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HomeMy WebLinkAboutARB202000031 Correspondence 2020-07-24 WI ` LIAM S M U LLEN Direct Dial:434.951.5709 ifilesS Gf OA/4),•411-2(7-J— Zejtiez vlong@williamsmullen.com fei July 24, 2020 VIA EMAIL 2^ go s' -/fre-W7/2a Albemarle County Architectural Review Board Community Development 401 McIntire Road Charlottesville, Virginia 22902 RE: Rappahannock Electric Cooperative (ARB 2020-31) Dear Members of the Board: Thank you for your review and comments during the May 11, 2020 meeting of the Architectural Review Board ("ARB" or the"Board") regarding the visual impacts of the special use permit requested by Rappahannock Electric Cooperative ("REC" or the "Applicant") to allow a power transmission line to be added to several existing power distribution structures along the U.S. Route 29 Entrance Corridor. REC appreciated the opportunity to present the proposed project and to hear the Board's concerns, and REC is pleased that the Board voted to recommend the Planning Commission approve the proposed project. As discussed during the May 11, 2020 meeting, REC has concerns that portions of the ARB's recommended conditions of approval could impact the safety and reliability of the proposed transmission line. Several provisions of the Entrance Corridor Design Guidelines ("ECDG" or the "Design Guidelines") as applied to utility projects appear to address REC's concerns. In light of these provisions, REC believes that certain aspects of the ARB's recommended conditions of approval are potentially inconsistent with the Design Guidelines. We ask you to reconsider these conditions of approval to avoid inconsistencies with the Design Guidelines and to address the unique elements of this application, which seeks County approval of infrastructure improvements as opposed to a typical development project. Accordingly, on behalf of REC, this letter proposes several amendments to the conditions of approval recommended by the Board at its May 11, 2020 meeting. The amended conditions of approval as proposed and a comparison showing the proposed changes to the existing conditions of approval are attached to this letter. REC respectfully requests that the Board reconsider the conditions of approval and adopt the proposed amendments, for the reasons set forth below. I. The Design Guidelines Recognize that Utility Easement Areas Cannot Accommodate the Recommended Frontage Landscaping The Design Guidelines recommend landscaping along the frontage of an Entrance Corridor to be installed on areas of the project site that are not within a utility easement. In general, the Design Guidelines recommend flowering ornamental trees of a species common to the area to be interspersed among large shade trees, and, in situations where appropriate, a three or four board fence or low stone wall, typical of the area, along the frontage of the Entrance Corridor street. ECDG, paragraph 32. However, with regard to the location of these features, the Design Guidelines state that "[a]n area of sufficient width to accommodate the foregoing plantings pArl July 24, 2020 t (11> j/tY Page 2 __ p 9 and fencing should be reserved parallel to the Entrance Corridor street, and exclusive of road right-of-way and utility easements." ECDG, paragraph 32.d (emphasis added). This qualification demonstrates that the Design Guidelines recognize that utility easement areas warrant different treatment when it comes to landscaping. For example, utility structures are subject to separate provisions of the Design Guidelines that specifically apply to "accessory structures and equipment," including "above-ground utilities." While the general recommendation for such structures is to "eliminate visibility from the Entrance Corridor street,' the Design Guidelines provide that"[ijf, after appropriate siting, these features will still have a negative visual impact on the Entrance Corridor street, screening should be provided to eliminate visibility." ECDG, paragraph 18. Where screening is required, "[s]creening devices should be compatible with the . surrounding natural vegetation and may consist of: a) Walls, b) Plantings, and c) Fencing." ECDG, paragraph 19. 411e II. The Conditions of Approval Should Clearly State that the Applicable Design Guidelines Standard is the Screening Standard for Above-Ground Utility Structures cS The utility-specific screening guidelines should be applied to the Applicant's requested special use permit rather than the general frontage landscaping provisions because the requested special use permit would apply only to land within a utility easement area. Because the existing conditions of approval do not make this distinction clearly, the Applicant requests that they be amended. The first ARB condition of approval adopted on May 11, 2020, is unclear and potentially inconsistent with the "exclusive of ... utility easements" language and the above-ground utility screening standards in the Design Guidelines. The condition requires "planting areas, either within the proposed easements or within additional easements, that will be used to meet the Entrance Corridor Design Guidelines." By referencing the Design Guidelines generally, the condition does not specify whether the general frontage landscaping requirements or the above- ground screening standard applies. As a result, it is not clear which ECDG standard REC must satisfy to be in compliance. Applying the general frontage landscaping standard to REC's project would be inconsistent with the Design Guidelines. As noted above, the entirety of the Applicant's proposed project area is within a utility easement area, and there is no remaining land from which to reserve an "area of sufficient width" to accommodate landscaping. ECDG, paragraph 32.d. Moreover, nothing in the Design Guidelines suggests that a utility operator must acquire additional land "exclusive of [its] utility easement" for the purpose of installing landscaping along the frontage of an Entrance Corridor. Id. If any of the underlying parcels were to be redeveloped, applying the landscaping requirements to an area between the utility easement area and the redevelopment would be appropriate. REC's project, however, is limited to the utility easement area, and we contend that any conditions of approval should likewise be clearly related to standards in the Design Guidelines that apply to such areas. Given that the proposed use is a long-term infrastructure project, the County and the Applicant would both benefit from remedying the ambiguity in this condition. The Applicant requests that the ARB's first condition of approval be removed and replaced with a condition that provides greater detail regarding the Applicant's land management obligations in the utility easement areas, as discussed below. July 24, 2020 Page 3 III. Integrated Vegetation Management is Consistent with the Design Guidelines Standard for Screening of Above-Ground Utility Structures As it is impossible to safely "eliminate visibility" of the proposed electricity transmission poles (or the existing distribution poles), REC has proposed a land management plan that will allow screening that is consistent with the Design Guidelines standard for"above-ground utilities." As noted above, the Design Guidelines recommend the structures be screened by "a) Walls, b) Plantings, and c) Fencing." ECDG, paragraph 19. While walls and fences are impractical given the nature of the project, the land management practices REC is already implementing in its easement area allows existing vegetation to screen the utility structures in the same way that plantings would. REC proposes to continue to implement industry-standard Integrated Vegetation Management ("IVM") practices, which is how REC already manages the existing utility easement area. REC's proposed condition would allow small trees and other plants to grow in the utility easement area. As a result, the vegetation in the exiting and proposed utility easement areas would be compatible with the surrounding vegetation because IVM promotes native species. Over time, the natural growth of the vegetation in the utility easement areas would partially screen the utility poles from the Entrance Corridor by promoting a more natural appearance. REC proposes revised conditions of approval that identify IVM as the standard against which the Applicant's compliance may be measured. IVM practices would be consistent with the Design Guidelines for screening above-ground utility structures in a way that is compatible with the surrounding natural vegetation. IV. The Conditions of Approval Should Acknowledge Right of Underlying Property Owners to Manage their Land Subject to the Terms of the Utility Easements Although REC is dedicated to implementing IVM practices in its utility easement areas, the underlying land owners retain the rights to manage their land in a different fashion under the terms of the applicable utility easements. The Applicant's right to manage the underlying land is generally limited to actions that promote public safety or reliability of the utility system. IVM practices are sufficient to accomplish both of these objectives. However, nothing prevents the underlying land owners from taking actions that, while inconsistent with IVM practices, are consistent with the safety and reliability of the utility structures. For example, land owners could chose to mow the utility easement areas. Likewise, land owners could install plantings that might not be installed when implementing IVM practices. The Applicant has no authority to prevent such actions, so long as they do not have an impact on public safety or reliability of the utility system. This is how the existing utility easement area is already managed. REC implements IVM practices where possible, but in some places the underlying land owner's maintenance prevent IVM practices. As mentioned, some land owners (including VDOT) mow the easement areas, which is clearly inconsistent with REC's existing IVM practices. REC proposes an additional condition for the ARB's consideration to account for the Applicant's unique role in managing the utility easement areas. In the Applicant's second proposed condition, the Applicant would, consistent with IVM practices, allow native species tree _to reach a height of 10 feet before trimming.wou_Id.begin. In the ARB meeting on May 11, 2020, REC requested it be allowed to trim trees more than 6 feet tall, in keeping with its customary IVM practices. However, REC has determined-that;general, the proposed transmission line could July 24, 2020 c/ Page 4I '. be safely operated among trees that are 10 feet tall, as discussed in the following section. Understanding the importance of the objectives of the Design Guidelines, REC proposes a condition meant to balance these principles with REC's maintenance and public safety responsibilities. While REC is committed to these goals, the proposed condition acknowledges that underlying land owners retain the right to trim trees to a height shorter than 1b feet. V. The Conditions of Approval Should Provide an Exception for Public Safety Finally, REC has a duty to maintain its utility distribution and transmission lines in a manner that protects public safety. In general. implementing IVM practices and allowing trees to reach 10 feet in the utility easement areas should not pose any threats to public safety. However, REC should retain the authority to trim trees to a lower height if it determines that it presents a risk to public safety.The existing power distribution lines, as well as the proposed power transmission lines, require regular maintenance and repair in response to power outages. Implementing IVM practices is an important step toward reducing the risk of power outages caused by tree damage. This risk cannot be eliminated, however, and outages may arise from other causes. REC responds to outages throughout its service territory on a regular basis. The relatively small portion of Albemarle County that REC serves has been affected by two recent outages (April 10, 2020, and June 22, 2020). When responding to such outages in the field, REC's workers depend on a safely managed environment to help maintain their own personal safety. These situations may involve downed power lines or other hazards. The proposed conditions would help REC's workers stay safe when restoring power to Albemarle County residents by creating an exception that would allow any tree that places REC's workers or the public in danger to be trimmed. The Entrance Corridor Design Guidelines should not inhibit the Applicant from acting to protect public safety, and the final proposed condition is offered to support the Applicant's overarching duties in this regard. We have endeavored to draft the proposed amendments in a way that balances the objectives of the Design Guidelines with public safety. For these reasons, REC respectfully requests the Board adopt the proposed amendments to the conditions of approval recommended to the Planning Commission on May 11, 2020. If you have any questions regarding this request, please contact me at (434) 951-5709 or vlong( wdliamsmuAen.com. Thank you for your consideration. Sincerely yours, Valerie W. Long Attachments (2) cc: Margaret Maliszewski, Chief of Planning - Resource Management (M Mal iszewskit�albemarle.orq) Lee Brock, Rappahannock Electric Cooperative (lbrock_Amvrec.coop) Amended Conditions of Approval as Proposed by Rappahannock Electric Cooperative The ARB expresses no objection to the special use permit, subject to the following conditions: 1. Maintain the existing and proposed utility easement areas by implementing Integrated Vegetation Management practices to promote native Virginia meadows, low growing shrub landscapes, and native species pollinator areas in the existing and proposed utility easement areas. This requirement is subject to, and does not limit, the right of the underlying landowner to maintain their land by use of an alternative practice such as mowing (subject to the terms of the applicable Rappahannock Electric Cooperative utility easement), and Rappahannock Electric Cooperative's obligation to implement Integrated Vegetation Management shall be deemed satisfied with respect to any portion of the existing and proposed utility easement areas that is so maintained. �2. Rappahannock Electric Cooperative shall allow any native species tree, or portion thereof, within the existing and proposed utility easement areas to attain a height of ten (10) feet. 3. Notwithstanding any other provision of these conditions of approval. Rappahannock Electric Cooperative may remove or trim any tree, or portion thereof, within the existing and proposed utility easement areas when it determines such action is necessary to protect public safety. Proposed Changes to Existing Conditions of Approval The ARB expresses no objection to the special use permit, subject to the following conditions: e pr w thin ♦h,.,.-pr .thi acitiltiectal easernentc tn at will bbe used this requirement where poss be- epoosed ki-a xists •-in ar -by--t once-the-pr re-F e` t where-Maintain the existing and proposed utility easement areas by implementing Integrated Vegetation Management practices to promote andpollinater -Outline-t beyead-tree clear native Virginia meadows, low growing shrub landscapes, and native species pollinator gartiensareas in the existing and ;proposed utility easement areas. This requirement is subject to, and does not limit, the right of the underlying landowner to maintain their land by use of an alternative practice such as mowing (subject to the terms of the applicable Rappahannock Electric Cooperative utility easement), and RaacDahannock Electric Cooperative's obligation to implement Integrated Vegetation Management shall be deemed satisfied with respect to any portion of the existing and proposed utility easement areas that is so maintained. 2. Rappahannock Electric Cooperative shall allow any native species tree or portion thereof, within the existing and proposed utility easement areas to attain a height of ten (10)feet. 3. Notwithstanding any other provision of these conditions of approval. 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