HomeMy WebLinkAboutAP202300002 Correspondence 2023-03-29 (2)WOODS ROGERS VANDEVENTER BLACK
ATTORNEYS AT LAW
STEVEN W. BLAINE
(434)220-6831
Steven. Blaincodwrvb.com
March 29, 2023
Via Electronic Mail and Hand Delivery
Albemarle County Board of Zoning Appeals
401 McIntire Road, North Wing
Charlottesville, VA 22902
Attention: Mr. Bart Svoboda
bsvoboda a!albemarle.ore
Re: Appeal of March 2, 2023 Determination by Lea Brumfield, Senior
Planner, Zoning Division ("Official Determination")
Dear Members of the Board of Zoning Appeals:
On behalf of our clients, Dr. and Mrs. Jared Harwood, we respectfully appeal the referenced
Zoning Determination regarding the eligibility for a homestay use of a restored, historic log cabin
located at 9473-9475 Dick Woods Road, Afton, Virginia (the "Property"). The cabin and the
primary dwelling with which it is associated are located on the Property which is a single, 34.55
acre parcel that lies partly in Albemarle County and partly in Nelson County. The 34.55 acre
Property is subject to a conservation easement which restricts the Property from being subdivided.
The Official Determination determined that the cabin was not eligible because the primary
dwelling is located on the portion of the Property that lies in Nelson County. The Official
Determination states that because the primary dwelling is located in Nelson County, "it essentially
does not exist for Albemarle County zoning purposes." Therefore, the Official Determination
was that the cabin cannot be used for a homestay because it is "without the primary use to be
attached to (sic)". A copy the Official Determination is enclosed with this appeal.
(3056414-1. 125673-00001-03) P.O. Box 2496, Charlottesville, VA 22902
123 East Main Street, 5th Floor, Charlottesville VA 22902
P (434) 220.5685 . F (434) 422-5715
wrvblaw.com
Roanoke I Lynchburg I Charlottesville I Richmond I Norfolk
Board of Zoning Appeals
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The appellants submit that this Official Determination should be overturned for the
following reasons:
1. The Official Determination ignores the plain meaning of the ordinance which governs
the annroval and operations of homestays in Albemarle County.
Section 5.1.48 of the Albemarle County Zoning Ordinance regulates homestays. Section
5.1.48 b. states that each homestay must be accessory to a primary residential use. The appellants'
homestay request makes clear that the cabin, which is only approximately 200 feet from the
primary dwelling on the Property, will not be used as a primary dwelling. The primary dwelling
located on the same parcel of land shall continue to be used as such. Nowhere in the Ordinance
does it state that the primary dwelling must be located within the jurisdictional boundaries of the
County.
Section 5.1.48 c) contains the parcel -based regulations for homestays. For a parcel of five
acres or more in the Rural Areas, any parcel may have up to two homestays. Section 5.1.48 (c)i.
The proposal is for only one homestay use on the 34.55 acre parcel. The portion of the Property
located in Albemarle (Tax Map Number 069-00-00-006F0) is 10.85 acres.
Homestay uses may be conducted in an accessory structure built before August 7, 2019.
Section 5.1.48 (c)ii. The cabin was built circa late- 1700s.
A maximum of five guest rooms are permitted with each homestay use. Section 5.1.48
(c)ii. The cabin contains only one guest room.
Each single family dwelling on a parcel in excess of 21 acres must comply with the
permitted density. Section 5.1.48 (c)iv.2. The primary dwelling complies with the Nelson County
density requirements of the A-1 zoning district. Furthermore, the primary dwelling would also
meet the density requirement in Albemarle County of one dwelling per 21 acres, under the RA
Zoning District of Albemarle County.
No single-family dwelling may have more than one accessory homestay use. Section 5.1.48
(c)iv.2. There is only one accessory homestay use proposed.
The proposed homestay complies with the screening and parking requirements for abutting
parcels as it is more than 125 feet from the boundary of the adjoining parcel. See Section 5.1.48
(c)iv.2.
2. The Ordinance is not vague in its language re ardina accessory homestay uses and the
associated primary dwelling.
The language from Section 5.1.48 (b)1 is clear and unambiguous. It does not require the
interpretation that the primary dwelling must be located in the County of Albemarle — only that
t3056414-1. 115673-00001-03)
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the homestay be accessory to such primary dwelling. The essential element then is whether the
homestay is accessory, not that it be within the same jurisdiction, The cabin and primary dwelling
may not be subdivided and maintained by separate ownership, according to the Conservation
easement which states that the 34.55 acres may only be sold or conveyed as a whole. Therefore,
if the cabin is approved for homestay, the primary dwelling cannot be severed for ownership of
the dwelling and cabin by a different individual or entity.
3. If approved as a homestay, the County would still maintain the ability to regulate the
homestay use.
The County has full authority to regulate the homestay use under this scenario. The fact
that the primary dwelling is located in Nelson County does not diminish the County's authority to
regulate the homestay use itself. If approved in this case, all of the regulations for homestay would
have to be maintained regardless of whether the primary dwelling is located in Albemarle, or in
this case, Nelson County. If for some reason, the primary dwelling is razed, converted in use, or
discontinued, Albemarle could revoke the approval of the homestay for the cabin.
If approved in this case, Albemarle County would still be able to collect the business license
and related taxes associated with the homestay use.
4. The Official Determination does not cite any authority for its conclusion.
The Official Determination references other "split jurisdictional" Zoning applications but
it is not clear from the reference what the facts were in those cases and how they control in this
instance. The Official Determination does not indicate any interpretations under similar
circumstance. It may be implied then that the circumstances raised in this case are unprecedented.
Given the uniqueness of these facts, it is unlikely that overturning the Official Determination
would lead to any widespread application of the precedent.
5. The Official Determination loses sight of the purnoses underlying the Ordinance.
The Board of Supervisors, by imposing a primary dwelling and accessory requirement in
the homestay ordinance was attempting to promote the monitoring and policing effect of having
the homestay use connected with a single family dwelling, or primary use. With this requirement,
it was expected that limiting the homestay to within a family dwelling or immediately accessory
thereto could reduce, or eliminate disruptive or injurious behavior impacting neighbors. Under
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the proposal, these same characteristics exist. There is no less influence, management or control
effect if the primary dwelling is in Nelson County as opposed to Albemarle County.
For the reasons state above, we respectfully request that the Official Determination be
reversed.
WOODS ROGERS VANDEVENTER BLACK PLC
Steven W. Blaine
Steven W. Blaine
cc: Dr. Jared Harwood
Attachments: Official Determination, dated March 2, 2023
Conservation Easement, dated December 24, 2004
Plat, dated October 24, 2020
Cabin Description
(3056414-1, 115673-00001-031