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HomeMy WebLinkAboutVA199700010 Review Comments 1997-08-05 f STAFF PERSON: Jan Sprinkle PUBLIC HEARING: August 5, 1997 STAFF REPORT VA-97-10 OWNER/APPLICANT: Claudia Jessup OWNERS REPRESENTATIVE: Len Mailloux TAX MAP/PARCEL: 60E1/C9 ZONING: RA, Rural Areas ACREAGE: 2.02 acres LOCATION: West side of Ivy Lane, 500±feet south of its intersection with Windsor Road REQUEST: The applicant wishes to sell this lot to a purchaser who wants to build a 3- bedroom house. Mr. Mailloux has worked with a soil scientist and the health department. They have located area for the full (100%) primary septic disposal field but can find only 66% of that for a reserve area. Therefore, 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 applicant's family has owned this lot since the 1950's and has been paying taxes on it. The most recent assessment is $250,000.00. The applicant has the opportunity to sell this lot at well below the current assessment, but needs this variance to do so. The applicant no longer lives in this area and has no desire to continue ownership of the lot. Uniqueness of Hardship In the Farmington subdivision, to my knowledge, there are only three building lots remaining. All others are built-out on, and no one has experienced this situation. Impact on Character of the Area This variance will have no impact on adjacent properties, and the character of the district will not change. 7 STAFF REPORT: VA-97-10 Page 2 RELEVANT HISTORY: none STAFF RECOMMENDATION: This property was acquired in good faith by the Jessup family in 1956 long before Albemarle County had a zoning ordinance. 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." 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 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 Jessup property does have some limiting topographic conditions that can be considered favorable for variance. These include: large areas of rock, several drainage swales that seem slight but are not suitable for septic drainfields, and a tributary stream to the South Fork Rivanna River Reservoir which requires a 100-foot setback of both the dwelling and the drainfields on two sides of this parcel. The applicant has stated that the assessed value of the lot and the taxes paid are a hardship. This cannot be considered under State Code criteria for a variance. Albemarle County taxes land as if it is developable, unless it is obviously not (e.g., land under water, in flood plain or in critical slopes.) If at some time the land is proven undevelopable, there is an appeal process in place which the owner can pursue to attempt to recoup some of the taxes paid. An appeal would first be made to the assessor's office. If the owner is not satisfied with that response, there is a Board of Equalization and finally the Circuit Court to whom the owner can appeal. The Board of Zoning Appeals is not the appropriate place to determine fairness in taxation and a variance should not be decided on this basis. Whether developing this lot will change the character of the district is not part of the variance. The Board can only consider if allowing it to develop without full septic reserve will change the character of the district. In considering the impact on the district, septic failure is the most important concern. Mr. Mailloux has stated that he requested a septic easement from the owner of the one adjacent lot which could be easily utilized, but the request was denied. There are two other large lots across Ivy Lane from the Jessup property as well as an adjacent lot owed by Farmington Country Club which would not be simple solutions for septic reserve, but could be pursued in the future, if the septic system failed. Typically, with small lots (less than 2 acres) requesting this type of variance, in the l STAFF REPORT: VA-97-10 Page 3 event of failure of the primary septic disposal field there is concern for other properties within close proximity. This is not the case, here. The lots in this area are all over 2 acres and the homes are well spaced leaving plenty of area that could be utilized in an extreme situation if an adjacent owner would grant easement. Or, for lots within a reservoir watershed, there is concern regarding runoff and bacterial pollution if the primary system fails. This lot is in the reservoir watershed, about a mile upstream from Ivy Creek and about 5 miles from the reservoir itself. This is the most important consideration in this case. With undeveloped lots, there is concern that building with limited reserve followed by septic failure will cause a dwelling to be found uninhabitable, create a public nuisance, put pressure on the County for access to public sewer, or force the County to entertain a request for a high maintenance, alternative sewage disposal system. (To date, Albemarle has not allowed any system other than subsurface absorption systems for new construction.) This is the standard case of Albemarle County's zoning regulations exceeding the State's requirements. With regards to similar situations, there have been other cases where variance to the septic reserve was granted. However each case should be considered on its own merits. This variance is to be distinguished from the cases where (a) proposed lots (not yet approved) do not have full reserve; (b) unconventional and highly experimental and labor-intensive sewage treatment is required; (c) there are known septic failures in the area; and, (d) there are no options in the event of septic failure. This lot has existed prior to our ordinance, there is no request for an alternative system, there are no known septic failures in the area and there may be options available in the future for obtaining off- site easement. Although staff finds that the applicant does meet two of the three criteria for approval of a variance, the request does not meet the state code requirement for all three. Therefore, staff recommends denial for cause: 1) The applicant has provided evidence that the strict application of the ordinance would produce undue hardship. Mr. Mailloux has been working on this lot since February of this year trying to find either sufficient drain field area or an off-site easement. He has already committed to restricting the dwelling to a maximum of 3 bedrooms. While it has not been specifically approved, it is likely that full reserve could be achieved for a two bedroom house. However, it is unlikely that a 2-bedroom house would be constructed in the Farmington Subdivision on a lot valued at $250,000. It could be viewed as an "unreasonable restriction" to limit this lot to a two bedroom house. The particular set of topographic features on and around this lot, coupled with its existence prior to our ordinances, does produce undue hardship and unreasonably restrict the use of the property. I. STAFF REPORT: VA-97-10 Page 4 2) The applicant has provided evidence that such hardship is not shared generally by other properties in the same zoning district and the same vicinity; There have been no other requests for variances from the septic regulations in the Farmington subdivision. 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 or streams and possibly the South Fork Rivanna River Reservoir. Should the Board find cause to approve this request, staff recommends the following conditions: 1. The house shall contain three or fewer bedrooms unless and until it meets the County's requirements for sewage disposal for more bedrooms. 2. Prior to the issuance of a building permit, the owner shall cause to be recorded a note in the chain of title which puts future owners on notice that there is only a 66% reserve septic disposal field available and the house is restricted as stated in #1 above.