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Home My WebLink AboutAP202100003 Other 2021-12-15V October 27, 2021 County of Albemarle COMMUNITY DEVELOPMENT Howe Whitman Jr. 1202 Simmons Gap Road St. George, VA 22935 howewhitman@gmail.com LEA BRUMFIELD Senior Planner 11, Zoning I bru mfi a IdRal bema rle.ore tel: 434-296-5832 ext. 3023 RE: OFFICIAL DETERMINATION OF HOMESTAY OWNERSHIP ELIGIBILITY - 1202 Simmons Gap Road at TMP 00900- 00-00-024DO ("the Property") Mr. Whitman: In response to your request for a determination regarding the ownership qualifications of the Property for a Homestay Zoning Clearance, I have consulted with the Zoning Administrator and the County Attorney. It is my official determination that in order to meet the requirements for a Homestay Zoning Clearance, the Property must be held by a natural person residing on the Property, or a family trust whose beneficiary resides on the Property. Background On August 7, 2019, the Albemarle County Board of Supervisors adopted an ordinance regulating the use of homestays. These regulations replaced the regulations for the two uses formerly known as "Accessory Tourist Lodging" and "Bed and Breakfast' under the single use of"homestays." This use is defined as: "Homestay. "Homestay" means an accessory residential use providing transient lodging and rooms for dining and meetings for use by homestay guests provided that the dining and meeting rooms are subordinate to the homestay use. A homestay use may offer no more than five guest rooms for lodging." (County Code § 18-3.1) County Code § 18-5.1.480) differentiates between (1) homestays located on either (a) parcels of less than five acres in the Rural Areas Zoning District or (b) parcels of any size that allow residential use in the Residential Zoning Districts or Planned Development Zoning Districts, and (2) homestays located on parcels of five acres or more in the Rural Areas district. The Property at 1202 Simmons Gap Road is located in the Rural Areas district on a 24.91-acre parcel. The regulations governing a homestay use at the Property include the requirement of owner occupancy: (vi.) Owner occupancy. The owner of a parcel conducting a homestay use must reside on and be present at the subject property during the homestay use except during approved whole house rentals. (County Code § 18-5.1.48 0)(2)(vi), emphasis added) Homestay special exceptions are currently limited to the fallowing waivers or modifications: (i.) More than two guest rooms and/or the use of an accessory structure in association with a homestay on parcels in the Residential or Planned Development districts, or Rural Areas district parcels of less than five acres; (ii.) Reduction in minimum applicable yards for a structure or parking used in whole or in part for ahomestay. (iii.) The use of an accessory structure built after August 7, 2019. (iv.) Resident Manager occupancy instead of owner occupancy as required by 5.1.48(6)(1)(iv). (County Code § 18-5.1.48 (i)(1), emphasis added) WWW.ALBEMARLE.ORG 401 McIntire Road, Suite 228 1 Charlottesville, VA 22902-4596 Note that eligibility for the Resident Manager special exception is limited to parcels regulated by section 5.1.480)(1)(iv), which applies to owner occupancy on: "(a) a parcel of less than five acres in the Rural Areas Zoning District or (b) a parcel of any size that allows residential use in the Residential Zoning Districts or Planned Development Zoning Districts." Therefore, parcels of five acres or more in the Rural Areas Zoning District are not eligible for this special exception. The homestay regulations were originally adopted by the Board of Supervisors on August 7, 2019. At a Work Session on June 2, 2020, the Board discussed a possible ordinance amendment to allow large Rural Areas parcels to apply for the resident manager special exception. The Board expressly declined to pursue such an amendment, citing concerns about business entities running homestays across multiple parcels. Analysis Under County Code § 18-5.1.480)(2)(vi), the owners of parcels conducting a homestay use must reside on the subject property. Because business entities (such as limited liability companies) have no physical presence, they cannot reside on a property, and cannot qualify for a homestay use. As your property at 1202 Simmons Gap Road is a Rural Areas Zoning District parcel over five acres in size, it is not subject to County Code § 18-5.1.480)(1)(iv), and therefore is not eligible for a special exception to permit a resident manager under County Code § 18-5.1.480)(1)(iv). Atrust whose beneficiary is a natural person(s) may hold a property with a homestay use on it, as the trust is directlytied to the natural person(s). The natural person(s) named as beneficiary of the trust must reside on the property, and it must be their full-time residence. Conclusion The Homestay Zoning Clearance application submitted for the Property is Pending on the basis of conversations between the applicant and Zoning Staff, regarding the applicant's intention to move the Property from the limited liability company River Rock LLC to the family trust currently holding the limited liability company. The application was deemed complete on May 10, 2021. The application has not been dismissed. Homestay Zoning Clearance applications are generally regarded as "void" followingthree months of inactivity on the part of the applicant in response to staff review requests or additional application requirements. The application of this Letter of Determination regarding the ownership eligibility for a Homestay Zoning Clearance serves as activity to further the validity of the application. Because the Property at 1202 Simmons Gap Road is a Rural Areas Zoning District parcel of over five acres, it is not eligible for a special exception to permit a resident manager. It may, however, be held by a trust whose beneficiary resides on the property. You may have a right to appeal this determination within thirty (30) days of this notice, in accordance with Virginia Code § 15.2-2311. This determination will be final and unappealable if not appealed within 30 days. An appeal may be taken only by filing an appeal application with the Zoning Administrator and the Board of Zoning Appeals, in accordance with § 18-34.3 of the Zoning Ordinance, along with a fee of $295.36 plus the actual cost of advertising the appeal for public hearing. Applications for Appeal of the Zoning Administrator's Determination are available at the Department of Community Development located at 401 McIntire Road, Charlottesville, Virginia 22902 or online at https://www.a lbemarle.org/government/com mu n ity-development/apply-for/letter-of-determination-or-zon i ng- compliance. This form applies to the appeal of a decision of the zoning administrator or any other administrative officer pertaining to the Zoning Ordinance. WWW.ALBEMARLE.ORG 401 McIntire Road, Suite 228 1 Charlottesville, VA 22902-4596 Regulations pertaining to the filing of an appeal to the Board of Zoning Appeals are located in Chapter 18, Section 34.3 of the Zoning Ordinance. They may be reviewed online at https://www.albemarle.org/government/community- d eve l o p m e nt/advisory-boards/board -of-zoning-appeals. If you have any questions, please contact me. Sincerely, R�—� Lea H. Brumfield Senior Planner 11, Designee of the Zoning Administrator Albemarle County 401 McIntire Road, Charlottesville, VA 22902 lbrumfield@albemarle.org Copy: Bart Svoboda, Zoning Administrator; Andy Herrick, Deputy County Attorney WWW.ALBEMARLE.ORG 401 McIntire Road, Suite 228 1 Charlottesville, VA 22902-4596