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HomeMy WebLinkAboutAP201900004 Other 2020-02-12GREG KAMPTNER COUNTY ATTORNEY ANDREW H. HERRICK DEPUTY COUNTY ATTORNEY 0 COUNTY OF ALBEMARLE Office of County Attorney 401 McIntire Road, Suite 325 Charlottesville, Virginia 22902-4596 PHONE (434) 972-4067 FAX (434) 972.4068 February 12, 2020 Hon. Cheryl V. Higgins Circuit Court for the County of Albemarle 501 East Jefferson Street Charlottesville, VA 22902 RICHARD A. DELORIA AMANDA E. B. FARLEY SUSAN BAUMGARTNER ANTHONY R. BESSETTE SENIOR ASSISTANT COUNTY ATTORNEYS Re: In Re. October 1, -9019 Decision ofthe Board of'.ZoningAppeals ofAlbemarle County Albemarle County Circuit Court Case No. CL19001699-00 DearJudge Higgins: I understand that the Court has requested letters from each party to the above -captioned case regarding its proposed resolution. The County fully supports the summary disposition of this case by a tribunal with iurisdiction. As noted in the County's Petition, this case is the County's appeal of an October 1, 2019 decision of the Board of Zoning Appeals (BZA). Before petitioning this Court, the County also moved the BZA to rehear and reverse the BZA's own decision. On October 29, 2019, the BZA deferred the County's motion to rehear beyond the County's 30-day period for appeal to this Court (under Viq,inia Code § 15.2-2314). Therefore, to preserve its appeal rights, the County fled its Petition with this Court on October 31, 2019, with a hearing currently scheduled for March 11. In the meantime, on February 4, without objection by either party, the BZA voted to reverse its decision of October 1, 2019, leaving the question of what to do with the County's pending Petition. If the Court finds that the BZA retained jurisdiction of its October 1, 2019 decision, even while the County's Petition was pending with this Court, the County would request a Court Order (a) recognizing the BZA's continuing jurisdiction on February 4, 2020, and (b) confirming the BZA's reversal, If, however, the BZA lost jurisdiction once its earlier decision was appealed, this Court would need to rule on the County's appeal. Either way, a Court Order is needed to bring finality to the County's Petition. Because the County's Petition before this Court does not "belong" to either Mr. Maus or the BZA, neither can terminate the County's Petition on its own. Hon Cheryl V. Higgins February 12, 2020 Page 2 Before writing this letter, I reached out to Mr. Maus with a proposed Consent Order (enclosed). I believe that it both fairly reflects the uncontested facts of this case and suggests a disposition consistent with the BZA's actions of February 4 (to which neither party objected). Unfortunately, Mr. Maus declined either to endorse my proposed Consent Order or to suggest alternate language. I'm not clear on the reason(s) for his objection. I continue to think that the proposed Consent Order would reflect a fair and efficient disposition. I'd ask that the Court enter this or a similar Order, as only this Court can do. I'd be happy to answer any questions that might aid the Court's decision. As always, thank you for your consideration. Respectfully Submitted, Q LL Andrew H. Herrick Deputy County Attorney Enclosure cc: John R. Maus, Esq. and Evelyn Bullion, Esq. (w/ enclosure) VIRGINIA' IN THE CIRCUIT COURT FOR THE COUNTY OF ALBEMARLE IN RE: OCTOBER 1, 2019 DECISION OF THE BOARD OF ZONING APPEALS CASE NO. OF ALBEMARLE COUNTY CONSENT ORDER Came the Petitioner Board of Supervisors of Albemarle C ty "Petitioner" or the "County"), by counsel, and Respondents Evelyn Bufton an . Maus (collectively, the "Respondents"), both pro se, upon the County" Peutif3Writ o -tiorari to review the October 1, 2019 Decision of the Board of Zoning Appeal. obemarle Co the "BZA") Agreed Stipulation. _. The parties hereby agree and stipulate as follo . A. On or about October 18, 2017, Appellants Evelyn Bt 6ii and John R. Maus applied for a building permit for an accessory structure in the Rural Areas (RA) zoning district. B. On or about December 7, 2017, Building Permit B2017-02131-NNR was issued, authorizing the construction of the accessory structure. C. The building permit noted side and rear setbacks of six feet, consistent with County Code S 18- 4.11.2(b). D. Following completion of construction, on or about,)une 4, 2019, the Appellants applied for a major home occupation clearSn.eNuant to County Code S 18,5.2A. E. Specifically, the Appellants applied to operate a law office from the newly -constructed accessory structure, which (by mutual belief) is located within 25 feet of the side property line. F. In an official determination (H02019-00233) dated July 30, 2019 (the "Subject Determinati*"% the Zoning Administrator's designee denied the Appellants' application for a major home occupation clearance. G. On or about August 12, 2019, the Appellants appealed the Subject Determination to the BZA. H. On October 1, 2019, the BZA voted to "overturn" the Subject Determination. I. On or about October 8, 2019, the County moved the BZA to rehear and reverse its decision of October 1, 2019 and to affirm the Subject Determination. J. On February 4, 2020, the BZA reheard and reversed its decision of October 1, 2019 and affirmed the Subject Determination. 1 K. Neither party objects to the BZA's February 4, 2020 reversal of its October 1, 2019 decision. 2. NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED: That the BZA's decision of October 1, 2019, overturning zoning official determination HO2019-00233, is reversed. That zoning official determination HO2019-00233 is affirmed. THIS MATTER IS ENDED. We ask for this: Greg Kamptner, VSB # 33788, Andrew H. Herrick, VSB #37236N,, ALBEMARLE COUNTY ATTORNEY'S O 401 McIntire Road, Suite 32.5 Charlottesville, Virginia 22902 TEL: (434) 972-4067 FAX: (431) 972-4068 Counsel for Petitioner Albemarle Count}, Board of Supervisors Sect) and Respondent John R. Maus, prose Seen and Respondent Evelyn Bufton, pro se 2