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HomeMy WebLinkAboutVA201900001 Other 2020-03-03Virgiria: In The AIBEMARLE CIRCUIT COURT ALBEMARLE CIRCUIT COURT Civil Division 501 E. JEF".RSON ST. CI'ARLOTTESVILLE Y A 22902 {431) 972-4A85 ProofOf Service $xnvx Case number: 003CL20000428-00 Service number: 004 Service filed: March 03, 2020 Judge: Served by: ALBEMARLS COUNTY Style of case: ALBEMARLE COL]NTY ZONING APPEAL vs JOHN R MAUS Service on: MARCIA JOSEPH Aflomey: HERzuCK, ANDREWSECRETARY 401 MCINTIREROAD ALBEMARLE COLINTY BOARD OF CHARLOTTESVILLEYA2Z9OZ ZOMNG APPEALS 2118 WOODBURN ROAD CHARLOTTE SVLLLE V A, 229 O 1 lnstructions: Hearing date : Service issued: Friday, March 13,2020 For Sheriff Use Onlv COMMONWEALTH OF YIRGINIA VIRGIMA: IN TIIE CIRCUIT COURT FOR THE COTJNTY OF ALBEMARLE IN RE:FEBRUARY 4, 2020 DECISION OF TIIE BOARD OF ZONI}{G APPEALS OF ALBEMARLE COUNTY CASENO. CL,1,O.\AY Serve: Marcia Joseph, Secrefary Albemarle Couuty Board of Zoning Appeals 2118 Woodburn Road Charlottesvillg Y A 22901 Upon the Petition ofthe Albemarle County Board of Supervisors (the "Board') for a writ of certiorari pursuant lo yirginia Code $ 15.2-2314, to review the February 4, 2020 decision of the Board of Zoning Appeals (the "BZA") of Albemarle Couty to grant a variance to Applicants Evelyn Bufton and John R. Maus, the Court hereby: l. ALLOWS a writ of certiorari to review the February 4, 2020 decision of the BZA to grant a variance to Applicants Evelyn Bufton and John R. Maus, and 2. ORDERS the Secretary or Chair of the BZA to make a retum within 10 days of service upon said Secretary or Chair of the BZA. a. The BZA shall not be required to retum the original papers acted upor by it but it shall be sufficient to retr-rm certified or sworn copies thereof. b. The retum shall concisely set forth such other facts as may be pertinent and material . to show the grounds ofthe decision appealed from and shall be verified. V,lr56--J.t-/ JIIDGE DATE I ask for this: Andrew H. Henick, VSB #37236 ALBEMARLE COLINTY AI"IORNEY'S OFFICE 401 Mclntire Road Charlottewille, Vir g)rua 22902 (434) 972-4067 FAX(434) 9',12-4068 Counsel lor Petitioner Albemarle County Board ofSupervisors lr.: WRIT OF CERTIORARI LLN| ?Ln iiL '.: - .._-,. l: ' 1 ::.. VIRGINIA: IN THE CIRCUIT COURT FOR THE COUNTYi:OIi 4q.j@flTA*]JE- I[ii, ii i'f iii l i'-;;,; I i, , h:l IN RE: FEBRTJARY 4,2020 DECTSION OFTHEBOARDOFZONINGAPPEALS CASTIIO:'' OF ALBEMARLE COUNTY Serve: John R. Nlaus 7380 Gordonsville Road Gordonsville, Y ir ginia 229 42 Serve: Evelyn Bufton 7380 Gordonsville Road Gordonsville, Y irginia 229 42 Serve: Marcia Joseph, Secretary Albemarle County Board of Zoning Appeals 401 Mclntire Road, North Wing Charlottesville, Y ir ginia 22902 Pursuant lo 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.r tn 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 firther states as follows: Background Onor about ()ctober 18, 2017, Applicants Evelyn Bufton and John R. Maus applicd tor a building permit for a new structurc in the Rural Arezs (RA) zoning district- On or about Dcccnrber 7, '2017, Building Pcrmit B201742431-NNR was issucd, authorizing thc cons(ruction of the new structurc. 'lhe building permit noted side and rear setbacks of six feet" consistent with (bunty Lbde S r8-4.1 1.2(b). I The County does !91! object to and is [E! appealing the separate decision of the BZA, also made on February 4, 2020, to reverse the BZA's prior decision ofOctober l,2019, regarding the issuance ofa home occupation clearance. This Petition is limited to the BZA's February 4, 2020 decision to grant variance #VA201900001. PETITION FOR WRIT O[ CERTIORARI t. 2. L 5 Following complelion .l construction, on or aboutJune t, 2019, the Appliczurts applicd lirr a nraj<rr honrc occupation clcarancc, pursuant to Cbunq.C'odc$ l8-5.2A. Specilicalll', the Applicants ;rpplicd ro opcrate a law ollicc liom thc nervly-constructed structurc, wtrich (by inlbrrnatioa iurd bclict) is located within 2.5 I'cct of thc sidc property line. In ar ollicial clctcnnirration (H()2019-002llll) dared .fuly 30, 2019, the Toning .{dministrator's rlcsignce denied the Applicans' application f<rr a major hornc rrcuparion clearance. On or about f)cce mbcr 10, 2019. at drc encouragcmcnt of thc BZA, thc Applicans applied Ibr a variance to allow a major home crccupation use within 25 leet of the side propcrtl'linc. C)n Februar1, l, 2020, the B7-A. grantcd the requested variance (#VA201900001). As tlrc govcrning board of Albcnrarlc County, drc Board h:r^s standing to lilc dris l'e tition, pursuant to Virginia Code $ 15.2-2314. Lackpf Leg4l Authorir_v lor [Jse Variances 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 lor a variance as defined in Q 15.2- 2201 and the criteria set out in this section." [emphasis added] 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 ofa building or structure when the strict application of the ordinance would unreasonably restrict the utilization ofthe prcperty, and such need for a variance would not be shared generally by other properties, and provided such variance is not conkary to the purpose of the ordinance. It shall not include a chanse in use. which change shall be accomplishgd by a rezoning or by a conditional zoning."Iemphasis addedl The Applicants' application failed to meet any of the four elements of the statutory definition of a variance in that: 6 7 8 9 10. 11 12. The strict application of the ordinance does 19! urneasonably restrict the Applicants' utilization of the subj ect property. The need for a variance would be shared generally by other properties. The proposed variance is contrary to the purpose of the ordinance. Most importantly, the propo sed variance is based on a change in use 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) allou' 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 -lust. Respectfully Submitted" ALBEMARLE COUNTY BOARD OF SUPERVISORS By Counsel b c d 13 /1 'l,t il^*) Greg Kamptner, VSB # 33788 Andrew H. Henick, VSB #37236 ALBEMARLE COUNTY ATTORNEY'S OFFICE 401 Mclntire Road Charlottesville, Y ir ginia 229 02 (434) 972-4067 FAX (434) 9'.724068 March3,2020 J 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 AU DITORIUM, 2:00 P.M AGENDA TUESDAY, FEBRUARY 4, 2020 1. Call to Order 2. Establish a Quorum 3. Public Hearings: A. Project Number: VA201900001 Bufton & Maus PLC Law Offices Property Owner/Appellant: Evelyn Bufton and John R. Maus Staff: Bart Svoboda/Kevin McCollum B. Rehearing of AP201900004 Bufton & Maus, PLC Appeal Number: AP201900004 Bufton & 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 BOARD OF ZONING APPEALS MEETING GUIDELINES 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 necess ary arrangements for your presentation. The Recording Secretary will also need copies of any handouts given to the BZA members for the official record of the meeting. • 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 staff’s determination(s). Focus on presenting facts and data th at support your position. • Keep 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. ALBEMARLE COUNTY BOARD OF ZONING APPEALS COUNTY OFFICE BUILDING 401 MCINTIRE ROAD – LANE AUDITORIUM TUESDAY, 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 a.m. 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. 2 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 1 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. SVOBODA: 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 -- 3 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 becaus e, 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 staff’s, 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 correct. 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 – 4 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 understand and 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. 5 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? 6 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. MR. 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. 7 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. HERRICK: 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? 8 MR. SHEPHERD: Yes. 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 room 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. 9 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 of November. 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? 10 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. 11 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 7th, but declare that we’re going to have one on the 14th 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 room today. MS. ALLEY: We did. We did. MS. JOSEPH: We got this room today, and there are other rooms 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 doke. 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. 12 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. 13 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, David Bowerman, Secretary Board of Zoning Appeals ALBEMARLE COUNTY BOARD OF ZONING APPEALS COUNTY OFFICE BUILDING 401 MCINTIRE ROAD – LANE AUDITORIUM 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 Bufton & 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 2 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. MR. SHEPHERD: Thanks. 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, C1. 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. 3 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 structures, 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 4 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 5 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 6 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 permit 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 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 – 8 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. 9 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 10 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? 11 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 a piece 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 corner, one corner of the office that we had built already was at 14 feet. The other corner 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 corner. 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. 12 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 15.2-2311(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, 2311C 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? 13 MR. MAUS: We can do that if you want to. MR. SHEPHERD: And you’ll have 5 minutes? Is that acceptable? MR. MAUS: That’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 14 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. 15 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 building/accessory 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, “New 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. 16 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’re not 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. 17 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. 18 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. 19 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. 20 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 than just 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. 21 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- 2311(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 – 22 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. 23 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. 24 Ms. Joseph asked if that meeting needed to be adjourned, remarking that she had thought this had been done. Mr. 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. 1 STAFF: Kevin McCollum and Bart Svoboda PUBLIC HEARING: February 4, 2020 STAFF REPORT: VA2019-001 Bufton & Maus, PLC OWNER/APPLICANT: Evelyn Bufton 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. 2 On October 1, 2019, the Board of Zoning Appeals (BZA) heard appeal AP2019-00004 Bufton & 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 Bufton & 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 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.” 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 (ii) 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 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 recurri ng. 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 varian ce does not result in a use that is not otherwise permitted on the property or a change in the zoning classification of the property. 3 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 owners 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 filed 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. 4 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 (c) 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 (Staff’s recommendation): I move to deny the variance application VA201900001 Bufton & Maus If the Board finds legal grounds to grant this variance: I move to grant variance application VA201900001 Bufton & Maus 5 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” Attachment G: AP201900004 Application Parcel Info Parcels Parcel ID 05000-00-00-04900 Any determination of topography or contours, or any depiction of physical improvements, property lines or boundaries is for general information only and shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination.January 15, 2020 GIS-Web Geographic Data Services www.albemarle.org/gis (434) 296-5832 Legend (Note: Some items on map may not appear in legend) 94 ft Map elements may scale larger than GIS data measured in the map or as provided on the data download page due to the projection used. Map Projection: WGS84 Web Mercator (Auxiliary Sphere) (EPSG 3857) COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902-4596 Phone (434) 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- 02431NNR, 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 www.albemarle.org/cdapps. This form applies to the appeal of a decision of the zoning administrator or any other administrative officer pertaining to the Zoning Ordinance. 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 www.albemarle.org/countycodebza. (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 www.albemarle.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://www.albemarle.org/upload/images/Forms_Center/Departments/County_Attorney/Forms/Al bemarle_County_Code_Ch18_Zoning05_Supplement_Regulations.pdf Albemarle County Code § 18-31 (See Section 31.5 for Zoning Clearance requirements) http://www.albemarle.org/upload/images/Forms_Center/Departments/County_Attorney/Forms/Al bemarle_County_Code_Ch18_Zoning31_Admin_Enforcement.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)) http://www.albemarle.org/upload/images/Forms_Center/Departments/County_Attorney/Forms/Al bemarle_County_Code_Ch18_Zoning10_Rural_Areas.pdf Albemarle County Code § 18-36 http://www.albemarle.org/upload/images/Forms_Center/Departments/County_Attorney/Forms/Al bemarle_County_Code_Ch18_Zoning36_Violations.pdf County of Albemarle Department of Community Development Memorandum To: Members of the Board of Zoning Appeals From: Bart Svoboda, Zoning Administrator Subject: BZA Preliminary Memo – February 4, 2020 Meeting Date: January 9, 2020 The following items are scheduled for public hearing at the Tuesday, February 4, 2020 Board of Zoning Appeals meeting. Press and hold CTRL and click the highlighted link below to view the information. (You may need to do this twice if there is an error.) A. PROJECT: VA201900001 Bufton and Maus Law Office Property Owner/Appellant: Evelyn Bufton and John R. Maus Staff: Bart Svoboda/Kevin McCollum MAGISTERIAL DISTRICT: Rivanna TAX MAP/PARCEL: 05000-00-00-04900 LOCATION: 7382 Gordonsville Rd PROPOSAL: The Applicant is requesting a variance to reduce the applicable side setback to allow the accessory structure to be used for a Major Home Occupation. ZONING: Rural Areas OVERLAY DISTRICT: Entrance Corridor B. PROJECT: Rehearing of AP201900004 Bufton & Maus, PLC Appeal Number: AP201900004 Bufton & 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.} Final packets for the meeting will be provided in hard copy as the meeting date approaches. Additionally, meeting information may be found online at http://www.albemarle.org/agenda.asp?department=bza&year= . BJS ALBEMARLE COUNTY BOARD OF ZONING APPEALS COUNTY OFFICE BUILDING 401 MCINTIRE ROAD – LANE AUDITORIUM 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 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 of the members of the board, which in this case would mean three. 3. Public Hearings: 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, the – 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? 2 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 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. MR. SHEPHERD: Thanks. MR. SVOBODA: Again, this is Tax Map 50, Parcel 49, 2.4 acres. It’s located in the 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 on 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, C1. 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 3 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. 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 structures – 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. 4 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 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 applicant 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 5 every one of the tests. The county refused to give us a clean Certificate of Occupancy because there may 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 [inaudible 2:19:16], 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 Snow 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 6 interprets this – the court said, “The plain language of the statute says it is intended to eliminate the hardship 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 they 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 of 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 permit 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 7 couple weeks, 911 came out and said, well you have the structure that people are going to be occupying, and so 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, which it seems strange now 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. 8 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 – 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. 9 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. 10 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’s 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 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. 11 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 were received and accepted? 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 a piece 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. ALLEY: Can you also please pull that down and speak into it? MS. BUFTON: Sure, absolutely. Is that better? MR. ROBB: Yeah. MS. ALLEY: 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 corner, one corner of the office we built already was at 14 feet. The other corner at the back is over 25 feet. The reason that the property – I had it situated – and I did the, kind of the 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 corner. 12 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. 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 Ceriticate 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 15.2-2311(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 2311C in the Rhoads case might 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. 13 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. Make this a rebuttal? Give him 5 minutes? MR. MAUS: We can do that if you want to. MR. SHEPHERD: Give him 5 minutes? Is that the rule? MR. MAUS: That’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 give 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 start off and corrected assumptions. 14 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 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 document 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, that 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. 15 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. 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 building/accessory 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 – is it possible that it could say, “New or Office Space?” Or it could say, “New 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 16 those. And is it made by another administrative officer? I think the Building Official can be seen as an “other 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. 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’re not 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. 17 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. 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 than 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. 18 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. 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? 19 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. 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. 20 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. 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 Occpuancy, 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 som e 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 than just 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 21 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. 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- 2311(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 22 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 – 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. 23 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. MR. BOWLING: And a yes vote… MR. SHEPHERD: 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. 24 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. Ms. Joseph asked if that meeting needed to be adjourned, remarking that she had thought this had been done. Mr. 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 reporting is then sent to Beth Golden, who sends her them the 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 as presented. 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 appointing 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 25 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. 6. New Business There was no new business. 7. Adjournment 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, David Bowerman, Secretary Board of Zoning Appeals 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 AU DITORIUM, 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 6. New Business 7. Adjournment BOARD OF ZONING APPEALS MEETING GUIDELINES 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 informa tion 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 necessa ry arrangements for your presentation. The Recording Secretary will also need copies of any handouts given to the BZA members for the official record of the meeting. • 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 staff’s determination(s). Focus on presenting facts and data that support your position. • Keep 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. COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902-4596 Phone (434) 296-5832 Fax (434) 972-4126 Memorandum To: Members of the Board of Zoning Appeals From: Kevin McCollum, Planner and Designee to the Zoning Administrator Division: Zoning Subject: Preliminary Package for AP-2019-004 “Bufton & Maus” Board of Zoning Appeals - October 1, 2019 Meeting Date: September 10, 2019 To Whom It May Concern: This memorandum serves as cover sheet and provides information on all of the items included in the AP-2019-4 Preliminary Package. This appeal is scheduled for the Board of Zoning Appeals on October 1, 2019. Preliminary Package Items: 1. RE: HO2019-00233 Major Home Occupation Clearance - Bufton and Maus, PLC This letter, written on July 30, 2019, informed the applicant that the above referenced Zoning Clearance could not be approved at the time because the structure did not comply with the primary structure setbacks for the Rural Areas zoning district. 2. Clearance Application A copy of the Major Home Occupation Clearance Application - HO201900233. 3. Applicant Submittal This preliminary package includes all of the information the Applicant provided with their appeal application. 4. Map A map of the subject property, 7380 Gordonsville Road. September 10, 2019 AP2019-4 Preliminary Package Page 2 5. Section 5.2A of the Zoning Ordinance This section of the Zoning Ordinance provides the regulations for Home Occupation Clearances in the Rural Areas zoning district. 6. Section 10.4 of the Zoning Ordinance This section of the Zoning Ordinance provides the area and bulk regulations for the Rural Areas zoning district. COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902-4596 Phone (434) 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- 02431NNR, 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 www.albemarle.org/cdapps. This form applies to the appeal of a decision of the zoning administrator or any other administrative officer pertaining to the Zoning Ordinance. 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 www.albemarle.org/countycodebza. (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 www.albemarle.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://www.albemarle.org/upload/images/Forms_Center/Departments/County_Attorney/Forms/Al bemarle_County_Code_Ch18_Zoning05_Supplement_Regulations.pdf Albemarle County Code § 18-31 (See Section 31.5 for Zoning Clearance requirements) http://www.albemarle.org/upload/images/Forms_Center/Departments/County_Attorney/Forms/Al bemarle_County_Code_Ch18_Zoning31_Admin_Enforcement.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)) http://www.albemarle.org/upload/images/Forms_Center/Departments/County_Attorney/Forms/Al bemarle_County_Code_Ch18_Zoning10_Rural_Areas.pdf Albemarle County Code § 18-36 http://www.albemarle.org/upload/images/Forms_Center/Departments/County_Attorney/Forms/Al bemarle_County_Code_Ch18_Zoning36_Violations.pdf Parcel Info Parcels 7380 Gordonsville Rd Any determination of topography or contours, or any depiction of physical improvements, property lines or boundaries is for general information only and shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination.June 6, 2019 GIS-Web Geographic Data Services www.albemarle.org/gis (434) 296-5832 Legend (Note: Some items on map may not appear in legend) 188 ft ALBEMARLE COUNTY CODE 18-5-22.46 Zoning Supplement #116, 8-7-19 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: a. 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: 1. Major home occupations. A major home occupation shall be conducted within the dwelling unit or accessory structures, or both, provided that not mor e 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 ac cessory 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 no 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 façade 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. Minor home occupations. There shall be no 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. ALBEMARLE COUNTY CODE 18-5-22.47 Zoning Supplement #116, 8-7-19 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 prohibited. e. Traffic 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 parked 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 operation 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 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. k. Performance standards. All home occupations shall comply with the performance standards in section 4.14. l. Prohibited home occupations. The following uses are 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 sales other than those determined by the zoning administrator to be occasional; (13) veterinary clinics or hospitals; (14) pyrotechnic (fireworks or bo mb) 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. m. Waivers and modifications. The waiver or modification of any requirement of section 5.2A is prohibited except as provided herein: 1. 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. ALBEMARLE COUNTY CODE 18-5-22.48 Zoning Supplement #116, 8-7-19 2. 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. n. 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 t hat an application for a zoning clearance has 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) ALBEMARLE COUNTY CODE 18-10-8 Zoning Supp. #113, 6-5-19 c. Provisions of section 10.3.3, rural preservation development, shall be applied to the entire parcel. Combination of conventional and rural 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. Nothi ng 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 factor 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 rural preservation development as set forth in section 10.3.3.2 or in accord with section 10.3.3.3.c, as the case may be; f. 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 unit 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 of the 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; § 18-10.3.3.3, Ord. 98-A(1), 8-5-98; Ord. 04-18(1), 5-5-04 effective 7-1-04) Sec. 10.4 Area and bulk regulations. Area and bulk regulations within the RA, rural areas, zoning district are as follows: REQUIREMENTS DIVISIONS BY RIGHT DIVISIONS BY SPECIAL USE PERMIT Gross density 0.5 du/ac 0.5 du/ac 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 public roads) Front (internal public or private road)(Amended 11-13-91) Side Rear 75 feet 25 feet 25 feet 35 feet 75 feet 25 feet 25 feet 35 feet Maximum structure height 35 feet 35 feet (§ 20-10.4, 12-10-80; 8-14-85; § 18-10.4, Ord. 98-A(1), 8-5-98; Ord. 08-18(7), 11-12-08) 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 AU DITORIUM, 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 6. New Business 7. Adjournment BOARD OF ZONING APPEALS MEETING GUIDELINES 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 informa tion 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 necessa ry arrangements for your presentation. The Recording Secretary will also need copies of any handouts given to the BZA members for the official record of the meeting. • 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 staff’s determination(s). Focus on presenting facts and data that support your position. • Keep 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. STAFF: Kevin McCollum and Bart Svoboda PUBLIC HEARING: October 1, 2019 STAFF REPORT: AP2019-00004 APPLICANT/APPELLANT: 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 Appellant’s Justification for Appeal: The justification for the 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 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 permit, 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. 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. Proposed 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 Parcel Info Parcels AP2019-004 Bufton/Maus Appeal Any determination of topography or contours, or any depiction of physical improvements, property lines or boundaries is for general information only and shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination.August 16, 2019 GIS-Web Geographic Data Services www.albemarle.org/gis (434) 296-5832 Legend (Note: Some items on map may not appear in legend) 188 ft Map elements may scale larger than GIS data measured in the map or as provided on the data download page due to the projection used. Map Projection: WGS84 Web Mercator (Auxiliary Sphere) (EPSG 3857) COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902-4596 Phone (434) 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- 02431NNR, 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 www.albemarle.org/cdapps. This form applies to the appeal of a decision of the zoning administrator or any other administrative officer pertaining to the Zoning Ordinance. 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 www.albemarle.org/countycodebza. (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 www.albemarle.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://www.albemarle.org/upload/images/Forms_Center/Departments/County_Attorney/Forms/Al bemarle_County_Code_Ch18_Zoning05_Supplement_Regulations.pdf Albemarle County Code § 18-31 (See Section 31.5 for Zoning Clearance requirements) http://www.albemarle.org/upload/images/Forms_Center/Departments/County_Attorney/Forms/Al bemarle_County_Code_Ch18_Zoning31_Admin_Enforcement.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)) http://www.albemarle.org/upload/images/Forms_Center/Departments/County_Attorney/Forms/Al bemarle_County_Code_Ch18_Zoning10_Rural_Areas.pdf Albemarle County Code § 18-36 http://www.albemarle.org/upload/images/Forms_Center/Departments/County_Attorney/Forms/Al bemarle_County_Code_Ch18_Zoning36_Violations.pdf 1 COUNTY OF ALBEMARLE 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 Bufton & Maus Appeal (No. AP 2019-4). Appellants Evelyn Bufton and John R. Maus are appealing the denial of a home occupation clearance HO2019-00233. 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, consistent with County Code § 18-4.11.2(b). Following completion of construction, on or about June 4, 2019, the Appellants applied for a major home occupation clearance, pursuant to County Code § 18-5.2A. 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 / Appellant’s 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 ordinance]. The decision on such appeal 2 shall be based on the board's judgment of whether the administrative officer was correct.” See Board of Zoning Appeals of James City County v. University Square 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 This 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 § 18-10.4 in turn provides that the applicable side setbacks for primary structures in the Rural Areas zoning district are 25 feet. 3. Application/Analysis 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 § 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 § 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. 3 A.Equitable estoppel does not apply. Despite the Appellants’ argument, equitable estoppel does not apply to the County’s zoning determination in this case. As the Virginia 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 another to his prejudice, Security Co. v. Juliano, Inc., 203 Va. 827, 834, 127 S.E.2d 348, 352 (1962), or that the innocent party acted in reliance upon the conduct or misstatement by the person to be estopped. Khoury v. Memorial Hospital, 203 Va. 236, 243, 123 S.E.2d 533, 538 (1962).” T. v. T., 216 Va. 867, 872-73, 224 S.E.2d 148, 152 (1976). (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. B.The setback requirement is plain, unambiguous, and mandatory. Despite the Appellant’s 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 within 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 carries no specific, exclusive remedy. Instead, it empowers the court to exercise discretion in fashioning a tailored remedy, if one is called for at all.” Rickman v. Commonwealth, 294 Va. 531, 537, 808 S.E.2d 395, 398 (2017) In arguing for a “directory” setback, the Appellants are arguing (perhaps without realizing it) that courts should “exercise discretion in fashioning 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. 5. 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 Information Requested by John Shepherd