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HomeMy WebLinkAbout2006-08-03 BOARD OF SUPERVISORS TENTATIVE AUGUST 3, 2006 BURLEY MIDDLE SCHOOL AUDITORIUM ROSE HILL DRIVE 6:00 P.M. JOINT MEETING WITH ALBEMARLE COUNTY PLANNING COMMISSION 1. Call to Order. 2. Pledge of Allegiance. 3. Moment of Silence. 4. To receive comments from the public on the recommendations concerning a Phasing, Clustering, and Family Division Framework Plan. 5. Adjourn. ACTIONS Board of Supervisors Meeting of August 3, 2006 August 14, 2006 1. Call to order. . Meeting was called to order at 6:07 p.m. by the Chairman, Mr. Rooker. All BOS members were present. Also present were Planning Commission members Jon Cannon, Eric Strucko, Pete Craddock, Jo Higgins, and Marcia Joseph, and Bob Tucker, Larry Davis, Diane Mullins, and Meagan Hoy. 4. To receive comments from the public on the recommendations concerning a Phasing, Clustering, and Family Division Framework Plan. . RECEIVED Boards and Commissions: Appointments. Clerk: Prepare reappointment . REAPPOINTED Bill Edgerton to the letters, update Boards and Acquisition of Conservation Easement Commissions book and notify Committee (ACE) with said term to end August appropriate persons. 1,2009. . REAPPOINTED Sherry Buttrick to the Acquisition of Conservation Easement Committee (ACE) with said term to end August 1,2009. . REAPPOINTED Jay Fennell to the Acquisition of Conservation Easement Committee (ACE)with said term to end August 1,2009. . REAPPOINTED Charles Martin to the Commission of Children and Families with said term to end June 30,2009. . REAPPOINTED Steven Rosenfield to the Jefferson Area Community Criminal Justice Board with said term to end June 30, 2009. . REAPPOINTED Rosa Hudson to the Jordan Development Corporation with said term to end August 13,2007. . REAPPOINTED Bonnie Samuels to the Route. 250 Task Force with said term to end September 5,2009. . REAPPOINTED Diana Strickler to the Route 250 West Task Force with said term to end September 5, 2009. . REAPPOINTED Martin Schulman to the Route 250 West Task Force with said term to end September 5,2009. . REAPPOINTED Richard Kast to the Route 250 West Task Force with said term to end September 5, 2009. 5. Adjourn. . At 8:25 p.m., the meeting was adjourned. ., f'~~i , . _._--_._--~ ",\\f:\~ S r z. '\i~ .- 5 1 I . . '. .' . , , I 2 f . 3 . . 4 -'~"""~'V""D AT BGC' fI'C'~-'" . ... . '", '."". i::' . "II. .c. ~:.....V~' I V ij>'iII' . D,'.ts: 8'0' OeO . --. ".... Rural Areas t'?,:mda !tom #: j S"~"''''~':-.'':i ~:1~'\7;3: lfn.1<. . .~_._.- Joint Meeting of Albemarle County Board of Supervisors and Planning Commission 3 August 2006 First, I wish to commend the Board and Planning Commission for holding these discussions. No matter what each of our opinions are, it is remarkable and essential to be having these discussions at all. That being said, I must refer back to last night's vote on North Pointe. Some of you give the impression of not being good listeners. You are not listening enough to the majority of citizens who are concerned and frustrated about the pace of growth. You are inordinately concerned about traffic, but you have not paid enough heed to your talented planners who warn about the long-term problems that will be caused by the North Pointe development and others before the Planning Commission. You politely listen to persons, who are not "vested interests" as one person mentioned last night, but who voluntarily spend hours researching issues and attempting to give you the benefit of their findings. And you pay only lip service to environmental concerns, which is a clear indication that you do not listen to history. Overwhelming evidence shows that the major factor in disfunction and/or collapse of communities and nations is lack of solutions for environmental problems. Read the first chapter of Jared Diamond's Collapse and seen Albemarle in the image of a collapsing valley community in Montana. Last night, Board members agreed that we do not yet have a definition of "neighborhood modeL" Perhaps that is also the case for "rural area". Yes, 95% of our County is zoned rural, but much of it already looks more urban than not. You evidently believe that by promoting growth in development areas, rural areas will grow less. This is a correlation that falls into the well-known trap of assuming cause-and-effect. Where is your proof that these two very different markets interact this way? Even if so, doing something about rural areas per se is required. Which brings me to phasing and clustering, which I strongly endorse, not because they are perfect, but because they are necessary. Parenthetically, phasing has been an effective hedge to unbridled growth in other Virginia counties, as well as on Martha's Vinyard, which has felt similar development pressures as Albemarle. But phasing and clustering are not all that is required. The Commission and Board should adopt more strict RA regulations for critical slopes and stream buffers similar to the MOD,. The issue is one of equity. And, with respect to property rights, it is repeatedly noted that this is a constitutional right. Yes, but the Constitution places individual rights within the context of common property rights - that is, the common good. History shows that when left to their own devices Americans have not been good stewards. The forested landscapes that we see here today do not result from stewardship, but are largely regrowths resulting from the abandonment of farming. The population of Albemarle has grown 400% during the past half-century, most of it since 1980. Is there anyone here that wishes our population to double again? That's the probable projection in less than a single human lifetime. To alter this trend, phasing and clustering are necessary, but not sufficient responses. The only permanent response would be downzoning, which I strongly urge you to consider. I ~::~GErVED AT 80S MEET.. . SAP Dc,ta: fJ. 3- Dw J\gsnda Item#: i ~. '. . .., '1Jf 11 " . ""~ ~.... - d.,_ . .' '- , "p, '-' ~._...~ ......cdS. . Statement to the Albemarle County Supervisors, August 3, 2006: In SUDDOrt of PhasinG and Clustering . I'm Jack Marshall, speaking to you on behalf of the 300 members of Advocates for a Sustainable Albemarle Population. Directors Jack Marshall There's an elephant in Albemarle's room. Only the President willfully blind fail to see It. Some, though, delude AI ~ee;; President themselves into believing the elephant won't really Elizabeth Burdash mess up the place, or that there's no polite way to ask Ge S,ffecretaM'fytt ks it to leave. A small minority, vocal and powerful, oreyaoc Treasurer welcome the elephant, for they profit from its care and Rich ~oIlins feeding. FrancIS Rfe Laura Horn ~~~h\::her The elephant, of course, is our poorly controlled Carleton Ray population growth, the dominant theme of Andrew Wright conversations these days - when we're not Advisorv Council complaining about the heat. Nearly everyone is ~~n~~bbott concerned with growth's negative impacts as it spills Jim Bonner into fields and forests, sprawls into roadways, :~t~n;ross transforms neighborhoods and villages. Growth, step John Hermsmeier by insidious step, is destroying the nature of Albemarle Steve Jamme C t t' . t I bl f' Janis Jaquith oun y, crea mg envlronmen a pro ems, orcmg Harry Levins residents to pay higher taxes, and reducing the ~:~i~~~~oni attractiveness of the place for our tourist industry. Deborah Murray ~~~: Responsible stewardship for our community and our Peg9yThome environment requires that you, our leaders, think Jane Williamson I I'd . arge. To dea with the elephant, we nee a lion; Executive Director many of us are afraid you'll deliver only a mouse. Jeff Sobel The proposals for phasing and clustering are a step 3570 Brinnington Road toward thinking large, a step toward going beyond the Chartottesville, VA 22901 timid measures to tinker with growth that we now Phone: (434) 97+6390 pretend will protect us over the long haul. Fax: (434) 974-4924 asap@stopgrowthASAP.org In the war with growth that threatens the very WWN.stopgrowthASAP.org character of our communities, you are the generals planning strategies for battle. You obviously know that such battles won't end in painless victories; there is a price to be Page 1 of 1 Ella Carey From: JANETGEO@aol.com Sent: Wednesday, August 02, 2006 7:54 PM To: Board of Supervisors members; Planning Commission Subject: Public hearing-Phasing and Clustering of Rural Area Subdivisiong Dear Members of the Board of Supervisors and Planning Commission, Since I do not expect to be able to be present at the public hearing tomorrow, August 3, I offer these comments: 1] I strongly support the excellent work of the staff and comm ittee in preparing the proposal you have before you. I urge you to adopt it in its entirety. 2] I believe these regulations are necessary to preserve the rural nature of the county, which is currently developing at a very fast rate. We certainly don't want Albemarle to develop the way Fairfax and Loudoun counties are now. I believe these regulations will help prevent that intense development. 3] I think the phasing requirement is especially important to slow the rate of growth in the county. I also think that there is a practical limit to the population growth the county can support, and I urge you to explore this in depth and for public discussion. Sincerely, George R. Larie 107 Tally Ho Drive Charlottesville, VA 22901 8/3/2006 Page 1 of 1 Ella Carey From: Montfair (montfair@ntelos.net] Sent: Thursday, August 03,2006 2:22 PM To: Ella Carey Subject: the Proposed Phasing Ordinance for the Rural Acres I am the owner of 129 acres of rural land in the NW section ofthe County. My children and I operate Montfair Resort Farm which was established in 1966 by my husband,his familyand me. It is what is left of 1600 pristine and amazing acres purchased in 1952 stretching from the Doyles River up to, and over Pasture Fence Mountain, down to join Shenandoah National Park. Most of it was kept together, and mostly in ifs original pristine state, until my husband's death in 1997. The sacrifices, "blood, sweat and tears" of 3 generations went into keeping it together and in that natural state. We consider ourselves the "ultimate conservationists", also having granted a conservation easement on our family home, the historic Mountfair and surrounding 78 acre farm parcel. That easement forfeited 7 development rights. The remaining development rights on our 129 acres are of utmost importance to our family and our estate. Our land is our home, our heritage, our life's work. the lifetime investment of 3 generations. The proposed Phasing Ordinance is so utterly damaging to the long term rural landowner, I can hardly believe it is being seriously considered. Even worse, it probably won't stop the wealthy developers who can afford to buy up multiple parcels and still do what they want. If these ordinances devalue our rural land as many owners feel it will do, this ordinance just might fuel such development. Something that will be so DESTRUCTIVE and UNJUST to a large segment of our citizens should be put before the public for a vote. It should not be decided by a handful of people. I, and my 4 grown children, URGE YOU TO SAY "NO" to the PHASING ORDINANCE. Thank you, Mary B. Sheridan 8/3/2006 J COPIeS fYIp.JR / rve/~ 1v /305 July 30, 2006 To: Albemale County Board of Supervisors Albemarle County Planning Commission From: Ivy Community Association Subject: Regarding protecting the rural areas of the county. Weare sending this memo to let you know that the Ivy Community Association fully supports protecting the rural areas of the county and providing for smart sustainable growth. There are three elements that we feel are critical to sustainable growth and protecting the natural beauty of our county. We urge you to commit to these ideals. 1. Clustering: By requiring that rural subdivisions "cluster" the new, small-lots, larger tracts of undeveloped land will be set aside for agriculture and forestry uses, for the preservation of view-sheds and watersheds, and to protect vulnerable ecological habitats. 2. Phasing: Phasing limits the number of lots that can be created over a specific period of time. Albemarle is currently discussing a plan that would allow two new lots every ten years from any single parcel-of-record. Phasing will not alter how many development rights a parcel may currently have. It will dissuade the speculative interests that seek to rapidly sub urbanize the countryside. Phasing is best viewed as a "budget plan" for taxpayers. Requiring rural development to occur gradually allows farmers to create and sell lots; but limiting the pace that lots are created allows the County to allocate more of its limited revenue towards public infrastructure within the Growth Area, where growth is supposed to go. 3. Mountain Protection - Residents of Charlottesville and Albemarle rely upon the mountains for their critical role in our water supply; both surface water and groundwater. Tourism to Albemarle is a major economic engine. Realtors and economic development interests routinely market the County's "spectacular mountain views." The mountains are very much a part of this "best place to live." Almost a decade ago, Albemarle revised its Comprehensive Plan to include a series of specific objectives for mountain protection. Among them, "Pursue additional protection measures to protect mountain resources and to promote public safety in these areas of exceptional critical slopes and higher elevations." We strongly urge you to consider these factors as you plan for our future growth and development. ~ ~ /:, ,?, - ~(~ ~'71 (W 'iz~ 0ltl~J~~ ~, f!~I. Ftc!:,^- S 1f1t-r./I../ ;ltvL tV}1J\/5 ~,. , c:.7 [,.J r) ~ ~~~ "-_ ) C .-' ~ ____ I Ella Carey From: Farrar Woltz [farralWoltz@hotmail.com] Sent: Sunday, August 06,2006 5:17 PM To: Board of Supervisors members Subject: rural protection Dear Members of the Board of Supervisors, I am a resident of Albemarle County [or the City of Charlottesville]. The County's Comp Plan has specific objectives which include efforts to ~reduce the level and rate of residential development in the Rural Areas" and to ~pursue additional protection measures to protect mountain resources." I urge you to adopt regulations that honor the County's stated policy of rural and mountain protection. Thank you. Farrar Woltz 1 Page 1 of 1 Ella Carey From: Hill [US], D.J. [dj.hill@sperry.ngc.com] Sent: Wednesday, August 09,2006 8:11 PM To: Board of Supervisors members Subject: Mountain Protection Ordinance Dear Members of the Board of Supervisors, I am a resident of Albemarle County. The County's Comp Plan has specific objectives which include efforts to "reduce the level and rate of residential development in the Rural Areas" and to "protect mountain resources." I urge you to adopt regulations that honor the County's stated policy of rural and mountain protection. Please support rural phasing and clustering and move forward with a Mountain Protection Ordinance. Best regards, OJ-- David J Hill Lead, Infrastructure Services Sperry Marine IT Solutions Northrop Grumman Corporation 1070 Seminole Trail Charlottesville, VA 22901 USA E-mail: QJ.tWI@~rrt.N.GC.~Qm Phone: (434) 974-2029 Cell: (434) 989-8029 BB Pin: 23c8863e Fax: (434) 974-2259 www.sge[ly.OQrthrQpgrl.Jmman.<:PJJl 8/10/2006 Message Page 1 of 1 Ella Carey From: Deborah Murray [dmurray@selcva.org] Sent: Tuesday, August 01, 2006 12:05 PM To: Board of Supervisors members; Planning Commission Subject: proposed Mountain Overlay District and Phasing and Clustering Ordinances Dear Members of the Board of Supervisors and the Planning Commission, I am a long-time City resident who cares deeply about the surrounding countryside in Albemarle County. As you know, the beauty of the countryside is among the chief features that make the Albemarle-Charlottesville community such a special and attractive place to live. I will be unable to attend the public hearing this evening on the proposed Mountain Overlay District ordinance, but wanted to add my voice to those urging you to adopt this ordinance, as well as the proposed phasing and clustering ordinances. These ordinances are critical to the protection of our diminishing rural areas. The Mountain Overlay District proposal represents a consensus of differing perspectives in the community and is an important step in reducing unwanted development in sensitive areas. The prohibitions against development on critical slopes and near streams included in the proposal are ecologically sound and are vital for watershed protection. The phasing and clustering proposals likewise are essential for reducing the impacts of sprawl on the rural areas. Given the recommendations in the Rural Areas Section of the Comprehensive Plan, these proposals deserve your support. Thank you very much for your consideration. Sincerely yours, Deborah Murray 731 Lexington A venue Charlottesville, V A 22902 8/11/2006 Page 1 of 1 Ella Carey From: MARLENECONDON@aol.com Sent: Sunday, August 13, 2006 9:57 AM To: Board of Supervisors members Subject: suggestion for saving our natural beauty and resources Hi , I saw the Albemarle County Farm Bureau ad in a recent Sunday paper regarding "phasing". Because the ad states that there must be a better way to keep the beauty and natural resources of Albemarle's setting intact, I wanted to let you know my idea for accomplishing this. Development would not be as detrimental to the environment and to our sense of aesthetics if people would landscape in a more natural manner. Indeed, that is the subject of most of my writing and it is the subject of my new book, The Nature-friendly Garden. But in order to get folks to stop creating artificial landscapes of golf course-style lawns, we need to give them an incentive to change their idea of what constitutes an attractive landscape in addition to educating them. The county should encourage people to landscape for wildlife by giving them a lower tax rate on their property if it is left wild or managed for wildlife. This tax rate should be lower than the current agricultural tax rate because preserving land for wildlife better helps our environment to function as it should (there would be fewer problems with over-populations of organisms that people try to fix with pesticides) as well as helping to preserve the quantity and quality of underground and above-ground water. For example, let's say a subdivision is platted for 2-acre or larger lots. A house and whatever area is used for lawn, food-growing, haying, or other personal use (such as a swimming pool) would be taxed at the residential rate. But if a person manages some of that acreage for wildlife (there would have to be a "wildlife habitat manager" to verify this), he would be given a tax break on that amount of land. Thanks so very much for your time and consideration of my idea. I deeply appreciate both. I would be happy to discuss this idea in more detail if you have questions. And I do realize that you would need state approval. However, the entire state really should be brought on board with this so I see no reason why the state could not be approached. Sincerely, Marlene Marlene A. Condon (Author, The Nature-Friendly Garden: Creating a Backyard Haven for Plants, Wildlife, and People) Nature Writer/Photographer/Speaker 5554 Sugar Ridge Road Crozet, VA 22932-2204 Phone (please do not give out): (434) 823-8150 emaH: MARLENECONDON@aol.com 8/14/2006 COMMENTS Your commenls will be delivered 10 Ihe Planning Commission and Board of Supervisors PLEASE PRINT . ,. Comments Apply to: 0 Mountain Overlay District 0 Rural Areas - Phasing & Clustering ~oth Name: r....el S-hlAC~v& Address: 3733 5/-0"1 Po;n1 PcuJ/I<e.$wlc. k Wi- T ~Yv-. ()PfO(~i2 ria cAt( or rf1-\ef-e orof>DraJ5 b f {!('?,US-e { I th ~ se 1/(7 y.q} y /~ t /~j -e J7 r' 0 L).(? r ht 0 /J'-' n e rr) r /"j /vir"" V 1 J.. bR!feve Me vYl G\ j-"" Pi/V' f1oJ~ () I ~ rrlJpoJ'c.tJ~ (' ~ 5--/-~ VJhf n, tJ;-O~Dt-e c.er1afh C1-es~.eh0 ;?'Y'-e fert.f?n(;.e!i I' I I ..-- fvRI'\. ~o\l1~ ;.t.er 4V.e 6~/~ jC'vps'eJeJl tiS 5""';) c;~!2 _______.~.w~f'y- v/ye(<fn/o.-'PDn ~ eViSUY'es" I Jo J/l of i~)/~ve.. I . ._.__t-icvt- ~ /~r J"lJS~'tp J fl/C A cfr'o. <i'tJ ''6 oveyrceC? t//~ b"" - u 7 t, {? V' e /~- ~ 10 f- c f! d Cr c VIS 1'0 n Q .b 0 II f pre fer Vl7:t . << (C ..., f i2. 0....,-. J.L - "f c( P 7 out"' VI e vJ ~h ~ '" .t.-- VI U";I-1. a..T ,J,€ i'JJ?.e J s- I ' 0 u:'rs _ f1 r {( UJ.J< I as' VVl e Yl1 ~~r.f 1)1 r/-Iv? p vbl/c I )00, i.f iirt cJ I f I' -t J __________~(iOVJV1P ('f 'h IJreJJ? rv-e IIIf "V/{> w i So ~5' Vv . , 1 I ___.______.,___Ceq{/H ~C1k-~ ;J- "'ovf5\1 Z ;Z~, fie lOe. ()-t{ .rliufO!~ L_ ~Vf { ( _______~1L- /?? dike M,-e v/e wC:/.4,P "l f2urf 'I /'1 -ha.f') _ UJ_{~ "ua- (~I"-'fI"Ma.rh~ lJr'operry "W~ €I"f t;r: f-/!..D !e5)' fJ{! tI,-epr f'/-eYLh, fry &,~ VlMj" Ld C/oJue. . :::r.;j: ~a u fur c ~ 1?1 0 u", f", /Vl I!> !Jd ~ eo '1>.:, &r€J' ", b VI 71,;G jf t{, (h tt4 Vn o..ij cur Ii, -e [Y' In Ou hi" /?, ,{ J.n. b-e,- _ ---.-----Lrl OY'J<eY -h n1oJ<e. ~ (41AAf 1/((/&11 cu4 ro~ w0uli! I o,ewa!{, . hurv-- 1-0 V/~fw>~e/J~ hy lar;yi IClt-tl)lJvJhf?rS'o.. p{1C, S'("'j I c/udpy/y LNOlJ{J!DC/C' L>fZ ~Ii-- !c?..L} c&.r tl'v'-t7. \AA1 of ~ c~cleJ , TfJ r;olllc IlJ l'lof'Lf ce /10 ;) r'[Lio.!t IvppOf! ~ fDVOp0~o..JJ- a.ffp r q }/J /l1t; ~mrSOJ--L !1 /~.s~ (f !/'vL!J r/I/l +or' tJ ( &I. /)t 6U~l~ I ~ Jul~ -August 2006 Mounlllin Overlay and Rural Areas Phasing/Clustering Proposals COMMENTS Your comments will be delivered to the Planning Commission and Board of Supervisors PLEASE PRINT Comments Apply to: o Mountain Overlay District ~ural - s.{) Name: Address: J -" . I .., E/usf(?r/~ > ," t~ r -.p .e n:e'f' uJitt, n-.. IY~{! :Ie) OCYI/l ~Y;;rofJRrhr / '1h<P C/OYJ JerVqV:>0l/1 eas.eJ?1€d- rr:-j..'/.//re.t:L (:;., ~" t'-€srJuCLI jJarce.( 4,c?'pr?0r'r fo.6e c.~ - ___U" Yl-eCel'<;<zY'Y /nrrr{/s/o,~ "': "'1 -/?rn.';! t; d/v!:t _~___t.d~ ~n1 ",'H,P(r {) cf,V/ +y J-. f>1/jJJ- c/:o D.r~ ) - / ^: __ / / n,/ '1.,;-& ot?t rJ!:J cf (./5/ Oh r" j /,f.L 5 ~ 6 () I cf /'e .s f) M'c/ ;. <<.T I +0 4 c..c cJ nvr)''S~ ~ o~en J~a ce- rurJ2o..re. /'" Ehtlfrj l~ 4"- eJ1h/~Lt (/I1CcJ;e</) - (;, l.;kt?U (' (- J'Y) '1 /.j b/M1f tv 1/ 'I Vi (j'td-e ""'1 f' '1 i/) h1 J n /U 'I '.~. --------p rO pf?f' h; ./ -....-"---.-------- ------- --------.-----. ..-- "- I I I i ------ I . c' . July-August 2006 Moulltain Overlay and Rural Arcas Phasing/Clustering Proposals I '" FREE ENTERPRISE FORUM The Free Enterprise Forum commissioned the following independent legal opinion regarding the current Albemarle County phasing and clustering provision. MEMORANDUM REGARDING C.'~==.E;VED AT BOS MEE. ALBEMARLE COUNTY PROPOSED "PHASING" ORDINANCE !'"". 8, 3 . D& ~,--,l~. /<~cnda ;!em II:. Lj- c. ;.,-,...i-..i...... ~'1( 1. Introductory Remarks - .~"-, ..... ....;.:;....:'..;::d. The undersigned has been asked to provide comments regarding the probable legal status of the proposed "phasing" ordinance which is now being discussed by officials of Albemarle County. It is difficult to evaluate the legal merits (including enforceability, efficacy and possible unforeseen consequences, as well as defensibility) of a land use ordinance in circumstances, such as exist here, where no ordinance has been proposed. Rather, the public are being 'asked to comment on a concept with very little definition. Consequently, the analysis which follows is necessarily general in character. In addition, while legal authorities have been consulted and are referred to hereafter, citations to virtually all authorities beginning in the section "Legal Analysis" have been consigned to end notes which can be provided upon request. 2. Proposed Regulatory Concept The proposal, as I understand it, is to amend the existing subdivision ordinance of Albemarle County (Chapter 18 of the County Code) to limit development to include the following: a. Uses permitted by right, including subdivisions, would remain as they currently exist. Similarly all "development rights" (i.e., calculation of the number of residential units which can be established on a given parcel of land) will remain unchanged. b. The "phasing" provisions would apply only on lands in the RA-Rural Areas zoning district. c. Subdivision regulations would remain substantially the same, except that (i) the "vested" period within which an approved preliminary plat would entitle a subdivider to approval of a final plat might be extended from the current five years to some longer term; and (ii) final plats would only be approvable to provide not more than 2 residential lots, with additional final plats only after intervals of 10 years. 3. Legal Analysis After conducting preliminary research on the issue, it is my opinion that the proposed phasing concept is (a) not authorized by the enabling legislation and (b) effectively prohibited by the enabling legislation which does exist. 550 Hillsdale Drive, Charlottesville. VA 22901 · Phone (434) 220-0781 · Fax (434) 817-2836 . Email: neil@freeenterpriseforum.org I A threshold principle for any analysis of a Virginia locality's authority to regulate land use is the so-called Dillon Rule which is generally expressed to limit the authority of local governments to "only those powers expressly granted, those necessarily or fairly implied therefrom, and those that are essential and indispensable." While it is regularly criticized by commentators, there is no doubt that the Dillon Rule is alive and well in Virginia. In the subdivision context, the Supreme Court has applied the Dillon Rule with noteworthy rigor, in one case going so far as to say that, while a locality had clear authority to require review of subdivision plats, it had no authority, either expressed in the statute or implied from its general authority to review subdivision plats, to require payment of a fee for such review. In the case of "phasing", it is clear that there is no express authority granted to the County to require a developer to restrict development as Albemarle County has proposed. Theenabling legislation does permit phasing, but it is phasing proposed by the developer, not the County. Neither can such authority be "necessarily or fairly implied" from the enabling legislation. On the contrary, the language of the enabling legislation is clear and unambiguous that the decision to "phase" a subdivision is one exclusively for the developer. Indeed, to the extent that any further interpretation of the statute is attempted, the clear implication is that the County cannot restrict a developer who chooses to phase his subdivision from submitting (and subsequently recording and implementing) final plats in accordance with approved preliminary plats. Specifically, the enabling statute provides that, upon providing appropriate bonds, etc., "the developer shall have the right to record the remaining sections shown on the preliminary plat for a period of five years from the recordation date of the first section, or for such longer period as the local commission or other agent may, at the approval, determine to be reasonable [under the circumstances]. " On the basis of such a Dillon Rule analysis, the Attorney General has opined that "[n]either Section 15.2-2241 nor Section 15.2-2242 authorizes a governing body to enact provisions in a subdivision ordinance prescribing a minimum time period for a lot. to be in existence prior to being subdivided." While this opinion arose in a different factual context, the issue presented is indistinguishable. An opinion of the Attorney General is not entitled to same definitive force as a decision of the Supreme Court, but it is entitled to great weight, particularly when, as here, it so closely tracks the applicable statutes. In effect, the County's proposal constitutes a kind of "rolling" moratorium on the approval of a subdivision plats, i.e., once a final plat of the first two lots has been recorded, no additional plats can be submitted for timely approval for a lengthy period of time (e.g., to years). The Supreme Court has made unmistakably clear that there is no authority for a locality to impose a moratorium on filing of subdivision plats. As the Supreme Court has noted, approval of a subdivision plat (in contrast to rezoning or other legislative action) is a ministerial act, performance of which may be compelled by mandamus or other summary process. Moreover, under the terms of the enabling legislation, review of subdivision plats is subject to a strictly prescribed statutory process, including, in particular, a requirement that a developer is entitled to have a final plat reviewed and (assuming compliance with the design requirements of the ordinance) approved within 60 days after it is submitted. By contrast, under the proposal now being discussed, a final plat which complied in , " all respects with an approved preliminary plat and with the requirements of the subdivision ordinance, but which showed more than 2 lots would only be entitled to approval after 60 days and 10 years. Another defect in this proposal is that it fails to make a clear distinction between the County's subdivision review authority and its authority to zone. Unlike any other subdivision, a proposed subdivision would be subject to the proposed "phasing" regulations only if it were located in the RA district. I am aware of no authority whatever that would permit the County to apply different subdivision procedures based on the district in which the land is located, and the Supreme Court has repeatedly held that the process, the purposes and the enabling legislation for subdivision review are different from those applicable to zoning. However, even assuming that the zoning ordinance were also to be amended to provide such regulation, the analysis regarding the Dillon Rule would be the same for zoning ordinances as for subdivision ordinances. As the Supreme Court held in the Home case, the enabling statutes for zoning provide no more basis for a "moratorium" than do those for subdivision review. The county attorney has provided an opinion to the planning commission regarding the effect of the proposed "phasing" provision on so-called "vested rights." While I am not unqualifiedly in agreement with the county attorney's opinion, he correctly notes that the current ordinance provides protection for a preliminary plat only for five years and recommends that the County may wish to extend this period (as it has the statutory authority to do) for a longer period. This would, of course, be beneficial to a developer to some extent. However, the impracticality of such an extension is apparent from a practical analysis of how a subdivision would have to be developed under a "phasing" plan like the current proposal. Assuming that a particular subdivision, as depicted on a preliminary plat, contained 20 lots, at a rate of two lots every 10 years, the entire development could be recorded for sale only after the passage of 90 years. In other words, assuming the current phasing proposal had been in effect then, such a small subdivision would only now be subject to final recordation if the first phase had been recorded in 1916. To put this proposal further in context, had such a provision been in effect with the original Albemarle County zoning ordinance (adopted in April of 1968), and had the first phase been recorded at that time, the developer could have recorded 8 lots as of the present time, with 2 more lots to come in 2008. Planning Commissioner Higgins has noted that the development of a subdivision requires a substantial "upfront" investment in infrastructure (particularly roads). This is likely to be especially true for a cluster subdivision, in which the infrastructure is typically compressed for the area of the cluster lots but intentionally separated from the existing public roads. While it would not be necessary to construct all such improvements at the time of the original recordation, at least some of them would have to be constructed at that time, almost certainly a greater portion of the total investment than would be proportionate to the initial return on investment from the sale of two lots. Even if the approval permitted a "conservation tract", this would amount to only three lots. Since only two, or possibly three, lots could be recorded initially, it is questionable whether the roads could be included in the secondary highway system, with its minimum requirement of 3 occupied dwellings per mile. Even if it were, it is questionable whether VDOT would accept such a road for maintenance when the ultimate buildout was so great and so distant in time. At a minimum, such an enormous delay would greatly increase the difficulty and the cost of the bonding for the ultimate construction of such improvements which are required by the subdivision ordinance. The upshot of all of this is that it is nearly inconceivable that any prudent landowner would go through the time, effort and expense of designing a subdivision knowing that even a small subdivision could not be completed within his lifetime. Moreover, unless the "vested rights" period were extended to a very long time (e.g., at least 50 years), no developer could have any reasonable expectation that the approved preliminary plat would remain effective for a time sufficient for him to recoup his investment. In effect, then, the "phasing" proposal would not only restrict but prohibit development of by-right uses. It would not be productive to go further into the status of such an ordinance, but suffice it to say that, in my opinion, this aspect of the proposal raises substantial additional questions as to the basic legality of the "phasing" proposal. 4. Conclusion For the foregoing reasons, it is my opinion that the proposed concept of "phasing", i.e., limiting by-right residential subdivision to not more than 2 lots every ten years, is of dubious legality. By contrast to the foregoing analysis, to my knowledge, the County has presented no authority to support an argument that such an ordinance would be within its authority. To my knowledge, the only legal basis for sustaining such an argument has been anectodal comments by non-lawyers that Madison and Rockingham Counties have somewhat similar provisions and that four or five lawyers in Harrisonburg thought those provisions were OK. Because of the large amounts of money invested in the land which would be affected by the adoption of any such ordinance, it is inevitable that such an ordinance would be subjected to many prompt, well-financed and ultimately successful challenges by both current landowners and potential developers. As the proposal becomes more specific, it may be productive to subject it to further scrutiny. Respectfully submitted, Frederick W. Payne 412 East Jefferson Street Charlottesville, Virginia 22902 434-977-4507 fwpayne@paynehodous.com