HomeMy WebLinkAboutAP200700007 Staff Report 2008-01-04STAFF PERSON: William D. Fritz, AICP
PUBLIC HEARING: January 8, 2008
STAFF REPORT AP 2007 — 07 Ellen Hawkins
APPLICANT /APPELLANT: Ellen Hawkins
The applicant appeals the Deputy Zoning Administrator's determination in
accordance with Section 34.3 of the Albemarle County Zoning Ordinance.
(Throughout this report, it will be referred to as a decision of the Zoning
Administrator because the Deputy was acting under the authority of the Zoning
Administrator.)
Description of Property:
This property is known as TM 62A1, Block A, Parcel 4 and is zoned R2,
Residential. It consists of approximately 1. 17 acres. Property is located at 2414
Huntington Road in the Northfields Subdivision adjacent to the Church of Our
Saviour.
The property is currently improved with a single family dwelling.
Determination: (See Attachment A for the Notice of Violation letter dated
October 16, 2007.)
The appellant appeals the Zoning Administrator's determination that the keeping
of 27 adult dogs and seven puppies, portable cages, portable kennels, fixed
kennels, bulk amounts of dog food and related material on site is not a
permitted use in the R2, Residential District. Appellant contends this position
is incorrect. Specifically the appellant states that this use is permitted as an
accessory use to a residence.
Background of Appeal:
A brief history relevant to this appeal is as follows:
The County received complaints about noise and traffic associated with the
keeping of large numbers of dogs on this property. The County contacted the
property owner and arranged a site visit. The onsite visit occurred on September
24, 2007. Photos of the property were taken and those photos are included as
Attachment B. After conducting research with assistance from the County
Attorney's office, the Zoning Administrator determined that a violation existed
and a Notice of Violation was sent to the owner dated October 16, 2007.
Grounds for Zoning Administrator's Decision:
The primary use of the property (which is permitted) is a single - family residence.
Accessory uses and buildings [Section 14.2.1(7)] are permitted by -right within the
R2, Residential zoning district. The issue in this case is what level of activity
constitutes an accessory use to a single family residence. It is customary that
the keeping of dogs at some scope or scale is accessory to a single family
dwelling and this is not in dispute. The issue is whether keeping this number of
dogs can be accessory to a single family dwelling.
The Albemarle County Zoning Ordinance defines accessory use in Section 3.1
Definitions as "a subordinate use, building or structure customarily incidental to
and located upon the same lot occupied by the primary use, building, or
structure, and located upon land zoned to allow primary use." This is a fairly
typical zoning definition for this term.
Webster's defines subordinate as: 1: placed in or occupying a lower class or
rank: Inferior"
Black's Law Dictionary defines subordinate as: "Placed in a lower order, class, or
rank; occupying a lower position in a regular descending series; inferior in order,
nature, dignity, power, importance, or the like; belonging to an inferior order in
classification, and having a lower position in a recognized scale; secondary,
minor."
At the Zoning Administrator's request, the County Attorney's office researched
this issue. The results are included as Attachment C. Based upon these
research results and staff's onsite observations the Zoning Administrator
determined that this particular use exceeds what can be an accessory use. In
accordance with the definition of "accessory use" the use must be subordinate
and this use is not. Therefore, it may only be permitted as a primary use. This is
not a use listed by -right or by special permit in this zoning district. (See
Attachment E for the list of permitted uses in the R2 zoning district.)
APPELLANT'S JUSTIFICATION FOR APPEAL: (See Attachment D for the
Letter of Justification.) The justification is listed with staff's response below.
STAFF RESPONSE:
Staff will respond to the applicant's points in order.
I am a volunteer with Pet Fescue Foundation, Inc. ( 501 -C -3 non - profit organization ) for
the purpose of rescuing and re- homing shelter dogs. I have been involved in this work
with various organizations for ten years. It is a volunteer, non -paid position, with no
profits or income produced; all adoption fees and donations go back into the costs of
animal care and feeding. 1 adopt dogs and puppies with a contract after careful checking
of references and a home visit. The majority of my dogs and puppies are transferred to
other rescue agencies, for placement thru there.
The issue is the number of animals that are being kept on the site and whether
that constitutes an accessory or primary use. Staff opinion is that the applicant's
relationship with "Pet Rescue Foundation, Inc." or any other group is not relevant
to the use determination.
2. The number of foster dogs housed in my house and on ray property fluctuates from day
to day and week to week. There is no set number. On the particular day (Sept 24,
2007) of the inspection, there were approximately 13 foster does; and 1 mother with 6
pups (age 7 weeks). All the adults are housed in individual crates on my back porch at
night, and go out into the fenced backyard during the day. The mother and pups reside
in my kitchen area for now. All of these dogs except for 3 adults and 2 of these puppies
are gone now, and a varying number of new ones have arrived.
This information is consistent with staff's observation. This supports the Zoning
Administrator's positions by verifying the number of dogs being kept onsite and
the associated equipment. .
3. 1 have a good working relationship with the Albemarle County Animai Control Officers for
my area. Two of them have been to my house and inspected my rescue operation, and
my dogs. There has never been a problem.
This is not relevant to the use determination. The Zoning Administrator has
made no allegation that the dogs are not being well cared for.
4. At the time the neighbor's complaint was filed in July 2007, 1 had a good number of
hounds, which can be noisy dogs. I have since placed those dogs elsewhere, and do
not keep noisy dogs. Since being notified of this complaint, I have made a concerted
effort to be more aware of this situation and the noise factor. The dog barking apparently
caused the initial neighbor complaint, however I have that problem under control now. I
have also scaled back my operation somewhat to reduce the stress and noise factor.
The issue is the number of dogs being kept on site and whether it constitutes an
accessory or primary use. The Zoning Administrator has not stated that the
noise generated by the dogs is a violation of the ordinance. The Zoning
Administrator has found this is not a permitted use.
5. t have also attempted to contact my Rio District representative, David Slutzky, to ask his
advice in this situation, I would like to ask him to mediate between my neighbor(s) and
myself regarding this issue, and see if we can come to a suitable understanding. I am
willing to do anything reasonable to make this a non -issue in my neighborhood.
This information is not relevant to the appeal. Staff has advised the appellant
that the use is not currently permitted by the Zoning Ordinance. Only an
amendment of the ordinance (a legislative action by the Board of Supervisors)
could permit the activity.
6. The Determination of Violation cites that I am in violation of the stated permitted uses of
my property. The list of permitted uses by right, does not directly reflect my situation.
Item 7 comes the closest, as it is the most common and generic use permitted. It states
that "Accessory uses and buildings including home occupations and storage buildings„
are allowed and permitted. Therefore, I maintain that my personal use of my house and
backyard for the purpose of rescuing dogs, is an allowed permitted 'accessory' use.
The permitted uses in the R -2 district were included with the notice of violation
and are found separately listed as Attachment E.
In Albemarle County, "accessory use, structure" is "a subordinate use, building or
structure customarily incidental to and located upon the same lot occupied by the
primary use, building, or structure, and located upon land zoned to allow primary
use." (Albemarle County Code § 18 -3.1, quoted in Albemarle County Land Use
Handbook August 2007, at 17 -4). The issue before the Board of Zoning Appeals
is if the activity is "customarily incidental" to a residential use.
The appellant asserts that rescuing dogs is a permitted accessory use yet does
not justify this position. The Zoning Administrator has made no allegation that
the purpose that the dogs are being kept on site is a violation. Rather the Zoning
Administrator has stated that the keeping of 27 adult dogs and seven puppies,
portable cages, portable kennels, fixed kennels, bulk amounts of dog food and
related material on site is not a permitted use in the R2, Residential District. It is
the number of dogs and the associated activities involved in caring for them that
has generated the use determination and finding of violation.
The County Attorney's office has prepared an analysis of the regulations in other
jurisdictions related to the keeping of dogs. The purpose of this analysis is to
determine what is "customarily incidental" in an R -2 district. The following is
taken from that research.
No single standard exists for determining what constitutes an appropriate
number of dogs. However, from the research a pattern emerges indicating that
the keeping of five or more dogs is not an accessory use unless it is on lots
larger than 2.0 acres or premises of at least 20,000 square feet. Moreover,
courts seem to agree that keeping more than four dogs on most premises
requires a kennel license unless the use is grandfathered by the locality or a
valid nonconforming use can or has been established.
The appellant's house or premises is less than 2,000 square feet and the
property is approximately 51,000 square feet or about 1.17 acres. Therefore,
based on some other jurisdictions' provisions, no more than 12 dogs may be
appropriate on this property. Therefore, 27 dogs and seven puppies far exceed
what could be reasonably considered as accessory to a single family dwelling.
7. The fact that there are extra crates, kennels and bags of dog food stored in and around
my house has no bearing on my allowed use of ray property. I have no other place to
store excess equipment and supplies, where it is out of the weather and not attracting
other wildlife.
The presence of crates, kennels (fixed and portable) and the bulk storage of food
in and around the dwelling exceeds that which would normally be associated with
a single family dwelling (see attachment B for photographs of the site). The
scale of these supplies to support this number of dogs and the result that much
of it can not be stored inside, further illustrates that this use is not subordinate or
accessory to the residence.
8. As I understand the laws and ordinances in Albemarle County, there is no restriction on
the number of companion animals, dogs and cats, which a resident may own. I would
infer then that also extends to animals they are being temporarily housed in a rescue
operation, and which are legally awned by that rescue person.
We concede that no ordinance exists which specifically states the number of
companion animals that may be owned or cared for in a residence. However,
when the ordinance does not specifically define or describe a use, we must turn
to commonly accepted practice and definitions as we have mentioned in this
report. The only current ordinance provisions that specifically address the
keeping or caring for dogs and cats are: commercial kennel and animal shelter.
The use occurring on this property does not meet the definition of either of these
two uses.
While no ordinance limits the number of animals on a property, ours is an
inclusive ordinance which lists only those uses that are permitted. If the use is
not listed, it is not permitted. While it is not expressly listed as a specific use, the
keeping of companion animals is and has always been considered an accessory
use to a single family dwelling. It can be a permitted accessory use if it meets
the requirements to qualify as an accessory use. The issue before the Board of
Zoning Appeals is if the activity is "subordinate and customarily incidental ". It is
staff's position that the scale and level of this activity is neither subordinate and
incidental nor customary. Instead, it constitutes a primary use of the property.
9. As I understand the laws and ordinances in Albemarle County, there is no restriction on
animal noise of companion animals, dogs and cats, which a resident may own. I would
infer then that this extends to animals they are being temporarily housed in a rescue
operation, and which are legally owned by that rescue person.
The Zoning Administrator has made no assertion that any noise regulations have
been violated in this case, as stated after contention #4.
10. 1 respectfully submit to you that my house and property are not being used in a way that
fails to conform to the R2 zoning permitted uses, by right. I respectfully request that you
over turn the prior Determination of Violation.
CONCLUSION:
The Zoning Administrator asserts that this use is not a permitted accessory use
because it is not subordinate and incidental or customary in relation to the
residential use of the property. The Notice of Violation should be upheld by
the Board of Zoning Appeals.
APPEAL
LIST OF ATTACHMENTS
Attachment A — Notice of Violation
Attachment B — Photographs of site
Attachment C — County Attorney's analysis
Attachment D — Appellant's Justification
Attachment E — R2 Residential Zoning District List of Permitted Uses (Zoning
Ordinance Section 14.2)
Attachment F — County Attorney's comment
Attachment A
FAX (434) 972 -4126
0
COUNTY OF ALBEMARLE
Community Development Department
401 McIntire Road
Charlottesville, Virginia 22902 -1596
TELEPHONE (434) 296-5832
NOTICE OF OFFICIAL DETERMINATION OF VIOLATION
TCD (434) 972.4012
The Date this Notice of Determination is given is October 16, 2007, No: VIO -20.07 -127
CERTIFIED MAIL # 7006 0810 0006 0797 2702
Ms. Ellen F, Hawkins
2414 Huntington Road
Charlottesville, VA 22901
Property: 062Ai -00 -OA -00400 Same as above
Tax Map and Parcel Number Owner of Record
Zoning: Residential 2 [R2] District
Dear Ms. Hawkins,
This notice is to inform you that the above described property is in violation of the Albemarle County
Zoning Ordinance. This conclusion is based on the fact that a Code Enforcement Officer visited the listed
property on September 24, 2007 and found that the following conditions existed:
The'onsite inspection revealed the presence of approximately fifteen (15) adult dogs,
seven (7) puppies, portable kennels, cages, bulk amounts of dog food and other related
material contained within the structure. The inspection also revealed approximately
twelve (12) adult dogs, portable cages, kennels and bulk amounts of related material
throughout the parcel. The number of animals and the volume and storage of material
related to their care on this parcel constitutes a use not permitted.
The described use or structure did not exist prior to the zoning ordinance(s) it violates. Therefore, it
cannot be considered a legal, but non - conforming use or structure. With that in mind, the following
section(s) of the Zoning Ordinance have been violated:
14.2 Permitted Uses
14.2.1 BY RIGHT
The following uses shall be permitted subject to requirements and limitations of this ordinance:
1. Detached single - family dwellings.
2. Cluster development of permitted residential uses.
3. Rental of permitted residential uses and guest cottages, provided that yard, area and other
8
VIO- 2007 -127 Page 2 October 16, 2007
requirements of this ordinance shall be met for each such use whether or not such use is on an
individual lay-out. - -
4. (Repealed 9 -2 -81)
5. (Repealed 9 -2 -81)
6. Electric, gas, oil and communication facilities, excluding tower structures and including poles,
lines, transformers, pipes, meters and related facilities for distribution of local service and
owned and operated by a public utility. Water distribution and sewerage collection lines,
pumping stations and appurtenances owned and operated by the Albemarle County Service
Authority. Except as otherwise expressly provided, central water supplies and central
sewerage systems in conformance with Chapter 16 of the Code of Albemarle and all other
applicable law. (Amended 5- 12 -93)
7. Accessory uses and buildings including home occupations (reference 5.2) and storage
buildings.
8. Temporary construction uses (reference 5.1,18).
9. Public uses and buildings including temporary or mobile facilities such as schools, offices,
parks, playgrounds and roads funded, owned or operated by local, state or federal agencies
(reference 31.2.5); public water and sewer transmission main or trunk Panes, treatment ,
facilities, pumping stations and the like, owned and/or operated by the Rivanna Water and
Sewer Authority (reference 31.2.5, 5.1.12). (Amended 11 -1 -89)
10. Tourist lodgings (reference 5.1.17).
11. Homes for developmentally disabled persons (reference 5.13).
12. Stormwater management facilities shown on an approved final site plan or subdivision plat.
(Added 10 -9 -02)
13. Tier I and Tier II personal wireless service facilities (reference 5.1,40). (Added 10- 13 -04)
(§ 20-14.2.1,12-10-80; 9 -2 -81; 11 -1 -89; 5- 12 -93; Ord. 02-18(6),10-9-02; Ord. 04-18(2),10-13-04)
This letter also serves to notify you to stop the activity or use outlined above immediately. Failure to
comply with this notice will result in legal action being taken against you and any other owner or tenant.
In addition, you must bring the property into compliance by November 2, 2007 to avoid court action.
Compliance past this date does not preclude the County from pursuing legal action.
In accordance with Section 15.2 -2311 of the Code of Virginia, you may appeal this finding if you disagree
with this determination. An appeal must be made within thirty (30) days of the date this notice is given.
If you do not file a timely appeal, this determination shall be final. An appeal application must be
completed and filed with the Zoning Administrator and the Board of Zoning Appeals. A one time
processing fee of $120 must accompany the appeal application.
If you have any questions, please contact John Jones, Code Enforcement Officer, at 434- 296 -5832
Ext.3427.
William D. Fritz A.I.C.P.
Deputy Zoning Administrator
County of Albemarle
Cc: Reading File VIO -2007 -127
ATTACHMENT B
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ATTACHMENT C
COUNTY OF ALBEMARLE
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TO: Amelia McCulley, Zoning Administrator
Bill Fritz, Chief of Zoning/Deputy Zoning Administrator
Rob Heide, Manager of Zoning Enforcement
FROM: Erika Castillo, Paralegal
Greg Kamptner, Deputy County Attorney
DATE: August 14, 2007
RE: The Number of Dogs Considered Accessory to a Primary Residential Use
The Zoning and Current Development Division has asked for information regarding the
number of dogs that may be considered as accessory to a primary residential use in a residential
zoning district.
This question has been raised because, in a residential zoning district, a landowner is
keeping anywhere from 5 to possibly more than 20 dogs. Staff has seen 8 cages in the backyard
and heard 5 to 6 different dogs barking. The dogs appeared to be kept in the landowner's
backyard and the use occurs on an everyday basis with the number of dogs present fluctuating at
any given time. The use is relatively intense and at least one neighbor has complained about the
constant barking by the dogs being kept in the backyard. Another person recently on the
property counted more than 20 dogs, 9 of whom the landowner claimed to be her own. The
landowner is acting as a "foster parent" for the other dogs which come to her house after they
have been abandoned and it is believed that she tries to find new owners for the dogs. The
question is whether the keeping of this number of dogs accessory to a primary residential use?
In Albemarle County, an "accessory use [or] structure" is "a subordinate use, building or
structure customarily incidental to and located upon the same lot occupied by the primary use,
building, or structure, and located upon land zoned to allow primary use." (Albemarle County
Code § 18 -3.1). The keeping of dogs is an accepted accessory use in general but, as explained
below, the number of dogs that may be kept as an accessory use may vary depending on the
acreage, square footage and any applicable requirements of a "kennel" in the locality.
16
In Beatrice v. Goodenkauf, 219 Neb. 756, 366 N.W.2d 411 (Neb. 1985), appellants were
boarding 120 dogs on their 6.9 acres of real estate at the time of trial. The Supreme Court of
Nebraska stated that
We cannot see how 120 or more dogs and an equal number of doghouses on a small
piece of real estate could be anything but a principal use. Whether a use is customary is
not to be determined merely by a mathematical count; but numbers are a factor which
must be considered.
The court further found that "clearly, the keeping of a few dogs on a farm is an accessory use and
is permitted, but caring for 120 dogs on a small piece of land is not a subordinate use or a
recognized incidental use of land." Id. at 413. In answering the question "how much is too
much ?" the answer is obvious in cases such as Beatrice where the number of dogs is
overwhelming. There also appears to be some consensus as to the number of dogs permitted per
household before becoming detrimental to public health, safety, and general welfare.
Urban Fairfax County allows the keeping of commonly accepted pets as an accessory use
on any lot for personal use and enjoyment. More specifically, the keeping of up to 7 dogs as an
accessory use is permitted in accordance with specific square footage requirements as noted in
the table below:
Number of Dos
Minimum Lot Size
1 to 2
No requirement
3 to 4
12,500 square feet
5 to 6
20,000 square feet
7 or more
25,000 square feet plus 5,000 square feet for each
additional dog above 7
Note that the lot size, rather than the zoning designation, is a key factor in considering the
number of dogs permitted as an accessory use in Fairfax County. Even local jurisdictions vary in
their conditions permitting a certain number of dogs as an accessory use. Fauquier County
Zoning Ordinance states that "[U]p to four dogs may be kept as pets on any property. On
properties 2.0 acres or larger in size, up to 12 dogs may be kept as pets provided the dogs are
penned or restrained so as not to roam within 40 feet of the property line."
(www. faquiercognty. gov/ documents / departments/ commdev/ pdf /livestockandpets_Brochure.pdf,
August 2, 2007). In Henrico County,
"[O]nly three adult pets per residence. A conditional use permit may be obtained
to allow a private kennel in residential districts. A private kennel is defined as a
premises used by the property occupants for the care of four or more dogs, cats,
pets, fowl or domestic animals that are at least four months old for non
commercial purposes."
(www.co .henrico.va.us /maint /pet.html, August 2, 2007). Between the counties and the courts,
four to five dogs seem to be the general accepted limit permitted as accessory use in residential
areas without getting into permit, license or kennel issues.
One case sheds particular light on the tipping point as to when the number of dogs moves
from being the simple keeping of pets to maintaining a kennel in a residential area. In People v.
17
Strobridge, 127 Mich. App. 705, 339 N.W.2d 531 (1983), the defendant appealed his conviction
of keeping more than three dogs on his premises without a kennel license in violation of the
Grandville Ordinance. A visit by an animal control officer found six dogs at the defendant's
residence. The defendant did not have a kennel license and the local ordinance provided that no
one could keep more than three dogs on any property without such a license. Moreover, the
defendant apparently could not have obtained a kennel license anyhow, as the same ordinance
did not allow kennel licenses for any area zoned residential. However, the appeals court
remanded the case to the lower courts for the purpose of making findings of fact and conclusions
of law as to whether the defendant had established a valid nonconforming use. According to the
appeals court:
Although defendant must obtain a kennel license under Sec. 21 of the regulatory
ordinance, he cannot be denied a license under Sec. 23 of that ordinance because
his premises are located in an area zoned residential if he had a valid
nonconforming use prior to the adoption of the zoning ordinance. Moreover, if
defendant had a valid prior nonconforming use and his otherwise properly
submitted application for a kennel license was wrongfully denied because of the
residential zoning, he cannot be convicted for failing to obtain a license under
Sec. 21 of the regulatory ordinance.
Strobridge, supra. While the question at hand concerns the number of dogs beyond accessory
use, it might be noted that the claim of valid nonconforming use has been accepted as a
reasonable argument by defendants for keeping a large number of dogs on a residential lot of at
least 2.0 acres, more or less.
In the Fairfax and Fauquier County ordinances, as well as in Beatrice v. Goodenkauf, it
has been made plain that lot or premises size matters in terms of the number of dogs accepted as
an accessory use. As stated in Downing v. Cook, 69 Ohio St.2d 149, 151 (1982), "the regulation
of dogs does not exceed the legitimate range of police power. It cannot be disputed that too
many dogs in too small a space may produce noise, odor and other conditions adverse to the best
of the community as a whole." Further, in the same appeal, the Supreme Court of Ohio found
that:
Section 905.04(H)(1) is not invalidated by the fact that appellant could
conceivably keep four dogs on her premises without creating undue noise, odor,
filth, danger or other conditions traditionally characterized as nuisance
conditions. Nor is the appellant precluded by the ordinance from engaging in her
hobby of breeding and showing dogs, but only from keeping more than three
adult dogs in her home.
Id. at 152 (italics mine). From the Fairfax and Fauquier County ordinances, as well as the
named cases cited above, a pattern emerges indicating that the keeping of five or more dogs is
not an accessory use unless it is on lots larger than 2.0 acres or "premises" of at least 20,000
square feet. Moreover, the courts seem to agree that keeping more than four dogs on most
premises requires a kennel license unless the use is grandfathered by the locality or a valid
nonconforming use can or has been established.
In the matter of the "foster parent" to the 5 or more dogs with numerous cages in her
backyard, it seems clear that, at the very least, the number of dogs in her care is not subordinate
and customarily incidental to a residential use in a residential zoning district. While it may be
18
considered a close question if 5 dogs are at issue, we have not found any localities that have, by
regulation or by custom, allowed the number of dogs that may be kept on this landowner's
property. At some number, the keeping of the dogs becomes a separate primary use that is not
permitted in a residential zoning district. Even though the dogs are residing temporarily on the
premises and can be considered "pets" for accessory use purposes, it appears that there are still
too many in too small a space, with the results being detrimental to public health, safety, and
general welfare.
Please call us if you have any questions or need any further information.
19
Attachment D
Application for Appeal of Zoning Administrator's Determination
November 15, 2007
No: VIO- 2007 -127 dated October 16, 2007
Justification for applicant's position and explanation of error in determination:
In reference to your Zoning Ordinance Violation of R2 zoned residential area.
Section 14.2 permitted Uses in R -2 District
I am a volunteer with pet Rescue Foundation, Inc. ( 501 -C -3 non - profit organization ) for
the purpose of rescuing and re- homing shelter dogs. I have been involved in this work
with various organizations for ten years. It is a volunteer, non -paid position, with no
profits or income produced; all adoption fees and donations go back into the costs of
animal care and feeding. I adopt dogs and puppies with a contract after careful checking
of references and a home visit. The majority of my dogs and puppies are transferred to
other rescue agencies, for placement thru them.
The number of foster dogs housed in my horse and on my property fluctuates from day
to day and week to week. There is no set number. On the particular day (Sept 24,
2007) of the inspection, there were approximately 13 foster clogs, and 1 mother with 6
pups (age 7 weeks). All the adults are housed in individual crates on my back porch at
night, and go out into the fenced backyard during the day. The mother and pups reside
in my kitchen area for now. All of these dogs except for 3 adults and 2 of these puppies
are gone now, and a varying number of new ones have arrived.
3. i have a good working relationship with the Albemarle county Animal Control Officers for
my area. Two of them have been to my house and inspected my rescue operation, and
my dogs. There has never been a problem.
4- At the time the neighbor's complaint was filed in July 2007, 1 had a good number of
hounds, which can be noisy dogs. I have since placed those dogs elsewhere, and do
not keep noisy dogs. Since being notified of this complaint; I have made a concerted
effort to be more aware of this situation and the noise factor. The dog barking apparently
caused the initial neighbor complaint, however I have that problem under control now. I
have also scaled back my operation somewhat to reduce the stress and noise factor.
5. 1 have also attempted to contact my Rio District representative, David Slutzky, to ask his
advice in this situation. I would like to ask him to mediate between my neighbor(s) and
myself regarding this issue, and see if we can come to a suitable understanding. I am
willing to do anything reasonable to make this a non -issue in my neighborhood.
6. The Determination of Violation cites that I am in violation of the stated permitted uses of
my property. The list of permitted uses by right, does not directly reflect my situation.
Item 7 comes the closest, as it is the most common and generic use permitted. It states
that "Accessory uses and buildings including home occupations and storage buildings"
are allowed and permitted. Therefore, I maintain that my personal use of my house and
backyard for the purpose of rescuing dogs, is an allowed permitted 'accessory' use.
20
7. The fact that there are extra crates, kennels and bags of dog food stored in and around
my house has no bearing on my allowed use of my property. I have no other place to
store excess equipment and supplies, where it is out of the weather and not attracting
other wildlife.
8. As I understand the laws and ordinances in Albemarle County, there is no restriction on
the number of companion animals, dogs and cats, which a resident may own. I would
infer then that also extends to animals they are being temporarily housed in a rescue
operation, and which are legally owned by that rescue person.
9. As I understand the laws and ordinances in Albemarle County, there is no restriction on
animal noise of companion animals, dogs and cats, which a resident may own. I would
infer then that this extends to animals they are being temporarily housed in a rescue
operation, and which are legally owned by that rescue person.
'lo. 1 respectfully submit to you that my house and property are not tieing used in a way that
fails to conform to the R2 zoning permitted uses, by right. I respectfully request that you
over turn the prior Determination of Violation,
Thank you
Ellen F. Hawkins
21
ATTACHMENT E
14.2 PERMITTED USES
14.2.1 BY RIGHT
The following uses shall be permitted subject to requirements and limitations of
this ordinance:
1. Detached single - family dwellings.
2. Cluster development of permitted residential uses.
3. Rental of permitted residential uses and guest cottages, provided that yard,
area and other requirements of this ordinance shall be met for each such use
whether or not such use is on an
individual lay -out.
4. (Repealed 9 -2 -81)
5. (Repealed 9 -2 -81)
6. Electric, gas, oil and communication facilities, excluding tower structures and
including poles, lines, transformers, pipes, meters and related facilities for
distribution of local service and owned and operated by a public utility. Water
distribution and sewerage collection lines, pumping stations and appurtenances
owned and operated by the Albemarle County Service Authority. Except as
otherwise expressly provided, central water supplies and central sewerage
systems in conformance with Chapter 16 of the Code of Albemarle and all other
applicable law. (Amended 5- 12 -93)
7. Accessory uses and buildings including home occupations (reference 5.2) and
storage buildings.
8. Temporary construction uses (reference 5.1.18).
9. Public uses and buildings including temporary or mobile facilities such as
schools, offices, parks, playgrounds and roads funded, owned or operated by
local, state or federal agencies (reference 31.2.5); public water and sewer
transmission main or trunk lines, treatment facilities, pumping stations and the
like, owned and /or operated by the Rivanna Water and Sewer Authority
(reference 31.2.5, 5.1.12). (Amended 11 -1 -89)
10. Tourist lodgings (reference 5.1.17).
11. Homes for developmentally disabled persons (reference 5.1.7).
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12. Stormwater management facilities shown on an approved final site plan or
subdivision plat. (Added 10 -9 -02)
13. Tier I and Tier II personal wireless service facilities (reference 5.1.40).
(Added 10- 13 -04)
14.2.2 BY SPECIAL USE PERMIT
The following uses shall be permitted only by special use permit approved by the
board of supervisors pursuant to section 31.2.4:
1. Community center (reference 5.1.4).
2. Clubs, lodges, civic, fraternal, patriotic (reference 5.1.2)
3. Fire and rescue squad stations (reference 5.1.9).
4. Swim, golf, tennis, or similar athletic facilities (reference 5.1.16).
5. Private schools.
6. Electrical power substations, transmission lines and related towers; gas or oil
transmission lines, pumping stations and appurtenances; unmanned telephone
exchange centers; microwave and radio -wave transmission and relay towers,
substations and appurtenances (reference 5.1.12).
7. Day care, child care or nursery facility (reference 5.1.6).
8. Mobile home subdivisions (reference 5.5).
9. Rest home, nursing home, convalescent home, orphanage or similar
institution (reference 5.1.13).
10. Hospitals.
11. Home occupation, Class B (reference 5.2).
12. Churches. (Added 9 -2 -81)
13. Cemeteries. (Added 9 -2 -81)
14. Tier III personal wireless service facilities (reference 5.1.40). (Added 10 -13-
04)
15. Historical centers, historical center special events, historical center festivals
(reference 5.1.42). (Added 6 -8 -05)
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ATTACHMENT F
COUNTY OF ALBEMARLE
0
MEMORANDUM
TO: Albemarle County Board of Zoning Appeals
FROM: Greg Kamptner, Deputy County Attorney
DATE: December 28, 2007
RE: Accessory uses
Each primary use allowed is accompanied by a range of accessory uses. This
memorandum examines the relevant factors that should be considered to determine whether a use
is accessory to a primary use. Because only a very limited number of Virginia cases have
considered the issue of accessory uses, this memorandum relies heavily on cases from other
states.
1. The nature of accessory uses
An accessory use is commonly defined to be a use that is subordinate and customarily
incidental to the primary use. For example, Albemarle County defines an "accessory use,
building or structure" to mean "[a] subordinate use, building or structure customarily incidental
to and located upon the same lot occupied by the primary use, building, or structure, and located
upon land zoned to allow the primary use, building or structure." Albemarle County Code § 18-
3.1.
"The rule of accessory use is a response to the impossibility of providing
expressly by zoning ordinance for every possible lawful use. Even though a given use of
land is not explicitly allowed, it is nonetheless permissible if it may be said to be
accessory to a use that is expressly permitted." Town of Salem v. Durrett, 125 N.H. 29
(1984). An accessory use "must be one 'so necessary or commonly to be expected that
it cannot be supposed that the ordinance was intended to prevent it. "' Whaley v.
Dorchester County Zoning Board of Appeals, 337 S.C. 568 (1994) (parking 18 -wheel
truck overnight and on weekends at owner's home was not an accessory use on a
residentially -zoned parcel). The Alaska Supreme Court has observed that the accessory
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use cases throughout the United States "uniformly give accessory use a fairly narrow
meaning." Dykstra v. Municipality of Anchorage, 83 P.3d 7 (2004).
2. The key criteria for determining whether a use is accessory
The two key criteria in determining whether a use is accessory are whether the
use is subordinate to a lawful primary use and whether it is customarily incidental to a
primary use. These key requirements are commonly used terms to define accessory
use in zoning ordinances throughout the United States, and are discussed at length in
the following sections. Whether a use is accessory is a matter to be determined from
the evidence adduced. Wiley v. County of Hanover, 209 Va. 153 (1968).
A. The use must be subordinate to the primary use
A landowner claiming that a use is accessory must first demonstrate that the use
is subordinate to an identified primary use. The term subordinate is defined by
Webster's Dictionary to mean "placed in or occupying a lower class or rank: inferior." A
subordinate use incorporates the requirement that the accessory use be minor in relation
to the permitted primary use. Dykstra v. Municipality of Anchorage, 83 P.3d 7 (2004);
Becker v. Town of Hampton Falls, 117 N.H. 437 (1977).
The relevant factors in determining whether a particular use is subordinate to a
primary use will depend on the circumstances. Following are some of the factors that
should be considered:
Area devoted to the use: The area devoted to the use in relation to the primary
use should be considered. However, the fact that a use occupies less area does
not necessarily make the use accessory. For example, on a 1 -acre lot with a
primary residential use, gardening would nonetheless be accessory to the
primary use even though the gardened portion of the lot may consume more than
90% of the lot's area.
Frequency of the use: The time devoted to the use in relation to the primary use
may be a relevant consideration. Orion Sporting Group, LLC v. Board of
Supervisors of Nelson County, 68 Va. Cir. 195 (2005) (sporting clays facility was
a year- around activity; hunting preserve limited to eight months per year). A
seasonal activity, in relation to a year- around primary use, would likely be
considered to be accessory. Conversely, a purported year- around accessory use
would not be subordinate to a seasonal primary use.
Active versus passive activities: The relative intensity of the use, and the
resulting impacts on the land and the neighboring properties, should be
considered. For example, as between a landscaping business and a nursery, the
landscaping business is often the more intense because it may have a business
office, employees and landscaping vehicles and equipment coming and going,
and a storage yard where landscaping equipment and materials are stored and
equipment is maintained. A nursery, on the other hand, may be limited to an
area where plants are stored and watered until they can be used in the
landscaping work.
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Number of employees and work hours: The number of employees assigned to a
use may be a relevant consideration. Although in most cases one may expect
that the accessory use will have fewer employees than the primary use, that is
not always the case. For example, a primary equipment storage yard use may
have a single employee assigned to work in storage - related activities. However,
the maintenance of the stored equipment could be considered to be a permitted
accessory use, even though there are more employees performing equipment
maintenance work.
Whether the use is truly subordinate to the primary use or whether it is a
different, alternative, additional use: The use must truly be subordinate to the
primary use and not simply be a different, alternative or additional use. For
example, in Orion Sporting Group, LLC, supra, the court found that a proposed
sporting clays facility was not accessory to a hunting preserve because the
evidence showed that the sporting clays facility was a different and alternative
use for those who did not wish to participate in hunting. The court found that the
sporting clays facility was a separate primary use of the property.
This list is not exhaustive and each situation must be evaluated under the unique
circumstances of each case. In addition, multiple uses on a parcel may each be
classified as primary uses — some of which may be permitted in the zoning
district, some of which may not be.
B. The use must be customarily incidental to the primary use
A landowner claiming that a use is accessory must next demonstrate that the
use is customarily incidental to the primary use. Although the Virginia Courts have not
examined the meaning of this commonly used term, the courts from other states have
considered it on numerous occasions. In general, a use that is customarily incidental to
a primary use implies that the use flows from, naturally derives or follows as a logical
consequence of, or is a normal and expected offshoot from the primary use. Town of
Alta v. Ben Hame Corporation, 836 P.2d 797 (Utah Ct. App. 1992) (boarding houses,
lodging houses, hotels are not accessory to permitted primary use in agricultural -
residential zoning district). Some courts have said that the terms customarily and
incidental, though often linked in definitions of accessory use, impose distinct
requirements that warrant separate analysis.
(1) The meaning of the word customarily
A customarily incidental use is one that has "commonly, habitually, and by long
practice been established as reasonably associated with the primary ... use." Becker v.
Town of Hampton Falls, 117 N.H. 437 (1977) (holding that barn constructed to house
heavy construction equipment on residentially zoned land was not accessory to primary
residential use); Lawrence v. Zoning Board of Appeals of the Town of North Branford,
158 Conn. 509 (1969); Carmel v. City of Old Town, 2001 Me. Super. LEXIS 24 (2001);
McKinney v. Kent County Board of Adjustment, 1995 Del. Super. LEXIS 83 (1995).
Although a rare association of uses cannot qualify as customary, the uses need
not be joined in a majority of the instances of the primary use. Town of Salem v. Durrett,
26
125 N.H. 29 (1984); Southco, Inc. v. Concord Township, 552 Pa. 66 (1998) (an
accessory use may exist even where there is no evidence that a majority, or even a
substantial number, of similar properties are engaged in a similar accessory use).
However, the lawful occurrence of the use must be more than unique or rare. Lawrence,
supra. The use must be "common enough so that it can be said to be a known and
accepted incidental use." County of Lake v. La Salle National Bank, 76 III. App. 3d
179 (1979) (determining whether a trailer for groundskeeper's sleeping quarters was
accessory to the operation of a golf course). In other words, a use is customarily
incidental "when it is so necessary or so commonly to be expected in connection with
the main use that it cannot be supposed that the ordinance was intended to prevent it."
Grandview Baptist Church v. Zoning Board of Adjustment, 301 N.W.2d 704 (1981)
(holding that 32 by 42 foot steel storage building was not accessory to a church in a
residential zoning district; of 50 churches examined, it was the only one with a steel
storage building).
Some of the factors that are relevant to determining custom are the size of the
parcel in question, the nature of the primary use of the parcel, the use made of the
adjacent parcels and the economic structure of the area. Lawrence, supra. The zoning
administrator and the BZA need to determine whether the proposed use is customary
within the locality and the region. For example, the kinds of uses that are commonly,
habitually and by long practice established as uses that are reasonably associated with
a residential use include garages, swimming pools, decks, gazebos, small sheds and
small -scale gardening; the kinds of uses that are commonly, habitually and by long
practice established as uses that are reasonably associated with an agricultural use
include barns, sheds, silos, the storage of farm equipment and machinery, and the
raising of crops and livestock.
(2) The meaning of the word incidental
The term incidental incorporates "the concept of [a] reasonable relationship with
the primary use. It is not enough that the use be subordinate; it must also be attendant
or concomitant. To ignore this latter aspect of `incidental' would be to permit any use
which is not primary, no matter how unrelated it is to the primary use." Lawrence v.
Zoning Board of Appeals of the Town of North Branford, 158 Conn. 509 (1969); Henry v.
Board of Appeals of Dunstable, 418 Mass. 841 (1994) (gravel removal for commercial
purposes was not accessory to a permitted agricultural use, even though the removal of
the gravel would allow creation of a Christmas tree farm).
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