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Home My WebLink AboutAP201300002 Staff Report 05/07/2013STAFF PERSON: Amelia G. McCulley PUBLIC HEARING: May 7, 2013 STAFF REPORT AP 2013 -002 Yellow Mountain Road Fireworks Display OWNERS: Terrence or Courtnay Daniels APPELLANT: Doris Louise Dehne, Trustee of the Doris Louise Dehne Revocable Trust The appellant appeals the Zoning Administrator's determination in accordance with Section 34.3 of the Albemarle County Zoning Ordinance. INTRODUCTION The subject property, known as Whilton Farm, is located at 259 Yellow Mountain Road at the intersection with Ortman Road (Rt. 691) in Greenwood. It is Tax Map 71, Parcel 1 and is zoned Rural Areas. This property consists of 340 acres and is owned by Terrence and Courtnay Daniels. They purchased the property in 1988 and reside on it. The owners obtained a permit from the Albemarle County Fire Official for an aerial fireworks display that occurred on July 6, 2012. Asst. Fire Marshal Gilmer was on site when the show was delivered. He reported no issues with the fallout area and no adverse affects of fallout from fireworks debris. The appellant owns a parcel that is adjacent to the north of the subject property. A resident filed a complaint with the Zoning Administrator in February 2013 relating to the July 2012 fireworks display. After an investigation, the Zoning Administrator determined that this activity was a permitted accessory use. On March 4, 2013, she rendered an official determination of no violation found (Attachment A). The appellant appeals this determination. BACKGROUND According to Mr. Daniels, his family has held an annual fireworks display for 20 years to which they invite friends and neighbors. Section 10.2.1 of the Albemarle County Zoning Ordinance addresses uses permitted by -right in this zoning district. Section 10.2.1 (7) permits "7. Accessory uses and buildings including major home occupations (reference 5.2 A), minor home occupations (reference 5.2A), and storage buildings." (Emphasis added) The term, "accessory use" is defined within Section 3.1 as follows: Accessory Use, Building or Structure: A subordinate use, building or structure customarily incidental to and located upon the same lot occupied by the primary Page 2 STAFF REPORT AP 2013 -002 Yellow Mountain Road Fireworks BZA May 7, 2013 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 some lot occupied by the primary farm use, building, or structure. Accessory uses and structures, such as swimming pools and swing sets, are not explicitly listed but are included within the broadly stated accessory uses and buildings category [§ 10.2.1(7)]. Accessory activities, such as cooking and eating outside, talking to your neighbor, playing catch, fishing, horseback riding and the like — are not explicitly listed within the Albemarle County Zoning Ordinance, or within most zoning ordinances. There are certain uses and activities that are customarily associated with property and are subordinate or incidental to the primary use of the property. Fireworks displays are not explicitly listed within the Albemarle County Zoning Ordinance. They are common activities on one's property and at parks during special events. For example, Crozet Park holds fireworks displays related to the 4t" of July and McIntire Park holds them for the Dogwood Festival. A listing of fireworks permits issued during 2012 (Attachment C) shows that fireworks displays are a customarily incidental use of property, mostly within the Rural Areas district. BASIS FOR DETERMINATION A fireworks display for invited guests is a customary activity associated with rural properties. Fireworks displays are frequently associated with the celebration of the 4t" of July. The aerial fireworks display on July 6, 2012 was subordinate to the regular daily use of the property. In summary, this activity is customary and subordinate: it is a permitted accessory use. RESPONSE TO APPELLANT'S ARGUMENT The appellant has submitted substantial documentation challenging the issuance of the fireworks permit (under Chapter 6 of the County Code) and alleging a violation of the noise ordinance (under Chapter 7 of the County Code). Note that neither of these issues falls under the County zoning ordinance (Chapter 18 of the County Code) or the Zoning Administrator's determination of March 4, which is the only issue properly before the BZA. Neither the Zoning Administrator nor the BZA has jurisdiction over non - zoning matters, and neither can overrule the County Fire Official in the issuance and enforcement of fireworks permits. Page 3 STAFF REPORT AP 2013 -002 Yellow Mountain Road Fireworks BZA May 7, 2013 Rather than appealing to the Albemarle County Fire Prevention Code Appeals Board, the Appellant is now appealing to the wrong Board. Documents from ATF, the Fire Prevention Code, U.S. Department of Transportation and U.S. Consumer Product Safety Commission are simply not relevant to the only zoning issue properly before this Board: whether this permitted fireworks display was a customarily incidental use of the property. CONCLUSION The appellant would have the Board limit ALL uses of property to those explicitly listed within the Albemarle County Zoning Ordinance. This limitation would not allow fireworks displays within Albemarle County because they are not listed as a permitted use. This finding would also lead to a prohibition against swimming pools, swing sets, playing catch and other activities and uses that are commonly associated with a residence. Within the Rural Areas zoning district, the listing of "accessory uses and buildings..." allows accessory use of property (§ 10.2.1(7)). The fireworks display on July 6, 2012 at the subject property was a customarily incidental use of that property and was therefore permitted as an accessory use. Therefore, it does not constitute a zoning violation. Page 4 STAFF REPORT AP 2013 -002 Yellow Mountain Road Fireworks BZA May 7, 2013 APPEAL AP 2013 -02 LIST OF ATTACHMENTS Attachment A Official Determination of No Violation Found dated March 4, 2013 Attachment B Applicable Zoning Ordinance Regulations Attachment C Listing of Fireworks Permits issued in 2012 AP 2013 -02 Attachment A U ulu �'IRGINZP COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902 -4596 Phone (434) 296 -5832 Fax (434) 972 -4126 March 4, 2013 Robin Y. McDowel 7325 Back Woods Lane Greenwood, VA 22943 -1625 Re: ZVIO 2013 -044 — Determination Resulting from Complaint about Aerial Fireworks Display Permit Issued July 6, 2012 to 259 Yellow Mountain Road, Greenwood, Virginia Dear Mr. McDowel, In response to your complaint, I have determined that the activity referenced above was not a violation of the Albemarle County Zoning Ordinance. As the subject of a duly - issued permit under County Code § 6 -303, the subject activity was a customarily incidental use of the subject property. The property at 259 Yellow Mountain Road is zoned Rural Areas (RA). Section 10.2.1(7) of the Albemarle County Zoning Ordinance permits "accessory uses" by -right in this zoning district. Section 3.1, in turn, defines "accessory use" as follows: Accessory Use, Building or Structure: A subordinate use, building or structure customarily incidental to and located upon the some 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. Again, the subject activity was such a customarily incidental use of the subject property. 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. 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. Page 2 March 4, 2013 Letter to Robin Y. McDowel AP 2013 -02 Attachment A 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.org/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 /countycodebza. (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.org/cdapp ckl�& G Amelia G. McCulley, A.I.C.P. Zoning Administrator AP2013 -02 Attachment B 3.1 DEFINITIONS Accessory Use, Buildinq or Structure: 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) ALBEMARLE COUNTY CODE CHAPTER 18 ZONING SECTION 10 RURAL AREAS DISTRICT, RA Sections: 10.1 INTENT, WHERE PERMITTED (Amended 11 -8 -89; 10 -3 -01) 10.2 PERMITTED USES 10.2.1 BY RIGHT 10.2.2 BY SPECIAL USE PERMIT 10.3 APPLICATION OF REGULATIONS FOR DEVELOPMENT BY RIGHT 10.3.1 CONVENTIONAL DEVELOPMENT (Amended 11 -8 -89) 10.3.3 RURAL PRESERVATION DEVELOPMENT (Added 11 -8 -89) 10.3.3.1 DEFINITIONS (Added 11 -8 -89) 10.3.3.2 INTENT; DESIGN STANDARDS (Added 11 -8 -89) 10.3.3.3 SPECIAL PROVISIONS (Added 11 -8 -89) 10.4 AREA AND BULK REGULATIONS 10.5.2 WHERE PERMITTED BY SPECIAL USE PERMIT 10.5.2.2 MATERIALS TO BE SUBMITTED BY THE APPLICANT 10.1 INTENT, WHERE PERMITTED This district (hereafter referred to as RA) is hereby created and may hereafter be established by amendment of the zoning map for the following purposes: (Amended 11- 8-89) - Preservation of agricultural and forestal lands and activities; -Water supply protection; AP 2013 -02 Attachment B - Limited service delivery to the rural areas; and - Conservation of natural, scenic, and historic resources. (Amended 11 -8 -89) Residential development not related to bona fide agricultural /forestal use shall be encouraged to locate in the urban area, communities and villages as designated in the comprehensive plan where services and utilities are available and where such development will not conflict with the agricultural /forestal or other rural objective. Where development does occur, rural residents should expect to receive a lower level of service delivery than will be provided to residential developments in designated growth areas. In relation to residential development, agricultural /forestal activities shall be regulated only to the extent necessary to protect public health and safety. (Added 11 -8- 89; Amended 10 -3 -01) In regard to agricultural preservation, this district is intended to preserve the county's active farms and best agricultural and forestal lands by providing lot areas designed to insure the continued availability of such lands for preferential land use tax assessment in order to enhance the economy, and maintain employment and lifestyle opportunities. In addition, the continuation and establishment of agriculture and agriculturally - related uses will be encouraged, and landowners will be encouraged to employ Virginia State Water Control Board best management practices. (Amended 11 -8- 89) (§ 10.1, 12- 10 -80, 11 -8 -89; Ord. 01- 18(6), 10 -3 -01) It is intended that permitted development be restricted to land which is of marginal utility for agricultural /forestal purposes, provided that such development be carried out in a manner which is compatible with other purposes of this district. Roadside strip development is to be discouraged through the various design requirements contained herein. (Amended 11 -8 -89) 10.2 PERMITTED USES 10.2.1 BY RIGHT The following uses shall be permitted by right in the RA district, subject to the applicable requirements of this chapter: 1. Detached single - family dwellings, including guest cottages and rental of the same; provided that yard, area and other requirements of section 10.4, conventional development by right, shall be met for each such use whether or not such use is on an individual lot subject to section 10.3. 2. Side -by -side duplexes subject to the provisions of section 10.4; provided that density is maintained and provided 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. Agriculture, forestry, and fishery uses except as otherwise expressly provided. 4. Game preserves, wildlife sanctuaries and fishery uses. 5. (Repealed 5 -5 -10) 6. 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 2 AP 2013 -02 Attachment B 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) 7. Accessory uses and buildings including major home occupations (reference 5.2A), minor home occupations (reference 5.2A), and storage buildings. (Amended 1- 12 -11) (emphasis added) 8. Temporary construction uses (reference 5.1.18). 9. 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) 10. Temporary sawmill (reference 5.1.15 and subject to performance standards in 4.14). 11. Veterinary services - off -site treatment only. 12. Agricultural service occupation (subject to performance standards in 4.14). 13. Divisions of land in accordance with section 10.3. 14. Bed and breakfast (reference 5.1.48). 15. Mobile homes, individual, qualifying under the following requirements (reference 5.6): a. A property owner residing on the premises in a permanent home wishes to place a mobile home on such property in order to maintain a full -time agricultural employee. b. Due to the destruction of a permanent home an emergency exists. A permit can be issued in this event not to exceed twelve (12) months. The zoning administrator shall be authorized to issue permits in accordance with the intent of this ordinance and shall be authorized to require or seek any information which he may determine necessary in making a determination of cases "a" and "b" of the aforementioned uses. 16. Temporary mobile home in accordance with section 5.7. (Amended 11 -8 -89) 17. Farm winery uses authorized under section 5.1.25(a) and (b). (Added 12- 16 -81; Amended 5 -5 -10) 18. Borrow area, borrow pit, not exceeding an aggregate volume of fifty thousand (50,000) cubic yards including all borrow pits and borrow areas on any one parcel of record on the adoption date of this provision (reference 5.1.28). (Added 7 -6 -83) 19. Mobile homes on individual lots (reference 5.6). (Added 11- 11 -92) 20. Commercial stable (reference 5.1.03). (Added 11- 15 -95) 21. Stormwater management facilities shown on an approved final site plan or subdivision plat. (Added 10 -9 -02) 22. Tier I and Tier II personal wireless service facilities (reference 5.1.40). (Added 10- 13 -04) 23. Farm worker housing, Class A (up to ten occupants and up to two sleeping structures) (reference 5.1.44). (Added 12- 13 -06) 24. County store, Class A (reference 5.1.45). (Added 11- 12 -08) 25. Small wind turbines (reference 5.1.46) (Added 12- 10 -09) 26. Farm sales (reference 5.1.47) (Added 5 -5 -10) 27. Farm stands (reference 5.1.47) (Added 5 -5 -10) 3 Attachment C Listing of Fireworks Permits issued in 2012 Name Address Parcel ID Keswick Country Club 701 Club Drive 08000 -00 -00 -00900 Keswick Country Club 701 Club Drive 08000 -00 -00 -00900 Keswick Country Club 701 Club Drive 08000 -00 -00 -00900 Keswick Country Club 701 Club Drive 08000 -00 -00 -00900 Claudius Crozet Park 1075 Claudius Crozet Park 056A2 -01 -00 -07200 Collina Farm 3055 Collina Farm 07900- 00- 00 -024BO Trump Winery 100 Grand Cru Drive 10300 -00 -00 -001 EO Whilton Farm 259 Yellow Mountain Road 07100 -00 -00 -00100 Murcielago 6903 Blenheim Road 12300 -00 -00 -00700 Murcielago 6903 Blenheim Road 12300 -00 -00 -00700 Trump Winery 100 Winery Hill Lane 10200-00-00 - 035BO Trump Winery 100 Winery Hill Lane 10200-00-00 - 035BO Castle Hill Cidery 6065 Turkey Sag Road 04900- 00- 00 -018B1 Pippin Hill Farm & Vineyards LLC 522 Pippin Hill Lane 08600 -00 -00 -08800 Farmington Country Club 1625 Country Club Drive 060E2 -00 -00 -00100