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HomeMy WebLinkAboutSUB201300061 Review Comments No Submittal Type Selected 2013-07-106 • '` = COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902 -4596 Phone (434) 296 -5832 Fax (434) 972 -4126 07 -10 -2013 Duane Morris 1481 Harris Creek Road Charlottesville VA, 22902 RE: SUB2013 -00061 Douglas Scott — Easement Plat and Private Road Issue Mr. Duane Morris, Let this letter serve as a summary and follow -up to the July 3, 2013 meeting in which I and other County Planning Staff met with you and various members of your family. At the meeting we discussed the requirement to have the owners of all parcels that access onto Morris Hill Road, including the owner of "Lot X" (as shown on the family subdivision plat of TMP 112 -32 titled "The Morris Property" recorded in Db 4337 Pg 605), sign the plat and a revised maintenance agreement prior to approval of the relocation of the right -of -way easement. At this meeting County staff also explained what documentation would be required in order to move forward without having everyone who accesses onto the private road sign the plat and maintenance agreement (the two methods are provided below as Documentation 1 and Documentation 2). Documentation 1) Provide legal documentation, such as a recorded deed or plat that clearly states that the rights to use the right -of -way known as Morris Hill Road where vacated for Lot X. N' Documentation 2) Provide legal documentation that the property owners whose land the private road, Morris Hill Road, crosses over has legal rights to relocate the right -of -way without obtaining authorization from all owners of land that access /use the right -of -way. Also, at the meeting we discussed your recollection of a County held Public Meeting in which the issue of access for "Lot X" was discussed and you and your fancily were assured by this the County that "Lot X" and Mr. Morris's property would not have access across Morris Hill Road. You were unable to recall which meeting this discussion took place. County staff researched County Records related to properties involved in an effort to uncover this documentation. We have completed our research and were unable to uncover any such discussion or definitive findings which agreed to omit "Lot X" from accessing the Morris Hill Road. Below I have listed the various public hearings we found and attached are the minutes from these meetings. If you are aware of any other meetings please let me know the date of the meeting 10/2/2007 SUB 2007 -187 PC heard that approved a 404 waiver request. 8/24/2010 SP 2009 -33 PC heard and recommended approval of additional development right. 10/13/2010 SP 2009 -33 BOS heard and approval of an additional development right. If you have any questions about the contents of this letter or have any questions or if you have additional information, please feel free to contact me. Please note the June 25, 2013 comment letter for the easement plat SUB2013 -61 which is currently under review in our office still applies. Christopher P. Perez, Senior Planner Planning Division Email: eperez @albemarle.org Phone: 434.296.5832 ext. 3443 Attached: Minutes from SUB 2007 -187 and SP 2009 -33 SUB- 2007 -00187 Virgie Morris The request is for preliminary plat approval to create two (2) lots on 6.976 acres zoned Rural Areas, RA. The property, described as Tax. Map 112, Parcel 33D, is located in the Scottsville Magisterial District on Harris Creek Road [Route 720_]. This proposal includes a request for authorization of a waiver to allow use of a private street, and the authorization of a waiver for the construction standard of a private street in accordance with Subdivision Ordinance Section 14- 232(A). The Comprehensive Plan designates this property as Rural Area in Rural Area 4. (Summer Frederick) r Ms. Frederick summarized the staff report. o The applicant proposes to create one additional lot and wants the new lot and remaining residue to continue using existing separate entrances. The current plan would require a 14 -404 waiver. If the 14 -404 waiver is approved, the next step is to secure whatever site distance easements are required by VDOT. Mr. Edgerton asked if the existing roads or driveways were put in as part of the previous family divisions. Ms. Frederick replied yes, that was correct. Ms. Joseph opened the public hearing and invited the applicant to address the Commission. Charles Morris represented the request. He noted that the request was being made. in order to respect his mother's will. He asked the Commission to approve the request. Ms. Joseph invited public comment. There being none, the public hearing was closed and the matter before the Planning Commission. She invited Allan Schuck, Senior Engineer, if he had visited the site and reviewed the possibility of a joint drive. Mr. Schuck replied that he had visited the site and took the photographs. As shown in the photographs both of the existing entrances have adequate sight distance as proposed. However, there may be some problems with the sight distance on the sharp curve to the south if a joint easement was required. Therefore, in engineering's opinion it is safer with the two driveway entrances as it exists today than putting one entrance in the middle. The other thing taken into consideration was environmental degradation. To do a joint access easement and new driveway would require excavation and soil erosion as opposed to doing nothing, which is proposed in the subdivision. Motion: Mr. Cannon, Mr. Morris seconded, to approve SUB - 2007 - 00187, Virgil Morris - 14 -404 Waiver based on staff report recommendations. The motion passed by a vote of 7:0. Ms. Joseph stated that SUB - 2007 - 00187, Virgie Morris -14 -404 Waiver, was approved. SDP - 2007 -00024 CV 339 Wild Turkey / Cross Property The proposal is to install a Tier II personal wireless service treetop facility. The proposed facility consists of a 98 -foot tall monopole, painted brown with an approximate top elevation of 779 feet, measured above sea level (ASL). The proposed monopole will be 10 feet higher than the identified reference tree located 21 feet south of the tower site. The lease area for the proposed facility is located on property described as Tax Map 57, Parcel 41L, which is approximately 6.00 acres and is zoned RA, Rural Areas and EC, - Entrance-Corridor —T -he- site -is- located- south -of- Rockfish- Gap- T- ur-npike -[Rte. -250] -off of- V1/ild -T- urkey -L-ane - -- - - [Private] in the White Hall Magisterial District. The Comprehensive Plan identifies part of this property as Rural Areas within Rural Area 3. (Summer Frederick) Ms. Frederick summarized the staff report. ALBEMARLE COUNTY PLANNING COMMISSION - OCTOBER 2, 2007 MINUTES ZMA- 2007 -013 Fontaine Research Park Expansion subject to the following: 1. Revisions of proffers to provide that either: 1) the owner will construct .the Sunset - Fontaine Connector in the alignment reserved on the Application Plan at such time that the remainder of the road is constructed off of the Fontaine Research Park property or 2) the owner shall contribute cash to the County that is equal to the value of constructing the alignment onsite if the Sunset- Fontaine Connector is not established in a location that utilizes the alignment reserved on the Application Plan, and the cash would be applied to the cost of the acquisition, design, engineering and construction of the Connector in the new alignment. 2. There is no requirement for a cash contribution proffer for further study of the Fontaine - Sunset Connector. 3. Revisions of proffers to incorporate legal and acceptable technical wording recommended by staff shall be completed before the ZMA goes to the Board of Supervisors. 4. The Applicant commits to a five (5) percent ceiling for supporting commercial uses as a condition of SP- 2009 -014 Supporting Commercial Uses. There is no minimum amount required., Action on Five (5) Special Use Permits: The Planning Commission recommended approval of the five (5) special use permits -SP- 2007 -055; SP- 2009 -010; SP- 2009 -.011; SP- 2009 -013; and SP- 2009 -014, as reflected in the staff report, with the conditions as recommended by staff. SP- 2009 -013 Hospital with the following conditions: 1. The hospital use shall be limited to 60 beds; 2. The use shall not commence until such time as appropriate state and federal approvals have been obtained; 3. Site plan shall not be signed until fire official approval has been obtained; 4. The use shall be for inpatient medical rehabilitation and shall not provide emergency services. SP- 2009 - 014 - Supporting Commercial Uses with the following condition: 1. The supporting commercial uses shall be limited to a maximum of five (5) percent of the square footage allowed in the park. There, is no minimum amount required. Action on Modification: The Planning Commission recommended approval of modification of Section 21.4 of the Zoning Ordinance regarding height regulations with the expectation that the relationships of building heights to the roads will be properly referenced. '• Staff to send the copies of the final signed proffers to the Commissioners. SP- 2009 -00033 Coleman Morris Development Right (Sian # 51) PROPOSED: Special Use Permit for one additional development right to create a minimum .2 -acre parcel. ZONING CATEGORY /GENERAL USAGE: RA Rural Areas - agricultural, forestal, and fishery uses; residential density (0.5 unit /acre in development lots). SECTION: 10.2.2 (28) Divisions of land as provided in section 10.5.2.1; COMPREHENSIVE PLAN LAND USE /DENSITY: Rural Areas - preserve and protect agricultural, forestal, open space, and natural, historic and scenic resources/ density (.5 unit/ acre in development lots) ENTRANCE CORRIDOR: No. LOCATION: 5391 Morris Knoll Lane; appx. 1600 feet west of the intersection of Rt. 720 Harris Creek Rd. and Rt. 20 Scottsville Rd.; approximately 1.5 mile north of Rt. 712, Plank Rd. TAX MAP /PARCEL: TMP 112 00000003200. MAGISTERIAL DISTRICT: Scottsville ALBEMARLE COUNTY PLANNING COMMISSION - AUGUST 24, 2010 FINAL MINUTES Scott Clark presented a PowerPoint presentation and summarized the staff report for SP- 2009 -00033 Coleman Morris Development Right. This is a special use permit request for an additional development right on a parcel in the Rural Areas zoning district. The parcel is located off Route 20 just west of its intersection with Rt. 720, Harris Creek Road. In this case this parcel and four of the adjacent parcels were all created with the original five development rights that existed on this property. All of these properties were transferred to family members that occupy the property. The current request is for an additional development right for another parcel to be given to a family member. The additional development right, if approved, would be at the end of the driveway in the area of the subject parcel. Since 1981, 21 applications for additional development rights have been considered 10 applications approved • 11 applications denied The Board of Supervisors typically based its approvals on finding that the applications adequately met the criteria of Section 10.5.2.1, such as a location next to a development area or existing development, for a family member, or some unique circumstance. The Board approved all five of the applications prior to SP- 2008 - 00048, Matheny that were intended to provide lots for family members, which the Commission will see again later. SP- 2008 -00048 was the first denial of such a request. Previous to that all family division requests had been approved. Staff has identified the following factor favorable to this application: 1. The proposal can be accommodated without significant health or safety impacts on the area. Staff has identified the following factors unfavorable to this application: 1. Additional development rights are generally inconsistent with the purposes of the Rural Areas zoning district. Staff proposes to minimize this concern with a condition of approval that would require the subdivision to be processed only as a family subdivision, which would keep the land in the family for at least four years. Staff recommends approval of SP 2009 -00033 Coleman Morris with the following condition: 1. The proposed subdivision of Tax Map 112 Parcel 32 shall only be permitted as a "family subdivision" as provided by Chapter 14 of the Albemarle County Code. The condition means that the lot would have to stay in the intermediate family four years after it was recorded. Mr. Loach invited questions for staff. Mr. Loach said that there were two of these requests and each one seems to have the same address. He assumed that they are different. Mr. Clark replied that they were different because of a typo in the address. Mr. Smith asked what size lot was proposed. Mr. Clark replied that it would have to be a minimum of two acres. The entire property is about eight acres -He- deferred - the - question -to- the - applicant, -Mr -C- oleman- Morris. - There being no further questions, Mr. Loach opened the public hearing and invited the applicant, Coleman Morris, to address the Planning Commission. ALBEMARLE COUNTY PLANNING COMMISSION -AUGUST 24, 2010 FINAL MINUTES Mr. Coleman Morris, property owner, said this property has always been in the family. The property has not changed hands since the '50's. The request is for an additional lot for his granddaughter. There is no intention in making any profit off the lot or selling it. Basically it is a two acre lot that he received from his - dad and mom who had owned the property. The property is in the Keene area on Route 20 south. The property is in the rural area and is wooded with farms around it. Mr. Loach asked if the proposed condition is acceptable that he keep this as a family subdivision for at least four.years. Mr. Coleman Morris replied yes that was very acceptable. Mr. Loach invited other public comment. There being none, he closed the public hearing to bring the matter before the Commission. Ms. Porterfield noted that there was a problem with two things. Some of the Commissioners were not here when the request was previously heard. The problem is that there is nothing exceptional about adding a development right here. In her mind it really opens the box. If they approve a request like this she did not know how they could not approve the same type of request for anybody that comes in and asks for another development right. She understands that it would be nice to have another family member living there, but just keeping the property for four years does not necessarily mean that they won't end up selling the lot. If they are going to have the regulation that someone gets X number of development rights based on the number of acres in the county, then that should be the rule that they follow in the county. If the Board wants to change that for family members, then they should go back and change the family division regulations. Otherwise she personally cannot support this because they were opening Pandora's Box. Mr. Cal Morris said he fully understands what Ms. Porterfield is saying. However, again when they have a large parcel and are trying to keep the family together he thought that trumps it. Mr. Franco said that he was torn in this whole thing. He agreed with what everybody said today, but he did not know if he considered an eight -acre parcel a large parcel to start with. So he was struggling a little bit with that. He thought it was good to be able to keep the family together, but it is inconsistent with the Comprehensive Plan. He did not know how this would apply to somebody else coming in. He had a problem with the permanency of it. Mr. Loach asked if the four years is a minimum requirement and if there is anything that can keep the applicant from extending that period to make it more acceptable. Mr. Kamptner replied that the four years is established by the family subdivision regulations in the Subdivision Ordinance, which is the minimum period that the land owner is required to hold the property. Mr. Loach asked if they can essentially proffer a longer period of time so that the concerns that Ms. Porterfield has stated will be made more palpable. Mr. Kamptner advised the Commission that they can revise the special use permit condition, but that staff will look at it between now and the Board of Supervisors meeting. The Commission can recommend that the holding period by the member of the intermediate family be longer than four years. Mr. Loach asked Ms. Porterfield if there was an acceptable time period as far as maintaining the lot that she could live with. -- Ms- Porterfield- said - her - follow -up- question -is- whether- it -is- enforceable -by- the - county- and -if- they - -woul know if the lot is sold. Mr. Kamptner replied yes because as a special use permit condition it is essentially a zoning regulation that runs with the land. He did not know the extent to which Community Development tracks compliance with the family subdivision holding periods, but knew that it had been lengthened over the last few years ALBEMARLE COUNTY PLANNING COMMISSION - AUGUST 24, 2010 FINAL MINUTES as they have looked at the issue. The owner is required to record a document that upon sale will be found in the title that lets the person know that it is subject to a four year holding period. Mr. Clark said that because it is a special use permit it would be caught much more easily. If a subdivision plat were to come in the planners would see that there was a special use permit on the property that would have to be reviewed. Mr. Zobrist said he assumed that the title company would pick it up since that would be their job. The applicant would have to file a subdivision plat. Mr. Kamptner noted there is different enabling authority for localities that have family subdivisions and the outer limits for those localities are subject to stricter regulations than Albemarle County. Fifteen years is the outer limit now for a holding period just as a rule of thumb. Mr. Lafferty asked if the family subdivision ordinance was created for this purpose. Mr. Cilimberg replied the family divisions were created to allow division of land for family members that would not be subject to the normal subdivision requirements. It was not created for creating additional lots beyond what is allowed by right. That is why there is a special use permit. Mr. Lafferty said by changing the time period they would not necessarily be changing the way it is written now. Mr. Cilimberg said that it does not change the other provisions of the family division in the ordinance. Ms. Monteith noted when they discussed this previously it was not just the time frame but also the precedent. If they are going to allow one additional family member now, and they do have two of these requests in front of the Commission, then next year it could be six and then the next year it could be seven. Changing the time frame does not necessarily address the precedent that they would be establishing. Mr. Loach agreed, but could see Cal Morris' point too because he sees family as somewhat of a different circumstance. He heard Mr. Franco was also struggling with it. Knowing the situation today, knowing it is going to be family, and then seeing from the staff report that they don't think it would essentially change the character of the area around it kind of leads him to be more favorably inclined towards the request. Ms. Porterfield said that the Commission got sections from the minutes from the last time they heard this. At the time Sally Thomas was the Supervisor and her quote is that, "Although this application is in her district she is not going to vote for approval because she has never been in favor of increasing rural development rights. She visited the site and it is a nice vista for the second one. It is a nice place to have all of the family houses together, but there are many families in this situation and the Board has to think about hundreds of families and not just one." That is what Ms. Monteith is talking about because they did discuss precedent, which is the whole problem with this. She felt that there was nothing unusual about it. It would be an unusual circumstance if a family came in and said that they really needed to divide because they have a child in serious medical condition that they want to be able to move back. This situation is not unusual. It is just a family that wants one more development right. They can't give one more development right to everybody in the county. In other words, what they would have done is negated the planning that was done quite a while ago. Mr. Smith said that first of all not everyone has enough property to give a family member a lot. He asked staff roughly how many of these do they have on the books at this time. Mr. Cilimberg replied that Mr. Clark had given a number of those lots approved for family division. Mr. Clark noted that there have been five special use permits that have been approved to give people additional rights to do family divisions. Overall there are relatively few family divisions compared to standard subdivisions. Several years ago when doing research for the Comprehensive Plan for the rural ALBEMARLE COUNTY PLANNING COMMISSION - AUGUST 24, 2010 FINAL MINUTES areas he went back through the records for the family subdivisions that had been done and over several years nearly all of them were still in family hands. It was a real perspective that almost all of them were still in family hands. Mr. Loach said that as far as 11 of them being approved it would not really be setting precedence of any nature. He asked staff to address that. Mr. Kamptner noted they want the decisions to be consistent, but each application also must stand on its own facts. Each application is different and each one needs to be decided on its own merits. But they do want to strive for consistency. It may be that even though they have a 10 to 11 split that there is a common thread that supports the 10 that were approved or denied and a common thread that supports the opposite result in the other. Another thought, which has no direct relationship to either of these applications, is the family division restriction applies only to the new parcels that are created. If someone already has the new parcels created out of that original five, those could be transferred at any time. If somebody with a 12 acre parcel uses up all five (5) development rights and with one of those five is a four acre parcel, they may ask for a development right because they want to divide a family division. Any of those other four parcels could be sold off. So the family division provides some protection and assurance that the additional development right is being used for a purpose that the county supports, 'family divisions. But those pre- existing parcels would not necessarily stay in the family. Mr. Zobrist asked the applicant how big the original piece of land was and if it has been split into five lots already. Mr. Coleman Morris replied that it was ten acres. He understood that a lot of people have abused the family division rights so that they could sell it to other individuals. That is not the case for this applicant. Since the `50's his family has owned this property. He inherited the two acres they are talking about from his mom, which adjoined his other property or eight acres he lives on now. Mr. Zobrist noted that he had said there were five families living there. He was missing how fractionated the land is. Mr. Coleman Morris said when he bought the land from the original owner it was two acres that adjoined his ten acres. Mr. Zobrist noted that he was missing something. He asked how many families live on the 10 acres. Mr. Coleman Morris replied that it was four families. Mr. Zobrist asked if he inherited the two acres as a separate parcel. Mr. Coleman Morris replied that was correct that he inherited the two acres, which was from his mom that joined the same property. Mr. Zobrist asked if the two acres was divided off these ten acres. Mr. Coleman Morris replied that it was divided off his mom's property, which adjoins this property. Mr. Zobrist asked staff if this was a separate parcel. Mr. Coleman Morris said that this was a parcel that was added to his parcel after his mom passed away. - -- Ms— Porterfield- asked- if -it- has - officially -been- added -to- his - parce Mr. Coleman Morris replied yes. Ms. Porterfield asked if now he just has one parcel number, and it was previously a separate parcel. ALBEMARLE COUNTY PLANNING COMMISSION - AUGUST 24, 2010 10 FINAL MINUTES Mr. Coleman Morris replied that was correct. It was a larger' parcel that belonged to his mom and they divided it among the children. His brother and sisters had already gotten their parcel and this parcel was added to his parcel. Mr. Zobrist asked if basically he has 8.75 acres plus two acres. Mr. Coleman Morris replied he had six acres before he got the two acres. Mr. Zobrist assumed that when it was divided up by his mother it used the five division rights that were on the original parcel. That is why he did not have a division right left. Mr. Clark noted as he understands it there were five lots created that used the development rights that existed on the property. The five lots created were tax map 112, parcels 33F, 33D3, 33C, 331D4 and 33D. Mr. Smith asked if the lot is coming off the front or back of the property. Mr. Coleman Morris replied that it was going to come off the back of the property. That road has always served the property. Before his father gave all of the children the land he farmed the property, which is why that road always existed and served that property. Mr. Zobrist said when he got the two acres since there were no division rights left he took his two acres as part of his lot because he did not have a division right left. Mr. Coleman Morris replied that is basically what happened. All intentions were that they were all supposed to get a division right there. There is no more land there to divide. Mr. Zobrist said the problem was that the property only had five division rights. Mr. Coleman Morris said that he understood the rules, but did not think his mom understood the rules. Mr. Zobrist said that he accommodated his siblings who got the rest of the land. Now he was saying give him a break so he could cut this off to give the lot to his granddaughter. Mr. Coleman Morris replied that is exactly what has happened. When his mom and dad were alive they wanted him to get this particular lot. He was always promised this lot. He did get the lot, but they wanted him to build a house on it. He did not do that because he bought the land right beside it, which is where he acquired the other property. The two acres adjoined the other land. They did not know the stipulations that there were only five development rights. Mr. Zobrist asked where the two acres was divided off of. Mr. Clark pointed out the area at the edge of Mr. Morris' property, which as he said was transferred to his ownership. When it was transferred it was noted on the plat that it was a parcel of two acres that had no division rights and was not a buildable lot. It is identified on the plat that it has no rights. Ms. Porterfield said that Coleman Morris' lot is 111 -32. His original property ended and his mother owned that piece plus those lots. Mr. Coleman Morris said that was correct. Ms. Porterfield said that piece when he did the other things was adjoined to his property, which is why it - does- not - have -a- separate - parcel - number. Mr. Coleman Morris agreed that is what the surveyor did. All of the other lots are his brothers and sisters and there is nobody outside of the family. They have had this property since the 50's and he has no intentions to sell the two acre lot to anyone outside of the family. His house sits next to the two acre lot on six acres. ALBEMARLE COUNTY PLANNING COMMISSION - AUGUST 24, 2010 11 FINAL MINUTES Ms. Porterfield suggested the Commission indicate in the motion that the reason for granting the special use permit is unique because the reason this land has no development rights is that it was part of the original division and did not become a lot by itself but simply was then hooked up to the other siblings in the family. Mr. Coleman Morris said that is exactly what happened. Mr. Franco asked staff if parcel 112 -32 has division rights. Mr. Clark replied no that is why this became an issue. Mr. Franco noted that it has used all five of its division rights. Mr. Clark replied that he was not sure and would have to go back and go through the old tax maps. Ms. Porterfield said she thought that Coleman Morris bought this land from somebody other than his parents. Mr. Coleman Morris replied that the property outlined in red, other than the two acres they were talking about, he did buy from his neighbor. Ms. Porterfield noted that was the question. Coleman Morris bought the two acres from his neighbor and it did not come down from his parents. So does it have any division rights? Mr. Zobrist said that the answer was no and was why the request was before the Commission. Mr. Cilimberg said that the reason it was before the Commission is that the resulting parcel, which was probably created through a combination of what he bought with what he already had, has no development rights and has no rights to divide. That is, why it is before them. Ms. Porterfield said that the original property at 112 -32 before he added this to it did not have any development rights either. Mr. Zobrist pointed out that it had the one development right that he is occupying and no additional ones. Mr. Coleman Morris said that his brothers and sisters received all of the development rights. His mother and he were not aware of all of the stipulations. If he had known all of the stipulations he would have built his house first since he had the opportunity. Mr. Franco said that on the tract he bought it looks like the adjacent neighbors are 32A2, 32A, and 32B. He asked are those relatives. Mr. Coleman Morris replied yes, that was his son and daughter. The man he bought parcel 11.2 -32A from had given that lot to his son before he bought the property. Originally it was 12 acres, which with his purchase left him with ten acres. Those two acres is what he gave his son before he ever bought the property, which was one of the development rights. The two acres he received from his mom has always been fed by a road his dad used for farming before any houses were built. He said that family division had probably been abused by some, but he was glad that there are stipulations on it. He certainly does not want anybody else other than a family member to be on the property. The two acres they are talking about has been in the family since the 1950's since it belonged to his mom and dad. Mr. Franco asked if he was comfortable with the extended period of time, and Mr. Morris replied yes. Ms. Porterfield asked if they could put something into the motion that indicates that this is an unusual granting of one more development right due to the fact that maybe it should have been done before that piece was added. They should have come in and said this is what they wanted to do. ALBEMARLE COUNTY PLANNING COMMISSION - AUGUST 24, 2010 12 FINAL MINUTES Mr. Kamptner replied certainly that it was appropriate to identify the unique circumstances to justify the recommendation. Ms. Porterfield said that would help a lot. She asked if he said that the outside amount of time was four years to 15 years. Mr. Kam ptner. replied that under a different enabling authority and 15 years is.the maximum. Mr. Zobrist noted that in our county it is four years. Ms. Porterfield said that if they want a different time they are being told that as a special use permit it could be 15 years because that is done other places. There is at least a track record as to why they picked 15 years. If the applicant doesn't intend to sell it, she did not think they would care whether it is 100 years from now. She was more concerned about making this request unique than about the amount of time. Mr. Franco said that he was concerned about making it unique. Motion: Mr. Franco moved and Mr. Cal Morris seconded for approval of SP- 2009 - 00033, Coleman Morris Development Right subject to the staff's recommended condition and a second condition added by the Commission: The proposed subdivision of Tax Map 112 Parcel 32 shall only be permitted as a "family subdivision" as provided by Chapter 14 of the Albemarle County Code. The family division period to retain the property shall be extended to seven (7) years. Ms. Porterfield suggested an amendment to add a condition that the lot cannot be created until a more detailed subdivision plat is submitted with a minimum of two acres. Mr. Cilimberg pointed out that is a requirement under the county ordinance that they can't do a lot of less than two acres. Ms. Porterfield suggested adding a condition or indicating that the Board understands that this is a very unusual situation due to the fact that when the family divided the original property there was this portion that they could have come in and asked to create one more lot at that time, but it was hooked onto a piece of property owned by the person who wants it totally separate at this point, and this was not a piece of the family property. Mr. Franco preferred that not to be part of the motion, but just as part of the discussion. Mr. Loach noted that it would go in the minutes as far as a record of the discussion. Ms. Porterfield agreed as long as it showed when it goes to the Board of Supervisors in the action memo and not just the minutes. Mr. Zobrist said that it was not quite correct. It could never have obtained a division right because the division rights were all extinguished. That is why the two acres merged into his property. They don't want to go down that road. Mr. Franco pointed out what makes it unique and why he is willing to make this motion is the fact the - -- -- - - -- property- has - family -all- the -way- around -it- and -it -has- been -in- the - family- for- - years. They've - agreed -to -an extended period above and beyond what the family division would require today and he was comfortable with that. The motion was passed by a vote of 6:1. (Porterfield nay) (Smith voted aye with reservation.) ALBEMARLE COUNTY PLANNING COMMISSION -AUGUST 24, 2010 13 FINAL MINUTES Mr. Cilimberg clarified that the minutes will reflect the discussion, which will go to the Board. The Board does not get the action memo, but the minutes. As they recall the action memo is simply to reflect their actions and not individual comments from the action. That will be in the minutes. Ms. Porterfield asked if the minutes will be completed and proofed by the Commission before this goes to the Board. Mr. Cilimberg noted that the draft minutes would be complete prior to the Board meeting. The Commission will not have seen them. There is no way the Commission will be able to act on the minutes prior to the Board meeting or they would delay this applicant from going to the Board for probably three months. Mr. Franco noted that his experience has been in the past if they had something they wanted to share with the Board they can send an email directly if the minutes are not prepared for it. Mr. Cilimberg said that the minutes will be prepared, but will just have not gotten to the Commission for action. Staff will send the minutes to the Commission as they are prepared for the Board. But the Commission's official action on the minutes will not have been taken. Mr. Loach noted that SP- 2009 - 00033, Coleman Morris Development Right, would go before the Board of Supervisors on a date to be determined with a recommendation for approval. SP- 2010 -00018 Matheny Development Right Request (Signs 44 & 46). PROPOSED: Request for one additional development right for a family subdivision. ZONING CATEGORY /GENERAL USAGE: RA -- Rural Areas: agricultural, forestal, and fishery uses; residential density (0.5 unit /acre in development lots); SECTION: 10.2.2.28, Divisions of land as provided in section 10.5.2.1. COMPREHENSIVE PLAN LAND USE /DENSITY: Rural Areas - preserve and protect agricultural, forestal, open space, and natural, historic and scenic resources/ density (.5 unit/ acre in development lots). ENTRANCE CORRIDOR: No. LOCATION: 2839 Craigs Store Road (Route 635), approximately 2000 feet south of the intersection with White Mountain Road (Route 736). TAX MAP /PARCEL: Tax Map 84 Parcel 14E. MAGISTERIAL DISTRICT: Samuel Miller Scott Clark presented a PowerPoint presentation and summarized the staff report for SP- 2010 -00018 Matheny Development Right Request. This is a request for one additional development right for a family subdivision. The properties in this area all belong to members of the same family. Mr. and Mrs. Matheny live on parcel 14B. The additional development right would be for a family division for their grandson. Since 1981, 21 applications for additional development rights have been considered • 10 applications approved • 11 applications denied The Board of Supervisors typically based its approvals on finding that the applications adequately met the criteria of Section 10.5.2.1, such as a location next to a development area or existing development, for a family member, or some unique circumstance. — The-Board- approved -all -five - of-the applications-- priorto SP= 200 &00048- Matheny-that were-intended-to- provide lots for family members. SP- 2008 -00048 was the first denial of such a request, which was this same request. Staff has identified the following factor favorable to this application: 1. The proposal can be accommodated without significant health or safety impacts on the area. ALBEMARLE COUNTY PLANNING COMMISSION - AUGUST 24, 2010 14 FINAL MINUTES I COctober 13, 2010 (Regular Night Meeting) (Page 8) Mr. Banish stated that staff would ask that the Board cite the specific characteristics of this site, and the intent that it functions more like a development area property. He said that the Board could either take action next month or cite in their action the specific characteristics of this site, with staff bringing forth a resolution of intent. Mr. Boyd pointed out that the minutes will reflect this discussion and the uniqueness of this situation. He suggested the Board go ahead and vote on the request tonight. Mr. Rooker then moved to amend the ACSA jurisdictional area to extend water and sewer to this property based upon its unique circumstances as expressed here, and to amend the.growth area during the next scheduled Comprehensive Plan review next year to include Whittington. Mr. Dorrier seconded the motion. Mr. Benish said that the characteristics would be that the property has urban (PRD) zoning; it is already served with one utility; it is adjacent to a development area and existing utility lines are adjacent to the property. Mr. Rooker reiterated that this is not a decision to allow more dense development in the rural areas; it is a question of how its best developed. Mr. Davis noted that the parcels to be included in the motion are Tax Map 89, Parcel 95 and Tax Map 90, Parcels 3, 45, 47, and 48. Mr. Rooker amended his motion to reflect inclusion of the Tax Maps and Parcels. Mr. Dorrier agreed to the amended motion. Roll was called and the motion carried by the following recorded vote: AYES: Mr. Rooker, Ms. Mallek, Mr. Snow, Mr. Thomas, Mr. Boyd and Mr. Dorrier. NAYS: None. Agenda Item No. 8. Public Hearing: PROJECT: SP- 2009 - 00033. Coleman Morris Development Right (Sign #51). PROPOSED: Special Use Permit for one additional development right to create a minimum 2- acre parcel. ZONING CATEGORY /GENERAL USAGE: RA Rural Areas - agricultural, forestal, and fishery uses; residential density (0.5 unit/acre in development lots). SECTION: 10.2.2 (28) Divisions of land as provided in section 10.5.2.1. COMPREHENSIVE PLAN LAND USE /DENSITY: Rural Areas - preserve and protect agricultural, forestal, open space, and natural, historic and scenic resources/ density (.5 unit/ acre in development lots). ENTRANCE CORRIDOR: No. LOCATION: 5391 Morris Knoll Lane; approx 1600 feet west of the intersection of Rt 720 Harris Creek Rd. and Rt. 20 Scottsville Rd; approx 1.5 mi. north of Rt 712 Plank Rd. TAX MAP /PARCEL: TMP 112 00000003200. MAGISTERIAL DISTRICT: Scottsville. (Advertised in the Daily Progress on September 27 and October 4, 2010.) Mr. Cilimberg reported that this is a proposal to create another parcel at this particular location where a development right does not exist, to enable the applicant to have a sixth lot for related family members that qualify for family division. He said that it is essentially a family compound in the rural area, located off of Harris Creek Road — which intersects with Scottsville Road in the southern part of the County. Mr. Cilimberg presented an aerial view showing the property's location, and it is served now by Morris Knoll Lane off of Harris Creek Road. He said that there are five lots adjacent to this parcel that currently are owned and occupied by family members — Tax Map 112, Parcel 33D, 33D4, 33C, 33D3, and 33F —which were created over time out of the original Parcel 33D. At a certain point in time, Mr. Cilimberg noted, there was also an area that was part of Parcel 33D that was in part of Parcel 32 that was transferred to Parcel 32 through a boundary line adjustment but when that occurred there were no development rights transferred. He explained that Parcel 32 only had one development right for the existing house and did not obtain a second development right as part of that transfer of land. Mr. Cilimberg said that this particular property owner does not have the right to develop an additional lot on Parcel 32 and would like the special use permit in order to pursue doing that as a sixth lot for a family member. M�. Cilinberg mentio "ned -that last year there was-a request for-an-additional development-right- 1. -- -- . - from the Mathenys for one lot to be added to an existing compound of family lots. Mr. Cilimberg said that since 1981 there have been 21 applications for this type of request, with 10 approved, five of which for family divisions, and 11 denied, one of which was for the Matheny's request. He emphasized that typically the approvals of the Board have been based on finding a location next to the development area or existing development or some unique circumstance, such as for a family member. Mr. Cilimberg said that the decision last year not to approve a similar request was based on concerns with increasing development rights in the rural area contrary to the Comprehensive Plan and the precedent it might set for considering the numerous similar situations that may exist in the rural area. , October 13, 2010 (Regular Night Meeting) (Page 9) He stated that staff identified favorable factors as it can be accommodated without significant health or safety impacts on the area and without changing the character of the area. The unfavorable factor is that additional development rights are generally inconsistent with the purposes of the rural areas zoning district and the Comp Plan. To address that staff has proposed a condition of approval to require the subdivision to be processed only as a family division. The Planning Commission, in its recommendation to the Board, has included a condition that the land remains in the family for seven years rather than the required four years under the family division policy. Mr. Cilimberg stated that on August 24, the Commission, on a vote of 6:1, recommended approval of this special use permit with the two conditions, including the extension of family ownership. He said that the one dissenting vote reflected concern about the precedent set for additional lots in the rural area. Ms. Mallek asked if the Commission voted to deny the Matheny request last year and why they changed their minds. Mr. Cilimberg responded that perhaps the change of Commissioners played a part in that, but he is not sure. Ms. Mallek asked if there is anything unique about this property. Mr. Cilimberg said that there is no real unique factor in this application, other than the fact it is a family compound area, but those could exist everywhere. Mr. Snow asked about the number of applications for family division. Mr. Cilimberg confirmed that there have been six family division applications since 1981, the latest of which was last year, and the most recent one approved was in the early 1990s. Mr. Snow commented that the fear of a stampede to get a lot of these approved has not materialized over the years. Ms. Mallek responded that the reason for that is because it has not been allowed, as the standing ordinance proscribes that there are five two -acre lots plus the residue. Mr. Rooker said that there could be thousands of lots created in the rural area this way. When the County was down zoned in 1980 the whole basis for it was to assign five development rights to each parcel in existence as of that time. He stated that everyone who has bought sold, or traded property since that time has done so with the knowledge that the parcels have five development rights. Everybody's got a good story for why they should get another one, Mr. Rooker commented that this does go to the whole heart of protecting the rural areas, and this is also a proposal for the smallest size lot. Mr. Boyd asked if there was a particular reason for increasing the ownership provision to seven years. Mr. Cilimberg responded that some of the Commissioners were struggling with the same concerns the Board has expressed, and felt that the only reason they wanted to grant the right was for a family member, so the condition was an attempt to ensure that. He said that he is not certain why the number seven was chosen, and State law can require it be in the family ownership for up to 15 years. The Commission even discussed going to the 15 years, but ultimately settled on seven years. At this time, the Chair opened the public hearing and asked the applicant for comments. The applicant, Mr. Coleman Morris, said that the Commission put the seven -year restriction to make sure he wasn't trying to make money off of the property. He emphasized that this is for a family member. Mr. Morris explained that the family subdivision was established by his mom and all other lots are for brothers and sisters. He said that his siblings built their homes first, so this lot is for him and there are no additional lots that can be built. They cannot ask for any additional lots. Mr. Morris noted that the property has been in his family since the 1950s. They do not plan to sell the property; it will remain in their family. Ms. Mallek asked if there is a house currently on Parcel 32. Mr. Cilimberg said that there is a house on Parcel 32, and Mr. Morris is asking to divide off what was added to this parcel by boundary line adjustment to create another house site. Mr. Rooker pointed out that the boundary line adjustment did not cause the loss of a lot, as they have used all five development rights for their parcel. Mr. Morris stated that the lot he is hoping to build on is a two -acre lot in the rural area, and would not cause any complications to neighbors. He said that there is a right -of -way that comes through the property known as Morris Hill. —Mr.-Snow-indicated-that-he-is-confused-as-to-exactly-where-the lot is. - Mr.-Cilimberg-explained-that there are five lots that are now family lots. At an earlier date there was a boundary line adjustment and division that created a lot within that group but also added about two acres to Parcel 32 that used to be in Parcel 33, but it was only a boundary line adjustment that carried no development rights. That property was surveyed for the boundary line adjustment but it was not a created lot. It was just an addition of land to Parcel 32. This adjustment resulted in a larger Parcel 32. Mr. Morris wants to have that land that was added by boundary line adjustment divided now to create a lot for him. Mr. Morris responded that that's what was initially planned by his mother in the early 1980s. October 13, 2010 (Regular Night Meeting) (Page 10) Mr. Rooker said that there were only five development lots when his mother planned this in the 1980s, and she couldn't have planned to have six lots. Mr. Morris stated that she probably didn't know the particulars because the lots were not divided up at that time. This is the final lot. There are no more lots that the family could make a request for. Mr. Rooker responded that you could technically come in and ask for future division, as all of these lots derived their development lots from a single parcel, with five development rights total. Mr. Cilimberg explained that Parcel 32 had separate divisions that occurred over the years, so it only had one development right with it and there was no transfer of development rights through any other boundary adjustments. Mr. Morris said this is a common sense issue. Mr. Rooker said that he agrees. Mr. Morris stated that when his mother passed away, all that was left was this two -acre lot. There being no other public comment, the public hearing was closed, and the matter was placed before the Board. Mr. Dorrier said that he knows the family and knows the intentions of this applicant. This entire area is occupied by the Morris family. Although the property is located in the rural areas, the area is not strictly rural because of all the small properties with houses. Ms. Mallek responded that there is a cluster here, but it is definitely in the area and 70 % of the land all around it is in land use. Mr. Dorrier stated that he disagrees with Mr. Rooker that thousands of lots could be created, as there have only been 21 applied for since 1981. Mr. Rooker replied that almost none have been approved in the last 15 years because the Board held to the policy in the rural area plan. He added that he hopes the Board does not get to the point where it is making decisions on land use based upon whether they think somebody is a good guy or not. He is sure Mr. Morris is a good guy, but the issue here is does the Board allow the whole basis for rural area zoning to be undermined, and that's what they are talking about. Mr. Dorrier asked why then there is a family division ordinance. Mr. Rooker responded that people exercise a family division ordinance within the development rights they have on their property, but it does not give you the right to create lots out of thin air. Mr. Dorrier contended that it is only two acres out of eight. Mr. Rooker said that there is no development right there under rural area zoning. Mr. Morris makes a good case for his particular circumstance. Mr. Rooker said he has never supported one of these requests and he does not intend to support this because there is a policy of not allowing lots to be created where there are no development rights. He added that if you go down that road, every piece of property that is more than four acres can be divided because somebody comes in and they have a good story about why they want to divide it. Mr. Dorrier said that Mr. Morris makes a compelling argument, and wants to give it to his grandchild in the future. Mr. Snow stated that the Board talks about affordable housing, and this is a situation where it seems like a logical thing to do. He will support the request. Ms. Mallek asked how the Board determines when this is not appropriate, as there has been no land use reason found to contradict the ordinance as it's written, other than personality. How is any future decision going to be made differently? And, if the Board does not have a reason that it is granting this one differently from others, every lot that there is in the County would be available to have a division. Mr. Snow said that he doesn't think most people are going to come in and slice off a piece of property for family and have it stay in family ownership for seven years. He believes this is a legitimate family subdivision and they are working to keep the family together. He added that this also is an affordable housing issue. Mr. Rooker stated that a land use decision is not based on whether someone will make money on their land; it is the County trying to limit development in the rural areas. The question is "are you going to start allowing more development rights in the rural area ". This is the smallest size parcel; you cannot have a lot smaller than two acres. He added that Mr. Morris has a good reason to be in here, but if the Board goes down that road, it could literally open up the rural area for thousands of additional lots. Ms. Mallek commented that she is aware of two families in Sugar Hollow who will be in to do the same thing, both for very good reasons. October 13, 2010 (Regular Night Meeting) (Page 11) Mr. Dorrier then moved to approve SP- 2009 -00033 subject to the two conditions recommended by the Planning Commission. Mr. Snow seconded the motion. Mr. Thomas said he would also support the request because it is all family all around that piece of property. He does not see Mr. Morris as having any intent of doing anything with those two acres. He suggested increasing the family ownership restriction to 10 years. Ms. Mallek said that she would rather have it restricted to 15 years because that is the maximum allowed by the state. Mr. Thomas agreed. Mr. Dorrier said that he would prefer seven. Mr. Boyd stated that he would like to hear from the applicant as to whether that is acceptable. Ms. Mallek said that the Board can make that decision. Mr. Thomas said the applicant was shaking his head and agreeing to the suggestion. Mr. Davis noted that with a special use permit, the Board can put whatever number of years they wish, and are not restricted to 15 years. Mr. Boyd asked how it would be enforced. Mr. Davis explained that the County would require a restriction to be recorded with the subdivision plat, so as a matter of record it cannot be transferred except in limited circumstances. Mr. Dorrier agreed to the 15 -year restriction and amended his motion. Mr. Snow agreed as seconder. Roll was then called and the motion carried by the following recorded vote:, AYES: Mr. Snow, Mr. Thomas, Mr. Boyd and Mr. Dorrier. NAYS: Mr. Rooker and Ms. Mallek. (The conditions of approval -are set out in full below :) The proposed subdivision of Tax Map 112 Parcel 32 shall only be permitted as a "family subdivision" as provided by Chapter 14 of the Albemarle County Code; and The family division period to retain the property shall be extended to fifteen (15) years. Agenda Item No. 9. Public Hearing: PROJECT: SP -2010- 00018. Matheny Development Right Request (Signs #44 &46). PROPOSED: Request for one additional development right for a family subdivision. ZONING CATEGORY /GENERAL USAGE: RA -- Rural Areas: agricultural, forestal, and fishery uses; residential density (0.5 unitlacre in development lots). . SECTION: 10.2.2.28, Divisions of land as provided in section 10.5.2.1. COMPREHENSIVE PLAN LAND USE /DENSITY: Rural Areas - preserve and protect agricultural, forestal, open space, and natural, historic and scenic resources/ density (.5 unittacre in development lots). ENTRANCE CORRIDOR: No. LOCATION: 2839 Craigs Store Rd (Rt 635), approx 2000 feet south of the intersection with White Mountain Road (Rt 736). Tax Map 84 Parcel 14E. MAGISTERIAL DISTRICT: Samuel Miller. (Advertised in the Daily Progress on September 27 and October 4, 2010.) Mr. Cilimberg reported that this request was before the Board last year and was denied for the reasons just discussed. This is the same request for property located on Craig's Store Road near Heards Mountain. He presented an aerial view showing the existing house. A second house would be proposed on a lot to be cut out of the lot that house is located on. Mr. Cilimberg said that this is the remaining lot of five that were created on a road that essentially intersects Route 635 and provides access to the existing five lots of this family subdivision. He stated that the frontage lot is a residue lot of almost five acres, and it would have a second lot created, taking access on an existing driveway to Route 635. Mr. Cilimberg mentioned that staff has gone over the favorable and unfavorable factors for such a - - -- request. —The -Planning- Commission - h as- recom mended - approval-with -a vote of 6:1 -with one condition-as- the motioner was not willing to put any additional years as a second condition. Ms. Mallek said that last year when this was denied, it was determined that the property had a rental unit and the applicant wanted to build another house for a family member. She asked if this was still the circumstance. Mr. Cilimberg responded that the applicant could answer that, adding that the applicant has stated the lot is only intended for family members.