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HomeMy WebLinkAbout1987-04-15 adjApril 15, 1987 (Afternoon- Adjourned Meeting) (Page 1) An adjourned meeting of the Board of Supervisors of Albemarle County, Virginia, was held on April 15, 1987, at 3:00 P.M., in Meeting Room 5, Second Floor, County Office Building, Charlottesville, Virginia; said meeting being adjourned from April 8, 1987. PRESENT: Mr. F. R. Bowie, Mrs. Patricia H. Cooke (arrived at 3:04 P.M.), Messrs. Gerald E. Fisher, J. T. Henley, Jr., C. Timothy Lindstrom (arrived at 3:03 P.M.) and Peter T. Way. ABSENT: None. OFFICERS PRESENT: Mr. Guy B. Agnor, County Executive; Mr. George R. St. John, County Attorney; Mr. John T. P. Horne, County Planner; Mr. Robert W. Tucker, Jr., Deputy County Executive; and Mr. Charles Burgess, Zoning Administrator. Agenda Item No. 1. Mr. Fisher. The meeting was called to order at 3:05 P.M. by the Chairman, Agenda Item No. 2. Work Session: Amendment to Zoning Ordinance - Development of "Kernel" (Original or Parent Parcel) Lots. Mr. Fisher announced that this work session was scheduled some weeks ago and that the staff had prepared another staff report. Mr. Horne stated that the report before the Board today is in addition to the report of February 2 (set out in full on page 234, M.B. 26, Minutes of February 11, 1987). He remarked that he had spent hours of discussion with the Zoning Administrator, his staff, and with the County Attorney's staff. He then summarized his reports by discussing the different sections of the Zoning Ordinance. He said that central to this report are some assumptions made by the staff in trying to determine the particular problems of the Board members. The first assumption is that the Board wishes to address only the subdivision of property which would create new buildable parcels. The second assumption is that the Board does not wish to prohibit the alteration of a parcel that was in existence at the time the ordinance was adopted in 1980 to the extent necessary to realize one dwelling unit. The staff's report dated April 7, 1987, follows: I. Possible Merits of an Ordinance Amendment: A discussion of the possible merits of an ordinance amendment to require addi- tional review of proposed subdivisions in the rural areas subdivisions should first focus on the specific sections of the Zoning Ordinance that regulate the developability of a parcel. Those sections are listed below: 4.1 4.2 4.2.1 4.2.2 4.2.3 4.2.4 4.2.5 4.2.6 4.6.6 6.5 10.4 Area and Health Regulations Related to Utilities Critical Slopes Building Site Required Area Regulations Location of Structures Location of Septic Systems Modification of Regulations Exemptions Lot Access Requirements Nonconforming Lots Area and Bulk Regulations in the RA District Ail these sections can influence a particular parcel or transaction, depending on the circumstances. Some provisions clearly distinguish between existing (1980) non-conforming parcels and new parcels created since 1980. II. Assumptions: The staff remains unclear as to the specific problem which the Board of Super- visors wishes to address in this discussion. The staff in this report will, therefore, make the following assumptions as to the nature of the problem to be addressed: ao The Board wishes to address only the subdivision of property which would create new buildable parcels. The Board does not wish to prohibit the alteration of an existing (1980) parcel to the extent necessary to realize one building permit for one dwelling unit. The remaining discussion in this report will follow from these two assumptions. If these assumptions are not correct, the staff would need specific direction from the Board of Supervisors as to their objectives in this matter. III. Current Staff and Commission Procedures: The staff, on approval of the Planning Commission, has applied an interpretation of the Board of Supervisors "Hopewell Subdivision decision" which has not verified that all provisions of these sections of the Zoning Ordinance were being met on the original parcels. The Commission instructed the staff to look at those things that could be done "in-house" when verifying that the minimum building area for each proposed lot was being derived from the parent parcel. The Commission felt that this was consistent with the original idea of the rural area regulation, which was not to require large amounts of data for the sub- mission of a special permit for subdivision application. The staff has, there- April 15, 1987 (Afternoon - Adjourned Meeting) (Page 2) fore, been looking at slopes, building area, flood plain, and stream location, when reviewing preliminary plats and special permit applications for their consistency with the Hopewell decision. The Commission felt that to require full verification of septic field location, hypothetical road locations, and hypothetical yard requirements would cause n applicant to produce two full subdivision plats and soil studies: one for the division of the parent parcel as it existed in 1980, and one for the actual proposal. The two primary items which, therefore, have not been verified are health requirements (well and septic) and lot access/frontage. The Board should also be aware that the Commission and staff have not been requiring that the actual dwelling be placed on the original parcel if the resulting parcel had additional areas which were also suitable for a building area.. We have been verifying that the original parcel could support a dwelling. IV. Specific Effects of Proposed Ordinance(s) Based on the Assumptions In II Above: If the above assumptions are correct and, therefore, the Board wishes to require verification (or actual provision) of all the above requirements on newly subdivided parcels, staff is of the opinion that the subdivision ordinance would be the logical place to place the requirement. This would allow existing (1980) parcels to be enhanced in order to obtain one building permit for one dwelling unit. This has been~ and would continue to be through exempt plats where additional land is required to satisfy the Zoning Ordinance requirements for a building permit. The specific effects of the additional requirements on new subdivisions would depend on whether the Board of Supervisors wishes that all the ordinance pro- visions simply be verified on the original parcels or whether they would require these provisions to be actually provided on the original parcels. Verified Option: Health systems verification would require additional cost and time to the applicant on the front end in order to obtain additional soil survey and/or Health Department reviews. The additional cost would be where the appli- cant is not actually proposing to necessarily build a dwelling on the original parcel. Lot access/frontage verifications would require development of preliminary road layouts to each original parcel by a surveyor or engineer and review of these layouts by the County Engineering Department. Again, the addi- tional cost would be where the applicant does not actually propose to provide the lot access/frontage to the original parcel due to economical or environmental reasons. The most dramatic effect would be on those parcels which do not have any or adequate road access in 1980. In those cases, the original parcel would be ineligible for future subdivision. Provided Option: For health systems to be actually provided to the original parcel would require that the unit be constructed on the original parcel in most cases. Based on past experience, a relatively few new lots or parcels would be lost under this requirement. Some lots, however, would be lost. The road access or frontage requirements would once again have their most dramatic effects on parcels which have no road acCess or inadequate road access in 1980. These parcels would be ineligible for subdivision. For those parcels that did have adequate access to provide an internal road, the road design would be dictated by parcel lines and not physical fea- tures. One result could be very circuitous road layouts with little regard for sound land planning or environmental degradation. The other result could be that some roads, and therefore subdivisions, would become infeasi- ble. The memorandum of February 2, 1987, attempts to describe the potential effects on specific parcels. The Board may wish to review that memorandum prior to its April 15 work session. The staff will again be available to discuss specific examples, if the Board wishes. General Effects: The general effects of such a proposed ordinance change or changes would follow from the accumulation of specific effects on individual parcels. The general effects could be as follows: Loss of Overall Development Potential: In general, there would be a decrease in the overall development potential in the Rural Areas district. The exact extent of this loss would be difficult to quantify. The factor which would have the most effect would be the road access/frontage requirement, with the most impact coming if each original parcel would need to actually have frontage provided on the original parcel. This loss of development potential would tend to support one of the basic goals of the Comprehensive Plan which is to limit future population growth in the rural areas. April 15, 1987 (Afternoon - Adjourned Meeting) (Paqe 3) 34¥ B. Road Stripping: Another probable effect would be an increase in the amount of subdivision along existing public roadways. With increased cost of construction and/or prohibition of the use of internal roadways, the demand for rural housing lots would be pushed towards properties with existing road frontage. Again, the quantity of this activity would be difficult to anticipate. This would tend to be counter to one of the basic goals of the Compre- hensive Plan which is the preservation of the scenic quality of the rural areas. C. Housinq Cost in the Rural Areas: The overall loss of land available for possible development in the rural areas would probably, in the long run, increase the cost of housing in the rural areas. As a limited supply of land is used to satisfy the demand for rural housing, cost will rise. This issue is not addressed in the Compre- hensive Plan but is an inevitable outgrowth of any implementation of the current Comprehensive Plan policy. The proposed ordinance would probably accelerate this trend. D. Land Cost: Some studies have shown that the cost of rural land for agricultural or forestal purposes tends to drop in the long run when the locality strictly limits that land's development potential. The price of housing lots (parcels) would tend to rise under these types of regulatory schemes, both in the short and long run. The drop in the price of agricultural and forestal lands would tend to support the Comprehensive Plan goal of agri- cultural and forestal preservation. The rise in rural housing lot prices, to the extent that it limits demand for rural lots, would tend to support the Comprehensive Plan goal of limiting future population growth in the rural areas. E. Pressure on Growth Areas: A general effect of any measures to further limit rural area housing growth is the inevitable increase in pressure on the designated growth areas. The Comprehensive Plan calls for this pressure and attempts to encourage it. The pressure will, however, place a premium on actions to provide the necessary facilities in the growth areas to support the additional growth. F. Administration: The proposed ordinance changes would further complicate the administration of the ordinance. The current ordinance, with its use of 1980 conditions to evaluate current development potential, is very complex to administer and extremely difficult to describe to most property owners. The level of additional complexity would vary with different ordinance proposals and among different specific parcels. It is the staff's understanding that the Board also wished for the staff to look at the option of eliminating development rights in the rural areas. Obviously, such a discussion is extremely complex and depends almost entirely on the type of scheme that would replace development rights. If development rights were eliminated and all subsequent development would require the issuance of a special use permit by the Board of Supervisors, the major effect on the County government would be a dramatic increase in administrative time and cost of the Rural Areas district. Both the Planning Commission and Board, along with the staff, would be required to spend more time on review and issuance of special use permits. The major effect on landowners would be increased time and cost on the front end for all proposed divisions. I hope this memorandum has provided some background for the discussion at the April 15 work session. If you have any questions, please do not hesitate to contact me. Mr. Bowie asked Mr. Horne the staff's reaction when they get something and they can see it can't be done. Mr. Horne replied that it is discussed with the applicant, and if he cannot realize a given number of development rights, he does not get them credit for those development rights. He said it varies constantly and depends on the layout and what is actually being proposed. Mr. Fisher wanted to check the assumption that the staff doesn't want people to do two preliminary subdivision plats, one for the way the lots were in 1980, and one as they want do the development now. He said the assumption is that the one they want to do will be approved. He asked the staff to look at this assumption. Mr. Lindstrom said that he didn't think it was clear to the staff what the concern was. His understanding is that it was "B" not "A". Mr. Horne stated that he understood what Mr. Lindstrom was saying, but he did not understand what Mr. Fisher had stated. Mr. Fisher then~gave an example of a subdivision, and they continued to discuss this issue. Mr. Horne said that he wasn't at the Board Meeting when this work session was set up, but it was his understanding that the Board wanted staff to look at the option of essentially eliminating development rights in the rural areas. He stated that the Planning Commission has been looking at a lot of different options in the rural areas. He asked if the Board meant that by eliminating development rights, all divisions would then be made by Special Permit? Mr. Fisher said that request was not from the Board, but from a member of the April 15, 1987 (Afternoon- Adjourned Meeting) (Paqe 4) public. Mr. Horne said that if this were done, the major effect on the County government would be increased administrative time and costs. He said the major effects on landowners would also be the increased time and cost on the front end for all the proposed divisions. Mr. Fisher responded that he did not think the Board wanted to review every subdivision that occurs in the County. He stated that the issue that brought the matter to a head is the fact that some of the Board members were surprised, if not shocked~ to find that the staff was actually in the business of transferring development rights from parcel to parcel in an administrative fashion sometimes, and other times through the Planning Commission. He said he wasn't sure whether or not the Board should rewrite the ordinance. Mr. Horne commented that he understood the original intent of the ordinance was really for very small scale divisions to get a lot here and there for people whose primary interest was agricultural and forestal activities or rural open area type activities. He said that when 95 percent of the County is under that provision there's a tremendous number of people who have no int~ention of using the land that way. Mr. Fisher stated that staff has to deal with the ordinance as it is written, and he feels as if development rights are being trans- ferred. Mr. Horne disagreed. Mr. Fisher asked Mr. David Bowerman, Chairman of the Planning Commission, to give his discourse of how the Planning Commission has been dealing with this. Mr. Bowerman said that Mr. Horne is right in the action the Planning Commission had taken in terms of the amount of work that has to be done to prove if the rights existed. He said that was the general consensus of the Commission. He said the Commission relies 100 percent on the staff and the County Attorney's office to give them the correct interpretation of what the ordinance allows as far as the transfer of development rights and the issue of the road perhaps not being on the actual parcel but off-site. He thinks the ordinance would have to be changed if the interpretation is wrong or is not what the Board intended. Mr. Fisher and Mr. Horne next discussed the question of a landlocked parcel. gave an example for Mr. Horne to interpret. Mr. Fisher Mr. St. John and Mr. Lindstrom discussed the interpretation of the ordinance. Mr. St. John said he thought the reason for this meeting was that the Board wanted to see more clearly what would happen if the amendment as proposed at the March 11, 1987, meeting (see M.B. 26, Page 276) was made. He thought the Board wanted to go through the ordinance and look at examples. Mr. St. John drew an example on the Board which he said was a composite of approximately three situations, but that it was not something that had come before the Planning Commission or the Board. Mr. Lindstrom asked Mr. St. John if he was going to show the Board why it would be illegal to enact the change. Mr. St. John replied that it would be illegal and very diffi- cult to defend in court having interpreted the ordinance any way but how it is being inter- preted. He then proceeded to go through his example with the Board. Mr. Lindstrom told Mr. St. John that everything hinged on legal advice given the Board in 1980, and Mr. St. John replied that, if Mr. Lindstrom looked back at the minutes, he would find that he had told the Board that this ordinance was going to be an administrative nightmare. Mr. Lindstrom and Mr. St. John discussed the use of the table under Section 10.4. Mr. Lindstrom said he did not understand how a distinction can be made between some things and other things that are in the same table. Mr. St. John replied that it is a hard distinction to make, but the staff has done it. Mr. Lindstrom and Mr. St. John continued to debate the example that Mr. St. John had drawn. Mr. St. John said he was not trying to defend his interpretation. He is present to explain to the Board the staff's thought process when they made the interpretation. He said the point he wanted to make was that he knew of no way to preserve agricultural or forestal land except to prevent the division and redivision of that land. Mr. St. John stated that he would not like to see the County before the judiciary trying to defend their land use program. He said to defend the concept is one thing, but he would not like to have to defend it in a factual situation. He feels that if anybody challenged the proposed amendment, the whole RA concept will be attacked. He questioned whether the courts would separate the amendment from the entire structure and strike it down. He thinks any judge will' say it's arbitrary and capricious and bears no relation to anything having to do with public health, safety, or welfare. Mr. Fisher, Mr. Horne and Mr. St. John went on to discuss different circumstances dealing with road access. Mr. St. John discussed the proposed amendment with the Board members and said it would say that all the tables plus all special regulations about setbacks, and so forth, have to be accomplished on the 1980 parcel. He said that any time that all of the table couldn't be accomplished on the site of the 1980 parcel, a special use permit would have to be used. He said that he thought if the amendment was enacted without any outlet or safety valve such as a special use permit, people would go to the Board of Zoning Appeals for a variance. Mr. Fisher said he thought the coupling of Sections 10.3.1 and 10.5.1 should be con- sidered. He feels that they have to be read together. Mr. St. John agreed. Mr. Horne explained that his interpretation and memo may be incorrect because he thought a number of Board members didn't want to allow that internal road to come off the public road on another parcel. It that's incorrect, then some of his assumptions in the staff report are incorrect. 397 April 15, 1987 (Afternoon - Adjourned Meeting) __~.Page 5) . Mr. Lindstrom commented that the proposed amendment that triggered this whole debate said that the requirements of 10.4 shall be met on the parcel. He said it didn't say any- thing about getting a road to it. It says frontage. It says minimal lot size. He said he didn't think there was anything in the table that precludes going across a parcel, if you're not getting your frontage that way, as long as you are accomplishing the frontage on the kernel lot. Mr. Horne asked if, under that interpretation, should things such as 4.1, Health Depart- ment approval, be left out. He said that he thought they were making progress. He said that at least the staff was getting a better understanding of what some Board members are talking about. Mrs. Cooke stated that some board members had the advantage of being in on the original formation of this ordinance. She is having to play catch-up. Mr. Horne went through his staff interpretation again, and also what he thinks the Board is saying. He said it makes a big difference in what the staff is thinking. He asked again if the Board means to just apply the table and not the Health Department requirements? Mr. Lindstrom asked that the Board quit discussing the Rural Areas, and he and Mr. Horne discussed the Hollymead community and the allowance that was allowed there until a public sewer line could be hooked up. They then debated requirements of the ordinance as it deals with road frontage and access. Mr. Bowie then gave an example of a person with two acres who bought 20 more. He asked if a person would be allowed to build on the 20 acres. Mr. Horne responded that the staff is trying to find out what the Board wants them to do in that case. Mr. Lindstrom, Mr. Fisher, Mrs. Cooke and Mr. Bowie continued to discuss this example. Mr. Lindstrom concluded that it couldn't be divided differently, but it does not preclude a person from locating a house on the property. Mr. Keeler commented that he is confused, and he thinks they deal more with individual small property owners in subdivisions. He said that is the issue of applying the entire table to the property as it existed on December 10, 1980. He went on to provide the Board with an example of an elderly person having to sell some land. He stated that there are a lot of people having acreage that they sell to a neighbor. Mr. Lindstrom inquired why they could not just have a boundary line adjustment. He said he does not think that a boundary line adjustment, sale or exchange is a division. Mr. Keeler, Mr. Lindstrom, Mrs. Cooke and Mr. Horne continued to discuss the circumstances of Mr. Keeler's example and boundary line adjustments and/or sale and exchange. Mr. St. John said that what the RA district does is key everything to boundaries as they existed in 1980. He reminded Board members that they have no legal power to keep people from changing the actual property boundaries as the years go on. He said that these 1980 bounda- ries would become more remote from present reality every year. He also stated that there would be an almost geometric increase year by year in the amount of work it takes to go back to trace through the title to find out what the boundaries were in 1980 and how many of the development rights that vested in 1980 had been used. He told Board members that they are also faced with a legal problem. He said that Virginia statutes say that the zoning map is to be kept in the office of the Zoning Administrator. He stated that this is not being done in Albemarle County. The zoning map is in effect being kept in the Clerk's Office of the Circuit Court where plats are recorded. That is becoming a problem, especially for title e- xaminers. Mrs. Cooke and Mr. Bowie discussed boundary lines again, with Mrs. Cooke giving another example. She then asked Mr. Horne if she had owned the first strip and purchased the second strip for the purpose of getting better positioning for using the land for her home, could she do that? Mr. Horne replied that under the option where he assumes the Board would not want to prohibit that person from realizing one building permit, she could do that. He explained, however, that if you go back in the Zoning Ordinance and apply the setback re- quirements to everything as it existed in 1980 and just applied the table, it would be applied from the 1980 line. Mr. Lindstrom said that he thinks the ordinance could be amended in such a way to avoid that problem by tying it to the creation of new parcels. He said it would not be tied to boundary line adjustment or sale or exchange. Mr. Horne commented that this is true up to the point of realizing one building permit. But he couldn't adjust it to the extent of splitting it down the middle. Mrs. Cooke said that she wanted to clarify in her mind that if she was an innocent person who just wanted more room, could she move her boundary line? Mr. Bowie then gave an example of a man owning property since 1980 and having to build a "T" shaped road up one of the property lines all the way across the back of the property just because he did not own the ten foot strip. He asked if this was correct. Mr. Horne said this was correct, and Mr. Lindstrom said he could build the road across the front as long as the frontage is on the parcel that generated the rights. Mr. Bowie said it didn't make any sense to him. Mr. Lindstrom gave the Board members a brief glimpse of what it was like when the Board was working on the revisions to the zoning ordinance in 1980. He reminded the Board that subdivisions must be looked at as a use. He said it is not a passive thing. He stated that if you could eliminate, as Mr. Ed Bauer suggested, all development rights, the ordinance would be vastly simplified. He said that, obviously, this Board is not about to do that. In his opinion, the question before the Board is to minimize the amount of development that's 358 April 15, 1987 (Afternoon~- Adjourned Meeting) (Page 6) happening in the rural areas under this interpretation of the Zoning Ordinance. He said that he was upset because the Board has had a "parade of horribtes" brought before them, and he does not feel most are applicable. Mr. St. John said that the people who owned 100 or 750 or 50 acres were told that their development rights were not being taken, but they were being left a modicum of development rights. He said that they got five development rights, but nothing was said that they can't use them unless they touched the road at that time. Mr. Fisher said that he feels that the issue is not whether or not the lot had road frontage in 1980. It's how it's developed when you get into dividing it out. He asked to drop the issue. Mr. St. John responded that someone had said that the reason the Board is here today is that there are too many lots being developed under the ordinance as it is written. Mr. Fisher said he did not say that. He said that the interpretation appears to be granting density rights that he doesn't think are there. Mr. St. John asked if any parcel under that section had more than five lots divided off of it without a Special Use Permit? Mr. Fisher said he did not believe so. Mr. St. John said in his judgment there have not been too many of them, and that there was only the number that was in the ordinance that people were told they could have. Mr. Lindstrom stated that the density on the "kernel lot" is higher under this inter- pretation of the ordinance. Mr. St. John responded that the possible density, topography- wise, is higher. But, he said that there was not a parcel of land on which more than five lots have been developed without a.Special Use Permit. He stated that to him, that means that the requirements of the ordinance have been met. Mr. Fisher said he thought that the Board had pretty much exhausted their ability to focus on this subject at this meeting. He does not think the issue is resolved. He does not think everybody is happy with it. But he does think there has been better communication about what the issues are. He said that he thought further discussion needed to be deferred on this until someone can put something together. He asked the staff to do this. He thinks that if the Board members want changes, it's up to the Board members to try to determine with the staff how they could be accomplished. And then it needs to be brought back for further discussion. Mr. Henley stated that he did not think the staff had to do anything any different as long as the person had the two acres and the building site, except for the Health Department regulations. Mr. Fisher said the debate would have to be cut off for now. He said he appreciated the efforts that have gone into this by the staff. He thinks everybody has advocated their positions valiantly, but there is still not a complete resolution. Agenda Item No. 3. tioned at this time. Other Matters Not Listed on the Agenda. No other items were men- Agenda Item No. 4. Adjourn. Board, the meeting was adjourned. At 5:28 P. M., with no further business to come before th~