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HomeMy WebLinkAboutAP202100003 Staff Report 2022-03-01401 McIntire Road, North Wing Count of Albemarle Charlottesville,VA22902-4579 y Telephone: 434-296-5832 =1� COMMUNITY DEVELOPMENT DEPARTMENT WWW.ALBEMARLE.ORG ALBEMARLE COUNTY BOARD OF ZONING APPEALS ELECTRONIC MEETING VIA ZOOM AGENDA TUESDAY, MARCH 1, 2022 at 2:00 P.M Call to Order 2. Establish a Quorum 3. Public Hearings: A. AP2021-003 Appeal of LOD2021-013 Homestays Ownership Eligibility Property Owner: Howe Whitman/Howe D. Whitman Jr. Family Trust Appellant: 5600 Turkey Sag Road, LLC/Bradford Manning Staff: Lea Brumfield/Bart Svoboda B. AP2022-00001 WNG, LLC - Homestay Property Owner: WNG, LLC Appellant: WNG, LLC & Attila Woodward Staff: Lea Brumfield/Bart Svoboda 4. Approval of Minutes A. February 1, 2022 5. Old Business A. Review and Re -Adopt Rules of Procedure 6. New Business 7. Adjournment This meeting is being held pursuant to and in compliance with Ordinance No. 20-A(16), An Ordinance to Ensure the Continuity of Government During the COVID-19 Disaster. The opportunities for the public to access and participate in the electronic meeting are posted on the Albemarle County website on the Board of Zoning Appeals home page and on the Albemarle County calendar. Participation will include the opportunity to comment on those matters for which comments from the public will be received. https://www.albemarle.org/government/communitV-development/advisorV- boards/board-of-zoning-appeals. BOARD OF ZONING APPEALS ELECTRONIC MEETING GUIDELINES Thank you for attending the Board of Zoning Appeals (BZA) electronic meeting. The following information is provided to help ensure the meeting proceeds as efficiently and effectively as possible. As a courtesy to others, please turn off all unused cell phones during the meeting. General Information: This meeting is recorded and later transcribed into minutes approved at a later meeting date. Each item set for public hearing will begin with a presentation of the staff report. Next, the applicant or appellant for that item will be invited to speak. During the course of the process, the Chairman will open the public hearing to comments from the public. At the end of these proceedings the Chairman will announce that the public hearing is closed. Once the public hearing is closed, no further public comments will be allowed unless the Board asks for additional information from the applicant or appellant. For staff and applicants, there is a 15 minute time limit for presentations and a 5 minute time limit for rebuttal comments. The BZA reserves the right to digress from these guidelines in any particular case. To Members of the Public: If you wish to address the BZA during the public hearing, please follow the instructions below: - Log in/call in early. - Via Web: Use the "Raise Hand" icon to notify the BZA Clerk that you would like to sign up to address a public hearing item. The Clerk will acknowledge you and list your name on the sign-up sheet for the specific public hearing item. When the public hearing is opened, the Clerk will introduce each speaker for comment. - Via Phone: Press '9 to notify the BZA Clerk that you would like to sign up to address a public hearing item. The Clerk will acknowledge you and list your name on the sign-up sheet for the specific public hearing item. When the public hearing is opened, the Clerk will introduce each speaker for comment. If you do not sign up to speak prior to the meeting, an opportunity to sign up will be given prior to the close of the public hearing. When this opportunity is announced, follow the directions above to notify the BZA Clerk that you would like to provide comment on a public hearing item. Time keeping is conducted through a timer. Each speaker is allotted three (3) minutes to comment. The timer will commence when you begin speaking; you will be notified when three minutes has ended, and you are requested to bring your comments to a close as your microphone will be muted after several seconds. In order to give all speakers equal treatment and courtesy, the BZA requests that speakers adhere to the following guidelines: • When called to address the BZA, please state your name. For uncommon spellings, please spell your name for the record. • Address comments directly to the BZA as a whole - open public debate is prohibited. • You may email written statements and other relevant material to BoardofZoningApgealsaalbemarle.oro to be included in the record. • If you represent a group or organization, you may identify the group to be recognized. • If you exceed your allotted time, you will be asked to end your comments and the microphone will be muted. • If a speaker does not use all allocated time, the unused time may not be shared with another speaker. • Speakers are permitted one opportunity to comment during each of the public comment periods per meeting. Additional Guidelines for Applicants and Appellants addressing the Board: Understand that the Board of Zoning Appeals cannot change County ordinances. The BZA reserves the right to place additional time limitations on speakers, as necessary. From: Kelsey Schlein <kelsey@shimp-engineering.com> Sent: Wednesday, February 23, 2022 10:15 AM To: Marsha Alley Cc: Lea Brumfield; Bart Svoboda; Andy Herrick; Bradford Manning Subject: Re: Update on Albemarle County homestay regulations CAUTION: This message originated outside the County of Albemarle email system. DO NOT CLICK on links or open attachments unless you are sure the content is safe. Hi Marsha, Yes, that is correct, we are requesting a deferral of the public hearing to the May 3rd meeting. Thank you! On Wed, Feb 23, 2022 at 9:23 AM Marsha Alley <malley3@albemarle.org> wrote: Good morning, Kelsey! I will include your request for deferral of AP2021-013 to the BZA meeting on May 3, 2022 in the BZA packet that is scheduled for distribution tomorrow. The BZA will consider your request at their scheduled meeting on March 1, 2022. Please confirm that this is your intent and that the requested meeting date is correct. Thank you, Marsha From: Kelsey Schlein <kelsey@shimp-engineering.com> Sent: Monday, February 21, 2022 1:10 PM To: Lea Brumfield <lbrumfield@albemarle.org> Cc: Bart Svoboda <bsvoboda@albemarle.org>; Andy Herrick <aherrick@albemarle.org>; Marsha Alley <malley3@albemarle.org>; Bradford Manning <bradford@twoblindbrothers.com> Subject: Re: Update on Albemarle County homestay regulations CAUTION: This message originated outside the County of Albemarle email system. DO NOT CLICK on links or open attachments unless you are sure the content is safe. Hey Lea, Thanks for this information. I've discussed this with Brad and we'd like to request deferral of AP2021-013 until the BZA's May meeting. Can you let us know if the BZA can accommodate this on their schedule and if so, could you let us know if you need anything more formal from Brad to process the deferral request? Thanks again. 2 Best, Kelsey On Mon, Feb 21, 2022 at 9:03 AM Bradford Manning <bradford@twoblindbrothers.com> wrote: Thanks for sharing, How does this impact our particular situation? I thought our issue was around the disallowance of the LLC to have a short-term rental permit. BRADFORD MANNING p: (917) 722-6284 m: (434) 249-4580 e: bradford@twoblindbrothers.com w: http://twoblindbrothers.com hq: 379 West Broadway I Suite 311 1 New York NY 10013 follow us: Facebook I Twitter I Instagram I Youtube On Thu, Feb 17, 2022 at 6:24 PM Lea Brumfield <lbrumfield@albemarle.org> wrote: Ms. Schlein and Mr. Bradford, As we prepare for the upcoming appeal hearing, postponed from our prior Board of Zoning Appeals meeting, I wanted to reach out to update you on some proposed changes to the Albemarle County Zoning Ordinance's homestay regulations, to make sure you were aware of the current situation. Zoning Text Amendment 2021-04, Homestay Updates, is currently scheduled for a public hearing before the Board on April 6th. Among other changes, one proposed change would be to make rural area parcels of greater than 5 acres eligible to apply for a special exception to permit a resident manager to reside on a property in lieu of an owner residing on a property. This 3 would still be subject to approval by the Board of Supervisors, who would consider each case on its own merits, but this does open up eligibility to request the special exception where none existed before. This Zoning Text Amendment was recommended for approval by the Planning Commission on February 1st. The details of that meeting, including the Action Memo, Minutes, Recording, and Agenda, which includes the staff report for the item, can be found here: https://www.albemarle.org/Home/Components/Calendar/Event/2095/16?backlist=%2fgovernm ent %2fcommunity-development%2fadvisory-boards%2fplanning-commission%2f-folder-1105%2f- toggle-allpast I hope this information is helpful. Best regards, Lea Brumfield (she, her) Senior Planner II, Zoning Division Albemarle County lbrumfield@albemarle.org 434-296-5832 x3023 401 McIntire Road, Charlottesville, VA 22902 KELSEY SCHLEIN Project Manager / Land Planner Kelsey@Shimp-Engineering.com Shimp Engineering, P.C. 912 East High St. Charlottesville, VA 22902 434.227.5140 // shimpdesign.com KELSEY SCHLEIN Project Manager / Land Planner Kelsey@Shimp-Engineering.com Shimp Engineering, P.C. 912 East High St. Charlottesville, VA 22902 434.227.5140 // shimpdesign.com 4 COUNTY OF ALBEMARLE MEMORANDUM U M TO: Albemarle County Board of Zoning Appeals FROM: Andrew H. Herrick, Deputy County Attorney DATE: January 25, 2022 RE: 5600 Turkey Sag Road LLC; Appeal No. AP 2021-00003 On behalf of the County, the County Attorney's Office submits the following summary of legal issues raised in the appeal of 5600 Turkey Sag Road LLC (the "Appellant") (No. AP 2021- 00003). The Appellant is appealing an official determination regarding a proposed homestay at 1202 Simmions Gap Road (the "Property"). 1. Summary of Facts On or about July 22, 2021, the Appellant applied for a zoning clearance for a proposed homestay (HS202100037) on its property at 5600 Turkey Sag Road. On or about September 20, 2021, the Appellant's application was denied. The Appellant neither requested an official determination on 5600 Turkey Sag Road nor appealed the denial of its application. Separately, on or about August 9, 2021, River Rock, LLC requested an official determination (LOD202100013 application) regarding the ownership qualifications for a proposed homestay on its separate Property at 1202 Simmons Gap Road. On or about October 27, 2021, the Zoning Administrator's designee responded with an official determination (LOD202100013 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." The Appellant appealed this determination on or about November 24, 2021. (AP202100003) The Appellant's property at 5600 Turkey Sag Road is a 21.2-nnile drive (by the shortest route) from the subject Property at 1202 Simmons Gap Road. To the County's knowledge, the Appellant owns no interest in the subject Property, and is not affiliated with the subject Property's owner in anyway. 2. Applicable Standards A. Standard of Review: Presumption of Correctness / Appellant's Burden of Proof 1 5 Virginia Code S 15.2-2309(1) enables the Board of Zoning Appeals (BZA) to "hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement of [the zoning ordinance]. The decision on such appeal shall be based on the board's judgment of whether the administrative officer was correct" See Board of ZonrugAppcals ofJames City County v. University Square Associates, 246 Va. 290 (1993). Virginia Code S 15.2-2309(1) further provides: "The determination of the administrative officer shall be presumed to be correct At a hearing on an appeal, the administrative officer shall explain the basis for his determination after which the appellant has the burden of proof to rebut such presumption of correctness by a preponderance of the evidence." [emphasis added] B. AAulicable Law This appeal potentially involves two separate areas of the law- one procedural and the other substantive. Before even considering the substance of an appeal, the BZA must first determine whether an appellant has standing. Virginia Code S 15.2-2311(A) provides in part "An appeal to the [BZA] may be taken by any person aggrieved ... by any decision of the zoning administrator or from any order, requirement, decision or determination made by any other administrative officer in the administration or enforcement of this article, any ordinance adopted pursuant to this article, or any modification of zoning requirements pursuant to S 15.2-2286." The Supreme Court has clearly articulated the meaning of "aggrieved" in zoning appeals: "The term `aggrieved' has a settled meaning in Virginia when it becomes necessary to determine who is a proper party to seek court relief from an adverse decision. In order for a petitioner to be `aggrieved,' it must affirmatively appear that such person had some direct interest in the subject matter of the proceeding that he seeks to attack. Nicholas v. Lawrence, 161 Va. 589, 592, 171 S.E. 673, 674 (1933). The petitioner `must show that he has an immediate, pecuniary and substantial interest in the litigation, and not a remote or indirect interest' Id. at 593, 171 S.E. at 674. Thus, it is not sufficient that the sole interest of the petitioner is to advance some perceived public right or to redress some anticipated public injury when the only wrong he has suffered is in common with other persons similarly situated. The word `aggrieved' in a statute contemplates a substantial grievance and means a denial of some personal or property right, legal or equitable, or imposition of a burden or obligation upon the petitioner different from that suffered by the public generally. Insurance Assn v. Conmionwealth, 201 Va. 249, 253, 110 S.E.2d 223, 226 (1959)." Virginia Beach Beautification Comm n v Board of Zornnw Appeals, 231 Va. 415, 419-420 1986 The Supreme Court went on to emphasize the importance of having a property interest to be "aggrieved": "In the present case, the Commission, for example, neither owns nor occupies real property within or in close proximity to the property that is the subject of the variance application. Indeed, the Commission owns no property at all. And it has not otherwise demonstrated a direct, immediate, pecuniary, and substantial interest in the decision to grant the variance to the height and setback requirements applicable to freestanding signs in the City. The organization is merely a nonstock corporation with no specific property interests to be damaged." Virginia Beach Beautification Conran v. Board of2oningAppeals, 231 Va. 415, 420 (1986) The Circuit Court of Albemarle County applied the above precedents in the case of In Re: May 3, 2011 Decision of the Board of Zoning Appeals of Albemarle County (Case No. CL11000406-00), which involved the Restore N' Station project near Crozet One of the appellants in that case was a concerned citizen who lived and owned property over 21 miles from the subject of that appeal. Following the above precedents, the Albemarle Circuit Court agreed that in order to have standing to appeal a decision of a Board of Zoning Appeals, a petitioner must have a direct and immediate pecuniary interest in the Petition. The Court ruled that the concerned citizen's interests in that Petition did not comply, as required by the law. b. Homestav Zoning Ordinance County Code § 18-5.1.48(i)(2) outlines the standards by which homestays located on a parcel of five acres or more in the Rural Areas (RA) zoning district (such as the subject Property) may be conducted. Most notably for the present case, County Code § 18-5.1.48(i)(2)(vi) provides: "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." (emphasis added) 3. Apnlication/Analysis Like the Petitioners in the Virginia Beach Beautification Comm'n and May 3, 2011 Albemarle BZA appeals, 5600 Turkey Sag Road LLC has no direct immediate, pecuniary, or substantial interest in the 1202 Simmons Gap Road Property, and therefore cannot be "aggrieved" by the zoning determination. Like the Petition in the Virginia Beach Beautification Comm n case, the present appeal should be dismissed. b. Homestay Residency Requirement Beyond the appellant's lack of standing, the determination under appeal was in fact correct As noted above, County Code § 18-5.1.48@(2) (vi) requires that the owner of a parcel conducting a homestay use reside on and be present at the subject property during the homestay use except during approved whole house rentals. In this case, the appellant LLC is a business entity, and therefore cannot "reside" at 5600 Turkey Sag Road, as required. Please seethe Zoning Administrator's memo for additional analysis of this issue. 5. Conclusion For the reasons stated above, this appeal should be dismissed, and the official zoning determination affirmed. Cc: Bart Svoboda, Zoning Administrator STAFF: Bart Svoboda, Zoning Administrator Lea Brumfield, Senior Planner II PUBLIC HEARING: February 1, 2022 STAFF REPORT: AP2021-00003 APPLICANT/APPELLANT: Bradford Manning 5600 Turkey Sag Road, Keswick, VA Subject Property: 1202 Simmons Gap Road, Dyke, VA - Tax Map 9, Parcel 24D (the "Property") Location: The subject Property is located at 1202 Simmons Gap Road in northern Albemarle County near the northeast comer of Plunkett Rd (SR603) and Simmons Gap Road (SR663), as shown on the attached map (Attachment A). Considering an Appeal: The BZA's decision on appeal is limited to the purpose of determining whether the decision of the Zoning Administrator was correct and the terms and provisions of the zoning ordinance were applied correctly. This appeal does not consider whether the proposed use is appropriate, whether it is in the public interest, or whether a zoning regulation is invalid or needs to be amended. The purpose this hearing is only to determine if the ordinance was applied correctly. Homestay Ordinance 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 "Homestay." 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 Zoning District. The Property at 1202 Simmons Gap Road is a 24.91-acre parcel located in the Rural Areas Zoning District. 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 following 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 a homestay. (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(i)(1)6v). (County Code § 18-5.1.48 (i)(1), emphasis added) 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 (such as the subject Property) 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 operating homestays across multiple parcels. Application History: On May 3, 2021, Mr. Howe Whitman III applied for a Homestay Zoning Clearance HS202100020 (Attachment B) at 1202 Simmons Gap Road. Though the application listed Mr. Whitman as the Property Owner/Operator, the Property was listed under an LLC on County real estate records. On May 13, 2021, Mr. Whitman was informed by e-mail (Attachment C) that staff was unable to approve the Homestay Zoning Clearance application because the Property was then owned by River Rock LLC. On August 9, 2021, Mr. Whitman requested a Zoning Determination (LOD2021-013) regarding the denial of HS202100020. On October 27, 2021, a Zoning Determination (LOD2021-013) was issued confirming the eligibility requirements for HS202100020. 2 On November 23, 2021, River Rock LLC transferred ownership to Howe Whitman, Trustee of the Howe Whitman Jr. Family Trust. On November 24, 2021, the Appellant, 5600 Turkey Sag Road LLC (Bradford Manning), filed an appeal (AP2021-003) regarding LOD2021-013 for the subject Property located at 1202 Simmons Gap Road. On January 6, 2022, Homestay Zoning Clearance HS202100020 was issued after Mr. Whitman transferred ownership of the subject Property as indicated in LOD2021-013. Grounds for Zonine Administrator's Determination: 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 the 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 that section. Staffs Response to Appeal: This appeal raises three basic points. In response to the first, Official Determination LOD2021-013 issued to Howe Whitman, III on October 27, 2021 is for 1202 Simmons Gap Road. Though Mr. Manning may have a similar ownership structure, the determination was not issued for his parcel or application. The owner of the subject Property did not appeal the determination. In fact, after Mr. Whitman changed the ownership of the subject Property as indicated in LOD2021-013, he was issued a Homestay Zoning Clearance on January 6, 2022. A mere similarity to the subject Property alone is insufficient to establish standing that harm exists. As the determination was not issued for 5600 Turkey Sag Road, the appeal should be dismissed on the grounds that Mr. Manning lacks standing and is therefore not an aggrieved party. Second, there is no dispute with the appellanfs statement that his LLC is the owner of the separate property at 5600 Turkey Sag Road. The law recognizes an LLC as a separate legal entity in its own right. This entity acts as a shield for an individual member or members, to distinctly separate the owner from the members. An LLC does not lose its legal ownership of a property just because a member or manager resides on that property. If an LLC is a property's owner, then its member(s) are not. Again, the appellant has stated he is "the sole manager of the LLC." Regardless of what the appellant thinks the ordinance should allow, the resident manager option is not available for Rural Areas parcels larger than five acres. Lastly, the applicant states there is no reference in the County Code that suggests that to reside is an action that can be fulfilled by a natural person. The example cited from the Cambridge dictionary 10 states: "to live, have your home". An LLC is an entity, it is not a person. The zoning ordinance lists a variety of regulations regarding the use and occupancy of a structure. The ordinance speaks to the number of unrelated persons in a dwelling; it also differentiates between an owner, its agent, a resident manager, tenant, an employee, occupant, developer, subdivider, or family member. Although an entity or a person can own property or structures, only a person can occupy or reside in structures or on a property. Because an entity, such as an LLC, is not a person, it cannot occupy or reside in a structure or on a property; the entity can only own it. A property owned by an LLC does not meet the requirements of Section 5.1.48(j)(2)(vi) of the zoning ordinance and cannot be approved for a homestay use. Summary Because the determination under appeal was not issued for 5600 Turkey Sag Road, the appeal should be dismissed on the grounds that Mr. Manning lacks standing and is therefore not an aggrieved party. If appeal is heard. On October 27, 2021, an Official Zoning Determination (LOD2021-013) was issued confirming the eligibility requirements for HS202100020; the evidence supports the determination that the application did not meet the requirements of Section 5.1.480)(2)(vi) of the zoning ordinance and could not be approved. Because the Zoning Administrator's determination was and is correct, staff asks that the Board of Zoning Appeals affirm this determination. Proposed Motions: For Dismissal: I move that the Board of Zoning Appeals dismiss this appeal AP202100003. If the appeal is heard: I move that the Board of Zoning Appeals affirm the Zoning Administrator's determination in LOD202100013. Attachments: Attachment A: Map Attachment B: Homestay Zoning Clearance HS202100020 Attachment C: LOD202100013 Whitman Application and Correspondence Attachment D: LOD202100013 Whitman Property Determination Letter 11 Attachment E: HS2021-037 5600 Turkey Sag Road LLC Attachment F: Zoning Ordinance § 5.1.48 (Homestay) Attachment G: AP201300003 Application - Justification Manning 12 Location Map: Attachment A F,e'. L)alaa u O1e,laV., 1Ila Amemn,le AI, Va,I Le el I 13 Attachment B Homestay APPROVED Community Development Zoning Clearance A tt, ,�fp pA��bemarle Coun:.. 401 McIntire Rd, North Wing j�[ opt1'W `7 Charlottesville, VA 22902 L ,�`7S`Melopment Departme ' Phone 434.296.5832 Fax434.972.4126 Date _ Submittl is completed application with the foll41%Q or to the address atwvey ---- 1. Floor plan/property sketch with labeled structures used for the homestay, guest bedrooms, owner's bedroom outdoo, 1. I ghting158 and signage for the homestay, labeled setbacks, and parking (minimum 2+ 1 spot/guest bedroom). 2. Copies of two forms of verification of residency (onegovernment issued with photo ID +one listing the address . acceptable fo0ins include driver's license, voter registration card, U.S. passport, others as approved by the Zoning Administrator) 1. Homestay Information Residentially Zoned and✓ural area parcels of less than 5 acres may have 2guest bedrooms by-rlght, Use of accessory structures Of built before August 7, 201 9)i5 : onlypermitted by right on rural area parcels of 5+acres. Whole house rental is only permittedon Nral areaporcels of s+.acres. apoRess: 1202 Simmons Gan Read 9000000024D ' AGVFUGED td , >-trj� F Y.at. q;,rL� :are:: fiver Mea ows Farm NC� 4 1 JSI�G C F55CR.'S'R i s .�RFq'. 'Lti' ®,.. 2. Property Owner/Operator Information ----------- Howe Whitman III 1202 Simmons Gap Road _ STA.E,,ZP St. George, VA 22935 ® No howewh itman@gmail.com 3, Responsible Agent Information The responsible agent must be available within 30 miles of the homestay at all times during a homes toy use, and must respond and attempt in good faith to resolve anycomplaints within 60 minutes of being contacted no Travis Wilburn 100 Second St NW ATE, A, Charlottesville, VA 22902 H ^ 434-242-0380 4. Signature I hereby appiy for approval to conduct the homestay identified above, and certify that this address is my legal residence, and that I own the property or that I have recieved a special exception to operate the homestay as a resident manager. I also certify that I have read the restrictions on homestays, that I understjnSL them, and that I will abide by them. m DA• E: 6 3 z !SF vti�E� id lnsEr,' On dare 0 PJKB a ,,l -N ^gip ov d e �Pa�s Fin rig -nieiL 14\K \ IE 1-3 A e) �. i i I Lt7 r 15 rt, aka p�i -1"t .-r -)A --N4 -�t Attachment C FOR OFFICE USE ONLY LOD7# Fee Amount $� y Date PaiBy who? ie_ceipt # C.1✓� Ck#�� By:, Application for Official Letter of Determination 0 Official Letter of Determination of Parcel of Record and/or Development Rights = $123.76 Official Letter $119 + Technology Surcharge $4.76 A separate fee is required for each parcel shown on the tax map. (1 parcel is $119 + $4.76 = $123.76, 2 parcels are $238 + $9.52 = $24752, etc.) ❑ All other Official Letters of Determinations (including but not limited to Use, Zoning, Nonconformity, Parking, Floodplain, Vested Rights, Area & Bulk Regulations, De minimis) = $123.76 Official Letter $119 + Technology Surcharge $4.76 nCertification that notice of this application has been provided to the property owner if the owner is different from applicant. Project Name: Homestay aodication Tax map and parcel(s): 9000000024D Zoning: BA1 Contact Person (Who should we call/write concerning this project?): Howe Whitman Jr. Address 1202 Simmons Gan Road City St. George State 22935 Zip Daytime Phone (609) 468-2596 Fax # (_) Owner of Record E-mail.howewhitman@gmaii.com Address 1202 Simmons Gan Road City St. George State VA Zip Daytime Phone (609) 468-2596 Fax # (_) Applicant (Who is the Contact person representing?): Howe Whitman III E-mail howewhitman@gmail.com Address 1202 Simmons Gap Road City St. George State VA Zip Daytime Phone ( 609) 468-2596 Fax # (_) E-mail howewhitman@gmail.com County of Albemarle Department of Community Development 401 McIntire Road Charlottesville, VA 22902 Voice: (434) 296-5832 Fax: (434) 972-4126 Official Letter of Determination Application Revised 7/1/2021 P* 1 of 2 Submittal Requirements Parcel of Record and/or Development Rights ❑ Tax Map Page ❑ Provide evidence showing when the parcel/parcels was/were created. This will include the following; ❑ The last instrument of record in the Clerk's Office of the Circuit Court of Albemarle County, Virginia on or prior to December 10,1980. ❑ Include deeds that provide a plat or metes and bounds description of the property. (Highlight or underline references to the subject property). ❑ All plats and deeds of record after December 10, 1980, UP UNTIL THE PRESENT DATE. (Highlight or underline references to the subject property). ❑ Cover letter stating the assumed number of parcels and development rights, with explanation of same. ❑ Any other pertinent information. ❑ A fee is reauired for each separal shown on the tax All other Determinations ® Cover letter stating what is being requested. Provide all necessary information for the consideration of this decision including 0 Tax Map Page if request is regarding a specific property. ❑ If the request is regarding a nonconforming use, structure, or lot then you must provide enough probative material evidence to prove the nonconformity. 0 Provide justification for the request and any other pertinent information. 0 Fee as noted above. Please refer to the Albemarle County Land Use Law Handbook for more information regarding zoning determinations and nonconformities. http://wwwAlbemarle.org/LandUseLaw Determination may take up to ninety (90) days from submittal Signature of Owner' Howe Whmtman Jr. Aanager, River Rork I I Q Print Name 7/30/2021 Date sos-asa-lass Daytime phone number of Signatory Official Letter of Determination Application Revised 7/1/2023 Page 2 of 2 Howe Whitman Jr. 1202 Simmons Gap Road St. George, VA 22035 August 1, 2021 County of Albemarle Department of Community Development 301 McIntire Road Charlottesville, VA 22902 Re: Request for Letter of Determination Homestay Application 1202 Simmons Gap Road St. George, VA 22935 Dear Sir or Madam, We submitted a Homestay Application for the referenced parcel this spring. The application was dismissed because the parcel is held in an LLC. I have enclosed correspondence with Lea Brumfield in the Zoning Office. The LLC is merely a means of limiting our liability. The LLC is owned 100% by a family trust. In fact, the LLC and the family trust have the same tax identification number; the LLC is a "disregarded entity" according to the IRS, meaning the IRS considered the LLC and the family trust to be one and the same for tax purposes. The ownership is transparent and easy to verify - the LLC is registered with the Commonwealth of Virginia. The zoning office said that if we switched the parcel to direct ownership by the family trust, then our application would be acceptable. Therefore, I request a letter of determination on this issue. On what basis of law is our application being dismissed? Thank you for your attention to this matter. Si Howe Whit r. Trustee of the Howe D Whitman Jr Family Trust Manager of River Rock, LLC, a wholly owned LLC of the Trust 19 Gmail - Re: 1202 Simmons Gap Homestay Ownership Issue https://mail.google.com/mail/u/l?ik=425e58idb9&view=pt&search=... M Gmail Howe Whitman, Jr. <howe.whitman@gmail.com> Re: 1202 Simmons Gap Homestay Ownership Issue 1 message Lea Brumfield <Ibrumfield@albemarle.org> Wed, Jul 28, 2021 at 12:04 PM To: "Howe Whitman, Jr." <howe.whitman@gmail.com> Cc: Travis Wilburn <travis@staycharlottesville.com> Hi Howe, Unfortunately, the ownership question isn't up to staff to interpret. We have been given firm direction on this from the County Attorney's Office, and we're not able to allow LLC's as a form of ownership without a "resident manager" on the property, which is not permitted on large rural parcels. I do understand it's frustrating, but it's unfortunately one of the situations where the regulations intended to restrict purely commercial hotel -like situations ends up catching family farms under the same regulations. Please let me know if you have any additional questions. Best regards, Lea Brumfield, AICP Candidate (she, her) Senior Planner Il, Zoning Division Albemarle County Ibrumfield@albemarle.org 434-296-5832 x3023 401 McIntire Road, Charlottesville, VA 22902 On Jul 28, 2021, at 11:40, Howe Whitman, Jr. <howe.whitman@gmail.com> wrote: CAUTION: This message originated outside the County of Albemarle email system. DO NOT CLICK on links or open attachments unless you are sure the content is safe. Hello Lea, Thanks for your reply below. I could dissolve the LLC that holds the property for the family trust. What is strange is that the LLC is owned 100% by the family trust. The LLC even has the same tax id number as the trust. thus, they are one and the same entity to the IRS. The only thing that changes if I dissolve the LLC is that I lose the protection of the LLC which limits our liability. That's a big deal when you are trying to run a farm - with all the heavy equipment, cows, chainsaws, and homestay visitors, there is a lot of potential liability. I understand that Albemarle County wants to make sure the Homestay properties are owner occupied and not operated by businesses. In this case, it is very easy to verify that the LLC and the trust are one and the same - the LLC ownership is registered with the Commonwealth of Virginia. Isn't there another way to verify owner occupancy without taking away our liability protection? Thanks for your consideration. Howe On Fri, Jul 9, 2021 at 3:50 PM Lea Brumfield <Ibrumfield@albemarle.org> wrote: Hi Howe, 20 if 4 7/30/21.2:54 PM Gmail - Re: 1202 Simmons Gap Homestay Ownership Issue https://mail.google.com/mail/u/1?ik=425e581db9&view=pt&search=... Yes, that is correct. If the property is held in a family trust and a beneficiary of the trust is the full-time resident of the property, that is an acceptable form of ownership. Best regards, Lea Brumfield (she, her) Senior Planner H, Zoning Division Albemarle County lbrumfield@albemarle.org 434-296-5832 x3023 401 McIntire Road, Charlottesville, VA 22902 From: Howe Whitman, Jr. <howe.whitman@gmail.com> Sent: Friday, July 9, 2021 2:58 PM To: Lea Brumfield <Brumfield@albemarle.org>; Travis Wilburn <travis@staycharlottesville.com> Subject: Re: 1202 Simmons Gap Homestay Ownership Issue CAUTION: This message originated outside the County of Albemarle email system. DO NOT CLICK on links or open attachments unless you are sure the content is safe. Ms. Brumfeld, I have a follow up question about our application. If the property were held in a family trust, is that deemed an acceptable form of ownership for homestay purposes? Thank you. Howe On Fri, May 28, 2021 at 10:00 AM Howe Whitman, Jr. <howe.whitman@gmail.com> wrote: Hello Ms. Brumfield, Thanks for your email. It's my understanding that the county supervisors are having a hearing about the Homestay code which would potentially change the rules in favor of our application. Thus, I request that you keep our application active, pending their decision. Thank you. Howe 21 2 of 4 7/30/21, 2:54 PM Gmail - Re: 1202 Simmons Gap Homestay Ownership Issue https:Hmail.google.com/mail/u/l?ik=425e58ldb9&view=pt&search= On Thu, May 27, 2021 at 5:24 PM Lea Brumfield <Ibrumfield@albemarle.org> wrote: Mr. Whitman, I just wanted to confirm before I take action — I'll be marking your application as withdrawn due to the ownership issue tomorrow. Since we cannot legally approve the application at this time, the only possible actions are to deny the application or withdraw it. Lea Brumfield (she, her) Senior Planner ll, Zoning Division Albemarle County lbrumfield@albemarle.org 434-296-5832 x3023 401 McIntire Road, Charlottesville, VA 22902 From: Lea Brumfield Sent: Thursday, May 13, 2021 5:34 PM To: howewhitman@gmail.com Subject: 1202 Simmons Gap Homestay Ownership Issue Mr. Whitman, I'm reviewing your recently submitted Homestay Zoning Clearance Application for a homestay at 1202 Simmons Gap Road, but there is unfortunately an issue with the application. As it's currently held under an LLC, "River Rock LLC," the property is not eligible to be used as a homestay. Our County Attorney has determined that as an LLC is not a natural person, an LLC cannot "occupy" a parcel, and therefore an LLC- owned parcel cannot be owner occupied. The regulations chart found in the application packet is below; please note that under Required Occupancy for Rural Areas parcels over 5+ acres, there is no permitted Special Exception for owner occupancy. If you wanted to switch the ownership of the parcel to your own name, with we would be able to proceed with the application review. If not, we will refund your application fee. Let me know how you'd like to proceed, or if you have any additional questions. <image002.png> Best regards, 22 7/30/21.2:54 PM Gmail - Re: 1202 Simmons Gap Homestay Ownership Issue Lea Brumfield (she, her) https://mail.google.com/mail/u/l?ik=425e58 Idb9&view=pt&search=... Senior Planner ll, Zoning Division Albemarle County lbrumfield@albemarle.org 434-296-5832 x3023 401 McIntire Road, Charlottesville, VA 22902 ww� image002.png 248K RECEIVED COMMUNITY pEVELoPMENT 4of4 23 7/30/21.2:.54 PM Attachment D V 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 II, Zoning IbrumfieldCo)al bemarle.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 following waivers or modifications: IQ 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 a homestay. (iii.) The use of an accessory structure built after August 7, 2019. (iv.) Resident Manager occupancy instead of owner occupancy as required by 5.1.486)(1)(M. (County Code § 18-5.1A8 (i)(1), emphasis added) WWW.ALBEMARLE.ORG 401 McIntire Road, Suite 228 1 Charlottesville, VA 22902-4596 24 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 propertywith 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" following three 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.albemarle.org/government/community-development/apply-for/letter-of-determination-or-zon ing- 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 25 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- development/advisory-boards/board-of-zoning-appeals. If you have any questions, please contact me. Sincerely, C�el--� Lea H. Brumfield Senior Planner II, 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 26 Attachment E Homestay Zoning Clearance Application Submit this completed application with the following online or to the address above: Albemarle County S. 'y Community Development 401 McIntire Rd., North Wing Charlottesville, VA 22902 ,`r,na"nr Phone 434.296.5832 1 Fax 434.972.4126 Application fee: $158 1. Floor plan/property sketch with labeled structures used for the homestay, guest bedrooms, owner's bedroom, outdoor lighting and signage for the homestay, labeled setbacks, and parking (minimum 2 + 1 spot/guest bedroom). 2. Copies of two forms of verification of residency (one government issued with photo ID+ one listing the address - acceptable forms include driver's license, voter registration card, U.S. passport, others as approved by the Zoning Administrator) 1. Homestay Information Residentially zoned and rural area parcels of less than 5 acres may have 2guest bedrooms by -right. Use of accessorystructures (if built before August 7, 2019) is only permitted by -right on rural area parcels of 5+acres. Whole house rental is only permitted on rural area parcels of 5+acres. ADDRESS: 600 Turkey Sag Road CITY.STATE,ZIP: Keswick, Virginia, 22947 TAX MAP PARCEL (IF KNOWN): ADVERTISED NAME OF HOMESTAY (IF APPLICABLE): NO. OF GUEST BEDROOMS: b I USING ACCESSORY STRUCTURES? 2. Property Owner/Operator Information NAME: HOME ADDRESS: CITY, STATE, ZIP: PHONE NUMBER: 600 Turkey Sag Road LLC 00 Garrett Street, Suite O Charlottesville, VA, 22902 I ZONING (IF KNOWN): I ACREAGE OF PARCEL: YES (NO) I WHOLE HOUSE RENTAL? I C—YE—S-73NO 434) 249 4580 EMAIL: bradford@twoblindbrothers.com 3. Responsible Agent Information The responsible agent must be available within 30 miles of the homestay at all times during homestay use, and must respond and attempt in good faith to resolve any complaints within 60 minutes of being contacted. NAME: HOME ADDRESS: CITY, STATE, ZIP: PHONE NUMBER: Bradford Manning 5600 Turkey Sag Road Keswick, VA 22974 434 249 4580 EMAIL: bradford@twoblindbrothers.com 4. Signature I hereby apply for approval to conduct the homestay identified above, and certify that this address is my legal residence, and that I own the property or that I have recieved a special exception to operate the homestay as a resident manager. I also certify that I have read the restrictions on homestays, that I understand them, and that I will abide by them. SIGNATURE: FOR OFFICE USE ONLY Fee Amt: $158 Date Paid: — SSafety inspection date: Pass Fail Receipt er / � 9 /� / VVD�6od Service (if necessary): Ck#:0 r C r Notes: Received by: 1 /W,w 04 Ly—('A./)/)o-'— HSa1211_3 - _1 ref-otre. Re"o l wilc 3PP4$g13J_�611g}bs DATE: 07/19/2021 2nd inspection date: Pass Fail Floorplan /Parking /, D Reviewd By: Date: Approved Denied 27 Homestay Zoning Clearance Application �a',r,uy_ Albemarle County _.. Community Development 401 McIntire Rd., North Wing �`' Charlottesville, VA 22902 Phone 434.296.58321 Fax 434.972.4126 Submit this completed application with the following online ortotheaddressabove: Application fee: $158 1. Floor plan/property sketch with labeled structures used for the homestay, guest bedrooms, owner's bedroom, outdoor lighting and signage for the homestay, labeled setbacks, and parking (minimum 2 + 1 spot/guest bedroom). 2. Copies of two forms of verification of residency (one government issued with photo ID + one listing the address - acceptable forms include driver's license, voter registration card, U.S. passport, others as approved by the Zoning Administrator) 1. Homestay Information Residentially zoned and rural area parcels of less than 5 acres may have 2 guest bedrooms by -fight Use of accessory structures (if built before August 7, 2019) is only permitted by -right on rural area parcels of 5+acres. Whole house rental is only permitted on rural area parcels of 5+acres. ADDRESS: 600 Turkey Sag Road CITY,sTATE,ZIP: Keswick, Virginia, 22947 TAX MAP PARCEL (IF KNOWN): 04900-00-00-024AO ZONING (IF KNOWN): RA ADVERTISED NAME OF HOMESTAY (IF APPLICABLE): ACREAGE OF PARCEL: 370.4i NO. OF GUEST BEDROOMS: USING ACCESSORY STRUCTURES? YES NO WHOLE HOUSE RENTAL? I <YES NO 2. Property Owner/Operator Information NAME: HOME ADDRESS: CITY, STATE, ZIP: PHONE NUMBER: 3. Responsible Agent Information ) Turkey Sag Road LLC Garrett Street, Suite O rlottesville, VA, 22902 ) 249-4580 EMAIL: bradford@twoblindbrothers.com The responsible agent must be available within 30 miles of the homestayat all times during a homestay use, and must respond and attempt in good faith to resolve any complaints within 60 minutes of being contacted. NAME: HOMEADDRESS: CITY, STATE, ZIP: PHONE NUMBER: Bradford Manning 5600 Turkey Sag Road Keswick, VA 22974 434 249 4580 EMAIL: bradford@twoblindbrothers.com 4.Signature I hereby apply for approval to conduct the homestay identified above, and certify that this address is my legal residence, and that I own the property or that I have recieved a special exception to operate the homestay as a resident manager. I also certify that I have read the restrictions on homestays, that I understand them, and that I will abide by them. SIGNATURE: DATE: 07/19/2021 FOR OFFICE USE ONLY Fee Amt $158 Date Paid: pI'O( 2. I Safety inspection date: Pass Fail 2nd inspection date: Pass Fail Receipt #: 7 r t ✓ at 7 J I I W 1 J' 'Ar VDH Food Service (if necessary): Floorplan / A Parking ID Ck#: Notes: n�,�Qn/� (� q rLLpC ' Reviewd By: Le f� d Received by: Cn" AL* �,t-,t r't'1<Q " \ Date: 01 X H S# �— 0 a — 1000 3 % Ref u o Approved Denied 28 5600 TURKEY SAG ROAD HOMESTAY EXHIBITS TO BE POSTED 500 0 50D 1000 1500 2 rapnlaSca,a:1"=500 SHIMP ENGINEERING, P.C. c 5600 TURKEY SAG ROAD HOMESTAY EXHIBITS Sheet 2 OF 2 22 July 2027 50 0 50 100 150 SHIMP ENGINEERING, P.C. caPn sai« ,=50' 1/24/22, 8:19 AM Albemarle County, VA Code of Ordinances Attachment F Sec. 5.1.48 - Homestays. Each homestay is subject to the following regulations: a. Residency. The owner of the parcel on which a homestay is located, must reside on the subject parcel for a minimum of 180 days in a calendar year. b. Notice. The owner of a parcel conducting a homestay use must provide the name, telephone number, and emergency contact information of the owner and other designated responsible agent to abutting parcel owners on an annual basis. The owner must retain and provide a copy of the notice to the Zoning Administrator within five business days upon request. c. Parking. In addition to the parking required for a single-family dwelling, the number of off-street parking spaces required by County Code § 18-4.12.6 must be provided on -site and no alternatives to parking in § 18-4.12.8 may be authorized. d. Information and sketch plan to be submitted with request for zoning clearance. The following documents must be submitted to the zoning administrator with each request for a zoning clearance under County Code § 18-31.5: 1. Information. Information pertaining to the following: (i) the proposed use; (ii) the maximum number of guest rooms; (iii) the provision of authorized on -site parking; (iv) the location, height and lumens of outdoor lighting; and (v) two forms of verification of the permanent residency of an owner. Acceptable proof of permanent residence includes: driver's license, voter registration card, U.S. passport, or other document(s) that the zoning administrator determines provide equivalent proof of permanent residence at the subject parcel. 2. Sketch plan. A schematic drawing of the premises with notes in a form and of a scale approved by the zoning administrator depicting: (i) all structures that would be used for the homestay; (ii) the locations of all guest rooms; and (iii) how access, on - site parking, outdoor lighting, signage and minimum yards will be provided in compliance with this chapter. 3. Signatures. The responsible agent and the owner of the parcel must sign the application. e. Buddingcode, fire and health approvals. Before the zoning administrator approves a zoning clearance under County Code § 18- 31.5, the owner of the parcel must obtain approval of the use from the building official, the fire official, and the Virginia Department of Health. f. Uses prohibited. The following uses are not permitted as uses accessory to a homestay use: (i) restaurants; and (ii) special events serving attendees other than homestay guests. g. Responsible agent. Each applicant for a homestay must designate a responsible agent to promptly address complaints regarding the homestay use. The responsible agent must be available within 30 miles of the homestay at all times during a homestay use. The responsible agent must respond and attempt in good faith to resolve any complaint(s) within 60 minutes of being contacted. The responsible agent may initially respond to a complaint by requesting homestay guest(s) to take such action as is required to resolve the complaint. The responsible agent also may be required to visit the homestay if necessary to resolve the complaint. h. Lawfullypre-existing uses. Any bed and breakfast or tourist lodging use approved prior to August 7, 2019 may continue, subject to conditions of the prior approval(s). i. Special exception. (1) Waiver or modification of this section is prohibited except to permit: (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 a homestay. (iii) The use of an accessory structure built after August 7, 2019. (iv) Resident Manager occupancy instead of owner occupancy as required by 5.1.480)(1)(iv). (2) Special exceptions may be granted after notice to abutting property owners upon consideration of the following: (i) There is no detriment to any abutting lot; and (ii) There is no harm to the public health, safety, or welfare. 31 1/2 1 /24/22, 8:19 AM Albemarle County, VA Code of Ordinances j. Parcel -based regulations. (1) Each homestay located 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 is subject to the following regulations: (i) Number of homestay uses. Any parcel may have only one homestay use. An accessory apartment may not qualify as a dwelling unit for a homestay use. (ii) Dwelling types. Homestay uses may only be conducted in a detached single-family dwelling. (iii) Number ofguest rooms. A maximum of two guest rooms maybe permitted with each homestay use. (iv) Owner occupancy. The owner of a parcel with a homestay use must reside on and be present at the subject parcel during the homestay use. (v) Minimum yards. 1) In the Residential or Planned Development districts, the minimum applicable front, side, and rear yard requirements for primary structures apply to all structures used for homestays; 2) In the Rural Areas district, the minimum front, side, and rear yard shall be 125 feet from any abutting lot not under the same ownership as the homestay, for parking and for structures used in whole or in part to serve a homestay. (2) Each homestay located on a parcel of five acres or more in the Rural Areas district is subject to the following regulations: (i) Number of homestay uses. Any parcel may have up to two homestay uses, provided all other applicable requirements are met. (ii) Accessory structures. Homestay uses may be conducted in accessory structures built on or before August 7, 2019. (iii) Number ofguest rooms. A maximum of five guest rooms may be permitted with each homestay use. (iv) Required development rights, density and limitation. Each single-family dwelling to which a homestay use is accessory must comply with the following regulations: (a) on any parcel less than 21 acres in size, the single family dwelling shall be authorized by a development right as provided in County Code § 18-10.3; (b) on any parcel, regardless of size, the single family dwelling shall comply with the permitted density; and (c) no single family dwelling may have more than one accessory homestay use. (v) Minimum yards. The minimum front, side, and rear yard for parking and for structures used in whole or in part to serve a homestay shall be 125 feet from any abutting lot not under the same ownership as the homestay use. (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. (vii) Owner occupancy during whole house rental. The owner of a parcel conducting a homestay use that is approved for whole house rental maybe absent during the rental period for up to seven days in any calendar month and up to 45 days in any calendar year. The owner shall maintain a log of all homestay uses including the date of each rental for which the owner is absent. This log shall be provided within five business days to the Zoning Administrator upon request. ( Ord 12-18(3) , 6-6-12; Ord. 19-18(6L 8-7-19) 32 2/2 Albemarle County Attachment G Community Developmentuepartme t 401 McIntire Road Charlottesville. VA22902-45% Voice: (434) 2WS832 Fax : (434) 972-4126 �-!' Planning Application ARCEL / OWNER INFORMATION TMPJ 00900-00-00-024DO Owne Application# I AP202100003 Legal Description I ACREAGE WHITMAN, HOWE D, TRUSTEE OF THE HOWE D WHITMAN IR Magisterial Dist. White Hall Land Use Primary Residential -- Single-family (incl. modular homes Current AFD Not in A/F District 'V� Current Zoning Primary Rural Areas APPLICATION INFORMATION Street Address 5600 TURKEY SAG RD KESWICK, 22947 Entered By Jennifer Smith'.v; Application Type Appeal of Zoning Administrator's Determination 11y29; 2o2i Project APPEAL OF LOD2O21-13 - HONEST" OWNERSHIP ELIGIBILITY - DIGITAL Received Date 11/24/21 Received Date Final Submittal Date 12/07/21 Total Fees 743.36 Closing File Date Submittal Date Final Total Paid 743.36 Revision Number Comments Legal 4d SUB APPLICATION(s) TL'Pe Sub Appllcatio Comment APPLICANT / CONTACT INFORMATION wosK 5600 TURKEY SAG ROAD LLC .e . KELSEx SCH LEItI Signature of Contractor or Authorized Agent Phone 200 GARRETT ST SUITE 0 ICHARLOTTESVILL 22902 i9177226254 912 E HIGH ST. CH?RLOTT E5IILL 2290 4342275140 Date 33 FOR OFFICE USE ONLY AP N SIGN # ZONING ORDINANCE SECTION: Fee Amount 9gya0Date Paid flkgy C who?,e -a- {N Rccei�t Vk S ✓J k �- 7 _— Application for 011 Appeal of Zoning Administrator's Determination 0 Appeal of Zoning Administrator's Determination = $295.36 Application $284 +'technology surcharge S11.36 0 Initial notice fee to be provided in conjunction with an application, for preparing and mailing notices and published notice = $448 FEES for re -advertisement and notification of public hearing after advertisement of a public hearing and a deferral is made at the applicant's request ➢ Preparing and mailing or delivering each notice after fifty (50) S237 Preparing and mailing or delivering each notice after fifty (50) $1.19 for each additional notice .i. actual cost of first-class postage > Published notice (published twice in the newspaper for each public Actual cost based on a cost quote from the publisher hearing (avcra cs between 5150 and S250) Contact Person (Who should we call/write concerning this project?): Kelsey Schlein Address 912 E High St. Daytime Phone (434 ) 227-5140 _ Fax # O Owner of Record 5600 Turkey Sag Road LLC City Charlottesville _ State VA Zip 22902 E-mail kelsey@shimp-engineering.com Address 5600 Turkey Sag Road LLC City Keswick Daytime Phone (917 ) 722-6284 Fax Applicant (Who is the Contact person representing?): same as owner Address Daytime Phone C___) City State VA Zip 22947 E-mail bradford@twoblindbrothers.com E-mail State Zip County of Albemarle Department of Community Development 401 iNlclntire Road Charlottesville, VA 22902 Voice: (434) 296-5832 Fax: (434) 972-4126 Appeal Application Revised 7/l/2021 Page I of 2 34--A Project Name: Appeal of LOD 2021-13 - Homestay Ownership Eligibility Tax map and parcel: 04900-00-00-024AO Street Address (ifassigned): Location of properly (landmarks, intersections, or other): Zoning: Rural Areas The following information shall be submitted with the application and is to be provided by the applicant: 1) Completed application including subject of appeal. 2) Justification for applicant's position. including error in Zoning Administrators determination. You may use the space below to provide this information or submit an attached sheet. 3) If applicable, a copy of the latest deed for the property involved, and the approved and recorded plat. 4) If applicable, the appropriate drawings showing all existing and proposed improvements on the property and any special conditions for the situation that may justify the appeal. S) Reference to the relevant Zoning Ordinance section or other applicable regulations or case precedence to justify the appeal. 6) Appropriate fee made payable to the County of Albemarle. Explanation of error in determination and justification of applicant's position: Owner/Applicant Must Read and Sign I hereby certify that the information provided on this application and accompanying information is accurate, true and correct to the best of my knowledge and belief. Signature of Owner or ftntract Purchaser, Agent 5600 Turkey Sag Road by Bradford Manning its Manager Print Name Board of Zoning Appeals Action/vote: Board of Zoning Appeals Chairman's 11/23/2021 Date 917-722-6284 Daytime phone number of Signatory Appeal Application Revised 7/1/2021 Page 2 of 2 35 Albemarle County Community Development 401 McIntire Rd Charlottesville, VA 22902 November 24, 2021 RE: APPEAL OF OFFICIAL DETERMINATION OF HOMESTAY OWNERSHIP ELIGIBILITY (LOD2021-13) I, Bradford Manning, am an aggrieved person by the Official Determination made regarding homestay ownership eligibility; this is an appeal to the Official Determination identified as LOD2021-13 that was issued to Howe Whitman Jr. on October 27, 2021. Mr. Whitman and I have similar ownership structures on our properties that are in the Rural Areas zoning district of Albemarle County and are greater than five acres. We both applied to Albemarle County Community Development to operate homestays on our respective properties. Backeround: In July 202 1, 1 applied with Albemarle County Community Development to conduct a homestay (HS202100037) in my private single-family residence located on Albemarle County tax parcel 04900-00-00-024AO (the "Property"); the Property has a physical address of 5600 Turkey Sag Road. In September 2021, I received a phone call from the Albemarle County Zoning Department notifying me of the denial of my application due to the ownership of the Property being a limited liability company. The Property is owned by 5600 Turkey Sag Road, LLC (the "LLC") which is wholly -owned by the 2012 PBM GRAT fbo Bradford James Manning, a grantor retained annuity trust for the benefit of me, Bradford Manning. I am the sole manager of the LLC. The LLC's address is the Property address. Sec. 5.1.48 of the Albemarle County Zoning Ordinance regulates homestays in the County. My property is located within the Rural Areas Zoning District and is greater than five acres, and therefore my property is subject to the parcel specific regulations enumerated in Sec. 5.1.480)(2), which includes the owner occupancy requirement. Sec. 5.1.480)(2)(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. As aforementioned, the LLC's address registered with the Virginia State Corporation Commission is the Property address, the LLC resides at the Property. Sec. 3.1 of the Albemarle County Zoning Ordinance defines owner Owner. "caner" means the owner or owners ofthe fee simple interest ofreal property The LLC is the owner of the fee simple interest of real property. Appeal: LOD2021-13 makes the official determination that "in order to meet the requirements for a Homestay Zoning Clearance, the [p]roperty must be held by a natural person residing on the [p]roperty, or a family trust whose beneficiary resides on the [p]roperty." Albemarle County's definition of "Owner" is not exclusive to natural persons and there's nothing in the County Code that suggests that a beneficial owner of such fee simple interest is not an Owner for County Code purposes. The County's position discourages the use of limited liability companies to hold real estate, which provide privacy protection and liability protection. Owning property through a limited liability company for these reasons is completely legitimate and the County's homestay ordinance should not favor landowners who do not seek privacy and liability protection over those who do. Ultimately, I take all actions for the Property and the trust for which I am the beneficiary and 1 am residing on the Property —it should count for this purpose. The Analysis section of LOD2021-13 further states that, "[b]ecause business entities (such as limited liability companies) have no physical presence, they cannot reside on a property, and cannot qualify for a homestay use." The County Code 36 does not define "reside," and there is no reference in the County Code that suggests that to "reside" is an action that can only be fulfilled by a natural person. The Cambridge Dictionary defines reside as "to live, have your home, or stay in a place"" and some of Cambridge's examples of reside include: • The answer resides in the calmness of your mind • Ideas can come from anywhere, and talent resides evemvhere • The more accurate way to tell where language functions reside is to do a brain scan These examples demonstrate that reside is an action that can be performed by things other than a natural person. Given the definition of Owner in the County Code, and that "reside" is not defined as an action that is exclusive to a natural person in the County Code, the owner occupancy requirement can be met by an owner other than a natural person. In the case of my homestay application HS202100037, the LLC, of which I am the sole manager, is the owner of the Property and the LLC's principal office address, the physical location of the principal executive offices, is the Property address. Therefore the ownership structure of my property is permitted under the Albemarle County homestay regulations; I request the Board of Zoning Appeals reconsider the Official Determination of Homestay Ownership Eligibility (LOD2021-13). Sincerely, +mr)� Bradford Manning Manager, 5600 Turkey Sag Road LLC Reside. haos'//dictionary cambrid¢e orrz/us/dicfonarv/enclish/reside. Retrieved November 2021 37 0 Albemarle Cour. Planning Application Community Development Deparlmux 4011 are Road Charlottesville.VA229D2.4596 Voice: (434) 296-6832 Fax :1434) 972-4126 Application # I AP202100003 TURKEY SAG ROAD LLC Legal Description I ACREAGE PARCEL A -- Magisterial Dist. Rivanna w Land Use primary Residential -- Single-family (incl. modular home--j, Current A.FO Blue Run i.�7 Current Zoning Primary'Rural Areas Street Address 15600 TURKEY SAG RD KESWICK, 22947 Entered By Application Type .Appeal of Zoning Administrator's Determination --- �; ]enmter Smith,,v 111.+'2912021 Project APPEAL OF LOD2021-13 - HONEST" OWNERSHIP ELIGIBILITY - DIGITAL Received Date Closing File Date Revision Number Comments 11/24/21 Received Date Final Submittal Date Submittal Date Final 12/07/21 Total Fees 743.36 Total Paid 743.36 Legal Ad SUB APPLICATION(s) Type Sub Applicafio Comment APPLICANT / CONTACT INFORMATION C-#ApptT Nartte tin _N.App�.ari 5600 TURKEY SAG ROAD. LLC a + Ccr.eC KELSEr SCHLEIH :address Ci State Zi Phone PhorteCell 200 GARRE17 ST SURE 0 ; CHARLOTTESIRLL ! 22902 9177226284 's 912 E HIGH ST -- _ _ CHkRLOTTEStILL - -140 -" -'22902 -: 4342_75140 Signature of Contractor or Authorized Agent Date 39 FOR OFFICE USE ONLY AP # ZONING ORDINANCE SECTION: Fee Amount Date Paid fli appllcanon for V,_1i'll Appeal of Zoning Administrator's Determination 0 Appeal of Zoning Administrator's Determination = $295.36 Application $284 + Technology surcharge $11.36 © Initial notice fee to be provided in conjunction with an application, for preparing and mailing notices and published notice = $448 FEES for re -advertisement and notification of public hearing after advertisement of a public hearing and a deferral is made at the applicant's request ➢ Preparing and mailing or delivering each notice after fifty (50) $237 ➢ Preparing and mailing or delivering each notice after fifty (50) $1.19 for each additional notice + actual cost of first-class 2ostage ➢ Published notice (published twice in the newspaper for each public Actual cost based on a cost quote from the publisher hearing) averages between $150 and $250) Contact Person (Who should we call/write concerning this project?): Kelsey Schlein Address 912 E High St. Daytime Phone (434) 227-5140 Fax # �) Owner of Record 5600 Turkey Sag Road LLC City Charlottesville Address 5600 Turkey Sag Road LLC City Keswick Daytime Phone 9( 17) 722-6284 Fax # (_) Applicant (Who is the Contact person representing?): same as owner Address Daytime Phone Fax # (—) City State VA Zip 22902 E-mail kelsey@shimp-engineering.com State VA Zip 22947 E-mail bradford@twoblindbrothers.com E-mail State Zip County of Albemarle Department of Community Development 401 McIntire Road Charlottesville, VA 22902 Voice: (434) 296-5832 Fax: (434) 972-4126 Appeal Application Revised 7/1/2021 Page I of 2 40 r�� Project Name: Appeal of LOD 2021-13 - Homestay Ownership Eligibility Tax map and parcel: 04900-00-00-024AO Physical Street Address (if assigned): 5600 Turkey Sag Road Location of property (landmarks, intersections, or other): Zoning: Rural Areas The following information shall be submitted with the application and is to be provided by the applicant: 1) Completed application including subject of appeal. 2) Justification for applicant's position, including error in Zoning Administrators determination. You may use the space below to provide this information or submit an attached sheet. 3) If applicable, a copy of the latest deed for the property involved, and the approved and recorded plat. 4) If applicable, the appropriate drawings showing all existing and proposed improvements on the property and any special conditions for the situation that may justify the appeal. 5) Reference to the relevant Zoning Ordinance section or other applicable regulations or case precedence to justify the appeal. 6) Appropriate fee made payable to the County of Albemarle. Explanation of error in determination and justification of applicant's position: Owner/Applicant Must Read and Sign I hereby certify that the information provided on this application and accompanying information is accurate, true and correct to the best of my knowledge and belief. � I =, Signature of Owner or ftntract Purchaser, Agent 5600 Turkey Sag Road by Bradford Manning its Manager Print Name 11 /23/2021 Date 917-722-6284 Daytime phone number of Signatory Board of Zoning Appeals Action/vote: Board of Zoning Appeals Chairman's signature: Date: Appeal Application Revised 7/1/2021 Page 2 of 2 41 V 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 II, Zoning IbrumfieldCo)al bemarle.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 following waivers or modifications: IQ 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 a homestay. (iii.) The use of an accessory structure built after August 7, 2019. (iv.) Resident Manager occupancy instead of owner occupancy as required by 5.1.486)(1)(M. (County Code § 18-5.1A8 (i)(1), emphasis added) WWW.ALBEMARLE.ORG 401 McIntire Road, Suite 228 1 Charlottesville, VA 22902-4596 42 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 propertywith 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" following three 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.albemarle.org/government/community-development/apply-for/letter-of-determination-or-zon ing- 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 43 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- development/advisory-boards/board-of-zoning-appeals. If you have any questions, please contact me. Sincerely, C�el--� Lea H. Brumfield Senior Planner II, 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 44 Albemarle County Community Development 401 McIntire Rd Charlottesville, VA 22902 November 24, 2021 RE: APPEAL OF OFFICIAL DETERMINATION OF HOMESTAY OWNERSHIP ELIGIBILITY (LOD2021-13) I, Bradford Manning, am an aggrieved person by the Official Determination made regarding homestay ownership eligibility; this is an appeal to the Official Determination identified as LOD2021-13 that was issued to Howe Whitman Jr. on October 27, 2021. Mr. Whitman and I have similar ownership structures on our properties that are in the Rural Areas zoning district of Albemarle County and are greater than five acres. We both applied to Albemarle County Community Development to operate homestays on our respective properties. Background: In July 2021, I applied with Albemarle County Community Development to conduct a homestay (HS202100037) in my private single-family residence located on Albemarle County tax parcel 04900-00-00-024AO (the "Property"); the Property has a physical address of 5600 Turkey Sag Road. In September 2021, I received a phone call from the Albemarle County Zoning Department notifying me of the denial of my application due to the ownership of the Property being a limited liability company. The Property is owned by 5600 Turkey Sag Road, LLC (the "LLC") which is wholly -owned by the 2012 PBM GRAT fbo Bradford James Manning, a grantor retained annuity trust for the benefit of me, Bradford Manning. I am the sole manager of the LLC. The LLC's address is the Property address. Sec. 5.1.48 of the Albemarle County Zoning Ordinance regulates homestays in the County. My property is located within the Rural Areas Zoning District and is greater than five acres, and therefore my property is subject to the parcel specific regulations enumerated in Sec. 5.1.480)(2), which includes the owner occupancy requirement. Sec. 5.1.480)(2)(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. As aforementioned, the LLC's address registered with the Virginia State Corporation Commission is the Property address; the LLC resides at the Property. Sec. 3.1 of the Albemarle County Zoning Ordinance defines owner: Owner. "Owner" means the owner or owners of the fee simple interest of real property. The LLC is the owner of the fee simple interest of real property Appeal: LOD2021-13 makes the official determination that "in order to meet the requirements for a Homestay Zoning Clearance, the [p]roperty must be held by a natural person residing on the [p]roperty, or a family trust whose beneficiary resides on the [p]roperty." Albemarle County's definition of "Owner" is not exclusive to natural persons and there's nothing in the County Code that suggests that a beneficial owner of such fee simple interest is not an Owner for County Code purposes. The County's position discourages the use of limited liability companies to hold real estate, which provide privacy protection and liability protection. Owning property through a limited liability company for these reasons is completely legitimate and the County's homestay ordinance should not favor landowners who do not seek privacy and liability protection over those who do. Ultimately, I take all actions for the Property and the trust for which I am the beneficiary and I am residing on the Property —it should count for this purpose. The Analysis section of LOD2021-13 further states that, "[b]ecause business entities (such as limited liability companies) have no physical presence, they cannot reside on a property, and cannot qualify for a homestay use." The County Code 45 does not define "reside," and there is no reference in the County Code that suggests that to "reside" is an action that can only be fulfilled by a natural person. The Cambridge Dictionary defines reside as "to live, have your home, or stay in a place"' and some of Cambridge's examples of reside include: • The answer resides in the calmness ofyour mind • Ideas can come from anywhere, and talent resides everywhere • The more accurate way to tell where language functions reside is to do a brain scan These examples demonstrate that reside is an action that can be performed by things other than a natural person. Given the definition of Owner in the County Code, and that "reside" is not defined as an action that is exclusive to a natural person in the County Code, the owner occupancy requirement can be met by an owner other than a natural person. In the case of my homestay application HS202100037, the LLC, of which I am the sole manager, is the owner of the Property and the LLC's principal office address, the physical location of the principal executive offices, is the Property address. Therefore the ownership structure of my property is permitted under the Albemarle County homestay regulations; I request the Board of Zoning Appeals reconsider the Official Determination of Homestay Ownership Eligibility (LOD2021-13). Sincerely, Bradford Manning Manager, 5600 Turkey Sag Road LLC t Reside. httos://dictionarv.cambrid¢e.or¢/us/dictionary/en¢lish/reside. Retrieved November 2021 46 ;, • 4 ,� 'W` Albemarle County I�W'j';-1FI Planning Application PARCEL / OWNER INFORMATION TMP 00900-00-00-024DO owner(s) Application # AP202100003 Community DevelopmentDepartme t 401 McIntire Road Charlottesville, VA22902-4596 Voice: (434) 296-5832 Fax : (434) 972-4126 HOWE D, TRUSTEE OF THE HOWE D WHIIMAN IR F PROPERTY INFORMATION Legal Description ACREAGE Magisterial Dist. White Hall Land use Primary Residential -- Single-family (incl. modular homes Current -FD Not in A/F District v Current Zoning Primary Rural Areas APPLICATION INFORMATION Street Address 5600 TURKEY SAG RD KESWICK, 22947 Application Type Appeal of Zoning Administrator's Determination Project 1APPEAL OF LOD2021-13 - HONEST" OWNERSHIP ELIGIBILITY - DIGITAL Received Date 11/24/21 Received Date Final Closing File Date Revision Number Comments Legal Ad SUB APPLICATION(s) APPLICANT / CONTACT INFORMATION Rimary Ca4aG KELSEY SCHLEIN 912 E HIGH ST. Signature of Contractor or Authorized Agent eat Submittal Date 12/07/21 Submittal Date Final Entered By ]ennihr Smith v 1 29 2021 Total Fees 743.36 Total Paid 743.36 4342275140 47 FOR OFFICE USE ONLY AP # ZONING ORDINANCE SECTION: Fee Amount Date Paid fli appllcanon for V,_1i'll Appeal of Zoning Administrator's Determination 0 Appeal of Zoning Administrator's Determination = $295.36 Application $284 + Technology surcharge $11.36 © Initial notice fee to be provided in conjunction with an application, for preparing and mailing notices and published notice = $448 FEES for re -advertisement and notification of public hearing after advertisement of a public hearing and a deferral is made at the applicant's request ➢ Preparing and mailing or delivering each notice after fifty (50) $237 ➢ Preparing and mailing or delivering each notice after fifty (50) $1.19 for each additional notice + actual cost of first-class 2ostage ➢ Published notice (published twice in the newspaper for each public Actual cost based on a cost quote from the publisher hearing) averages between $150 and $250) Contact Person (Who should we call/write concerning this project?): Kelsey Schlein Address 912 E High St. Daytime Phone (434) 227-5140 Fax # �) Owner of Record 5600 Turkey Sag Road LLC City Charlottesville Address 5600 Turkey Sag Road LLC City Keswick Daytime Phone 9( 17) 722-6284 Fax # (_) Applicant (Who is the Contact person representing?): same as owner Address Daytime Phone Fax # (—) City State VA Zip 22902 E-mail kelsey@shimp-engineering.com State VA Zip 22947 E-mail bradford@twoblindbrothers.com E-mail State Zip County of Albemarle Department of Community Development 401 McIntire Road Charlottesville, VA 22902 Voice: (434) 296-5832 Fax: (434) 972-4126 Appeal Application Revised 7/1/2021 Page I of 2 48 r�� Project Name: Appeal of LOD 2021-13 - Homestay Ownership Eligibility Tax map and parcel: 04900-00-00-024AO Physical Street Address (if assigned): 5600 Turkey Sag Road Location of property (landmarks, intersections, or other): Zoning: Rural Areas The following information shall be submitted with the application and is to be provided by the applicant: 1) Completed application including subject of appeal. 2) Justification for applicant's position, including error in Zoning Administrators determination. You may use the space below to provide this information or submit an attached sheet. 3) If applicable, a copy of the latest deed for the property involved, and the approved and recorded plat. 4) If applicable, the appropriate drawings showing all existing and proposed improvements on the property and any special conditions for the situation that may justify the appeal. 5) Reference to the relevant Zoning Ordinance section or other applicable regulations or case precedence to justify the appeal. 6) Appropriate fee made payable to the County of Albemarle. Explanation of error in determination and justification of applicant's position: Owner/Applicant Must Read and Sign I hereby certify that the information provided on this application and accompanying information is accurate, true and correct to the best of my knowledge and belief. � I =, Signature of Owner or ftntract Purchaser, Agent 5600 Turkey Sag Road by Bradford Manning its Manager Print Name 11 /23/2021 Date 917-722-6284 Daytime phone number of Signatory Board of Zoning Appeals Action/vote: Board of Zoning Appeals Chairman's signature: Date: Appeal Application Revised 7/1/2021 Page 2 of 2 49