Loading...
HomeMy WebLinkAboutVA199600006 Review Comments 1996-01-07 STAFF PERSON: Jan Sprinkle PUBLIC HEARING: January 7, 1997 STAFF REPORT VA-96-06 OWNER: Carolyn G. Marinel APPLICANT: Thomas A. Warby TAX MAP/PARCEL: 41 A/111 ZONING: RA, Rural Areas ACREAGE: 0.3± LOCATION: North side of Rt. 669, approximately 0.4 miles west of its intersection with Rt. 675 REQUEST: The applicant wishes to replace an existing two bedroom mobile home with a two bedroom site-built house on a lot in the Albemarle Lake subdivision. He has not been able to locate either the three bedroom sized septic drainfield or the full (100%) reserve septic drainfield required by Section 4.1 .6 of the Zoning Ordinance Therefore. Mr. Warby proposes to install a primary septic system sized for a two bedroom house and to have an area for only 50% of the primary available for the reserve septic system. The variance is then two parts: first for a primary drainfield that is less than the required three bedroom size and second for a reserve system that is only 50% of the two bedroom size. The applicant requests relief from Section 4.1.6 of the Albemarle County Zoning Ordinance, which states: For lots not served by a central sewer system, no building permit shall be issued for any building or structure, the use of which involves sewage disposal, without written approval from the local office of the Virginia Department of Health of the location and area for both original and future replacement septic disposal fields adequate to serve such use. For residential usage, at a minimum, each septic field shall consist of suitable soils of adequate area to accommodate sewage disposal for a three (3) bedroom dwelling as determined by current regulations of the Virginia Department of Health. The applicant's justification includes the following: Hardship The inability to replace a two bedroom mobile home with a two bedroom house causes an undue hardship. STAFF REPORT: VA-96-06 Page 2 Uniqueness of Hardship An adjoining property was granted a variance allowing for a 50% reserve. (Staff comment. The primary drain field was sized for three bedrooms.) Impact on Character of the Area There are no other mobile homes in the neighborhood. The houses in the neighborhood are upscale. Granting the variance would allow for construction of a house more in line with the adjacent development. The existing mobile home detracts from the adjacent property value. A house on the property would increase the value of the adjacent property. In addition, the applicant has provided a letter from Jeffrey T. McDaniel of the Thomas Jefferson Health District office stating that he feels, "it is possible to identify a low pressure distribution site and a 50% reserve area that will be adequate to serve a two-bedroom house." Mr. McDaniel adds that specific plans and specifications for the system must be submitted before a final determination can be made. RELEVANT HISTORY: none STAFF RECOMMENDATION: This is not a case where the property was acquired in good faith with certain expectations hindered by later zoning regulation. Mr. Warby purchased this parcel "with his eyes open " Mr. Warby—on behalf of Carolyn Marinel, his new wife—bought the property at auction in a foreclosure action after the previous owner defaulted on a note. The property was offered "as is" and Mr. Warby contracted to purchase it "as is". The Code of Virginia, Section 15.1-495 states that the Board of Zoning Appeals can authorize a variance as follows: "When a property owner can show that his property was acquired in good faith and,..., the granting of such variance will alleviate a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant, provided that all variances shall be in harmony with the intended spirit and purpose of the ordinance." Since Mr. Warby was aware of the restrictions on this parcel prior to purchasing it, this is clearly a self-imposed hardship. The Supreme Court of Virginia in Steele v. Fluvanna County Board of Zoning Appeals, 246 Va. 502 (1993) held that a self-inflicted hardship, whether deliberately or ignorantly incurred, provides no basis for a variance. The Code also allows the Board to grant a variance if, "where by reason of the exceptional narrowness, shallowness, size or shape of a specific piece of property at the effective date STAFF REPORT: VA-96-06 Page 3 of this ordinance, or where, by reason of exceptional topographic conditions or other extraordinary situation or condition of such piece of property, ...the strict application of the terms of this ordinance would effectively prohibit or unreasonably restrict the use of the property..." The lots in Lake Albemarle were created not as residential lots but rather for recreation purposes long before Albemarle County adopted its first zoning ordinance. Parcel 111 consists of two of the original lots combined and is still only three-tenths of an acre. This small size does make it a candidate for variance, but the fact remains that it has been used residentially and can continue in the same or even an improved manner—by adding water and septic—without variance. This property has had a mobile home on it for many years and has always utilized a pit privy. A permit to install a drainfield was issued to a previous owner in October 1991 but it was never constructed. The old mobile home can be replaced with another model whenever the owner chooses. Likewise, the maximum sized drainfield that can be found may be installed at any time. Both of these actions are allowable under our current ordinance Sections 6.2.2 and 6.4.1 with no variance. The example given by the applicant of another Albemarle Lake variance being granted demonstrates that there are other similar situations in the same zoning district and the same vicinity. In Hendrix v. Board of Zoning Appeals of the City of Virginia Beach, 222 Va. 57 (1981), the Supreme Court of Virginia stated that the previous granting of a variance in a similar situation is not sufficient reason to grant one subsequently. This is not a case where a legislative enactment is a practical solution to the problem. Rather, look at alternatives such as leaving the lots undeveloped until a sufficient number of them can be purchased and combined by one owner and the appropriate ordinance regulations met. This property is in South Fork Rivanna Reservoir watershed and is less than mile from the surface water of Lake Albemarle. Our Comprehensive Plan and Zoning Ordinance have, for many years, made protection of these water resources their highest goal. Protection of our public drinking water is an appropriate consideration rather than the granting a special privilege or convenience to a few citizens or even one citizen The concern of drainfield failure is yet another issue Not only are there no currently identifiable options on this lot in case of septic failure, but other developed properties are in close proximity. In some cases, several lots were combined for buildable lot area. There are houses within 200 feet of this property to both the west and the north. Should the drainfield of a mobile home fail, the home can be removed at a minimal cost and used in a different location. However, with a stick-built home, there could be condemnation which is more likely to have an economic impact on the owner and/or cause pressure from the owner for the county to approve some alternative sewage disposal system. To date, Albemarle has not allowed any system other than subsurface soil absorption systems for new construction. STAFF REPORT: VA-96-06 Page 4 Staff finds that the applicant does not meet any of the three criteria for approval of a variance. Therefore, staff recommends denial for cause: 1) The applicant has not provided evidence that the strict application of the ordinance would produce undue hardship. Construction of a stick-built house is simply a convenience for this owner. A mobile home exists. It can remain or be replaced with another newer mobile home. This is not an undue hardship. 2) The applicant has not provided evidence that such hardship is not shared generally by other properties in the same zoning district and the same vicinity; Many lots in Albemarle Lake subdivision are still below minimum size and will have difficulty finding sufficient septic drainfields if and when they attempt to develop. 3) The applicant has not provided evidence that the authorization of such variance will not be of substantial detriment to adjacent property and that the character of the district will not be changed by the granting of the variance. We have no evidence that in the event of septic failure, there would be no detriment to adjoining wells, streams or the Lake. There are mobile homes which could be utilized without variance and which would improve the character of this neighborhood. Should the Board find cause to approve this request, staff recommends the following conditions: 1. This variance is granted for a primary septic system for a 2 bedroom house and for a reserve area of only 50% of the primary area. Prior to any certificate of occupancy issuance, a plat noting the variance limitation and showing the primary septic system, the reserve septic area, and the well (including grouting depth) shall be recorded in the chain of title so future owners will be certain to be informed. 2. The local Health department shall be consulted for methods to maintain and protect the septic field. 3. The Water Resources Manager shall review the building permit and may require measures which shall be aimed towards water quality protection. 4. The primary septic system tank shall be pumped every three years to insure the maximum protection.