HomeMy WebLinkAboutAP202300003 Correspondence 2023-04-03 (6)Zoning determination letter rebuttal statement:
On or about Mar 3 2023 the zoning dept c/o Lisa Green sent a zoning determination letter by a
hard copy to the registered agent of Koste Lake LLC, the owner of parcel 079CO-00-00-00100.
(79 C1)
The zoning letter makes 4 faulty assertions of violations and supporting zoning code which will
be rebutted individually. The violations and code cited are:
1. Trees that are not dead and that are greater than six (6) inches in diameter
are being cut on this parcel without a site development plan to establish a use.
2. The storage of structures on this parcel is not a permitted use.
3. The Accumulation of Tires and Car Parts on this parcel constitutes a
junkyard and is not a permitted use.
4. The manufactured homes stored on this parcel is not on a foundation
required by the building code and not being used as a primary residence.
Because this use of the Property or structure did not pre-exist the applicable Zoning Ordinance, it cannot
be considered a legal but non -conforming use or structure. Accordingly, the following section of the Zoning
Ordinance has been violated:
1. Albemarle County Code § 18-4.3 Tree Cutting
2. Albemarle County Code § 18-19.3 Permitted Uses.
3. Albemarle County Code § 18-19.3 Permitted Uses
4. Albemarle County Code § 18-5.6 Manufactured homes on individual lots
The property in question was approved for a rezoning in 1978 From an A-1 (Agriculture)
category to a A-1/ Planned residential neighborhood (PRN- Al) category (See Exhibit A). The
new zoning category included a by right use of Agriculture. (See Exhibit 13). In 1980 Albemarle
County made a change to the zoning code of PRN-Al and removed the agricultural by right use.
(See Exhibit C)
The property continued from before the zoning era (circa 1960) through the zoning changes of
1980 to present with a nonconforming agricultural use as per 15.2-2307
§ 15.2-2307. Vested rights not impaired; nonconforming uses.
A. Nothing in this article shall be construed to authorize the impairment of any vested right.
Without limiting the time when rights might otherwise vest, a landowner's rights shall be
deemed vested in a land use and such vesting shall not be affected by a subsequent
amendment to a zoning ordinance when the landowner (i) obtains or is the beneficiary of
a significant affirmative governmental act which remains in effect allowing development
of a specific project, (ii) relies in good faith on the significant affirmative governmental
act, and (iii) incurs extensive obligations or substantial expenses in diligent pursuit of the
specific project in reliance on the significant affirmative governmental act.
It is important to note that silviculture is a clearly understood activity withing both Virginia's
and Albemarle County's definition of Agriculture:
Per 3.2-300
§ 3.2-300. Defmitions.
As used in this chapter, unless the context requires a different meaning
'Agricultural operation" means any operation devoted to the bona fide production of crops,
animals, or fowl, including the production of fruits and vegetables of all kinds, meat, dairy, and
poultry products, nuts, tobacco, nursery, and floral products and the production and harvest of
products from silviculture activity. "Agricultural operation" also includes any operation devoted
to the housing of livestock as defined in § 3.2-6500.
Per the U.S. Department of Agriculture definition, silviculture is understood per the following:
"Silviculture is the art and science of controlling the establishment, growth, composition, health, and
quality of forests and woodlands to meet the diverse needs and values of landowners and society
such as wildlife habitat, timber, water resources, restoration, and recreation on a sustainable basis.
Silviculture is clearly understood as having multiyear and multi -generational growth and harvest
cycles. Long periods between harvest are the norm wherein the period of growth between these
harvest periods is as much a part of the activity as the harvest itself.
Recently, and with the unanimous approval of the Albemarle County Conservation Board, A
state forestry plan for a timber harvest was submitted and approved under the care and
supervision of Albemarle County Attorney Richard Deloria. The link to this review is posted
here: httgs://www.youtube.com/watch?v=YKAoBvmPm20
Significant contractual obligations based on this County approval have been enjoined.
Additionally, the Conservation Easement was created and accepted by the Albemarle County
Public Recreational Facility with full review of the Albemarle County attorney on December 3,
2014 inclusive of full knowledge of a continuation of silviculture on this parcel. In fact, the
current Albemarle County GIS map includes that description of use as "Ag/Undev 20.1 to 100
Acres"
The trees being harvested in this recently approved select cut are routinely 100- 150 years old,
demonstrating an uninterrupted continuity of this nonconforming activity.
As per County Code § 15.2-2307. Vested rights not impaired
"C. A zoning ordinance may provide that land, buildings, and structures and the uses thereof
which do not conform to the zoning prescribed for the district in which they are situated may be
continued only so long as the then existing or a more restricted use continues and such use is not
discontinued for more than two years."
Clearly the age of the trees themselves are proof of a continuous silviculture activity spanning
over 150 years.
Additionally, the performance of agricultural activities is not simply construed to letting trees
grow. The entire support mechanism required to have this happen may include staging and
storing machinery to clear paths, cut trees, plant trees, provide light and air, store agricultural
products and tools amongst many other required support elements. The nonconforming and
continued use of the parcel as agriculture is not simply limited to the production of one crop,
silviculture.
Silviculture as a continuous activity preserves the entire spectrum of agricultural use.
One aspect of agricultural use concerns accessory use per Sec. 3.1 - Definitions
Accessory use, building or structure. "Accessory use," "building' or "structure" means a
subordinate use, building or structure customarily incidental to and located upon the same
lot occupied by the primary use, building, or structure, and located upon land zoned to allow
the primary use, building or structure; provided that a subordinate use, building or structure
customarily incidental to a primary farm use, building or structure need not be located upon
the same lot occupied by the primary farm use, building, or structure. For the purposes
of section 13(c)(2), any street may serve any use or structure authorized by this chapter,
regardless of whether the use or structure is on the same lot or in the same zoning district as
the street.
It must be beyond argument that mobile tools such as tractors, hay wagons, tool trucks and
harvesting equipment are clearly expected under preserved accessory uses in agriculture.
The determination letter points out certain wheeled carts and absurdly attempts to define
them as manufactured buildings in violation #4 .
The definition of manufactured homes withing the Albemarle County code in no way
described the objects in question. Per Chapter 18, Articlel Sec. 3.1 - Definitions:
Manufactured home. The term "manufactured home" means a structure subject to federal
regulation which is transportable in one or more sections; is eight body feet or more in width
and 40 body feet or more in length in the traveling mode, or is 320 or more square feet when
erected on site; is built on a permanent chassis; is designed to be used as a single-family
dwelling, with or without a permanent foundation, when connected to the required utilities;
and includes the plumbing, heating, air-conditioning, and electrical systems contained in the
structure. The structure and use commonly known as a "mobile home" is a manufactured
home. For floodplain management purposes, "manufactured home" includes park trailers,
travel trailers, and other similar vehicles placed on a site for longer than 180 consecutive
days, but does not include a recreational vehicle.
It is easily demonstrated by first glance that these wheeled devises are missing entire walls or
sides and that they are completely absent of infrastructure of any kind such as "plumbing,
heating, air-conditioning, and electrical systems contained in the structure."
Without such elements which are essential to "to be used as a single-family dwelling" the
attempt to define them as such is erroneous and clearly, willful and malicious harassment.
In addition, violation #3: the accumulation of tires and car parts is in error. These new spare
tires and axels are a required companion to these mobile agricultural devises as they
routinely require parts replacements when being moved. Such specialized parts are hard to
find and must be immediately available when needed.
The use of mobile salvaged elements which the county is absurdly defining as a
manufactured home has been thoroughly reviewed in sessions with the owner by Director of
Zoning, Bart Zvodoba in numerous previous meetings. Pictures of the adaptive reuse of cost-
effective wheeled assets for farm use were provided at these meetings showing common
innovative solutions for a financially sustainable agriculture activity.
The owner/ manager Dominique Kostelac and family have long been leaders and innovators
in agricultural projects in Albemarle County employing up to 80 people and creating critical
farm revenue of millions of dollars annually in Albemarle County. The County Zoning
department is well aware that the owners are well -documented innovators of wild gathered
agricultural products and proprietary value-added techniques operatings over numerous
farm properties inside and outside of the County.
To summarize the rebuttals to the four violations noted on the determination letter of Mar. 3
2023
#1 Trees being cut is a preserved nonconforming legal use
#2 The storage of structures is an inappropriate definition for wheeled tools supporting an
permitted agricultural activity. Such wheeled equipment is clearly understood to be necessary
and appropriate for a wide range of preserved agricultural activities.
#3 The mis-definition of needed parts as a junkyard is inappropriate to equipment required
to support preserved agricultural activities.
#4 Defining wheeled equipment as manufactured residential buildings is inappropriate and
clearly in error.
Submitted April 2, 2023
Dominique Kostelac, Koste Lake LLC, Managing Member
via upload Alb Co website