HomeMy WebLinkAboutVA199700015 Review Comments 1997-09-26 f
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LEROY R.HAMLETT,JR. MICHIE, HAMLETT, LOWRY, RASMUSSEN & TWEEL, P.C. PETER MCINTOSH
EDWARD B.LOWRY GARRETT M.SMITH
BRUCE D.RASMUSSEN Attorneys Q t L Q w WILLIAM C.SCOTT IV
RONALD R.TWEEL JENNIFER A.JONES
GARY W.KENDALL
JOHN V.LITTLE OfCawNtd
KEVIN W.RYAN 804-977-3390 FACSIMILE: 804-295-0681 DIRECT DIAL: (804)980-9512 THOMAS J.MICHIE
ELIZABETH P COUGHTER
JAMES P.Cox III
RO BEAT W.]ACKSON September 26, 1997
Max C. Kennedy, Chairman
Board of Zoning Appeals
810 Emerson Drive
Charlottesville, VA 22901
SE.P
Re : Lowe ' s Investment Corp/ #341
Tax Map/Parcel : 45/93A
Dear Chairman Kennedy:
I am writing to you on behalf of my client, Lowe ' s Investment
Corp. , regarding the Motion for Rehearing sought by the County of
Albemarle as it relates to the unanimous approval by the Board of
Zoning Appeals on September 2, 1997, of two sign variances for the
Lowe ' s Investment Corp. property at 29 North and Woodbrook Drive .
This letter is to state on behalf of Lowe ' s Investment Corp.
its objection to the Motion for Rehearing and its assertion that a
Motion for Rehearing is not in compliance with the laws of the
Virginia and the By-Laws of the Board of Zoning Appeals .
It is our position that the By-Laws adopted by the Board
relating to rehearing are in conflict with the Code of Virginia.
Under Section 15 . 1-494 of the Code of Virginia, the Board is
authorized to make rules consistent with the general laws of the
Commonwealth. Section 15 . 1-497 of the Code mandates the procedure
to be followed by any person "aggrieved" by a decision of the Board.
That procedure requires a person so aggrieved to timely petition
the Circuit Court . Accordingly, since the provision regarding a
motion for rehearing is inconsistent with the express terms of the
Code of Virginia, the motion for rehearing is without legal effect .
Importantly, at the public hearing on September 2, 1997, the Board
announced that any person aggrieved by the decision must appeal to
the Circuit Court within the required time period.
Even if the rehearing procedure outlined in the By-Laws is
valid, in accordance with Article 7 . 1 . 2 of the Board of Zoning
Appeals, a Motion for Rehearing may only be granted by the
concurring affirmative vote of three members under two limited
circumstances :
a) "That new evidence can be presented which, in the opinion
of the Board, is pertinent to the recorded decision and could not
have been presented at the original hearing" (emphasis added) , or
50� COURT SQUARE, SUITE 300 ■ P.O. BOX 198 • CHARLOTTESVILLE, VIRGINIA 12902-0198
Max C. Kennedy, Chairman
September 26, 1997
Page 2
b) "That in the opinion of the Board, some condition or
situation has changed in such a manner as to have bearing on the
decision previously recorded".
Under the facts available to us, neither one of these
conditions have been met . It is our understanding that the County
of Albemarle or one of its departments is the moving party behind
the request for a rehearing of the Board of Zoning Appeals '
decision. As such, the County cannot satisfy either of the special
conditions available for a Motion for Rehearing.
Under (a) , the information which the County states that it did
not provide is not new evidence which could not have been presented
at the original hearing. Whatever information the County seeks to
put forward at a subsequent rehearing is information which it had
at its disposal for consideration at the time of the decision of
the Board of Zoning Appeals .
The County also fails under subsection (b) in that it offers
no condition or situation which has changed to have some bearing on
the decision previously recorded.
Accordingly, on behalf of Lowe ' s Investment Corp. , this letter
is to request that the Board of Zoning Appeals deny the Motion for
Rehearing. In any event, we believe that the decision of the Board
of Zoning Appeals was entirely justified and correct and one made
by the members of the Board unanimously after thoughtful and
deliberate consideration.
We will be attending the public hearing to address any
additional issues related to the decision on whether or not to
grant a Motion for Rehearing.
S . ce ely,
es P. Cox, III
JPCIII/b
cc : William L. Rennolds
Richard P. Cogan
George W. Bailey
David H. Bass
Amelia McCulley
Greg Kamptner, Assistant County Attorney
Tom Wilkinson