The URL can be used to link to this page

Home My WebLink AboutVA200600003 Correspondence 2006-03-07 John Shepherd From: Greg Kamptner Sent: Tuesday, March 07, 2006 11:25 AM To: Jan Sprinkle, Amelia McCulley; John Shepherd Subject: RE. Subdiv plat going to PC -variance possible'? I also agree that a variance is possible, though undue hardship will have to be shown. A variance is not a rezoning for the reasons Amelia noted John's alternative approach may also be possible, and I believe it has been pursued in the past as well Greg Kamptner Deputy County Attorney County of Albemarle gkamptne@albemarle.org Notice: This email may contain attorney-client privileged information, privileged work product, or other confidential information. It is intended only for the designated recipient. If you receive this message and are not the designated recipient,you are requested to delete this message immediately and notify me that you received this email by mistake. Thank you. From: Jan Sprinkle Sent: Tuesday, March 07, 2006 8:27 AM To: Amelia McCulley; Greg Kamptner;John Shepherd Subject: RE: Subdiv plat going to PC-variance possible? I agree that they can apply for a variance-seems to fit under the Code definition. I don't see where it is a hardship though The property exists now in its zoning district on both sides of the road and there's no hardship in maintaining it that way. I was stuck on the"tantamount to a rezoning" -They could easily request a rezoning to R-2 but proffer only one dwelling unit. This seems like the best way to go -a legislative act, not BZA. Accomplishes what they need - it's within the growth area, so planning could conceiveably support it, where zoning (at least in my mind)will not be able to support finding a hardship for a variance. From: Amelia McCulley Sent: Monday, March 06, 2006 3:13 PM To: Greg Kamptner;Jan Sprinkle;John Shepherd Subject: Subdiv plat going to PC-variance possible? There's a proposed subdivision plat going to the PC that involves property split by a state road (Lanetown Rd). The portion of property on the south side of the road (proposed lot C) is 39,435 sf, about 5,500 sf short of the 45,000 sf required in the R-1 zoning district. The portion on the north side is well in excess of the area req'd for the creation of the proposed 2 lots. It is my opinion that 1) they can apply for a variance and that 2) it is not tantamount to a rezoning. I'm writing this out to see if I'm missing something. I want to be able to advise David to advise the customer - and he's getting mixed messages. I believe that they can apply for a variance under the state code definition of variance. Bill & David Pennock originally thought a lot size variance is prohibited per Section 2.1.4 (see below). 2.1.4 REDUCTION OF LOTS OR AREAS BELOW MINIMUM PROHIBITED No lot or parcel(s)existing at the time of passage of this ordinance shall be reduced in dimension or area below the minimum requirements set forth herein except for the purpose of meeting or exceeding standards set forth herein or as a result of dedication to or exercise of eminent domain by a public agency. Lots or parcel(s)created after the effective date of this ordinance shall meet at least the minimum requirements established by this ordinance,except for lots created for usage by a public agency to the extent that the same may be justifiable under powers of eminent domain. 1 (Amended 9-9-92) 1) They can apply for a variance - Section 15.2-2201 of the State Code defines a "variance" and includes a deviation from the regulations of area. This would be a lot area variance. In fact, one of the criteria for the peculiar aspects of a property includes its exceptional size and the extraordinary situation of the piece of property. 2) It is not tantamount to a rezoning - they are not achieving more development than the otherwise could under the zoning district regulations by granting the variance. The granting of the variance does not give them the right to create an additional lot or to build an additional house - that would be tantamount to changing the zoning. We've even done area variances where the houses exist on RA property which is too small (less than 2 acres per dwelling). No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7 1 375/Virus Database 268.2.0/275- Release Date. 3/6/2006 2 i § 15.2-2201 CODE OF VIRGINIA § 15.2-2201 § 15 N i "Official map" means a map of legally established and proposed public 1223c streets,waterways, and public areas adopted by a locality in accordance with see man6z i( the provisions of Article 4 (§ 15.2-2233 et seq.) hereof. condit ,II "Planned unit development"means a form of development characterized by L. Rc unified site design for a variety of housing types and densities, clustering of i buildings, common open space, and a mix of building types and land uses in which project planning and density calculation are performed for the entire ! development rather than on an individual lot basis. Pol "Planning district commission"means a regional planning agency chartered limiti under the provisions of Chapter 42 (§ 15.2-4200 et seq.) of this title. struc "Plat of subdivision"means the schematic representation of land divided or on tthh( 1 to be divided. confer ormii "Site plan"means the proposal for a development or a subdivision including all covenants, grants or easements and other conditions relating to use, location and bulk of buildings, density of development, common open space, § public facilities and such other information as required by the subdivision meni ordinance to which the proposed development or subdivision is subject. subn "Special exception" means a special use, that is a use not permitted in a regu particular district except by a special use permit granted under the provisions of ev of this chapter and any zoning ordinances adopted herewith. the c "Street"means highway, street, avenue, boulevard, road, lane, alley, or any envi) public way. local "Subdivision,"unless otherwise defined in an ordinance adopted pursuant to and - § 15.2-2240, means the division of a parcel of land into three or more lots or shall parcels of less than five acres each for the purpose of transfer of ownership or building development, or, if a new street is involved in such division, any their and division of a parcel of land. The term includes resubdivision and, when B. j i appropriate to the context, shall relate to the process of subdividing or to the dope land subdivided and solely for the purpose of recordation of any single division epa of land into two lots or parcels, a plat of such division shall be submitted for fac whic approval in accordance with § 15.2-2258. comi "Variance" means, in the application of a zoning ordinance, a reasonable sona deviation from those provisions regulating the size or area of a lot or parcel of mast I1'I land,or the size,area,bulk or location of a building or structure when the strict 1 application of the ordinance would result in unnecessary or unreasonable corm plan I hardship to the property owner, and such need for a variance would not be the e l; shared generally by other properties, and provided such variance is not the contrary to the intended spirit and purpose of the ordinance, and would result C "i in substantial justice being done. It shall not include a change in use which ten C. change shall be accomplished by a rezoning or by a conditional zoning. ate; "Zoning"or "to zone"means the process of classifying land within a locality take •t: into areas and districts, such areas and districts being generally referred to as note r "zones,"by legislative action and the prescribing and application in each area prep and district of regulations concerning building and structure designs,building prep and structure placement and uses to which land, buildings and structures the ii within such designated areas and districts may be put.(Code 1950,§ 15-961.3; prior 1962, c. 407, § 15.1-430; 1964, c. 547; 1966, c. 344; 1975, c. 641; 1976, c. 642; enab I 1977, c. 566; 1978, c. 320; 1987, c. 8; 1989, c. 384; 1990, c. 685; 1993, c. 770; other 1995, c. 603; 1997, c. 587.) subn recei Cross references.—As to application and pending before a local governing body or board plan; construction of the 1978 amendment to this of zoning appeals before July 1, 1995."i section,see second note under§ 15.2-2296. Law Review. —For survey of Virginia law D. Editor's note. —Acts 1995, c. 603, which on land use planning for the year 1974-1975, dupl, added the definition of "Affordable housing," see 61 Va. L. Rev. 1769 (1975). For note,"Vir- any t provides in cl.2:"That the provisions of this act ginia Subdivision Law:An Unreasonable Bur- E. shall not apply to any special exception that is den on the Unwary,"see 34 Wash &Lee L.Rev. agen : ? 388 It