Loading...
HomeMy WebLinkAboutVA199600006 Review Comments 1996-05-28 COUNTY OF ALBEMARLE Department of Zoning, Room 223 401 McIntire Road Charlottesville, Virginia 22902-4596 (804) 296-5875 FAX (804) 972-4035 TDD (804) 972-4012 May 28, 1996 Thomas A. Warby 10175 Glebe Road Orange, VA 22960 RE: Variance Application, VA-96-06 Tax Map 41A, Parcel 1 1 1 Dear Applicant: Please read the enclosed staff report and note that we are requesting deferral due to insufficient information. I have made several attempts to contact you last week to discuss the easement issues prior to writing the report. Please contact me so that we can discuss the problem prior to the meeting. Sincerely, 4et/i/u Jan Sprinkle Zoning Assistant JS/db cc: Francis G. Gordon STAFF PERSON: Jan Sprinkle PUBLIC HEARING: June 4, 1996 STAFF REPORT VA-96-06 OWNER: Francis G. Gordon 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 STAFF RECOMMENDS DEFERRAL DUE TO INSUFFIENT INFORMATION REQUEST: The applicant wishes to replace an existing two bedroom mobile home with a two bedroom stick-built house on a lot in the Albemarle Lake subdivision. He has not been able to locate either the three bedroom sized 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 drainfield 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. RELEVANT HISTORY: none STAFF RECOMMENDATION: Staff recommends deferral of this request. We have been unable to contact Mr. Warby and have been unable to confirm any easement acquisition. This is a significant issue which should be a known, committed part of the request. Since, at this point, we do not know if or where an easement is available nor if the servient parcel meets our ordinance requirements, this request is premature. We would also like Health department comment on both parcels prior to deciding such an issue. Based on the information that we have, if the Board chooses to act, staff recommends denial as shown below. This is not a case where the property was acquired in good faith with certain expectations hindered by later zoning regulation. Mr. Warby is going into this "with his eyes open." Mr. Warby is purchasing 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 regarding variances states that, "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 is 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. STAFF REPORT: VA-96-06 Page 3 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 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 one of our reservoir watersheds and adjacent to surface water (Lake Albemarle.) Our Comprehensive Plan and Zoning Ordinance have, for many years, made protection of these resources their highest goal. Protection of our public drinking water is an appropriate consideration rather than granting a special privilege or convenience to a few citizens or even one citizen. Mr. Warby, as part of this request, submitted a drawing that indicated the property behind the subject parcel is willing to give an easement for part of the reserve drainfield. That property is composed of two parcels, tax map 41 A, parcels 121 and 122, which total only approximately 0.4 acres. They were two of the three subject parcels (totaling 1.1 acres) of VA-95-06, a variance request in June 1995 that received approval for to allow a 50% reserve system (in addition to the three bedroom sized primary drainfield.) At that time, only preliminary soil scientist reports were available and the Health department had not approved those results. Until such time as we know exactly how much area is available and could be approved by the Health department on both properties, no further variances should be approved. The Health department has not received any request to approve this arrangement. Mrs. Barbara Brumbach who represented the owners of the adjacent property during review of VA-95-06 has stated that no easement is being given on that land. Even if the applicant does demonstrate that he has easement area on those parcels, it is staff opinion that it would require reconsideration of VA-95-06 to approve this varinace. For these reasons, staff believes this request to be premature and requests deferral. The concern of drainfield failure is yet another issue. Not only are there no currently identifiable options, 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. In addition, this property is within a drinking water watershed, and less than '/4 mile from the Albemarle Lake surface water. STAFF REPORT: VA-96-06 Page 4 Should the drainfield of a mobile home fail, the home can be removed at a minimal cost. However, with a stick-built home, there could be condemnation which is more likely to have an economic impact on the owner and 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 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 many 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 building permit approval, a plat showing the reserve area and septic easement, together with the variance limitation noted in the deed, 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.