HomeMy WebLinkAboutSE202200068 Staff Report 2023-02-15 (2)Attachment A -Staff Analysis
STAFF PERSON:
BOARD OF SUPERVISORS:
PROJECT:
PROPERTY OWNER:
LOCATION:
TAX MAP PARCEL:
MAGISTERIAL DISTRICT:
APPLICANT'S PROPOSAL:
Bart Svoboda, Zoning Administrator
February 15, 2023
SE2022-00068 Kindrick Farm — Clean Earth Fill
(4394 Carriage Hill Drive, Earlysville)
Kindrick, Alan, and Ada Joint Trust C/O Timothy K Kindrick
4394 Carriage Hill Drive
03200-00-00-00100 and 03200-00-00-00200
White Hall
The applicant is requesting a special exception for clean earth fill activity, SE2022-00068 on
Parcels 03200-00-00-00100 and 03200-00-00-00200 (Attachment B).
CODE REFERENCES:
County Code § 18-5.1.28(a)(7) requires that the access must be set back 50 feet from property
lines and 100 feet from dwellings on adjacent property.
County Code § 18-5.1.28(a)(11) requires the maximum area for fill activity on any parcel is two
acres. Determining area for fill activity includes all locations used, or designated to be used, for fill,
vehicle storage and vehicle maintenance but does not include area used for exclusively for access.
County Code § 18-5.1.28(b)(5) requires that the placement of fill shall be completed within one
year of its commencement, except for reclamation activities and any other activities associated
with the final stabilization of the area. The program authority may extend the date of completion
upon the written request of the applicant, demonstrating that factors beyond the control of the
applicant prevented the completion within the one-year period. The program authority may then
extend the permit for a period of time that, in its sole discretion, is determined adequate to complete
the work.
CHARACTER OF THE PROPERTY AND AREA:
The property is located at 4394 Carriage Hill Drive, Earlysville (Attachment C). The request
involves two parcels (TMP 03200-00-00-00100 and 03200-00-00-00200) zoned Rural Area
containing 155 +/- acres and 77 +/- acres respectively. The two parcels are mostly open fields
with about 1/3 in trees or brush. The Chris Greene Lake Park borders the property on its eastern
side.
COMPREHENSIVE PLAN:
The property is designated as Rural Area in the Comprehensive Plan. This designation includes
preservation and protection of agricultural, forestal, open space, and natural, historic, and scenic
resources, as discussed in the Rural Area chapter of the Comprehensive Plan.
BACKGROUND:
Both parcels have historically contained agricultural uses. No dwelling units are located on the
parcels. As of the date of this report, there is no record of any zoning violation on either parcel.
Attachment A —Staff Analysis
On February 6, 2004, the County acquired a conservation easement over this property (Attachment
D) to help protect and preserve the rural character of the county, and to further the goals of the
comprehensive plan that promote the continuation of viable agricultural and forestal uses.
On May 24, 2022, the County issued a zoning clearance (Attachment E) approving the applicant's
operation of a two -acre clean earth fill activity on each parcel, as allowed by right in County Code § 18-
4.3.1. The activity is required to be compliant with County Code § 18-5.1.28 (Attachment F) and all
other applicable requirements. The Kindrick property has maintained compliance with the conditions of
CLE202200037. The County Engineering Division has verified that there has been no loss of sediment
from the fill activity. Below is a copy of the truck trips starting in September 2022 demonstrating the
limited availability of clean earth fill to support the fill activity plus the impacts of weather:
Dates
Loads
Average Loads / Day
Start
End
September 17, 2022
September 25
11
1.3
September 26
October 18
16
Less than 1
October 19
October 22
49
12.25
October 23
November 16
11
Less than 1
December 3
December 16
2
Less than 1
December 17
January 19, 2023
0
0
On July 6, 2022, the Albemarle Conservation Easement Authority (ACEA) heard a presentation
about Mr. Kindrick's Natural Resources Conservation Service (NRCS) farm -improvement plan
(including the fill) on his property subject to an existing Acquisition of Conservation Easement
program (ACE) easement. The NRCS farm improvement plan verifies the steps needed for
restoration of Mr. Kindrick's property. ACEA took no action (as the deed doesn't require any prior
approval for this work). There was some discussion, but in general the ACEA indicated that the
NRCS farm improvement plan was appropriate under the terms of the easement that allow
'establishing, reestablishing, maintaining or using cultivated fields, orchards or pastures (including
clearing woodland areas for conversion to crop land or pastureland)" as well as erosion control
and restoration. (NOTE: Mr. Kory Kirkland USDA-NRCS District Conservationist performed an
inspection on Friday December 16, 2022, and the results can be found in his email dated
December 20, 2022 (Attachment G).)
On July 20, 2022, the Board considered Mr. Kindrick's first request for a special exception,
SE2022-00018. Staff recommended denial of that SE, and by a vote of 6:0, the Board adopted a
resolution to deny the exception application. Listed below is the language from Att A — Staff
Analysis from SE2022-00018.
Staff was "unable to support a finding under County Code § 18-5.1 that a modified
regulation (or in this case, the complete lack of regulation under County Code § 18-5.1.28)
would satisfy the purposes of the Zoning Ordinance to at least an equivalent degree as the
applicable requirements. No plan has been provided or proposed that outlines the duration
of the clean earth fill activity, identifies the finished grades once the project is complete, or
ensures that the amount of soil would be limited to 10,000 cubic feet within any 12 months.
Also, 40 +/- acres of the proposed fill area is located along "...Jacobs Run directly upstream
of Chris Greene Lake, potentially negatively impacting those water bodies and downstream
properties. Finally, the subject property is under an ACE conservation easement, co -owned
by the County, that strictly limits grading, blasting, earth removal, and mining."
Attachment A —Staff Analysis
Because Mr. Kindrick's special exceptions are the first applications of County Code § 18-5.1.28 as
this Code was adopted 9-16-2020, these special exceptions have given staff the opportunity to
work through this new code with a willing property owner. As staff and Mr. Kindrick have worked
together, we have worked to build compromises honoring both the Comprehensive Plan's support
of agriculture and Mr. Kindrick's desire to restore his family's farm.
Staff has met with Mr. Kindrick multiple times at the county office building and multiple times onsite.
Staff is also spoken with several of the neighbors to gain an understanding of their concerns.
Further, staff has researched property history and reviewed information from a variety of sources
including the applicant, neighbors, and external agencies.
Mr. Kindrick's initial special exception application differed from this request in several ways. In
working with Mr. Kindrick, he has modified his request as outlined below in this report. Listed below
are staff findings, the applicant's responses, applicant's mitigations offered, and any additional
staff analysis organized around key areas of the Code. A staff recommendation follows.
ANALYSIS OF THE APPLICATION FOR EXCEPTION:
Special exceptions are subject to County Code § 18-33.5, under which the Board may either
approve or deny an application, defer action to allow for changes before final action or refer the
application to the Planning Commission. In addition, the code related to clean earth fill and inert
waste is in Attachment P Sec. 5.1.28 Clean Earth -Inert Waste Breakdown.
To grant the requested special exception, the Board is required to make both general and specific
findings in support of its action. To waive or modify any supplementary zoning regulation generally,
County Code § 18-5.1 requires a finding that the applicable requirement "would not forward the
purposes of [the Zoning Ordinance] or otherwise serve the public health, safety, or welfare or that
a modified regulation would satisfy the purposes of [the Zoning Ordinance] to at least an equivalent
degree as the specified requirement."
1. Regarding the Zoning Ordinance's fill requirements specifically, County Code §18-
5.1.28(d)(1) provides that a variation or exception from any requirement of this section may
be approved upon a finding that any of the following factors are satisfied:
(i) the proposed fill activity would further agricultural use of the property,
(ii) the variation or exception would allow for a more natural appearance of the site
after the fill activity has occurred,
(in) a reduction in setback from the entrance corridor is recommended by the
Architectural Review Board
(iv) the variation or exception is supported by the abutting owners impacted by the
variation or exception
(v) approval of any variation or exception is consistent with an approved and valid
initial or preliminary site plan or any other land use decision of the County
(vi) the proposed fill activity will be of limited duration (less than 90 days) and involve
not more than 10,000 cubicfeet offtll within any 12 months.
Attachment A —Staff Analysis
FINDING: Staff finds the following fill requirements are satisfied by this application: (i), (ii),
(iv) and (v).
2. County Code § 18-5.1.28(a)(7) requires that "Access must be set back 50 feet from
property lines and 100 feet from dwellings on adjacent property."
As shown in Attachment H, the existing access easement (which predates the existence of
the houses and has existed since 1886) passes through 3 parcels each containing a single-
family dwelling. (4405, 4415, 4425 Carriage Hill Drive) and is located along the property
lines. The dwellings were constructed in 1987.
The dwelling located at 4405 Carriage Hill Drive received a variance from the County's
Board of Zoning Appeals (BZA) (Attachment 1) in 1987 to reduce the setback from 25 feet
to 10 feet along the easement. Mr. Van Fossen, BZA member, moved in granting the
variance that the adverse use of the easement would be on the BZA applicant (Craig
Builders), not on Mr. Kindrick.
November 11, 1986, BZA verbatim transcript VA-86-38
Mr. Van Fossen: "Well I am going to make a motion that the variance be
granted in that the adverse use of this easement is upon the applicant or who they
sell their property to, not upon the opposing party (Allan Kindrick) here. I move that
the variance be granted."
FINDING: Based on the variance granted by the BZA, the Applicant should be credited
with 15 feet of distance. However, staff finds the access is not set back 50 feet from
property lines and 100 feet from dwellings on adjacent property.
APPLICANT'S RESPONSE: Applicant acknowledges the easement will remain in its
current location. Mr. Kindrick also provided a letter from Charles W. Hurt of Virginia Land
LLC, in support of this special exception (Attachment J). Mr. Hurt is the owner of the
property adjacent to the access easement, TMP 003200-00-00-00800.
APPLICANT'S MITIGATION: The applicant offers to mitigate traffic impacts along the
easement and through the neighborhood in consideration of this 50-foot access
requirement as follows:
1. That only 10 trucks would run each day of operation (Not trips, but trucks).
2. That the hours of operation be limited to 7:30 am to 6:00 pm, Monday through Saturday.
NOTE: The applicant has provided an email describing the recent dump truck activity so
that staff may better understand the frequency of the truck traffic to and from the site
(Attachment K).
STAFF RESPONSE: The applicant has an existing easement located on other properties.
There is no way that the applicant could meet the 50-foot setback from property lines. This
provision was put in place to prevent adverse impacts on adjoining property. The access
is used to access a single-family dwelling and an agricultural operation. Due to the existing
agricultural operation, it would be normal and customary for large equipment to utilize the
easement. The applicant's fill operations represent a short-term intensification of the
agricultural operation. By limiting the number of trucks per day, the hours those trucks can
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Attachment A —Staff Analysis
operate, and the number of years that the intensified operations occur, the impacts can be
mitigated. Granting the modification with conditions would serve the public health, safety
and welfare to an equivalent degree by minimizing impacts to abutting properties and
encouraging agricultural use of rural lands.
3. County Code § 18-5.1.28(a)(11) requires "The maximum area for fill activity on any parcel
in existence on September 16, 2020 is two acres. Determining area for fill activity includes all
locations used, or designated to be used, for fill, vehicle storage and vehicle maintenance but
does not include area used for exclusively for access.
FINDING: Staff finds the maximum fill area exceeds 2 acres.
APPLICANT'S RESPONSE: In his previous 7-20-2022 application, SE2022-00018, the
applicant requested unlimited fill activity. Following Board feedback, the applicant modified
his request to have not more than 4 acres open to activity at any one time -. Two acres of
activity will be in the reclamation process and two acres will be in the fill activity process.
STAFF RESPONSE: Staff finds this approach reasonable.
4. County Code § 18-5.1.28(b)(5) stipulates "The placement of fill shall be completed within
one year of its commencement, except for reclamation activities and any other activities
associated with the final stabilization of the area. The program authority may extend the date
of completion upon the written request of the applicant, demonstrating that factors beyond
the control of the applicant prevented the completion within the one-year period. The program
authority may then extend the permit for a period of time that, in its sole discretion, is
determined adequate to complete the work."
FINDING: Staff finds the length of activity requested exceeds the one-year timeframe.
APPLICANT'S RESPONSE: Applicant has indicated to staff that he has no control over
the availability of clean earth fill. In addition, because the Applicant has no control over the
availability of clean earth fill or the weather, he cannot estimate the time needed to
accomplish his project.
STAFF RESPONSE: Based on this information, staff offers an option to the Board for
consideration: this project if approved and if compliant with all the above approaches, be
allowed to for up to 5 years. Like the setback requirements for access, the limitation on
how long a fill operation can operate is a method to minimize impacts on abutting
properties. However, it is also a method to minimize impacts on the larger community due
to increased erosion that can occur from soil disturbing operations that can occur over long
periods of time. With conditions, these impacts can be mitigated and result in a waiver that
satisfies the requirements to at least an equivalent degree as complying with the ordinance.
APPLICANT'S MITIGATION: Applicant has requested the following conditions in order to
mitigate impacts:
1. Only 10 trucks will run each day of operation (Not trips, but trucks).
2. The hours of operation will be limited to T 30 am to 6:00 pm, Monday through Saturday.
No fill operations or related activity will occur on Sunday.
3. There will be no more than four acres of activity at one time. Two (2) acres will be in
the reclamation process and two acres in the fill activity process.
4. Each active area must be completed within one year of commencement.
5. The fill activity must cease by August 31, 2028. (5 years in operation).
S
Attachment A -Staff Analysis
ABUTTING PROPERTY OWNER COMMENTS:
Notices to abutting property owners in Earlysville Forest were sent on December 9, 2022. Staff
has received comments (Attachment Q.
APPLICANT RESPONSES:
The applicant has responded by email regarding abutting property owner comments (Attachment
M).
STAFF SUMARY:
In summary, this special exception request is in support of an NRCS-approved reclamation project
on Mr. Kindrick's farm.
Staff has reviewed all the information and takes all concerns seriously. The impacts of a
restoration project such as this are both short-term and long-term. The short-term factors include
truck traffic, ingress/egress concerns and the length of time that project may take to complete. The
long-term impacts, in this case, are restoration of farmland allowing for the ability to continue viable
agricultural and forestal uses.
A restoration project of this size and scope will take some time. However, the project cannot be
open-ended or unchecked. Staff recommends the conditions listed below to bring this project to a
successful completion while limiting of the impacts to the surrounding neighborhood.
Nothing herein shall prohibit the applicant from applying for future special exceptions
RECOMMENDATION:
Staff recommends that the Board adopt the attached Resolution to Approve (Attachment N) which
incorporates the following conditions:
CONDITIONS:
1. Hours of operation shall be limited to 7:30 am to 6:00 pm, Monday through Saturday. No
fill operations or related activity will occur on Sunday.
2. Only 10 trucks will run each day of operation. (Not trips, but trucks).
3. Trucks must access the site through the intersection of Advance Mills Road and Earlysville
Forest Drive to the greatest extent possible.
4. Evidence of fill activity related to this Special Exception will be provided by the Applicant to
the County upon request. Applicant agrees to maintain the ability to fulfil this request.
5. Fill activity will conform with Best Management Practices and with the standards,
specifications, and other special program criteria obtained from the Natural Resources
Conservation Service (NRCS).
6. No more than four acres of activity will be underway at one time. Two (2) acres will be in
the reclamation process and two acres will be in the fill activity process.
7. Each active area must be completed within one year of commencement.
8. The fill activity must cease by August 31, 2028. (5+ years of operation from the approximate
date of the zoning clearance issuance).
Attachment A —Staff Analysis
A. Staff Analysis
B. SE2022-068 Kindrick Special Exception Application and Information
C. Location Map of SE202200068 Proposed Fill Area
D. ACE related information and deed
E. CLE2022-037 Kindrick Fill Area Approved Zoning Clearance
F. County Code § 18-5.1.28 - Clean Earth and Inert Waste Fill Activity Regulations
G. NRCS Maps and Correspondence
H. Access Easement Information
I. BZA Minutes, dated November 11, 1986, for Variance 86-38
J. Virginia Land LLC Letter, dated October 21, 2022
K. Truck Activity Email from applicant
L. Abutting Property Owner Comments
M. Applicant Responses
N. Resolution to Approve
O. Resolution to Deny
P. Sec. 5.1.28 Clean Earth -Inert Waste Breakdown
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Attachment A —Staff Analysis