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HomeMy WebLinkAbout1981-03-04March 4, 1981 Regular Night Meeting 125 A regular meeting of the Board of Supervisors of Albemarle County, Virginia, was held on March 4, 1981, at 7:30 P.M., in the Albemarle County Courthouse, Charlottesville, Virginia. Present: Messrs. Gerald E. Fisher, J. T. Henley, Jr., F. Anthony Iachetta, C. Timothy Lindstrom (Arrived at 7:45 P.M.), Layton R. McCann and Miss Ellen V. Nash. Absent: None. Officers Present: County Executive, Mr. Guy B. Agnor, Jr.; County Attorney, Mr. George R. St. John; and Mr. Robert W. Tucker, Jr., County Planner. Agenda Item No. 1. The meeting was called to order at 7:40 P.M. by the Chairman, Mr. Fisher. Agenda Item No. 2. ZMA-81-1. Charles Hurt. Petition to rezone 339~ acres from RA and PRD to R-t5. Located north of Route 250 East between Ashcroft Planned Development and Franklin Subdivision. County Tax Maps 78 and 62, Parcel 57 (part of). Rivanna District. (Advertised in the Daily Progress on February 18 and February 25, 1981.) Agenda Item No. 3. ZMA-81~2. Charles Hurt. PEtition to rezone 161+_ acres from R-I, R-6 and R-15 to Highway Commercial. Located north of Route 250 East abutting Glenorchy on the east and Route 20 North on the west. County Tax Maps 78 and 62, Parcels 55A, 55D, 12 (part of), 57 (part of). Rivanna District. (Advertised in the Daily Progress on February 18 and February 25, 1981.) Agenda Item No. 4. ZMA-81~3. North 29 Business Land and Trust. Petition to rezone 78.040 acres from RA to HC. Located east side of Route 29 North across from Airport Acres and Northside Industrial Park. County Tax Map 32, Parcel 20. Rivanna District. (Advertised in the Daily Progress on February 18 and February 25, 1981.) Mr. Fisher said the following letter has been received today from the attorney representi the applicant for the above three requests: "4 March 1981 Re: ZMA-81-1 ZMA-81-2 ZMA-81-3 Dear Miss Neher: I have been requested on behalf of the applicants of the above to request a deferral of the consideration of their map amendments from 4 March 1981 to 15 April 1981. Very truly yours, (SIGNED BY) Stuart F. Carwile P.S. We have no objection however of the consideration of the request as it may relate to 84 Lumber." Mr. Fisher said the policy of the Board has been to hear persons present for petitions and then if the Board so desires to defer the petitions as requested by the applicant. He then asked if anyone was present to speak on the petitions. Mr. Dave Darchuk, speaking on behalf of 84 Lumber Company of Baltimore, Maryland, was present and was unaware of the request for deferral from Dr. Hurt until this evening. He noted that 84 Lumber Company has a purchase contract arrangement with Dr. Hurt for a parcel of land of approximately .34 acre directly adjoining parcel 20. He noted that the Planning Commission denied the rezoning request last month. However, the Planning Commission did recommend approval for the .34 acre for his company in order that enough land would be available to meet setback requirements. Since the letter of request for deferral notes no objection to consideration of ZMA-8i~Mr. Darchuk requested some action on same this evening. Mr. Fisher felt the three petitions should either all be heard now or not at all since the applications are similar and he was concerned about the records if only part of the rezoning requests were acted on. Mrs. Mary Lovelace was present and feZt Mr. Darchuk's request had originally been under a different application. Mr. Darchuk said the property is owned by Dr. Hurt but this .34 acre is under a purchase contract arrangement with 84 Lumber Company. Mr. Lindstrom then asked if it were possible for the Board to consider a portion of the application. Mr. St. John said it was possible but unwise if only one part is rezoned and then the remainder is not. Mr. Fisher supported the deferral to April 15, 1981, unless a serious problem axisted for people not parties to the arrangement. Mr. Tucker then pointed out the location of the .34 acre on the plat as requested by Mr. Darchuk and noted that the Planning Commission only recommended that part of the property be rezoned. Mr. Henley then offered motion to defer ZMA-81-1, ZMA-81~2 and ZMA-81-3 to April 15, 1981, as requested by the applicant. Dr. Iachetta seconded the motion and same carried by the following recorded vote: AYES: Messrs. Fisher, Henley, Iachetta, Lindstrom, McCann and Miss Nash. NAYS: None. March 4, 1981 Regular Night Meeting Agenda Item No.. 5. ZMA-81-4. Herbert E. and Edith M. Kaufman. Petition to rezone 5.279 acres from R-4 to RA. Located north on Huntington Road in Northfields Subdivision to Route 651, right on Route 651 to end, driveway on right to property. County Tax Map 62, Parcel 12. Rivanna District. (Advertised in the Daily Progress on February 18 and February 25, 1981.) Mr. Robert W. Tucker, Jr., presented the following staff report: "Requested Zoning: RA Acreage: 5.279 acres Existing Zoning: R-4 Residential Location: Property, described as Tax Map 62, Parcel 12, is located near the end of Route 651 (Free State Road) about one-half mile· east of Northfields Subdivision. History and Staff Comment: Though property in this area has been zoned for medium-density residential development since 1968, no urban type development has occurred. There have been three previous rezoning petitions in the area seeking a rural designation in order to permit mobile homes (ZMA-184: approved September, 1971; ZMA-288: denied June, 1972; ZMA-78-i6: approved October, 1978). In addition, several nonconforming mobile homes are located in the area. In all prior rezoning applications, staff has stated that approval of such rezoning would constitute 'spot zoning'. Generally, 'spot zoning' is zoning which is inconsistent with zoning in the area, granted for the convenience of the applicant rather than the general welfare. Staff opinion is that precedent has been set for mobile homes in the area through the approvals of ZMA-184 and ZMA-78-16." Mr. Tucker said the Planning Commission at its meeting on March 3, 1981, unanimously recommended approval of ZMA-81-4. Mr. Fisher suggested the staff report also be presented for SP-81~3 at this time since the two requests are inconjunction with each other. Agenda Item No. 6. SP-81-3. Herbert E. and Edith M. Kaufman. Petition to locate a mobile home on 5.279 acres currently zoned R-4, requested to be rezoned RA. Located north on Huntington Road in Northfields Subdivision to Route 651, ~right on Route 651 to end, driveway on right to property. County Tax Map 62, Parcel 12. Rivanna District. (Advertised in the Daily Progress on February 18 and February 25, 1981.) Mr. Tucker presented the following staff report for SP-81-3: "Request: Motile Home Acreage: 5.279 acres Zoning: RA (Subject to approval of ZMA-81-4) Location: Property, described as Tax Map 62, Parcel 12, is located ~near the end of Route 651 (Free State Road) about one-half mile east of Northfields Subdivision. Character of the Area and Staff Report: A single-family dwelling exists on this property. Several mobile homes exist in the Free State Road area. Should this petition be approved, the Health Department has recommended a setback variance be granted in order to properly locate a septic drainfield. The Board of Zoning Appeals is reviewing this matter, and their action should be available prior to the Planning Commission or Board of Supervisors public hearings. Should the Commission and Board choose to approve this petition, staff recommends the following condition: 1) Compliance with Section 5.6.2 of the Zoning Ordinance." Mr. Tucker then presented a sketch submitted by Mr. Kaufman at the Planning Commission meeting last evening showing Free State Road with the owners and renters in the area. There are twenty-eight families with five mobile homes in the area and eighteen of the homes are rented. He then noted that the Planning Commission unanimously recommended at the March 3, 1981, meeting approval with the above condition. The public hearing was then opened. Mr. Herbert Kaufman, applicant, was present and said the request for a mobile home is for his niece. Since he and his wife do not have any children, the niece will occupy his home. He also noted that his niece will be the only occupant in the mobile home. Mr. Kaufman said he has owned the property far thirty years and the house on the property is where he resides. Mr. Herbert Martin, friend of the Kaufman's, was present and noted that Mr. Kaufman is almost eighty years old and has health problems. With Mrs. Kaufman being at work many nights of the week, the niece can be close to aid Mr. Kaufman if necessary. With no one else present to speak for or against the petitions, the public hearing was closed. Motion was then offered by Dr. Iachetta to approve ZMA-8!~4 as recommended by the Planning Commission. Mr. McCann seconded the motion and same carried by the following recorded vote: AYES: NAYS: Messrs. Fisher, Henley, Iachetta, Lindstrom, McCann and Miss Nash. None. 127 Motion was then offered by Mr. McCann, seconded by Dr. Iachetta, to approve SP-81~3 With the condition recommended by the Planning Commission. Roll was called on the motion and same carried by the following recorded vote: AYES: NAYS: Messrs. Fisher, Henley, Iachetta, Lindstrom, McCann and Miss Nash. None. Agenda Item No. 7. Lots. Discussion: Amendment to RA District for Nonconforming Subdivision Mr. Tucker said the Planning Staff was requested by the Board to prepare an amendment to the RA district for lots which were made nonconforming by the adoption of the Zoning Ordinance in December. The amendment basically permits any subdivision lot of record at the time of the adoption of the RA district to meet the rear, side and front yard and setba¢.k~regu!ations in effect at the time the subdivision was approved. Mr. Tucker said one particular subdivision having a problem meeting the new regulations is Squirrel Ridge. Mr. Fisher asked if there would be problems twenty years from now about what the requirements were for a particular lot in a particular subdivision. Mr. Tucker said that had been a concern of his but Mr. Frederick Payne, Deputy County Attorney, has indicated that this was legally a better approach than putting a setback requirement in the Zoning Ordinance which is less restrictive than the setback that was on the property when the subdivision was approved. Therefore, the following resolution of intent is recommended: RESOLUTION OF INTENT BE IT RESOLVED that the Board of Supervisors of Albemarle County, Virginia, intends to amend the Albemarle County Zoning Ordinance to include the following section: Section 6.5.01. In the case of any subdivision which was approved pursuant to Chapter 18 of the County Code prior to the adoption of this ordinance and which was of record at the time of the adoption hereof, the rear, side and front yard and setback regulations of the Zoning Ordinance in effect at the time of such approval shall apply to all lots within such subdivision. FURTHER REQUESTS the Planning Commission to hold public hearing on said proposal to amend the County Zoning 0rdinanc~ and report back to this Board at the earliest possible date. Motion was then offered by Mr. Lindstrom, seconded by Miss Nash, to adopt the foregoing resolution of intent. Mr. McCann said he still felt that subdivisions in the .rural areas should be recognized for what they really are. He also felt some comments from the public should have been received before the adoption of the resolution of intent. However, he will support the proposed wording for public hearing but again emphasized that he felt things should be recognized for what they are and not for what the Board would like for' them to be. Roll was then called on the foregoing motion and same carried by the following recorded vote: AYES' NAYS: Messrs. Fisher, Henley, Iachetta, Lindstrom, McCann and Miss Nash. None. Agenda Item No. 8. Public Hearing: February 18 and February 25, 1981) Radioactive Waste Ordinance. (Advertised on Mr. Fisher said the Radioactive Waste Ordinance adopted by the Board on September 3, 1980 was to be in effect for. six months from the date of adoption and expired as of midnight last evening. The public hearing then opened. Mr. Hank Howell, University of Virginia law student, was present. Mr. Howell said according to newspaper accounts, authorities have relied on the Attorney General's opinion in a letter to Senator Virgil Goode as the basis for voiding the County's ordinance. However, Mr. Howell did not feel such was true and submitted to the Board a copy of the letter dated September 25, 1980, from Attorney General Coleman to Senator Goode. (Copy on file in the Clerk to the Board of Supervisor's office) Mr. Howell felt the letter applied to local ordinances and affected radioactive waste storage sites, not air pollution control ordinances. He noted that the Clean Air Act of 1977 authorizes local control of radiation air pollution. Mr. Howell felt the letter'.s argument for federal preemption does not appropriately take into account the trend in Congress and Supreme Court decisions to return more power to states and localities. The State has not preempted regulation of air pollution or radiation hazards. Mr. Howell said the Air Pollution Control Act recognizes a locality's power to regulate air pollution in Section 10-17.30 of the Virginia Code and the same is true for the Radiation Control Act in Section 32.1-237 of the Virginia Code. Mr. Howell said applying the ordinance to a state agency is a problem as sovereign immunity may shield the agency. Nonetheless a significant body of case law supports the proposition that a state employee who violates a law is not acting as a state employee but as a private individual. Mr. Howell also presented and summarized a document entitled "The Role of States and Locglities in Regulating Radioactive Materials". (Copy on file in the Clerk's office.) Mr. Howell felt Section 15.1-510 of the Virginia Code grants counties their general powers which states: "Any county may adopt such measures as it may deem expedient to secure and promote the health, safety and general welfare of the inhabitants of such county, not inconsistent With the general laws of this State." He felt a court could interpret'this seCtion as an expressed grant of police power to regulate air pollution and radioactivity. Mr. Howell felt the Virginia Code, Virginia Air Pollution Control Act and the Virginia Radiation!Control Act give the County power to regulate air pollution and radioactive waste pollution under the Dillon Rule as applied by the Supreme Court of Virginia. Mr. Howell also expressed concern that the Nuclear Regulatory Commission is increasing the amount of radioactive materials allowed and radioactive human waste is not regulated at all. 128 March 4, 1981 Regular Night Meetin ..... Mr. Fisher said sanitary sewers also concern him. He also noted that there is no monitoring of what goes in or comes out of sewer systems. With no one else present to speak for or against the ordinance, the public hearing was closed. Mr. Fisher noted letter dated today from Mayor Buck to the Board regarding the enactment of the ordinance and noting that City Council supports the readoption of same. Mr. Fisher also noted letter received today from Mr. A. Keith Furr, Director of Health and Safety Regulatory Programs from Virginia Tech and Mr. Ralph Allen, Associate Professor of Chemistry, University of Virginia. The letter is a notification of a special interest group known as the Virginia Low Level Radioactive Waste Producer Group comprised of members from the Medical College of Virginia, Virginia Polytechnic Institute, University of Virginia, Eastern Virginia Medical School, Old Dominion University, the Virginia Hospital Association, Babcock and Wilcox and the Virginia Electric and Power Company; said group formed to help gather information to assist State and Federal agencies involved in planning for the disposal of low-level radioactive wastes. Mr. Fisher said the ordinance is based on a recommendation from the County Attorney to consider reenactment of same for whatever effect the ordinance may have on future NRC licenses. He then asked if Mr. St. John had any comments. Mr. St. John said the question of whether the County can control private persons or corporations through the ordinances, is open. However, he would advise that the County reenact the ordinance and felt the County had the power to do so. The University of course is a different issue because the ordinance does not have any power over state agencies. In conclusion, Mr. St. John felt the ordinance is the best tool the County has to safeguard its citizens. Mr. Fisher said the issue of licensing procedures and lack of public notification in the licensing procedures is a critical issue. This ordinance does not address some forms of monitoring being~done. He did not feel a ground sample taken at specific times is a reliable indication of what is being dispersed into the environment. In any event, he did not feel the County could do very much about that unless this ordinance triggers the NRC to notify the County if licenses are to be changed. Mr. F~isher agreed with Mr. St. John that the record should show how the County feels and supported the ordinance being reenacted permanently. Mr. Lindstrom then offered motion to readopt the Radioactive Materials ordinance as set out in Minute Book 19 on pages 237-239 as a permanent ordinance and deleting Section 20-7 in the advertised ordinance relating to the period of time the ordinance would be in effect. Mr. Lindstrom said the State has to get the message that it cannot permit each locality to have to deal on an individual basis with whatever low level waste there may be. Miss Nash seconded the motion. Mr. Fisher said apparently a number of states felt they had authority in the matter when the Department of Energy announced a few years ago that they were seeking sites for high level radioactive wastes. He said something like twenty~-~ostates immediately adopted a statute to prohibit such in their states. Some twelve to twenty cities and counties in Virginia did the same when informed that the State of Virginia was looking for such a site. Dr. Iachetta reiterated his earlier comments that the issue is if the user is going to be allowed to be the sole source of information about what is being disposed. He did not see any way the locality could afford the equipment it takes to monitor such. He felt the responsibility was for the Legislature in Richmond to develop some agency to be responsible on a state-wide basis for the disposal of these kinds of materials. In'other words, he felt there should be an independent agency to monitor the materials and hoped that there was some way to persuade the legislators to puruse the matter further. Roll was then called on the foregoing motion and same carried by the following recorded vote: AYES: Messrs. Fisher, Henley, Iachetta, Lindstrom, McCann and Miss Nash. NAYS: None. Agenda Item No. 9. Lottery Permits. Mr. Agnor presented a lottery permit application for the Virginia Law Women for a raffle to be held on April 1, 1981. Motion was offered by Mr. L±ndstrom, seconded by Mr. McCann, to approve the lottery permit in accordance with the Board's adopted rules and regulations for the issuance of same. Roll was called on the motion and same carried by the following recorded vote: AYES: Messrs. Fisher, Henley, Iachetta, Lindstrom, McCann and Miss Nash. NAYS: None. Mr. Agnor then presented a lottery permit application for the Sigma Chi, ISC for a raffle to be held on April 3, 1981. Motion was offered by Mr. Lindstrom, seconded by Miss Nash, to approve the lottery permit in accordance with the Board's adopted rules and regulations for the issuance of same. Roll was called on the motion and same carried by the following recorded vote: AYES: NAYS: Messrs. Fisher, Henley, Iachetta, Lindstrom, McCann and Miss Nash. None. Mr. Agnor next presented a lottery permit application for the Phi Beta Sigma Fraternity, Incorporated for a raffle which was held on March 2 and 3, 1981. Motion was offered by Mr. McCann to approve the lottery permit request retroactively and in accordance with the Board's adopted rules and regulations for the issuance of same. Dr. Iachetta seconded the motion and same carried by the following recorded vote: AYES: NAYS: Messrs. Fisher, Henley, Iachetta, Lindstrom, McCann and Miss Nash. None. March 4, 1981 Regular Night Meeting Agenda Item No. 10. Other Matters Not on the Agenda. There were no matters to be brought to the Board and the meeting adjourned at 8:44