voluntary Upgrade ❑ Repair Permit Single Family Home (Number of Bedrooms 2 ) Multi -Family Dwelling (Total Number of Bedrooms _) Other (describe) Addition of an office with an office bathroom - minor modification Basement?E]YesoVo Walk-oul Basement?❑YesE]No Fixtures in Basement❑YesONo Conditional permit desired? ❑YesENo if yes, which conditions do you want'? water now ❑Limited Occupaney D Intermittent or seasonal use ❑ Tcmpoiam uce not to ezcecd I year Do you J� 1h to ppph fora betteimcni loan eligibility letter9D'es0Ao "there is a ,,o fec Ibr deter:ninalimt ofciigibility. water Supply Rill the tsatcr st gmpls watIhhc Ili ri,mte" Is tho tt tler snisplv�l sfisting ur[�Rnpn.ed7 11 pmposcd, is this a replacement wcll7 ❑Ycs QNo If yes will Ilene old well be Llh,ndoned? U't es E]No Will any buildings within 50' of the proposed well be termite treated? E]Yes ❑No All Applicants Llsthis private sector OSE/PE application? QYes ❑No If yes, is the OSE/PE package attached'? ElYes ❑Noroperty indeed to serve as your (owners) principal place of residence? ❑Yes ❑No In order for VDH to process your application for a sueagc 9 ICIJJ you must aueched a plat of the property and it c cketch For :ncI "'piinr>. a pla, ut ul properly 6 teaIll mxTdetl auU 9 sllo sf etuJI Is rcynnid. 11 II' $Lela it Il told shop. v JIIJprupillc lilr. acWtd :Ind: nr proposed buildings and the desired location of your wall and or s cu'age system. AA'hen the s tic evil ltmlinu rs conducted the property lilies. building location and the proposed well and sewage sites nuul be clearly marked and the property suf fm ndy visible to see the lopoea uphv. I give permission to the Virginia Deparunenl of I IealIII I enter onto the property described donne nonn,mi lr xmess hours i a the pIIrpn;c of proC, ihi, apph, Iion and to plrthrn giodd% a uI i ec duel. f ey uadi� I.—n 1 11,11, n" —InL d ire a 1 I1..�.ed or0 vw Soil I E<aluator or Protest, ta6-i`ayhw1e "I" ,..on unto II 1 t , !n and are ,,aer guppI, has been constructed old apploved. r /�_ D Signatur f net Ag�1 t Date This form contains personal information subject to disclosure under the freedom of Information Act. Revised 121V2014 Pate q oC Supplemental Calculations Project Narrative An office is being added to the pwpertl Che olllce �� ill one or r�co oi ii �s. Tb kill be or om zni� hathroom lr the c, f c. I he :' arr c[mnot tlmv by uracity to the septic tank. A seNtage lilt pump rhtunhcr located outside the garage gill be used to lift the ��astcwater to the septic tall'. To aid the wptic tank in holding back solids, an effluent filter will be added. No expansion of the current septic permit is being requested. Total Nitrogen Removal Calculation (per GMP 156) N/A Treatment Level Septic Tank Effluent Sewage Lift Pump and Tank —One 24" diameter pump basin. W" ttrl I �cill be used as a sewer ejector lift pump basin_ The pump operation will be automatic through an integrated float. A separate alarm will be used to signal a high level event. Pump tank requiremenis such as storage above alarm, minimum storage volume, and manual over ride are waived for this design. Deviation from regulationjusufication: • The ejccr roonly serer es one convenience bathroom in the office. If the selvage ejector malfunctions, the owner has other bathroom facilities in the main house to use. 24" diameter 1.96 gallons per inch Invert in lei- 24" Alarm i loat — 20" Pumo On - 14" Pump Off- 6" Primp Vnlume= I5.71-allons Alarm Stornac — f. Gallons 1W 'Z J D Pump Size Calculation j Page 5� of _ Job Description: ITM 50-49 Pump: SC%Na a Ptun Prepared by: JMFC Date: 1 1 / 15/2017 Worksheet - Parnp Sizing Desired Pump Capacity 35.00 gpm FB) Pipe size 2 inch Pressure loss in 100 h. ofpipe 0.89 psi D) Friction head in 100 ft., 2.06 fl. E) Static head i) Height from pump to tank outlet 4 ft. ii) Elecutiou inercise or decrease 4fl. F) Total static head 8 G) Friction head i) 1':'[1malenl length of hitlnas 125 ft. u) Dimawa from pump to outlet 315 fl. iii) Total equip relent length ofpipe 440 ft. iv) Total effective feet 9.04596 A. vi) Headloss through Water Meter 0 ft. 0 psi vii)1lcudloss Ihroueli Zone Vnlve 1 0 ft. 0 psi viii Head at 'NI-- 0 fl. 0 psi H) Total friction Head 9.04596 1) Total dynamic head 17.05 ft. 1) Minimum pump capacity 35.00 gpm K) Eviutaied Velocity 3.52 fps L) Choose the pump Little Giant I OSN (35 gpm @ 19') pe 2 1( �t tf U -C, ";JE$ -112HP Sewage and effluent wastewater transfer, dewatering I ■ Permanent Split Capandor(PSQ ■ Energy -saving losv amp draw ■ Designed for (onlinuousduty * 2" FHPT (51 mm) and 3 MPT (76.2 nun) discharge models ■ Handlessofirlsupto2'01mm)diameter ■ Multiple swltdl op(cllr for automalic operation ■ 140 °F (60'0liquid temperature rating ■ (CSAuslisted New r .5n` EU6] r 00 95 n _ Moo )20 95 � 25 109�. PO 9] ,O 1 25 -lob ,l i ( 1:.-i1 '11 'wow d f t 'ill[ SPSa6 1 CS 'i2 1 115 2' ,re15 x10[I� ! --� Ia 6_ ,r.�i _ebm 0 I52 e4 em_ L61m OSN i 'aF ill 20 S1 Q3 1 115 2" m 9 n 61m 511326 IOSN CIA-FF II5 3" 2 tacN lne[ham[xl Flwt I Y 14 2 6" 2286an 3 56 cm Scm b24 cm I Ijl 20 Im 1 f511344 1 IOSN-CIM 1R 115 3' Manual - t SIi322 10SN-CIM 7/2 II5 2" Manual - - 6`Icr, 51132E i IOSN-CIM 112 -IN-230 511345 IOSN-CIM' la 208-230 3" Manual IrSNq 1, S:LS T t 5 I I K9 Ng ]IRS 51 16 %K9—j Ib: f IGs� UK9 IIW 2/2. IOSN SERIES -112 NP ,L. 1 � n IOSN-(IA-SFS IOSN-(IA-RF DSN'1111 All a II C 1312 1.._ v ip. 4 &SS ' L 33?i Cn e6l [}iCM 11,4 II64 ] 26.96rm 296 cm 17, 'ASN A 11.4° 2a.96 cm _ j 29.Sr1169m _ 227m tPM I Fpoxy coaled Cast iron/ o IW mo �w aoo [over Trerrroplasnr _ i 0 q Motor Housing Epoxy r_.atad ayf ron Impeller Material 19efmopIastir elastomer Impeller Type n lu') Volute_ _ Epoxy-coatedcas limn 6 Mechanical Shaft Seal NitTIIP wn'n carbon and ceramic ns Fasteners _ Stainless steel_ Shaft _ Steel Bearings Upper srntered sleeve and lower ball nFnr�.ngs Power Cord S1TW' JTOW On Cl5 rt»tlels 'CrW Q CIA-Vana M OMmod&6 0 s 0 10 40 60 e0 100 120 CAPACITY - 6PM _ ,..rz � �ettiMN93�isn „ 87 ACCESSORIES APPLICATIONS ■ Indoor IF waterafnrn l� -cum FEATURES v DENA 1 thermoplaslicenclos!le I�-rhanical float t itch v"Ith 5 II ". ,6 nm) cable ,1 Alarm has led LED v,anir!j light, horn with silenre switch, and test button 9 VDC battery backup UL and (SA listinq 513208 ' HWAB I 115 I 6 83 m APPLICATIONS • Switch repair kit FEATURES (� ■ Easy -to -install, NBvF.1, 3/4 hp device L ■ Low-cost alternative to (onvertional duplex control panels • Operates Iwo manual sump, serfage or efilucnt pumps ■ Alternates to stand'oy pump if energized pump fails to turn on • Audible alarm and led light indicator • Operates single-phase pumps with 15 max. run amps • cUlus listing 513299 IDG115 1 115 1 15 1 .- RB ,: APPLICATIONS • Indoor/outdoor high water alarm vr� i FEATURES ■ Tvpe3R watortlght tl ermoplasticenclosure ■ Mechanical lost siv.j[diFFEh15ft(4.6In) cabte N ■ Alarm has red vvanling IigLt, horn r; ith silenre twitch, and test button ■ Includespre-mountedterminalclock soenclosure can also beused as a junction box • ULand CSA listlnq i 5132B 303HWXi }`I15 T I APPLICATIONS Remrle hater snarl end alarm a•. * Warns of oaks and oveiflo,,Fs m bath, kitchen, laundr, atur basemen or ',IF Iv, herethere isa ..r potential for leans to, oca11 FEATURES ■ Remote sensor detects water and sounds alarm ■ 85 decibel alarm sounds for lhree days m Sensor and alarm can Le placed w, to 61t apart Sensor has boNisurtioncup and adhesivetosecufc In place h 0k das wall mounting hardware Spdslv samig design Grail test%reset hullos ri&iiess�stem is working I ow batter; s,gnal Vrhm battery needs replaced Requires one 9 V hattery (not included) i13319 NW 9 Sv/Dl "Pe � C � � CDCD �Tl ® r\ 0 con N CD N 00 � w [= E w C rL m — CD CD > QO N " N � � w b u AwN� C a ba t-� November 15,2017 r`r CD � l� 1317085 2 1 Gj e p E f' o � _ � C_' � � �• —' � -� � _ m_ P N '^ -1 _ rl _ - � a~ rt e a i u = M � n _ mMr Szg� 's n _ \ o a / 3 / / I / I I 1 � V A 1 1 1 v A V A 1 \ .OR \ \ n I \ r ♦ \ oaa COA1M ` \ \ on ��C I a q I - ` CD ° n _ 1� w Cll Dominion En gineering r" 2036 Foresi Drive Waynesboro, VA 22980 (540) 942-5600 oiddomeiig@iitelos.net Zti �v 0ZO yz < p mac a = = r _ m it ,E-T�d�u� ayj em § , Lid m A oozz i90 S _- yn z z l � +• m -iO Q-1 Z A Cl F 3 _ 3 C cn CD UQ (D ILTi CD 0 d 0) w I tF OW Dominion Englneeirhmg * y � -Z z/ A- -Z -Z -& �; C� '?z� N P, tp, `7`N <o F_� - `F \\\\\\ \\�\\\ \�\\\}\ »S} 5 J ,c si m6 w �I 9 o w c F ° tR fOD� d p p � O O n � o w' ] I ALBEMARLE COUNTY BOARD of ZONING APPEALS COUNTY OFFICE BUE.DING 401 MCINTIRE ROAD -LANE AUDrrORIUM TuEsDAY, OcToBER 1, 2019 —2:00 P.M. Board Members: Marcia Joseph Ed Robb David Bowerman John Shepherd Randy Rinehart, absent Staff Members: Bart Svoboda, Zoning Administrator Marsha Alley, BZA Clerk and Recorder County Attorney: Andy Herrick, Deputy County Attorney BZA Attorney: James Bowling, IV 1. Call to Order The meeting was called to order at 2:01 p.m. by Chairman John Shepherd. 2. Establish a Quorum The BZA established a quorum with four members present. Chairman Shepherd reminded everyone that in order to overturn a determination by the Zoning Administrator, it would require a majority vote of the members of the Board, which in this case would mean three. 3. Public Hearings: AP201900004 Balton & Maus, PLC MR. SHEPHERD: So, with that, I would like to call the public hearing to order. Just, I feel like I'm talking to a large room with a small crowd here. Sometimes we go through the rules and procedures, but basically what we're going to do is, with a public hearing, we'll start with a staff report that's going to last for 15 minutes. We have a timing system that we do want to adhere to. You'll see the green light on when your time is wide open. The yellow comes on, Marsha, at the one -minute warning? So, when you see the yellow light come on, try to wrap it up and when the red light comes on, bring it to a conclusion. This is more important when you have a large crowd and people are waiting to get through the process, but even so, this is what we want to do. Of course, after hearing from both the parties, we would hear from the public if there's anyone that wants to speak. Then, have a time for a wrap-up/rebuttal summation. We'll start with the staff and end with the appellants. Then, we'll discuss it, make a decision. Also, I'll briefly just say; this is our second meeting with Jim Bowling; second time we've had an attorney representing us. So, appreciate your being part of this. It's helpful and good, and I appreciate it. Thank you. Just want to say, so far, so good. But it does create a slightly different dynamic for us that I think is very positive and good. So, with that, I guess we can just start, if Bart, Kevin, are you guys ready to go? MR SVOBODA: I'm Bart Svoboda, Zoning Administrator for Albemarle County. This is Appeal 201900004. I'm going to give you a brief history. I'll speak for a moment, and then Mr. Herrick will finish up. This P—F � 23z. property description is Tax Map 50, Parcel 49. It contains 2.4 acres. It's located in Eastern Albemarle County along State Route 631. MR. ROBB: Mr. Chairman, can you ask him to speak up? MR. SHEPHERD: Bart, could you speak up a little, or just get closer to the mic? MR. SVOBODA: Is that better? MR. SHEPHERD: Yep. MR. SVOBODA: Okay, sorry about that. I JI . J ' .I t � IIii:Ti1!7 I MR. SVOBODA: Again, this is Tax Map 50, Parcel 49, 2.4 acres. It's located in Eastern Albemarle County along State Route 631. There's one dwelling and one accessory structure located on the property. The address is 7380 and 7382 Gordonsville Road, respectively. The property fronts on State Route 631, which is an Entrance Corridor, and is zoned Rural Areas. Because this is a residential application, the Entrance Corridor does not come into play here. The drawing I will show you is a drawing that was submitted with the building permit. If you go back one slide, you can see the existing house on the drawing. The existing house is to the center, and the proposed, or now current, structure is located in the corner of the lot on the northeast corner. This is a brief history or summary of how we got here. On September 29 of 2017, the applicant had contacted the county and asked questions regarding a home occupation. We responded with an email, which included the 25-foot side property line for this home occupation, for a home occupation permit and a building permit. So, in the email, it was explained the process. So, in that process, we did specify setbacks. We did indicate that there was a home occupation permit required and also a building permit. On October 18, the appellants applied for that building permit for an accessory structure. On December 7, the building permit for an accessory structure was issued, which authorized the construction. It did note that the rear and side setbacks were 6 feet, which is consistent with an accessory structure. There's a difference between an accessory structure and an accessory structure that's used for a home occupation. On June 4, 2019, the appellant applied for the home occupation clearance, which was after the permit was issued and the inspections were final. We went out to check to see if the accessory structure met the primary structure, the 25 feet, as mentioned in the 2017 email. It was identified that it does not meet those requirements; so, we could not approve the home occupation permit. On July 30, that was communicated to the appellant in writing an official determination, which denied the appellant's application for a major home occupation and August 12, the appellant filed the present appeal. The language you see in this next slide is the zoning ordinance, which is 5.2.a, Cl. And if you look at the highlighted section in the middle of the screen, so the red square is just a blowup and it indicates an accessory structure that does not conform to the applicable setback and yard requirements for the primary structure; so not to use for a home occupation. And the chart below that is Section 10.4, which is the Rural Areas portion of the ordinance which indicates that the side setback would need to be 25 feet. U fN EMM This particular drawing is our GIS map that has identified approximately where the structure is. Again, these maps are used primarily for tax purposes, and this measurement of 14 feet is what was measured out in the field by county staff. I will note that the property line has not been surveyed. The fence that's out there was identified as the approximate line by the property owner, so that's what we're using for our information. That's all that I have from the zoning perspective and that brief history. And I'll let Mr. Herrick take over from here. MR. HERRICK: Mr. Chair, members of the Board, it's a pleasure to be here this afternoon. I'm Andy Herrick, on behalf of the County Zoning Administrator. The matter before the Board this afternoon is an appeal of the denial of a home occupation clearance that was sought by the appellant. Again, as Mr. Svoboda has indicated, the applicants applied for and received a building permit for the accessory structure in 2017, and as the presentation indicated, the rules for accessory structures are that they may be within 6 feet of the property line. Staff advised applicants of the home occupation requirements back in 2017, when the building permit was first applied for. And Ms. Ragsdale's email to the applicant can be found at Attachment G to the staff report; again, in which she outlines what the requirements are, the fact that a home occupation clearance is needed. That was sent to the applicant at the time. However, the applicants applied for the home occupation clearance only after the construction of the building; after the building was completed in recent months here in 2019. And unlike accessory structures, home occupations must occur within primary setbacks which are 25 feet. So as a result, the home occupation clearance was denied, and what's before you today, again, is the applicant's appeal. That's the only matter that's before the Board today. And again, the options for the Board are to either affirm, modify, or reverse the determination made by the Zoning Administrator, that this property did not qualify for a home occupation clearance. So as outlined in my memo, which you all should have received as a part of the package, there's a difference between structures and uses, and it's unfortunate that there was a misunderstanding on the applicant's part. I think that there was a misunderstanding that it was one application and that getting the building permit was sufficient in order to basically clear the way for all types of uses on the property. And unfortunately for the applicants, that's just not the case. There are separate requirements for building permits on the one hand and for uses on the other. The building permit requirements are for the structure's conformance with the Uniform State-wide Building Code, structural soundness, these sorts of things. And again, structures, accessory strictures, sheds, small accessory buildings can be located within 6 feet of a property line in the Rural Areas. And I would suggest that both applications were correctly processed. That the application for a building permit was correctly processed and that the accessory structure was approved because it met all the building code requirements. It met the lesser setback requirements for accessory structures. But then also, the application for a home occupation clearance was also properly processed because that comes with a separate and higher bar that it must be located, or that any use of that accessory structure, must be within the primary setback which is 25 feet. So again, it's a higher bar for the home occupation use; and again, unfortunately for the applicant, that building simply doesn't meet that higher bar for the intended use. There are a few points that were made in the appellants' submittal that I'd like to address. First of all, there was no promissory estoppel in this case, as I outlined in my memo. A promissory estoppel involves some sort of �x• Z -6+ misstatement or misleading to where one -party sort of misleads another party. That other party relies on the misleading statement to their detriment. In this case, there was no misleading statement by the County. The County, again, correctly processed the building permit application, informed the applicant of the need to apply for a separate home occupation clearance, correctly processed the home occupation clearance. So again, aside from the unfortunate misunderstanding on the part of the applicant, the County, again, properly processed and properly communicated the requirements at every step of the process. And for that reason, the Rhoads case that I understand has been cited also doesn't apply in this case. The Rhoads case involves a clear mistake by County staff, which County staff, again, in the Rhoads case, gave more permission or gave greater approval than they could under their Zoning Ordinance, and then tried to walk it back, basically. And the court said no, you can't do that; that once you've made that approval, even a mistaken approval, the County after a certain time can't revoke or pull back. And again, that's not what the facts are here. The County is not seeking to withdraw or reverse the building permit. The County is still fine with the building permit and isn't seeking to revoke that building permit because, again, the accessory structure in that location is still appropriate. Each permit's been processed correctly. The other thing, as I indicated at the outset, only the appeal of the Zoning Administrator's determination is before the Board today. There's not a variance application. The Board can't, on its own initiative, award a variance. The BZA is limited to the application that is before it today, and the application that's before it today is an appeal of the determination by the Zoning Administrator for which the three options are, again, to affirm, modify, or reverse. Again, a variance is not an option, based on what's before the Board today. So again, I would suggest that this was an unfortunate misunderstanding, but it was a misunderstanding on the applicants' part, and that's simply not grounds for a reversal of the correct determination of the Zoning Administrator. I think the applicants deserve some sympathy or empathy for the situation which they find themselves, but they don't deserve a zoning clearance. And again, we'd ask the Board to uphold the finding of the Zoning Administrator. Thank you. MR. SHEPHERD: Thank you. Mr. Maus? MR MAUS: Thank you, Mr. Shepherd, members of the Board. My name is Jack Maus. I am one of the applicants. My law partner, my wife, Lyn Bufton, is seated here in the audience. Much of the history that we will be going over to start with is similar to what the county has given you. Again, we know Virginians love our history. The history was that on October 18, that Lyn submitted this application for a building permit. It was processed that day, I think it was paid, and then we waited. Waited for the County to do something. Almost two months later, we received from the County, without any question about whether or not we misunderstood, whether there was some kind of misrepresentation, we received a building permit from the County that said that we could build this law office that we had asked for within 6 feet of the side setback. And of course, this was the wintertime, so we started clearing the property in the spring. Summertime it was ready, and October of 2018, we began construction, and we finished it in May of this year. A final inspection was done, and although the County Attorney's office says, well, the purpose of a Certificate of Occupancy and the building permit is to ensure that the building is safely done, and this building passed every one of the tests. The County refused to give us a clean Certificate of Occupancy because there may 14, 23&J subject to only our personal use because it was pending zoning matters. They try to tell you, well, they're really different, but they've connected those two as far as what we're able to do with this property. What you see in front of you is a picture of the building that we constructed, pursuant to the building permit. I'd say right now, it's a 30 by 34 law office. Here is the picture of the back of the property. Mr. Svoboda mentioned 14 feet from the drainpipe there to Mr. Hallow's fence, that is approximately 14 feet no question about it. A view of the same building from the road that you can see, there's an open field behind it. We're not going to be looking into anybody's windows or to any private areas. It's very rural. Now, when we initially filed the appeal, of course, you have a very limited time in which to do that. And case law, you know, we've cited to the Board what we knew at the time, which as any good trial lawyer will tell you, your legal research continues up to the time you walk into the courtroom. And so, since that time, we've had some more opportunity to research some stuff, and the County Attorney has mentioned to you the Rhoads case, which we're going to get to in a minute. But in 1994, the Virginia Supreme Court decided a case called Snow vs. Amherst County Board of Zoning Appeals. Now, in that case, what happened was the Snows got approval of a variant to setback variance. I think the current ordinance provides for 150 feet, they've got one for 100. They didn't act on it, and then what happened was the County changed the ordinance. Instead of being 150 feet, it went to 200. They applied and were told no. So, they appealed to the Board of Zoning Appeals there in Amherst. The Board denied it. The property owners sued to the Supreme Court of Virginia, and the Supreme Court of our state, or the Commonwealth, said that the property owner only has a vested right in a zoning decision under the following circumstances: 1) there must have been a significant government act, 2) the land owner must have diligently pursued the use authorized by the permit, and 3) the land owner must have incurred substantial expense in good faith. Now in that particular case in 1994, the Supreme Court said, well, we don't think a variance is a significant government act and the Snows really didn't pursue their project diligently, so they lost on appeal of the State Supreme Court. That was September 1994. Well, the next time the General Assembly met, 1995, January 25, several months later, Dick Saslaw introduced the Senate Bill 10.79 intended to fix the problem that was raised in the Snow case. That statute, that bill, would have amended 15.2-2311 by adding a Section C. That bill was sponsored by 17 of Virginia's 40 senators and passed the Virginia Senate by a vote of 39-0. It went over to the House and passed that body by a vote of 96-3, overwhelming support in both houses. The governor signed it in March 20 of 1995. So, Virginia Code Section 15.2-2311(C) says that in no event shall a written order, requirement, decision, or other determination made by a Zoning Administrator be subject to change, modification reversal, by any Zoning Administrator or official after 60 days have elapsed from the date of the written order. Where the person agreed to materially change his position in good faith reliance on the actions of the Zoning Administrator or the administrating officer unless you can prove malfeasance, not just misfeasance, malfeasance of the Zoning Administrator or administrative officer, or through fraud. There's another sentence in that section, which really doesn't apply here. It says the 6-day limitation does not apply in any case with the concurrence of the attorney for the governing body. You have clerical or non -discretionary errors. Clearly, the granting of a permit saying a side setback line is a discretionary function. In recent case law, this is what the County Attorney's office is referring you to, Board of Supervisors of Richmond County vs. Rhoads. This is just two years ago, 2017. Latest Supreme Court of Virginia case interprets this, the court said, "The plain language of the statute says it is intended to eliminate the hardship .h, Ws' property owners suffered when they relied, to their detriment, on erroneous or void zoning decisions." The court said the statute was remedial in nature, and that's kind of a code word that says it's meant to be liberally construed so the purpose intended may be accomplished. So, what did the court in Rhoads say? If you look at page 3 of the Rhoads decision, which I submitted through Marsha yesterday, that it be a written order requiring a decision or determination made by a Zoning Administrator. At least 60 days must have passed from then, and then a material change in good faith reliance on the act of the Zoning Administrator. So, what do we have here? Building permit definitely constitutes a written decision or determination by the Zoning Administrator. More than 60 days have passed since that building permit was issued in December of 2017, and we indeed changed our positioning, good faith reliance, on where the County told us we could put this building. Now, staff report, they agree that they issued a building permit allowing it to be built where it is. They agree that we relied on that permit in locating it there. But what they disagree with is that the intended use of the structure was fully disclosed to the department, and they disagree that if we can't have people in there, we can't have clients in there, we can't have other professionals in there, that we are, in some way, not going to be harmed. So, here's what we think. If you look at the paperwork, when we submitted the application for the building permit, we never used the words, "storage building/accessory structure." That was something that the County added at some point, and we don't know when because again, we submitted the application in October 2017. We got the permit in December. We don't know how many hands, or whose hands, that went through in those two months. Those words were added by someone in Community Development between the time we submitted the application and the time the building permit was issued. The building pernut application, if you look at it, clearly describes it as a new structure for home office, and it says it includes a bathroom and a little kitchen. Now, I understand the difference between a shed and a home office, but you're not going to be putting a bathroom and a kitchen in an accessory shed, alright? There was no misunderstanding on our part what we were asking the county for. When we filled out the application, the initial square footage was for a 900-square-foot building, 30 by 30, and we subsequently expanded a little bit to 34 by 30. But somewhere along the way, and again, we don't know where this happened within the Department of Community Development, but the square footage on the application was changed from 900 to 792. And then the part of the partial building application permit that's in your package, the one that Jennifer Smith entered on October 18, is blank in the area "setbacks." It wasn't until we got that in December that the 6-foot side setback line appeared. So bottom line is, we never said, we never did, anything that misled the Department of Community Development. Our intended purpose was always to use this building as a law office and a place where we could meet with clients, be with other persons related to our practice, whether it's court reporters, whether it's other lawyers, other professionals. That's what it was always intended for. The floor plan we submitted with the application for the building permit included a conference room, a bathroom, and a kitchenette. Now, tell me why you would have a conference room if the intention was not to have people there. We made our intentions clear the entire time, and if we can't meet with clients or we can't meet with their parties for our practice then, yeah, we suffer a detriment. That'll be pretty obvious. Now, the package also mentions to you that Albemarle County, but of course, the day the final inspection was done, within an hour, the tax people were out saying, alright, your property is worth more now. And within a couple weeks, 911 came out and said, well you have the structure that people are going to be occupying, and so M 2$7 because we want rescue personnel to know where to go to, we have to sign your separate 911 address. Clearly, inconsistent with what the department is now saying is that the office was only intended, ever, to be used as a shed, what you see in frame now is a copy of the floor plans were done in October of 2017, when the plans were submitted. In the lower righthand corner is, where my arrow is, the cursor's going, that says, "Conference/Reception." You've got two offices on the left side, bath, and a kitchen. This is the conference room as it is today. That's what it's always meant to be. It's got a conference table, it's got chairs. It's got a place for people to meet. This is my office. You can see it's got client chairs here. Trial practice involves meeting with clients, meeting with witnesses. It's an integral part of what we do. It's what we always told the County from the get -go we wanted to do. So, in conclusion, what we're asking the Board to do is to reverse the decision of the Zoning Administrator, grant us a zoning clearance for major home occupation. Okay, so that concludes my presentation. I still have a couple minutes left, so if you have any questions, I'd be glad to answer them. MR. SHEPHERD: Thank you. MR. MAUS: Alright. Thank you, sir. MR. SHEPHERD: Other questions, at this point? MR. MAUS: No questions? Good. MR. SHEPHERD: Not at this point, but there's, there will be discussion, and we may have questions as we get into it. MR. MAUS: Okay. I'd be glad to answer any questions. MR. SHEPHERD: But for now, thank you. Is there anyone from the public who wishes to speak? Is there anyone from the public here? Okay. So, that, I guess, we are now, the matter is before us. For starters, does anyone have any questions for staff or the appellant? MS. JOSEPH: Yes. Mr. Svoboda ... when someone is building a shed in the Rural Areas, when does the zoning clearance occur? MR. SVOBODA: It depends on the use, so there's difference between a shed and an accessory structure. Well, a shed IS an accessory structure. A pool house is an accessory structure. MS. JOSPEH: Right. MR. SVOBODA: A garage with a rec room above it is an accessory structure. So, when we talk about accessory structures, we're not just talking about storage buildings. It can be any of those things. MS. JOSEPH: But when is the clearance done? I guess I always assumed it was done as the footers were put in. MR. SVOBODA: The zoning inspection is done — ,30 MS. JOSEPH: The zoning inspection, not the clearance. MR. SVOBODA: Not the clearance. MS. JOSEPH: Okay. MR. SVOBODA: The preliminary zoning inspection is done when you locate the building, which is MS. JOSEPH: Okay. And that was done. MR. SVOBODA: Yes. MS. JOSEPH: Okay. And the other thing that really confuses me, that years ago, an accessory structure couldn't have a kitchen in it because then it would be considered another kind of dwelling, and this is only two acres, and it's in the Rural Areas. So, I'm kind of confused about that. MR. SVOBODA: So, to be a dwelling unit, a structure has to have a place for cooking, a place for sleeping, and a place for sanitation. This particular structure has two of the three, but not all of the three, not a place for sleeping. MS. JOSEPH: Okay. MR. SVOBODA: So, it would not qualify as a dwelling unit MS. JOSEPH: Okay. MR. ROBB: Mr. Chairman, I'd like a question of our counsel. Would you describe and explain, in layman's terms, simply and completely, exactly what this Board is being asked to rule on? MR. BOWLING: In layman's terms and in professional terms, this is a mess. And what you're being asked to do is to, by the applicant, is to give relief for this mess. MS. ALLEY: Excuse me, Mr. Bowling? Could you speak into your mic? MR. BOWLING: Yes. What you're being asked by the applicant to do is to give him relief in this particular case. And what he's hanging his hat on, at least as I heard it, he's not hanging his hat on the memorandum that he prepared for you, which I think was in your packet arguing about equitable relief, and I agree with the Deputy County Attorney's comments concerning equitable relief. I think he's correct on that. He's asking, as I hear it, he's asking you to give him relief under 15.2-2311(C), the statutory language of which is before you. And then he's provided you with reference to a recent Virginia Supreme Court case saying that that statute is to be considered liberally and is designed for this precise situation to provide relief for an applicant under what he says is his particular circumstances. His point is that, at all times during this effort, he identified what he was to do as a home occupation, and it was clear on his face that he was going to build a home occupation. Staff, on the other hand, as I interpret staff's position, and I hope I'm doing this correctly, they can pipe up and correct me if I'm wrong, is that from the beginning in this, through Ms. Ragsdale's email, the applicant was informed that the applicable setback in this particular case was not 6 feet, it was 25 feet. That's in the record and in the packet that you received. During the course of this proceeding, a building permit was issued, which muddied the waters considerably and which, if you want to analyze it this way, is the root of the cause of the problem. By that, the application from the building permit, from the applicant's eyes, stated that, clearly, I'm going to be using this for a home occupation. Instead, the building permit was issued with a setback for 6 feet which is for an accessory use only. There is the root of this problem. Staff says you cannot give relief under the requested statute, or under any sort of equitable theory that's been advanced by the applicant. Staff has also pointed out that this is not a variance situation that's before you. One, the applicant hasn't requested a variance, two, he hasn't applied for a variance. So, you're only left with the application. The official's decision in this case was correct, and you should uphold the Zoning Administrator's decision. Now, I don't know if I've been clear, because this not one that's so easy to state clearly, but I think I've laid out the two positions for you — or at least, I hope I have. MR. ROBB: Mr. Chairman, not unusual, but I'm confused. I'm looking here at a building permit, page 1. A copy of the building permit for the particular structure in question, and it says, "Work description: New structure for home office." I can't understand what is hard to follow with that description. MR. BOWLING: That's clear, but somewhere else on that building permit, on page, further back, I believe, and the other members can correct me, or staff can correct me, there's some notice that says, that refers to the application differently. Am I correct on that? MR SHEPHERD: I see that It says, "Sub -application type: Storage building/accessory building." And then it's blank. MR. BOWLING: Right, and that's the mess part that I pointed out to you. MR. ROBB: Right, but down below, in bold letters: "Work description: New structure for home office." MR BOWLING: Undeniably, that's what it says. MR. ROBB: Now, that causes me some heartburn. I understand, and that's why I asked for clarification exactly what we're being asked to deal with. I'm not sure that I still understand. I'm not sure what you could say that would make it more clear for me, so let's just move on with where we are. MR SHEPHERD: If I could, I'd like to sort of state, state the question you have in a slightly different way, and the way I'm seeing this. I clearly understand the difference between the approval of a structure, which is done with a building permit, and the approval of a use, which is done with a clearance. That's very straightforward to me, and I understand it. But I used to work in the Zoning Department, so I just sort of take that as clear to me because I know the process. However, when I look at the building permit, I'm seeing, the words that come off the page to me are, "New structure for a home office," and I see the building plans that were approved, you know, that were part of that, which had conference areas. I'm just repeating, but I think they're salient points. Conference room, reception areas. There're two offices. It shows a handicapped ramp, which just implies that the public is going to be there. So, I inferred from that, and one thing that's difficult about this situation is that you're sort of up here trying to be mind readers, which we are not. But I inferred from that that, at least from the appellant's standpoint, that ,ems' 120" they were clear in what they were asking for. I get that, and I think, if you look at the page before you, put your glasses on, you're seeing a home office. I know that there's a difference between a home office and a major home occupation, per Supplemental Reg 5.2a, or whatever the code section is. Technically, I understand that that is correct. But somewhere along the line, I think there's a, I wonder about the process for flagging that obvious problem with the building permit. There's a, the building permit was reviewed and approved, and that process took quite some time. There's a preliminary zoning approval of that. There's a final zoning approval of that. I don't understand how, I mean, I, from the county side, that it wasn't flagged somewhere to just say, when you see the way the permit was set up, that that shouldn't have been a red flag that would've said, hold everything, we have to get this clarified. I think there is some, I could argue this, I'm really, in my own mind, hung on the horns of this dilemma. For me, it's clear both ways. But I, I'm concerned about, I wonder about the process that let it get this far, with a permit, with those things that, to me, clearly indicated an office, a commercial -style office, as well as just a description of it in the larger font. And clearly, the applicants' words, it's a home office, where the, I think it's called a "subcategory." I mean, that's really, I guess that's a building code designation that is a class of building and it would establish what building code was controlling it. MS. JOSEPH: John, can I ask a question too? Because it is, it is connected with what you were just saying because there is a lot of confusion. One of the requirements for the building permit is a plat, right? Or a legal description of the property. Is that something that you received? Because that would, and I guess the other thing that you showed us was this sewage disposal site plan that shows 45 feet from the sideline. Did the Building Department, did Zoning, accept this as a part of the building permit that was required by having a plat submitted? MR. SVOBODA: That is the sketch that was in the file that located the structure on the parcel. MS. JOSEPH: Okay. MR. SVOBODA: It was the Health Department information. MS. JOSEPH: So, that came from the Health Department. It wasn't part of the requirement that staff received as part of the building permit package. MR. SVOBODA: It is part of the required paperwork that we use to review the permit. MS. JOSEPH: Right, but it is called a "sewage disposal site plan." It's not the plat. So, I guess what I'm trying to figure out, was that used when staff looked at this and said, okay, the setback is correct for this? MR. SVOBODA: The individual who, reviewed the permit no longer works for the county. When we go back through these files, we go based on what is located in the file. And so, it would be my understanding that, based on what we have in the file, that those documents were used to review and issue this permit. MS. JOSEPH: Okay, and that was the person that signed this, Judy? MR. SVOBODA: No. For Zoning, the young lady's name was Emily. MS. JOSEPH: Okay. Okay. So that was what was received and accepted? 0 -ZI l MR. SVOBODA: Yes. MS. JOSEPH: Okay, thank you. MR. ROBB: Mr. Chairman, as I started this discussion with focusing on the piece of evidence here, Building Permit Copy. I'm troubled by what it says related to "Sub -Application Type: Storage Building/Accessory Structure (New Off—" What is that? What does it say? It's not complete. And then we go down till we see, "Work Description." Clearly, bold print: "New structure for home office." We go to the next page. It doesn't — page — it doesn't have a number, but it says, `Building application..." so forth, identifying it. And then it goes down in printed, hand -printed by somebody. I'd have to presume it was hand -printed. I'm going to ask who hand -printed that. But it says, "New structure for home office." If this is apiece of evidence that we're supposed to evaluate, then how can we get an, we need an explanation for it, if we're going to be asked to support the, hold the finding of the Zoning Administrator. MR. MAUS: [Away from the mic] Mr. Chairman, I can explain that. I mean, my wife filled out the application. She would tell you - MR. SHEPHERD: You have to get ... step to the mic. MS. BUFTON: Hello. How are you? My name is Evelyn Bufton. I am the law partner of Mr. Maus and also his wife. MS. JOSEPH: Can you also please pull that down and speak into it? MS. BUFTON: Sure, absolutely. Is that better? MR ROBB: Yeah. MS. JOSEPH: Thank you. MS. BUFTON: I am the one that came into the county to get the permit. And so, on this permit, where you can see that handwriting on that, pardon, on the application, yeah. I filled that out, and I filled it out at the desk at the County Planning Office. I had never heard a home occupation anything. I didn't even understand that term, and I had never heard that term until the Zoning folks came out and told us that we needed that back comer, one comer of the office that we had built already was at 14 feet. The other comer at the back is over 25 feet. The reason that the property, I had it situated and I did the, kind of managed all the construction, and the reason that it was set out that way is so that it was parallel with the house so that it looked correct because the property lines kind of go like this and the house kind of goes like this. So, the back side of the office is 14 feet on one corner and over 25 feet on the other comer. But I'm the one that filled this information in. I put the 900 on there, that writing on there that says 792, that is not my writing. And the writing on the side, over on the righthand side, is not my writing. But the rest of it is. MR. SHEPHERD: Thank you. MS. BUFTON: If there are any other questions, I'd be happy to answer them. IJA J30� MR. SHEPHERD: Mr. Herrick, I know you've been trying to hop in there MR- HERRICK: So, Mr. Chair, just to remind the members of the Board, under the Board of Zoning Appeals rules and procedure, each side is entitled to five minutes for rebuttal, and so, I'd like to take advantage of what the rules allow. I'd like to use that time to address many of the questions that have been raised during this time. First of all, during his remarks, Mr. Maus indicated that the County hadn't given him a clean Certificate of Occupancy, and I have the Certificate of Occupancy that I believe you all received as well. And I think what he refers to as not being a clean Certificate of Occupancy is that the County did issue the certificate, but it specified that it was for a detached personal home office, and there's a statement in there, "Special Conditions or Modifications for Personal Use Only." And I think that there's a critical distinction here, that there can be such a thing as a "Personal Home Office" without being a "Home Occupation." An example of what one might do in a personal home office would be to complete one's taxes, balance one's checkbook, do things not for compensation, perform one's own personal business, like a study, for instance. And in that case, again, there was nothing wrong with conducting, having a personal home office, not for profit, not commercial, a personal home office as an accessory structure. There's nothing wrong with that. So, I would say that the Certificate of Occupancy was correctly issued. We also heard Mr. Maus invoke the Snow vs. Amherst Board of Zoning Appeals case and the resulting change in the statute that took place to 15.2-231l(C), and I'd like to read that for your benefit. It reads, "In no event shall a written order, requirement, decision, or determination made by the Zoning Administrator or other administrative officer be subject to change, modification, or reversal by any Zoning Administrator or other administrative office after 60 days have elapsed from the date of the written order, requirement, decision, or determination." And then it goes on from there, but I'd like to just focus on that as the relevant portion. For the first thing, the determination that seems to be discussed here is the building permit which, in fact, is not a determination by the Zoning Administrator. It was issued by the Building Official. It's also been more than 60 days since that was issued. That is not before the Board of Zoning Appeals today. All that's before the Board of Zoning Appeals today is the home occupation clearance. The County isn't seeking to change, modify, or reverse the building permit. So, 2311 C in the Rhoads case might be applicable if the County were seeking, at this point, to somehow revoke the building permit because the building permit has been issued and has been out there for more than 60 days. And if the County had said, "Oops, we didn't mean to issue that building permit. Sorry, we'd like it back now," that would be a similar fact pattern to what existed in the Rhoads case and that would not be allowed under 2311C. But we're not seeking to change, modify, or reverse the building permit. We think the building permit is still valid and was correctly issued. We think the zoning clearance was correctly denied. So again, I think that the notion that relief can somehow be granted under 2311C is wrong because again, we're not seeking to change, modify, or reverse anything. Thank you. MR. SHEPHERD: Thanks. MR. MAUS: Mr. Chairman, one thing, and I meant to say this earlier, during his presentation, Mr. Svoboda said several times — MR. SHEPHERD: Give me one moment. Is this a rebuttal? ;r 1W 2 13 MR. MAUS: We can do that if you want to. MR. SHEPHERD: And you'll have 5 minutes? Is that acceptable? MR. MAUS: Thaf d be fine. Mr. Svoboda several times in his presentation that this property is located on Route 631. That is incorrect. It is located on Route 231, which is the Gordonsville Road, the road that runs from Shadwell to Gordonsville. Now, those who are familiar with zoning matters, land use matters, may say, okay, we understand the difference between a building permit and the zoning clearance, the structure and the use. We're not those people. I primarily do criminal defense law, and some other general law. My partner does domestic relations work. We don't know. What we do know, what we do know, is that we applied for a permit to build our office, our law office, in Albemarle County, and we told them, we told the county what we wanted to use it for. And they gave us a permit that said, yes, you can put this 6-feet from the property line. We didn't go that close, we went 14 feet. When we staked that thing out, I was there when my wife and another person staked it out, they called the County and said, "Come out and tell us if we can put this building here." And a County official came out and said, "Go for it." And that is exactly what we did. Exactly what we did. Now, the County Attorney would have you believe that well, the building permit was properly issued, but you can still deny them the right to use it. What good does that do if we cannot use this office as a place to meet clients? We might just, you might just as well revoke the building permit. We don't understand the nicety between the use and the structure. We built it; we built it according to code. It was inspected every step of the way, and when the County Building Official said, eh, no, that's not exactly right, you need to fix that, we did it. It cleared the final inspection, and to say that it is only suitable for habitation for our personal use is shameful. And it would be a shame for this Board to say that the County, that's okay, you can create this confusion, you can have this, this process break down somewhere, but we're not going to hold the County accountable for it, we're going to hold the individuals, the landowners accountable for it. That's what they're asking you to do, and that's wrong. We applied for the structure. We clearly said we want to put our office there. We gave them the plans, showed them what it's going to be like, and they gave us a building permit almost two months after we applied. Now, I'll tell you, after the building was completed, Kevin came out and he called me up on the phone and said, "Jack, we need to know the size of your house. Square footage of your house." I said, "Kevin, why do you need to know that?" And he said, "Well, because the way I read the regs, your office can't be more than 25% of the size of your house." And I said, "No, that's not right, Kevin. Look at it. It's 25% if the office is in the house. 1,500 square foot otherwise." "You know, you're right." So, it wasn't what Kevin said first that counted, it was what Kevin said second that counted, because he realized that he had started off an incorrect assumption. So, did Ms. Ragsdale send me an email in September of 2017 to say, "Well we think it's 25 feet"? Yes, she did. But when we applied for the building permit, and the County comes back and says, "You can put that building 6 feet from the property line," it's what they said second that counts. That's what we relied on. There's been talk about misunderstanding and mistake. Well, maybe there was, but it was done by the people who are professionals in this who knew the difference. We did not. We relied in good faith on what the County told us we can do. We built the building exactly as we proposed it, and we believe that the only way that justice IV 101 2 1 f can be done is for the Board of Zoning Appeals to overturn Mr. Svoboda's decision and say, "Look, you've got to give these people a major home occupation clearance." Thank you. MR. SHEPHERD: Thank you. MR. ROBB: As Ms. Joseph points out, the plat, the fact that there is no plat plan noted on this, on, the documents we have don't show a plat plan, period. Now, do you have a plat plan? Is there a plat plan that exists? MR. MAUS: I don't understand, Mr. Robb. I don't understand what the term "plat plan" means. MR. ROBB: The accurate measurements, the survey of the property. Do you know for sure that it is more than, or less than, 25 feet from that property? That fence doesn't mean that that's the — MR. MAUS: It does not mean that, but the only way for us to find out is for us to incur the additional expense of hiring a surveyor to go out and search the land records. The only plat that we have of that property is an old plat that was done back when General Patton's family contributed half of what the Hallows had. The Wilsons contributed half, and there was 2.5 acres on which was placed the old Edgeworth School, which was a public school operated by Albemarle County from the 1910s to the 1940s. There have been no more current plats since then. MR. ROBB: So, it's entirely possible that that building. Can the County prove that that building is, in fact, less than 25 feet from the property line? MR. MAUS: As far as I know, they cannot prove it. MR. ROBB: So, it's all, this is all just, "Maybe." We're asked to make a decision related to what's important to you and is financially important to you, based on a "maybe"? MR. MAUS: Right. I think everybody is assuming, but we don't know for sure that the fence represents a property line. And so what the County wants us to do, in addition to putting up that building there and paying for the appeal process here, is to hire a surveyor to go back and look at all the land records, figure that out and if it is correct, then they want us to buy property from our adjacent landowner. MR ROBB: Can the county, that's my question, can the county identify the exact property line that you're measuring from? MR. SVOBODA: Is that a question for me? MR. ROBB: Yes. MR SVOBODA: The property line is as indicated by the owner. We do not go out and do surveys. MR. ROBB: I'm not hearing. Repeat that part. MR. MAUS: He can't hear you. MR. SVOBODA: The property line is identified by the property owner under his assumption that that is the correct location for that property line, so we are going by the property owner's say-so. iw z15 MR. ROBB: So, we are assuming, then, that that fence is the property line. MR. SVOBODA: Yes, that is according to the property owner. MR. ROBB: I think, next question, my next point is I'm still concerned, going back to the building permit where it says, "Storage buildinglaccessory structure (New or -)" What? MR. MAUS: See, Mr. Robb, we don't know that because when Lyn submitted the application on October 18, there's no such subtype identified in the application. MR. ROBB: It could say, it could say, excuse me, it could say — is it possible that it could say, "New or Office Space?" Or it could say, "blew or Old Shed?" It could say lots of things. MR. MAUS: You're exactly right, Mr. Robb. There are a lot of possibilities. MR. ROBB: That's the official document that we're dealing with here, and I'm sorry, I, I think there's too many things that we don't know about, and we're dealing with. And over here, I'm really, I'm troubled by, you know, handwrittens that we know, I guess it was a lady there, "New structure for home office." That's clear. MR. MAUS: Exactly. MR ROBB: So, regardless of what it says, you know, up in that section. Excuse me for my rambling, but I'm seriously very bothered by the determination that was made based on assumptions, things that we don't know that matter to you. MR. MAUS: Right. MS. JOSEPH: The complication, as we're looking at building requirements just for the structure itself, and then the use. And that's where it gets really murky because the uses is requiring that the setback be the same as the residence itself so it meets the 75-25-35. So, that's where the complication gets in, and the communication is lacking is that there are groups of people just looking at the structure itself and thinking that it was a "man cave" or a "she -shed" or something. And then, there were other people who, when it came to looking at the home occupation, decided that it was a major and that it needed to meet the required setbacks. So, that's where the communication sort of fell apart, I think. MR. SHEPHERD: I wonder, from the standpoint of the, I'm thinking of the legal case, and I'm also thinking of the Rhoads case. Is the building, is the building permit considered, I forget the legal term, but a significant determination, is that, it would be understood — MR. BOWLING: I think you have to, you look at words with their common meaning, and is a building permit a written order? Gives you permission to build something. Is it a requirement or decision? I think it is one of those. And is it made by another administrative officer? I think the Building Official can be seen as another "administrative officer." But the dilemma with interpreting this statute is to do that with any full accuracy, I'd need to be a judge. You'd need to have a nice bunch of decisions, and you don't have the luxury of that. The only luxury that we have available to use is some statutory language that the statute, or actually, decisional language from the Supreme Court that the statute is clearly remedial. What that means is that it's to be liberally construed to carry out its remedial purpose. And you, as the quasi-judicial body, the Board of Zoning Appeals, are to decide how to do that. lie ZI4 1"r MR SHEPHERD: So, is there an implied sort of delegation of authority from the or between the Zoning Administrator and the Building Official in the course of reviewing and approving permits? So, I mean, I know the preliminary zoning is just going out there and staking the building, but — MR. BOWLING: I don't know what ultimately a court of law will do. Will they see a link in this? I don't know. It's certainly possible you can argue that both ways. You could say yes, and you could say no. But we don't have the luxury of saying, "Well let's just go up and take this to the Supreme Court of Virginia and find out." We need some guidance, we need some clearance. You're left with this murky mess, and that's what you're here for, and you need to make a decision. Certainly, if you think that this statute, if it's within what you think, as you interpret the Building Official doing as part of this process, was led to a mistake, then so be it. You can make that ruling. If the county disagrees with you, their remedy is to go forward and appeal the thing. And we'renot going to get any better than that. We can sit here and talk about this for a long time. MS. JOSEPH: Well, is there any other remedy for this applicant? MR. BOWLING: Well, he's mentioned a couple. He's mentioned that he could have gone to his neighbor and said, "Well, can I get some extra square feet?" Okay. And we talked, I think the Deputy County Attorney talked at the beginning. He said, "Well, this is not a variance set before you." I don't know whether the variance would be applicable here or not. I'm not going to analyze that because it's not before you. I suspect there's arguments that go both ways, so I'm not really sure that kicking the can down the road is going to get you any further in this murky decision that you have to make. MR, ROBB: Well, again, let me go back to this building permit question where it says, "Sub -application: Storage Building/Accessory Building Structure (New of—)." Could that be, "(new office)?" MR. MAUS: Mr. Robb, it could be. I have no idea how the county, in its administrative process, how they assign subtypes to this. MR BOWLING: And I suspect we could get the Building Official in here and we could grill him, but I'm not sure we'd get— MR. ROBB: Well, that's why I ask the question. MR BOWLING: I don't know if you'd get any more clarity than what you have right now on the paper that's before you, given the amount of time that's passed MR. ROBB: That's why I ask. Is this building permit a significant piece of evidence before this — MR. BOWLING: Yes. MR. ROBB: Okay. MR- MAUS: I think Mr. Svoboda is handing the Chairman a piece of paper that has an expanded description of what that is, what the phrase was meant to be. Again, that's something that the county assigned after the application was submitted, and we had no way of knowing that until the building permit was issued. W 2LZ MR. SHEPHERD: So, what Bart Svoboda has just handed me is the, is showing what the pulldown menu there says, and the full sentence is, "Storage Building/Accessory Structure (new or alteration)." That's what the permit is. That's the subcategory of the permit. MR. ROBB: So, this is the original. MR. SVOBODA: Yes, so our permits are done on computer, so we don't have paper copies. MR. ROBB: Okay, fine, but let's say that that's what it says. Still says, "New structure for home office" in italics below it. Where does it say that on this particular document? No, it doesn't. This isn't the same document. MR. SVOBODA: It's probably a different page of the document. MR. ROBB: It isn't the same. It's not the same as the copy of the permit that I have. MR. SHEPHERD: I'm going to take a chance on speaking for the Building Official here just for a second. But I think you have a building permit, and there would be many pages associated with the building permit that is tracking the review of the permit through various approval processes and inspections. So, you're going to have lots of pages that will have this, the heading will be the same, but below it will be different. Is that a fair — [Many speakers talking over each other] MR. ROBB: Mr. Chairman, this is not a copy of the document. This is, if this the original, or the original first copy, then it's different than the one I have in my paperwork here related to titled, `Building Permit, page 1." The rest of the pages I have don't have a number on them. I don't know what they are. MR. BOWERMAN: Mr. Chairman? MR. SHEPHERD: Yes, Mr. Bowerman? MR. BOWERMAN: I think you've all done a real good job up till now. I think what we need is a closure and I would suggest that if Mr. Bowling could come up with the words for a, a rejection of the Zoning Administrator's determination on this, and that we accept this as a significant, under liberal interpretation, that we accept this as a legitimate mess that can be corrected by this board. MR BOWLING: So, what I hear you saying is that you want to correct this under Virginia Code 15.2-2311(C)? MR BOWERMAN: Yes, based on what we've talked about here tonight, which is a liberal interpretation which I think, that's what this is allowing for, because clearly, you could read these minutes and you're going to see that there has been a lot of discussion about this, and there's no way to get to final answer unless you do the final answer, which is to go out and do the property line. It's just not material anymore. MR. SVOBODA: Yeah, that burden of proof is on the applicant, not on the County. That's within the code. Correct me if I'm wrong, Mr. Bowling. MR. BOWLING: I think you're right. in --xl b 1 MR. SHEPHERD: So, what Bart Svoboda has just handed me is the, is showing what the pulldown menu there says, and the full sentence is, "Storage Building/Accessory Structure (new or alteration)." That's what the permit is. That's the subcategory of the permit. MR. ROBB: So, this is the original. MR. SVOBODA: Yes, so our permits are done on computer, so we don't have paper copies. MR. ROBB: Okay, fine, but let's say that that's what it says. Still says, "New structure for home office" in italics below it. Where does it say that on this particular document? No, it doesn't. This isn't the same document. MR. SVOBODA: It's probably a different page of the document. MR. ROBB: It isn't the same. It's not the same as the copy of the permit that I have. MR. SHEPHERD: I'm going to take a chance on speaking for the Building Official here just for a second. But I think you have a building permit, and there would be many pages associated with the building permit that is tracking the review of the permit through various approval processes and inspections. So, you're going to have lots of pages that will have this, the heading will be the same, but below it will be different. Is that a fair — [Marry speakers talking over each other] MR. ROBB: Mr. Chairman, this is not a copy of the document. This is, if this the original, or the original first copy, then it's different than the one I have in my paperwork here related to titled, "Building Permit page 1." The rest of the pages I have don't have a number on them. I don't know what they are. lull :61J fftu._N � MR. SHEPHERD: Yes, Mr. Bowerman? MR. BOWERMAN: I think you've all done a real good job up till now. I think what we need is a closure and I would suggest that if Mr. Bowling could come up with the words for a, a rejection of the Zoning Administrator's determination on this, and that we accept this as a significant, under liberal interpretation, that we accept this as a legitimate mess that can be corrected by this board. MR. BOWLING: So, what I hear you saying is that you want to correct this under Virginia. Code 15.2-231 I(C)? MR. BOWERMAN: Yes, based on what we've talked about here tonight, which is a liberal interpretation which I think, that's what this is allowing for, because clearly, you could read these minutes and you're going to see that there has been a lot of discussion about this, and there's no way to get to final answer unless you do the final answer, which is to go out and do the property line. It's just not material anymore. MR. SVOBODA: Yeah, that burden of proof is on the applicant, not on the County. That's within the code. Correct me if I'm wrong, Mr. Bowling. MR. BOWLING: I think you're right. 0 tar MR. BOWERMAN: Well, that's fine, but still, we could use that as the determination as to why we want to do this, correct? Under a liberal interpretation. I mean, if it's significant expense here on the part of the applicant, based upon a genuine, cloudy method of getting here. MR. BOWLING: What I hear you saying, sir, is that you think that 15.2-2311(C) is applicable in this situation. MR. BOWERMAN: Yes. MR- BOWLING: A mistake was made by the County in issuing this permit, and then making a decision based upon the Zoning Administrator's determination that's before you today after 60 days had passed since the permit had been issued? MR. BOWERMAN: Yes, because I believe that there was, there was a breakdown on the County's part in communicating to the applicant that there was a substantial difference between, in discussion of this and what had been prior approved, given a — MR BOWLING: There was a substantial difference between the home occupation applied for by the applicant on the building permit and how the final permit ended up, which led to all this confusion. MR. BOWERMAN: I think that, I think the County could have been a lot more helpful. MR. BOWLING: Now of course, the applicant could have gotten a survey right from the beginning, and maybe we wouldn't be here today at all, but that's "Monday morning quarterback." MR. BOWERMAN: We are where we are. Anyway, that's what, if you could come up with the phraseology, that's what I would propose as a motion. MR. BOWLING: Well, I'm kind of making it up as I go along. I'm not trying to put words in your mouth. MR. BOWERMAN: Well, you're trying to make it sustainable. MR. BOWLING: Well, I want your decision is to grant the applicant, the decision before you is the applicant is requesting relief from the decision of the Zoning Administrator finding that he could not use his existing structure as a home office because it was an accessory use, and the setbacks were not met. Is that correct? MR. BOWERMAN: That is my intention, yes. MR. BOWLING: Alright. And you want to sustain that application of the applicant, correct? MR. BOWERMAN: I do want to sustain the application. MR. BOWLING: So, that's what you want to make as your motion? MR. BOWERMAN: Yes. MR. BOWLING: And then help me out here, too, before you go further. Even if you sustain the application, as I understand it, the applicant will still have to go back and get the home occupation approval and go through that process. a 3r MR. BOWERMAN: I don't know about that. You could help us with that. MR BOWLING: That's what I don't know for certain, either. Maybe staff can help me out. I don't think you ever went through the process of that. Bart, am I making sense as to what I'm trying to say? MR. SVOBODA: Yeah, the application was applied for and denied. MR. BOWLING: And denied, but you never got to the determination whether you should put conditions on the home occupation, and so forth and so on. MR SVOBODA: It's an administrative approval, so we wouldn't — MR. BOWLING: So, you wouldn't do that. MR. SVOBODA: Yeah, we wouldn't condition it when it is black or white. Either it meets the 25 feet, or it doesn't. MR. BOWLING: So, it either meets it or it doesn't. Okay. So, I just confused the issue. I apologize. MR BOWERMAN: This is a place to get rid of the confusion. MR. BOWLING: So, I think I've laid out the motion for you. Madam Secretary, is that clear enough for you to follow? MS. ALLEY: I won't be transcribing this. MR. BOWLING: Who is going to, who can read back what I've said? MS. ALLEY: We don't have anything written to restate what you've said. MR. BOWLING: Well then, you need a motion to grant the appeal of the applicant in this case, finding relief appropriate under Virginia Code 15.2-2311(C). MR. BOWERMAN: And that being the motion, then the exact wording of that can be clarified after it leaves here. I mean, the exact words that were actually used. Or is that what you are suggesting the words should be? MR. BOWLING: Well, that's what I would suggest the words to be. MR. BOWERMAN: Okay. That's fine. MR. BOWLING: Does the applicant see any problem with that? MR. MAUS: No sir, Mr. Bowling. MR- SHEPHERD: I want to, does that mean, if we approve that motion, which would be overturning the Zoning Administrator's determination, does that serve as an approval of the, can we approve a clearance, approve the use of the building for a major home occupation without having reviewed all the criteria for the home occupation? I'm a little concerned about that part of this. 13e 2Sl MR. BOWLING: That's why I asked the question I did to the Zoning Officer. MR ROBB: Mr. Chairman, on that question, Certificate of Occupancy, the detached personal home office. So, we would have to, the County would have to vacate that occupancy, I would think, that certificate. MR. SHEPHERD: No. MR. BOWLING: I'm not familiar enough with the County procedures. MR. ROBB: Obviously, if the County has issued an occupancy, Certificate of Occupancy, they would have to, i mean — MR. BOWLING: Assuming — well, let's ask the Zoning Administrator for some guidance here. MR SVOBODA: So, the Certificate of Occupancies are issued by the Building Official. MR. BOWLING: No, in the first place — MR. SVOBODA: That has to deal with building code, so if you change the designation on the Certificate of Occupancy, don't know if this will, or if this won't. Meaning, if it goes from an accessory residential use to a commercial use, it may change the code requirements. I am not sure what that means to the applicant or to the Building Official. So, the Building Official is charged with making sure that all applicable regulations are met, but he's not charged with doing those inspections. He relies on the folks that sign off, like the Health Department. And when the Health Department says it's okay and your septic is working, that's one of the applicable regulations. So, if the designator changes, it could change the permit. I do not know what will happen there. So again, the Certificate of Occupancy is issued by the Building Official. For the Building Official to revoke a Certificate of Occupancy, then the Zoning Administrator or the Health Department would have to revoke their approval on the permit, and the permit has been issued and approved and CO'ed. So, the permit's not the issue. The issue is whether or not we can grant a home occupation permit. We're not dealing with the building permit. We're dealing with the home occupation permit or, as you guys have referred to it, to the zoning clearance. They are two different things. They are not the same things. One deals with structure, the other deals with use. MR. MAUS: Mr. Shepherd, I may have about 30 seconds left in my rebuttal, but there have been some references to the email from Ms. Ragsdale back in September 2017.One of the things you want to look at there says, "If the structure for home occupation is not yet built, you would need to apply for a building permit. The home occupation could not be approved until after the structure gets its CO." So, what we did, we built the building, we applied for the clearance. I appreciate the consideration the Board has given. We think that it's only fair that the Board overturn the Zoning Administrator's decision, grant us the right to use this for something other thanjust a space that we can occupy for our personal use. And the Certificate of Occupancy, it does say "Detached personal home office," but it's only special conditions for personal use only. Under this CO, we can't have anybody in our office. They can modify it or amend it without having to withdraw it or cancel it. The County can do what it wishes to fix this problem, and we're asking the Board to encourage them to do it. Thank you. MR. SHEPHERD: Thank you. I think we're all grappling with this. Eli 7.+4:5 7' 11-40' MR. ROBB: Mr. Chairman, can I make, we don't have a motion. MR. BOWERMAN: You have a motion before you, but it hasn't been seconded. MR. SHEPHERD: I think the motion should be boiled down and clarified before — MR. ROBB: Can I do that? MR. SHEPHERD: Yes. MR. ROBB: My motion would be, this is a substitute motion. I would move that this Board not uphold the finding of the Zoning Administrator related to AP-201900004. MR. BOWERMAN: You want a reference to the case determination that I based this on originally? A liberal interpretation of this? Put that in part of your motion, the reference to the decision. I would second that. MR. BOWLING: So, you withdraw your motion? MR. BOWERMAN: Yes, I'll accept what Ed's put up. MR. BOWLING: If you add the language — MR. BOWERMAN: Yes, yes. I think that was the key in your discussion. Relating to us, I think that was key information that we should use if we're going to do what I suggested, as the rationale for doing it. MR. SHEPHERD: Is there further discussion? Further discussion from anyone? Or are we prepared to vote? Do we have a second? MR. BOWERMAN: I'll second the motion. MR. SHEPHERD: Okay. I would just like to ask the counsel. Jim, I, simple question. Do you think that overturning the Zoning Administrator's opinion would be within the parameters, within the scope, of 15.2- 231l(C), that that could — MR. BOWLING: I think you could read it that way. It's in the ballpark. I think you have a paucity of legal interpretation about what that language means. It seems to be a remedial statute designed for the kind of situation that you find yourself in here. I don't think there's any duplicity on the part of the landowner. Nobody's going to go out and set themselves up for this kind of experience, "So hey, I think we know we can't do this, we're just going to build it instead. And then when the setback comes up, and says we didn't meet the setback requirements, we're going to appeal to the Zoning Board." I don't think that's what's going on here. The landowners tried to act in good faith, and I think the County's acted in good faith, too. It was just a, a culmination of errors that occurred throughout the process. MR SHEPHERD: I want to say I'm leaning towards this. I had thought earlier that the right path for this was through the variance process. But I'm thinking now that, with all that has happened, that really is kicking the can down the road and would wind up having the same discussion again about how we got to this point, without getting into analyzing variances. So — �r� MR. BOWLING: I think that's what I concluded, too. MR. SHEPHERD: There's a lot of criteria that have to be satisfied for the variance where, either with a variance, or this, either way, we're having to make a decision that is not as neat and bound up in a package as I would like it to be, either way. So, I just want to have said that for the record. MR. BOWLING: And one thing you've got to realize, and I don't know whether this will help or not, is that the Board of Zoning Appeals serves a different function than the Zoning Official and the Building Official and the Board of Supervisors. I think that's important to keep in mind, too, and that doesn't mean that any decision you make visible is right or wrong, or any decision they make if they don't agree with you and decide to go forward to challenge it is right or wrong. MS. JOSEPH: Mr. Chair, I do want to say something. The Rural Areas are a really important part of Albemarle County, and if you look through the uses that are allowed, by right, it is, major home occupation, is one of them, but it refers you back to meeting the setbacks. The idea of the Rural Areas is to promote agricultural use, and when we're allowing different kinds of commercial activities within the Rural Areas. I just think it's really, really important. All we're asking is that you conform to the setbacks. So, I've been having a really hard time with this. You're going to be allowed to have a commercial activity, with more traffic than is normal, within a residential area. Maybe not so much less than you would on a working farm, but still, it's keeping that area rural, agricultural, and really kind of focused on those sorts of activities. So, I've been having a really hard time with this. MR. SHEPHERD: I think this matter, the hearing is closed and what's before us, I'd rather just, I think we should punch ahead here. I'm getting ready to the call the roll, and a sorry to do this, but I just want to be very clear on what a "yes" or "no" vote means. The motion, as I understand it, is to overturn the Zoning Administrator's determination. Is that correct? So, a "yes" is overturning the determination and approving the home occupation. [A woman away from the mic is audible.] MR. BOWLING: That's what Mr. Shepherd said. MR. SHEPHERD: Is that correct? MR. BOWLING: I mean, what you said, that's what you want to do? MS. JOSEPH: That's what you just said. MR. SHEPHERD: I mean, if, I thought that's the motion that is before us. The vote, the motion was stated to overturn the Zoning Administrator's determination? Or is the motion to uphold the Zoning Administrator's determination? MR ROBB: My motion was to not hold the Zoning Administrator's determination. MR. SHEPHERD: Okay. So, the motion is to overturn the determination. MR. ROBB: Right. .2f a s1 '" MR. SHEPHERD: And a yes vote would overturn the determination. MR. BOWLING: Right. MR ROBB: In a positive way. MR. SHEPHERD: Ready to vote? Marsha, please call the roll. MS. ALLEY: Mr. Robb? MR- ROBB: Yes. MS. ALLEY: Mr. Bowerman? MR. BOWERMAN: Yes. MS. ALLEY: Ms. Joseph? MS. JOSEPH: No. MS. ALLEY: Mr. Shepherd? MR. SHEPHERD: Yes. So, that is our decision. I'm going to think about this one a long time. Thank you for the consideration that folks have given to this. I hope this doesn't happen again, for everyone's sake here in the room. 4. Approval of Minutes A. June 4, 2019 Mr. Robb said that regarding the minutes, it says, "At this time, the BZA did not adjourn a special meeting, but moved directly into the regular meeting." He asked if this was, in any way, a problem. Mr. Shepherd replied no, pointing out that there was a statement they voted on that said that they only discussed matters that were proper to be held in a closed meeting. Mr. Robb asked if the statement could be deleted from the minutes. Mr. Bowling said he was not following. Mr. Robb again read the statement and asked if there was a reason why this couldn't be deleted. Mr. Bowling said it seemed clear that the BZA went from a specially -called meeting into a regular session. He suggested that this was perhaps a better way to describe it. Ms. Alley asked if the correction could be restated. Mr. Shepherd asked Mr. Robb how he would like the statement to read. Mr. Robb answered that he would like the sentence to be eliminated from the minutes. e y42 s 1505' Ms. Joseph asked if that meeting needed to be adjourned, remarking that she had thought this had been done. W. Bowling said the BZA came out of the executive session and that he also thought they adjourned that meeting. Mr. Robb said he thought they adjourned as well, but that the minutes did not say so. Mr. Shepherd asked if the word "not" could be eliminated so that the sentence would read, "At this time, the BZA did adjourn the special meeting and moved directly into the regular meeting." Mr. Bowling asked about who transcribes the minutes. Ms. Alley said they use a transcription service and that the recording is sent to her, and she sends them back in a Word document. Mr. Shepherd asked, with the elimination of "not," if there was a motion to approve the minutes. MOTION: Mr. Bowerman moved to approve the minutes with that correction. Mr. Robb seconded the motion, which passed unanimously (4-0). 5.Old Business Mr. Shepherd said there had been talk before about BZA training and certification. He said that Mike Chandler was still perhaps holding classes as part of VAZO. He said there was also talk about some word from the County Attorney's Office about pointing the BZA to good parts of the Land Use Law Handbook. He asked if further consideration had been made on this. Mr. Svoboda replied that Mr. Chandler was not teaching anymore, to his knowledge. He said that there had been discussion about going away to training, but that this idea was not popular with the BZA. He said some in- house training could be held with the counsel present involving a work session to review the Land Use Law Handbook. He said staff was more than willing to do this in conjunction with himself, the County Attorney, and the Board's counsel. Mr. Shepherd expressed that individually, the Board members all brought with them their own experience and talents. He said that the experience of undergoing training together would be a positive thing for the Board and would help them with their analysis, as well as with strengthening their processes. He said he was in favor of the training and liked the idea of reducing the scope of the training to allow it to happen in town. He noted his appreciation for Mr. Bowling, explaining that his presence provides the Board with some training on an ongoing basis. Mr. Bowling said that the County Attorney had done a good job over the years on monumental work on Zoning law in Virginia, and that this information was all on the County Attorney's website and that it is updated regularly. He expressed the information was extremely helpful and would be to the BZA as well. Mr. Shepherd said that Greg Kamptner did a good job on this as well, adding that the information was referred to and used throughout the Commonwealth. He said that he and Mr. Svoboda could discuss this further, as well as anyone else who wanted to be included, so that they could come up with more of a definite plan for the next meeting. z5C 6. New Business There was no new business. 7. Ad,jol oms n t At 3:37 p.m., Mr. Robb moved to adjourn the meeting. Mr. Bowerman seconded the motion, which passed unanimously (4-0). (Recorded by Marsha Alley and transcribed by Beth Golden) Respectfully Submitted, o� David Bowerman, Secretary Board of Zoning Appeals 'd