HomeMy WebLinkAboutAP201200002 Staff Report 2012-10-03STAFF PERSON: Amelia G. McCulley
PUBLIC HEARING: October 2, 2012
STAFF REPORT AP 2012 — 02 Chickens in R4, Residential District
APPLICANT /APPELLANT: Owner Gilbert Adams / Co- Appellant A.J. Miller
The applicants appeal the Zoning Administrator's determination in accordance
with Section 34.3 of the Albemarle County Zoning Ordinance.
INTRODUCTION
The subject property, known as Tax Map 60A- 1 -C -4, is located at 122 North
Bennington Road. It consists of approximately 0.65 acres or 28,471 square feet.
It is in the R4 Residential district, improved with a single - family dwelling and
outbuildings, and is surrounded by other similarly -sized residential lots.
On or about June 4, staff received a citizen's complaint about chickens being
kept in the back yard with associated odor to this use. Mr. Adams told the Code
Enforcement Officer that his son -in -law, Mr. Miller, who lives onsite, keeps
chickens. After staff informed Mr. Miller that this was a zoning violation, he
asked for a written notice of violation to appeal.
An official determination of violation (also called "notice of violation" or "NOV ")
was sent to the appellants on June 20, 2012 (Attachment A). This determination
stated that "the keeping of poultry on this parcel is not a permitted use" and cited
Zoning Ordinance §15.2 Permitted uses in the R4 Residential district.
BACKGROUND
The Albemarle County Zoning Ordinance is an inclusive ordinance. This type of
ordinance permits only those primary uses specifically named. By contrast, an
exclusive ordinance prohibits specified uses and permits all others.
The determination that the keeping of chickens is a violation in this zoning district
is a finding that it is not permitted as either a primary use or an accessory use.
This appeal is not about whether the appellants keep chickens on this property.
They have openly acknowledged that they do.
BASIS FOR DETERMINATION
1. The keeping of poultry is an "agriculture" use.
Albemarle County Zoning Ordinance § 3.0 defines "agriculture" as
Horticulture, viticulture, silviculture or other gardening which may involve
the tilling of soil for the raising of crops; the keeping of livestock and /or
poultry; and /or agricultural industries or businesses, such as, but not
limited to, orchards, fruit packing plants, dairies, nurseries, farm sales,
STAFF REPORT AP 2012 — 02 Chickens in R4, Residential District
October 2, 2012 Board of Zoning Appeals
farm stands and farmers' markets. (Amended 12 -2 -87, 5 -5 -10) [Bold
accent added]
"Poultry" in turn is defined in the Ordinance as: "Domestic fowl normally
raised on a farm such as chickens, ducks, geese, turkeys, peafowl, guinea
fowl, pigeons." [Bold accent added]
Chickens are expressly listed in the definition of "poultry." The "keeping of
...poultry" is expressly listed in the definition of "agriculture." "Agriculture" is
listed as permitted only within the Rural Areas and Village Residential zoning
districts. It is not listed and is therefore not permitted, in the R4 Residential
district (Attachment B). Because Albemarle's zoning ordinance is inclusive, this
use is allowed only where it is expressly listed — in the Rural Areas (RA) and
Village Residential (VR) districts.
2. The keeping of poultry is not an accessory residential use.
The Albemarle County Zoning Ordinance defines "accessory use" as:
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. (Amended
10 -9 -02, 5 -5 -10) [bold accent added]
While there has been recent interest in the keeping of poultry such as
chickens in residential areas, it is still not a customary use in
residential areas. Furthermore, what is happening outside of this area
and outside of Virginia is not determinative as to what is customary here.
For a use to qualify as accessory, it must be either expressly listed (such
as with storage or home occupations listed in Albemarle's ordinance as
accessory to residential use), or customarily incidental (such as with
parking or a swing set). A customarily incidental use must be both a)
customary and b) incidental or subordinate. Staff does not dispute that
this use is incidental or subordinate to the residential use of the subject
property. However, there is no evidence that the keeping of chickens is a
customary use. In fact, all evidence points to the fact that the keeping of
chickens is NOT a customary use in residential areas.
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STAFF REPORT AP 2012 — 02 Chickens in R4, Residential District
October 2, 2012 Board of Zoning Appeals
a. The definition of "home garden" and the legislative history of
this ordinance amendment confirm that the keeping of
agricultural animals is not an accessory residential use.
On December 2, 1987, the Board of Supervisors adopted ZTA 87-
13 to revise the definition of "agriculture" and to establish a
definition of "home garden." The staff report states: "Currently, the
definition of 'agriculture' is inadequate to distinguish between an
agricultural industry use and home gardening or keeping of
household pets. Staff recommends a rewording of the definition of
agriculture to include replacing `animals and fowl' with `livestock
and poultry.' ... Agriculture would be permitted in the RA, Rural
Areas, and VR, Village Residential districts, while home garden
would be permitted as accessory to residential use and permitted n
any zone permitting dwellings." This legislative action clearly
illustrates that even while excepting "home gardens" from
"agriculture," the Board did not intend to find that the keeping of
chickens is an accessory residential use — or it would also have
allowed that use as well with this amendment. Instead, the
definition of "home garden" expressly DOES NOT include the
keeping of poultry.
Home Garden: An activity accessory to residential usage of
a property involving the cultivation of flowers, vegetables,
fruit and /or other plants primarily for the consumption or
enjoyment of the residents of such property, but expressly
excluding the keeping of livestock and /or poultry.
(Added 12 -2 -87) {Bold accent added}
b. The keeping of chickens is not customary in Albemarle
Staff's consistent administrative practice for at least 25 years is that
this is not an allowed accessory use. Over the past three years,
staff has only received nine complaints involving the keeping of
chickens on residential property — an average of three per year.
c. The keeping of chickens is not customary in Virginia
Staff research into other localities' treatment of the keeping of small
"farm animals" such as chickens reveals that most localities do not
consider it as a customary accessory use to a residence. Among
those localities that do allow this use, most do so by expressly
listing it as permitted.
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STAFF REPORT AP 2012 — 02 Chickens in R4, Residential District
October 2, 2012 Board of Zoning Appeals
d. The current policy discussion with the Comprehensive Plan
about the keeping of chickens confirms that it is not a
customary use and is not permitted without an ordinance
amendment
The Comprehensive Plan discussion about Urban Agriculture is
currently considering whether to allow the keeping of chickens (see
Attachment C). If the Board of Supervisors adopts this
amendment, it would involve a zoning ordinance amendment to
allow the keeping of chickens. This discussion is further evidence
that the keeping of chickens is not currently customary nor is it
permitted in Albemarle on residential properties.
RESPONSE TO APPELLANT'S ARGUMENT
The appellants do not provide facts that evidence the keeping of chickens is
customary in this area. They mistakenly characterize the Wiley case as evidence
that the keeping of chickens (as with pigeons in that case) is an accepted
accessory use. However, the state Supreme Court only reversed Mr. Wiley's
conviction on a zoning violation because Hanover County in that case had failed
to prove that the keeping of pigeons was not customarily incidental in residential
areas, a required element of the case against Mr. Wiley. The Wiley case was
fact - specific to Mr. Wiley's conviction, and should not be read more broadly as
automatically allowing the keeping of birds in residential areas. While both
Hanover's and Albemarle's Zoning Ordinances are inclusive, the similar
legislative or regulatory facts appear to end there. It appears that there is a
significant distinction between the two ordinances on the definition of agriculture,
poultry and home gardening. An example of the differences between the current
ordinances is that while Hanover's ordinance currently distinguishes between
keeping small animals as a hobby or pet versus as a business; Albemarle's does
not make that distinction.
The appellants' reference to Chapter 4 Animals and Fowl Noise Regulations is
also misplaced. The appellant was not cited for a noise violation. Chapter 4 is
not a land use regulation, as is the Zoning Ordinance. In any event, the
appellants misunderstand the exceptions for allowable animal noise even under
the Animals and Fowl Noise Regulations. County Code § 4- 106(A) generally
restricts noise from animals except "this section shall not apply to any animal
located on property zoned Rural Areas District of five (5) acres or more.... or to
sounds caused by livestock or poultry." The appellants offer this provision as
"proof' that livestock and poultry are permitted outside the Rural Areas District.
However, the appellants fail to account for the fact that livestock and poultry are
permitted (a) on Rural Areas (RA) properties of less than five (5) acres and (b) in
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STAFF REPORT AP 2012 — 02 Chickens in R4, Residential District
October 2, 2012 Board of Zoning Appeals
the Village Residential (VR) zoning districts. That explains why both exceptions
to the animal noise ordinance are needed.
In addition, the appellants' reference to a few real estate listings is not evidence
that the keeping of chickens is customary or is legally permitted. Staff frequently
finds property advertised as having an apartment for rental income or right to
divide — when it is not legally allowed.
CONCLUSION
The keeping of chickens is an agricultural use and as such is permitted only in
the Rural Areas and Village Residential zoning districts. It is not an accessory
use in a residential district. Discussions are underway about the policy of
allowing small farm animals such as chickens to be kept on residential property.
Until this policy is adopted by the Board of Supervisors and included in the
Zoning Ordinance, it not a permitted use in residential zoning districts.
APPEAL
LIST OF ATTACHMENTS
Attachment A Official Determination of Violation dated June 20,
2012
Attachment B Section 15 Residential R -4 Zoning District
Attachment C Staff Report CPA 2013 -001 Comprehensive Plan
Revision — Worksession 8 Urban Agriculture
5
o '
ATTACHMENT A
COUNTY OF ALBEMARLE
Community Development Department
401 McIntire Road
Charlottesville, Virginia 22902 -4596
FAX (434) 972 -4126 TELEPHONE (434) 296 -5832 TTD (434) 972 -4012
NOTICE OF OFFICIAL DETERMINATION OF VIOLATION
The Date this Notice of Determination is given is June 20, 2012. No: VIO- 2012 -111
CERTIFIED MAIL, # 91 7199 9991 7030 7725 7369 CERTIFIED MAIL # Hand Delivered
Gilbert Stuart Adams or Norma Marts A Adams
122 N. Bennington Road
Charlottesville, VA 22901
Property: 060AO -01 -OC -00400
Tax Map and Parcel Number
Zoning: R4 Residential [R4] District
Dear Mr. Miller, Mr. Adams and Mrs. Adams,
Alexander J. Miller
122 N. Bennington Road
Charlottesville, VA 22901
Gilbert Stuart Adams or Norma Marts A Adams
Owner of Record
This notice is to inform you that the above described property is in violation of the Albemarle County
Zoning Ordinance. This conclusion is based on the fact that a Code Enforcement Officer visited the listed
property on June 8, 2012 and found that the following conditions existed:
The keeping of poultry on this parcel is not a permitted use.
The described use or structure did not exist prior to the zoning ordinance(s) it violates. Therefore, it cannot
be considered a legal, but non - conforming use or structure. With that in mind, the following section(s) of
the Zoning Ordinance have been violated:
Section 15.2 Permitted Uses (in R4 Residential District)
This letter also serves to notify you to stop the activity or use outlined above immediately. Failure to
comply with this notice will result in legal action being taken against you and any other owner or tenant.
In addition, you must bring the property into compliance by July 20, 2012 to avoid court action.
Compliance past this date does not preclude the County from pursuing legal action.
If you are aggrieved by this determination, you have a right to appeal it within thirty (30) days of this
notice, in accordance with Virginia Code § 15.2 -2311. If you do not file a timely appeal, this
determination shall be final and unappealable.
VIO- 2012 -111 Page 2 June 20, 2012
An appeal may be taken only by filing an appeal application with the Zoning Administrator and the Board
of Zoning Appeals, in accordance with § 34.3 of the Zoning Ordinance, along with a fee of $240 plus the
actual cost of advertising the appeal for public hearing.
Applications for Appeal of the Zoning Administrator's Determination are available at the Department of
Community Development located at 401 McIntire Road, Charlottesville, Virginia 22902 or online at
www.albemarle.or /g cdapps. This form applies to the appeal of a decision of the zoning administrator or
any other administrative officer pertaining to the Zoning Ordinance.
Regulations pertaining to the filing of an appeal to the Board of Zoning Appeals are located in Chapter 18,
Section 34.3 of the Zoning Ordinance. They may be reviewed online at
www.albemarle.org/coimtycodebz .
(Please note that our online documents are in Adobe Acrobat PDF format and must be viewed with the
Adobe Acrobat Reader or an equivalent. A link to download the free plug -in is available at the bottom of
www.albemarle.or /g cdapps.)
If you have any questions, please contact Lisa Green, Code Enforcement Officer, at 434 - 296 -5832
ext. 3013.
00,11. >Y, -N
J
Amelia G. McCulley, A.I. , .P.
Zoning Administrator
County of Albemarle
AUTHENTICATION OF RECORD/
CERTIFICATE OF MAILING
(Code of Virginia § 8.01 -390)
(Notice of Official Determination of Violation)
I, 11:5,4 4REW , hereby certify:
1. that I am a Code Enforcement Officer and an employee of the Albemarle County
Department of Community Development;
2. that on �J-Vn/C 20 , 201 Z , I mailed a true copy of the record attached hereto,
consisting of a Notice of Official Determination of Violation dated
TvIV.F 20 , 20 ?2- pertaining to that property identified as Parcel ID
Number(s) elanpd — d!- Oc - oo 51av , to the recipient(s) identified thereon at the
address(es) specified thereon; and
3. that the copy of such record which is attached hereto is a true copy of the record that
was mailed.
Dated: Z Signed-
COMMONWEALTH OF VIRGINIA
CITY /COUNTY OF
The foregoing Authentication of RecordlCertificate of Mailing was signed, sworn to and
acknowledged before me by , Albemarle County Code Enforcement
Officer, this 9'� b day of , 20 @':Q
Notary Public
My Commission Expires: XhI j 30, 26 t VINCENT TODD SHIFFLETT
Notary Registration No. NOTARY PUBLIC
Commonwealth of Vrginia
Reg. #7165181
My Commission Expires Nov. 30, 2012
ATTACHMENT B
Attachment B AP 2012 -02 Chickens in R4, Residential District
Section 15 Residential R -4 Zoning District Zoning Regulations
• R -4, Residential District allows the following uses:
o 15.2 PERMITTED USES
15.2.1 BY RIGHT
The following uses shall be permitted subject to requirements and
limitations of this ordinance:
1. Detached single - family dwellings.
2. Side -by -side duplexes provided that density is maintained, and
provided further that buildings are located so that each unit could
be provided with a lot meeting all other requirements for detached
single - family dwellings except for side yards at the common wall.
Other two - family dwellings shall be permitted provided density is
maintained.
3. Semi - detached and attached single- family dwellings such as
triplexes, quadruplexes, townhouses, atrium houses and patio
houses provided that density is maintained, and provided
further that buildings are located so that each unit could be
provided with a lot meeting all other requirements for detached
single - family dwellings except for side yards at the common
wall.
4. Cluster development of permitted residential uses.
5. Rental of permitted residential uses and guest cottages, provided
that yard, area and other requirements of this ordinance shall be
met for each such use whether or not such use is on an individual
lay -out.
6. (Repealed 9 -2 -81)
7. (Repealed 9 -2 -81)
8. Electric, gas, oil and communication facilities, excluding tower
structures and including poles, lines, transformers, pipes, meters
and related facilities for distribution of local service and owned and
operated by a public utility. Water distribution and sewerage
collection lines, pumping stations and appurtenances owned and
operated by the Albemarle County Service Authority. Except as
otherwise expressly provided, central water supplies and central
sewerage systems in conformance with Chapter 16 of the Code of
Albemarle and all other applicable law. (Amended 5- 12 -93)
9. Accessory uses and buildings including home occupation, Class
A (reference 5.2) and storage buildings.
10. Temporary construction uses (reference 5.1.18).
R -4 Residential District Zoning Regulations
Page 11
11. Public uses and buildings including temporary or mobile
facilities such as schools, offices, parks, playgrounds and roads
funded, owned or operated by local, state or federal agencies
(reference 31.2.5); public water and sewer transmission, main or
trunk lines, treatment facilities, pumping stations and the like,
owned and /or operated by the Rivanna Water and Sewer Authority
(reference 31.2.5; 5.1.12). (Amended 11 -1 -89)
12. Tourist lodgings (reference 5.1.17).
13. Homes for developmentally disabled persons (reference
5.1.07).
14. Stormwater management facilities shown on an approved final
site plan or subdivision plat. (Added 10 -9 -02)
15. Tier 1 and Tier 11 personal wireless service facilities (reference
5.1.40). (Added 10- 13 -04)
• 15.2.2 BY SPECIAL USE PERMIT
The following uses shall be permitted by special use permit in the
R -4 district, subject to the applicable requirements of this chapter:
(Amended 5 -5 -10)
1. Community center (reference 5.1.4).
2. Clubs, lodges, civic, fraternal, patriotic (reference 5.1.2).
3. Fire and rescue squad stations (reference 5.1.9).
4. Swim, golf, tennis, or similar athletic facilities (reference 5.1.16).
5. Private schools.
6. Electrical power substations, transmission lines and related
towers; gas or oil transmission lines, pumping stations and
appurtenances; unmanned telephone exchange centers;
microwave and radio -wave transmission and relay towers,
substations and appurtenances (reference 5.1.12).
7. Day care, child care or nursery facility (reference 5.1.6).
8. Mobile home subdivisions (reference 5.5).
9. Rest home, nursing home, convalescent home, orphanage or
similar institution (reference 5.1.13).
10. Hospitals.
11. Home occupation, Class B (reference 5.2).
12. Churches. (Added 9 -2 -81)
13. Cemeteries. (Added 9 -2 -81)
14. Mobile home parks (reference 5.3). (Added 3 -5 -86)
15. Stand alone parking and parking structures (reference 4.12,
5.1.41) (Added 2 -5 -03)
16. Tier 111 personal wireless service facilities (reference 5.1.40).
(Added 10- 13 -04)
17. Historical centers, historical center special events, historical
center festivals (reference 5.1.42). (Added 6 -8 -05)
18. Farmers' markets (reference 5.1.47). (Added 5 -5 -10)
R -4 Residential District Zoning Regulations
Page 12
ATTACHMENT C
STAFF PERSONS: SORRELL, ECHOLS, MCCULLEY, NEWBERRY
PLANNING COMMISSION WORKSESSION: JULY 24, 2011
CPA 2013 -00001 COMPREHENSIVE PLAN REVISION
Worksession 8 — Urban Agriculture
BACKGROUND
Across the country, more and more people are paying attention to where their food
comes from and how it is produced. This in turn has led to more citizens interested in
participating in their own local food production, with emphasis on food and products
that are grown organically, locally, and sustainably. Local food production is supported
in the County's Comprehensive Plan, but mainly in the Rural Areas. Over the past
several years, however, a number of residents have asked for permission to keep
chickens, pigs, or goats in Albemarle's Development Areas. (Some people are keeping
these livestock already and most don't know that they are allowed only in the RA Rural
Areas and VR Village Residential zoning districts.) Staff has also heard from residents
who are opposed to this concept or are complaining that a neighbor has small livestock.
Staff is asking that the Planning Commission look at this issue as part of the
Comprehensive Plan update.
PURPOSE OF WORKSESSION
This worksession is intended to provide information on the kinds of requests received
from the public, what other localities are doing, the pros and cons of urban agriculture,
and ways in which the Commission could incorporate goals and objectives into the
Comprehensive Plan which support local food production in the Development Areas.
These goals and objectives would be the basis on which future zoning text amendments
occur.
ANALYSIS
What is Urban Agriculture?
As found in a piece written by Ms. Kate Voight for the Boston College Environmental
Affairs Law Review,
"The terms "urban agriculture" and "urban farming" encompass a wide variety of
activities. They can include: growing tomatoes on a roof to supplement a family's
dinner; cultivating a variety of crops on vacant, industrial plots to sell at a local
farmers' market; and raising chickens in a backyard coop to produce enough eggs
for a few families. Assigning one definition is difficult because of this diversity,
but in general, urban agriculture includes "any processes that produce traditional
CPA 2013 -01
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Staff Report Page 1
subsistence, nutritional or commercially profitable food or other grown or raised
products, removed from rural domains, and instead cultivate them in special
intensive conditions within the urban context or in its surrounding buffer, peri-
urban, regions." Urban agriculture often employs "resources (unused or under -
used space, organic waste), services (technical extension, financing,
transportation), and products (agrochemicals, tools, vehicles) ... and, in turn,
generates resources (green areas, microclimates, compost), services (catering,
recreation, therapy), and products (flowers, poultry, dairy) largely for this urban
area."
Regardless of the form, for urban agriculture the goal is to produce, raise and cultivate
items for local sale and consumption within an urban context.
How is it currently addressed in Albemarle County?
Albemarle's Comprehensive Plan supports agriculture in the Rural Areas, but does not
mention support for small -scale agriculture in the Development Areas. The zoning
ordinance allows for all forms of agriculture in Rural Areas and Village Residential zoning
districts. In the urban zoning districts (which include all residential districts) production
of fruits and vegetables is permitted as an accessory use to a dwelling (i.e. gardening).
However, such use is not permitted as a primary use of a property. While the typical
requests from the public to the Zoning Administrator are for the keeping of a few laying
hens (backyard chickens) or keeping of a few goats for milk production, it should be
noted that gardening as a stand -alone use is not permitted in urban zoning districts
Beekeeping has not been a request, although it is likely occurring. A request to keep
pot - bellied pigs as pets was made by an owner several years ago, but the Board
determined that this should not occur in the Development Areas due to significant
impacts of pigs.
How is urban agriculture addressed in other places?
Many urban and urbanizing communities like Albemarle are searching for ways to
support urban agriculture and the local food movement without compromising resident
health and safety. Staff researched the comprehensive plans of a dozen localities. Most
address urban agriculture as a principal of sustainability and see local food production
as addressing objectives such as promoting community awareness and wellness and
environmental sustainability. Larger cities with a lot of vacant land see urban
agriculture as an economic driver and local food production as opportunity for business
growth. Most of the information, however, showed up in zoning ordinances. Staff found
information on zoning in ten localities in Virginia ranging from Fairfax County to Grayson
County and several localities outside of Virginia. The result of the research was mixed.
CPA 2013 -01
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Staff Report Page 2
Some of the localities do not support or allow agricultural production of any kind within
their residential areas and some allow for small livestock in their residential areas with
certain restrictions. Community gardens and gardening on vacant lots was supported in
most localities reviewed. Enforcement typically takes place by Zoning Departments or
Animal Control officers.
In Charlottesville most urban agricultural activities are permitted. Specifically, raising
chickens (no roosters), goats (only two and males must be neutered) and bees are
permitted as is gardening as a primary use. The City does not permit cows, pigs or
sheep. There have been no major incidents, thus far, with chickens other than with
chickens running loose. No issues such as diseases, rooster issues, cruelty or
mishandling have occurred. Charlottesville has not had any problems with goats (these
have just recently been permitted) or bees.
Where localities allow for urban agriculture, there are common regulatory themes
which include:
Limits on the number of animals permitted per household (commonly 3 -4 chickens
are permitted per household, with more possible by special use permit if meeting
certain standards. Some require a minimum square footage per animal);
Limits on the types of animals that could be kept. The most commonly permitted
were chickens (hens), ducks, quail, small goats, rabbits and bees. The following
animals are not usually permitted due to issues with excessive noise, space
constraints, difficulty in containing the animals etc.: roosters (male chickens), geese,
guinea fowl, pigs, larger goats, cows, sheep and horses;
Limits on the size of goats;
Rules concerning odor and waste disposal;
Nuisance clauses for noise, odor, disease, pests, waste disposal and predators
Permits and fees required for keeping animals (no different than for keeping dogs or
cats);
Enclosure/ containment restrictions (no at -large running; Coops are best treated like
dog houses which don't require building permits);
Slaughtering restrictions (either not at all or only in an enclosed structure); and
Setbacks for animal enclosure areas from property lines (common range is 10 — 90
feet) and distance restrictions in relation to dwellings (often range from 20 -50 feet).
While doing this research staff gleaned the following additional information:
Urban agriculture regulations that incorporate citizen input in the creation stage
ensure an ordinance that best fits the needs (and is supported by) the community;
and
CPA 2013 -01
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Staff Report Page 3
If regulations are unclear and guidance is not provided to citizens, a higher
percentage of code enforcement issues and neighbor disputes will arise.
Enforcement of Regulations
When a locality adopts new regulations related to urban agriculture, it must consider
how those regulations will be enforced. As mentioned earlier in the report, most
localities enforce their regulations either through the Police Department (Animal
Control Officers) or through Zoning. In Charlottesville, complaints are received by both
Zoning and Police, but it is the Animal Control Officer who does enforcement. That
office fields several calls a month, but most calls are with questions about permitting
and are not complaints. The animal control officer also has the authority to write a
ticket for a property owner if goats or chickens are not being properly cared for and he
can remove animals if necessary, though he has never had to do so. Unlike dogs and
cats, groups like the SPCA do not take chickens or goats so when animals are running at-
large, the City takes them to the stockyard off Franklin St. Albemarle County has had
only a few complaints in the last few years; however the most recent one has involved
approximately four hours of staff time in dealing with the complaint and does not
include re- inspection for abatement or penalties.
Issues for Albemarle
Albemarle has several issues it needs to consider if greater support and allowance is
desired for local food production in the Development Areas. First the County would
need to decide on the level of production desired. Would keeping of small livestock and
bees be supported in all parts of the Development Areas? If not, where would it not be
appropriate? How many of what kind should be allowed? Should permits be required?
What kinds of parameters would be needed to protect residents and adjoining property
owners as well as the livestock?
Second, if county regulations were to change, what kinds of enforcement would be
necessary? Staff time to investigate complaints will be needed, either by the Zoning
Division or by the Animal Control staff. As mentioned previously, investigations of
complaints takes time and staff resources. Cross - training of departments would be
needed since typically both Zoning and Animal Control receive complaints and
questions. Staff would need to be available to assist residents in permitting and
understanding regulations. As an aside, in recent discussions, animal control staff was
wary about permitting livestock in the Development Areas due to the additional
enforcement that would be required as they are at capacity with three officers to cover
the whole County. The Zoning Division also notes that zoning enforcement staff has
been reduced from seven to three staff members in recent years. While overall building
CPA 2013 -01
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Staff Report Page 4
permit numbers are down, complaints about potential zoning violations are up 10% with
remaining staff handing a greater workload. Allowing urban livestock would further tax
a limited staff. In addition, some aspects of enforcement will be problematic (such as
determining the sex of young chickens if need be) and time consuming which will
compete with other aspects of enforcement. Additional enforcement responsibilities
may delay response times or times to abate violations in general depending on the
extent of the Zoning Division's involvement.
Third, how would community education be provided? Many in the community believe
that local food production should be supported in the Development Areas. But, there
are residents who have strong feelings that livestock should not be allowed in
residential areas. Activities would be needed to help people understand how urban
livestock and bees can be managed in residential areas without negative impacts.
What is the relationship to the Comp. Plan?
If urban agriculture is to be supported and allowed in the Development Areas, the
Comprehensive Plan would need to provide guidance as to what types of agriculture are
appropriate in the Development Areas. In addition, general guidance on how it should
be managed is needed so that zoning regulations can be developed to actually allow the
activity.
Recommendations
Staff has studied the impact urban agricultural activities may have on health, sanitation
and neighborhood quality. With proper controls on nuisance issues, staff believes that
urban agriculture (particularly the raising of small farm animals) can be supported and
allowed without compromising public health and safety. The ultimate key to success in
this area is establishing clearly- stated and easily accessible regulations for the public
which helps to ensure compliance and reduces violations.
In addition, staff finds there would be minimal if any negative impacts from allowing
gardening on vacant lots in the Development Areas. Permission from property owners
of vacant lots would need to given in those cases where community gardening is
occurring. In such cases, trips to the gardens from the gardeners would be minimal and
mostly during growing season. This kind of activity is already occurring in the Rural
Areas with little notice from the public.
In making a recommendation that the Comprehensive Plan include support for urban
agriculture, staff notes the necessity of staff resources to ensure that there are not
impacts on adjoining property owners in the Development Areas. Additional staff
CPA 2013 -01
PC July 24, 2012
Staff Report Page 5
resources (such as training, time and personnel) would be necessary to manage new
enforcement responsibilities while maintaining the existing level of service excepted by
county residents.
Staff offers the following language to be added to the Comprehensive Plan:
Objective: Support local food production and consumption through the use of urban
agriculture practices as a means for increasing access to healthy, local and affordable
foods and encouraging the productive use of vacant land.
Strategy: Encourage and promote appropriate agricultural uses of urban land.
Adopt zoning regulations that:
Clearly define urban agriculture, including the allowance for gardening as a stand-
alone use as well as stipulation of what animals are permitted and which ones
are not and other limitations. Strong consideration should be given to only
allowing chickens (no roosters) and small goats which have been neutered.
Allow for beekeeping with restrictions on the number of hives and performance
standards to prevent negative impacts to adjoining residents and people.
Discourage health and nuisance hazards sometimes associated with agricultural
activities, which may include setback requirements, yard size requirements, and
complaint procedures
Require a permit be issued for keeping of bees, small livestock, and poultry to
ensure that operators understand the regulations and also to provide guidance
on resources for assistance.
Require a waste management plan with keeping of small livestock and poultry
Provide staff resources for enforcement, primarily for investigating complaints.
Assign county staff to serve as the point of contact for permitting and urban
agricultural questions.
Partner with local organizations to provide education on how to keep backyard
chickens and goats as well as on local regulations.
In consideration of these recommendations, staff asks that the Commission provide
direction regarding the inclusion of language in the Comprehensive Plan supporting
local food production and consumption through the use of urban agriculture practices.
CPA 2013 -01
PC July 24, 2012
Staff Report Page 6
From: Bruce Barkley [mailtoprecbldr @earth link. net]
Sent: Tuesday, September 18, 2012 10:47 AM
To: Amelia McCulley
Subject: RE: hobby chicken appeal
Bruce and Carolyn Barkley
140 Guilford Lane
Charlottesville, VA,
22901
Phone: 434 - 960 -2394
Email: precbldr @earthlink.net
Subject: AP201200002
Backyard Hobby Chickens
Sign #18, 19
Dear Zoning Board Members,
This letter is to state my objection to any variance to the county zoning concerning the above appeal.
While I am all for individual home owners being able to have the freedom to use their property as they
see fit, the keeping of livestock animals is not something that is desirable in a residential neighborhood.
It has a negative impact to many neighbors, especially the odors that emanate.
While we are out on deck or working in our yard, the smell of chicken manure, can be intense, especially
in hot and /or wet weather.
To allow "hobby" chickens or "hobby" livestock of any sort would be a very slippery slope.
Where would be the demarcation line?
The board should stick to the letter of the zoning in this case.
I am available for questions or comments.
Bruce and Carolyn Barkley
(Property owners of 140 Guilford Lane)
If possible, I would like this letter to be confidential. But if it needs to be public, then so be it.
From: Amelia McCulley [ mailto :AM000LLECa)albemarle.orq]
Sent: Monday, September 17, 2012 2:56 PM
To: precbldr @earthlink.net
Subject: hobby chicken appeal
I just wanted to confirm that I have the correct email address for you.
Amelia McCulley, Albemarle County Zoning
COUNTY OF ALBEMARLE
AT
MEMORANDUM
TO: Albemarle County Board of Zoning Appeals
FROM: Andrew H. Herrick, Senior Assistant County Attorney
DATE: September 27, 2012
RE: Adams /Miller Appeal; Appeal No. AP2012 -00002
On behalf of the County, the County Attorney's Office submits the following summary of the
issues associated with Stuart and Norma Adams' appeal of the Notice of Violation issued by the
Zoning Administrator on June 20, 2012.
1. Summary of Facts
On receiving a complaint that chickens were being kept at 122 North Bennington Road (the
"Subject Property ") in the R4 residential district, a Code Enforcement Officer responded to
investigate. On the Officer's arrival, the occupant acknowledged that chickens were in fact being
kept on the property. The occupant simply requested a written Notice that could be appealed.
By Notice of Violation issued June 20, 2012, the Zoning Administrator determined that the
keeping of poultry on the Subject Property was not a permitted use in the R4 residential district,
either by right (Zoning Ordinance § 15.2. 1) or by special use permit (§ 15.2.2).
2. Introduction
Virginia Code § 15.2- 2309(1) enables the Board of Zoning Appeals (BZA) to "hear and
decide appeals from any order, requirement, decision or determination made by an administrative
officer in the administration or enforcement of [the zoning ordinance]. The decision on such appeal
shall be based on the board's judgment of whether the administrative officer was correct." See Board
of Zoning Appeals of James City County v. University Square Associates, 246 Va. 290 (1993).
In their Notice of Appeal dated July 18, 2012, the Appellants contend that the keeping of
poultry is a permitted accessory use of residential property. Though neither poultry nor agriculture is
listed in the R4 residential ordinance, the Appellants argue that such uses are customarily incidental
to residential use.
The Appellants rely on Wiley v. County of Hanover, 209 Va. 153 (1968), a 1968 Virginia
Supreme Court case overturning a property owner's criminal conviction for violating the then -
existing Hanover County zoning ordinance by keeping homing pigeons in a residential district. In
Wiley, as here, the owner had claimed that the keeping of birds was customarily incidental to
residential use.
3. Urban Agriculture is Not "Customarily Incidental" to Residential Use.
As the Board may be aware, Albemarle County has an inclusive or permissive zoning
ordinance, which permits only those primary uses specifically named. The fact that the zoning
ordinance doesn't expressly prohibit the keeping of poultry in residential areas does not mean that
they are allowed. On the contrary, the fact that the zoning ordinance doesn't expressly allow the
keeping of poultry in residential areas generally means that they are not allowed. With an inclusive
ordinance, the burden is on the landowner to show that a proposed primary use is permitted. Board of
Supervisors of Fairfax County v. Board of Zoning Appeals of Fairfax County, 271 Va. 336, 626
S.E.2d 374 (2006); Fairfax County v. Parker, 186 Va. 675, 44 S.E.2d 9 (1947).
Despite the Appellants' reliance on Wiley v. County of Hanover, that case does not establish a
more general right to keep birds in residential districts statewide. The holding in Wiley v. County of
Hanover is limited to the specific facts of that case. Wiley involved a criminal prosecution, where
Hanover County had to prove a zoning violation beyond a reasonable doubt. In Wiley, Hanover
County failed to present any evidence that the keeping of pigeons was not customarily incidental to
residential use. Because the Hanover prosecutors in Wiley had failed to present any evidence on that
element of the alleged offense, the Supreme Court overturned the owner's criminal conviction.
Again, the Wiley decision simply reflects a lack of required proof in a specific criminal case. The
Supreme Court never affirmatively found that the keeping of birds was customarily incidental to
residential use, the Court simply found that the prosecution there had failed to prove that it wasn't.
By contrast, in the Appellants' present appeal, the Appellants are not facing criminal
prosecution, with its heightened burden of proof. Rather, in the present appeal, the sole issue is
whether the Zoning Administrator's official determination was correct. To prove the determination
incorrect, the Appellants would have to show that the keeping of poultry was so widespread in
residential districts as to be both customary and incidental to residential use.
A customary use must be "common enough so that it can be said to be a known and accepted
incidental use." County of Lake v. La Salle National Bank, 76 Ill. App. 3d 179, 182, 395 N.E.2d 392,
394 (1979). In other words, a use is customarily incidental "when it is so necessary or so commonly
to be expected in connection with the main use that it cannot be supposed that the ordinance was
intended to prevent it." Grandview Baptist Church v. Zoning Board of Adjustment, 301 N.W.2d 704,
708 -709 (1981). For example, though parking lots are not listed as a permitted use in the R4
residential district, the parking of vehicles in residential driveways and garages is so widespread as to
be expected. The same cannot be said of poultry or livestock in residential districts.
An incidental use implies that the use flows from, naturally derives or follows as a logical
consequence of, or is a normal and expected offshoot from the primary use. Town of Alta v. Ben
Hame Corporation, 836 P.2d 797 (Utah Ct. App. 1992). Again, while the parking or storage of
personal vehicles is a "normal and expected offshoot" of residential use, the same cannot be said
about the keeping of poultry.
While the County is not aware of any Virginia decisions directly on point, persuasive
authority from elsewhere has found that keeping chickens and goats is not an accessory use, because
such use is not customarily associated with a residential area. Noting that keeping chickens and
goats was permissible only in conjunction with farming, the court in Lawrence v Zoning Bd. of
Appeals, 158 Conn. 509, 264 A.2d 552 (1969), held that such activity was not an accessory use of
2
residentially zoned property, under an ordinance which defined an accessory use as subordinate and
customarily incidental to, and located on the same lot as, the main use. In that case, the zoning board
made note of uses incidental to a residence and remarked that raising poultry and livestock should be
permitted only in conjunction with farming. The court concluded that the local board's decision to
disallow the instant use was peculiarly within its knowledge, and was not an abuse of discretion. 54
A.L.R.4th 1034, 4.
Similarly, in another case, the New Jersey court decided that a zoning ordinance allowing
accessory uses of residential property did not contemplate chicken housing as such a use, on grounds
that it was not used in conjunction with or subordinate to the premises' principal use as a single -
family dwelling. Observing that, unlike a garage or servants' quarters, chicken housing was not used
in conjunction with or subordinate to a dwelling, the court in De Benedetti v River Vale Tp., 21 N.J.
Super. 430, 91 A.2d 353 (1952), ruled, for purposes of deciding whether compliance with size
restrictions applied to accessory buildings was required, that such housing could not be characterized
as an accessory use of property located in a single - family residential district, under a zoning
ordinance which defined an accessory building as subordinate to the main building and used for
purposes customarily incidental to those of the main building. 54 A.L.R.4th 1034, 5.
4. Urban Agriculture Generally is a Legislative Issue for the Board of Supervisors.
The question of what urban agriculture, if any, to allow in the residential districts of
Albemarle County is currently an active topic of discussion before the Planning Commission. The
Commission may (or may not) ultimately recommend that the Board of Supervisors amend the
zoning ordinance to allow certain types of urban agriculture in the residential districts. While many
localities do not allow urban agriculture of any kind, those that do (including the City of
Charlottesville) make specific provision for it in their zoning ordinances. When allowed, urban
agriculture is not simply allowed by default as a "customarily incidental" accessory use, it is allowed
if /where a local governing body has consciously decided to allow it. Ultimately, the decision of
whether or under what conditions to allow urban agriculture is a legislative decision for a local
governing body, rather than a quasi-judicial decision for a Board of Zoning Appeals.
5. Conclusion
Neither the County Zoning Ordinance nor Virginia case law creates a right to keep poultry in
residential areas. The keeping of poultry is neither customary nor incidental to residential use. If
urban agriculture ultimately is to be allowed in the residential districts of Albemarle County, it
should be allowed as a legislative act of the Board of Supervisors. However, because the keeping of
poultry in residential districts is not permitted under current law, the Zoning Administrator's official
Notice of Violation should be affirmed.
Cc: Amelia McCulley, Zoning Administrator