HomeMy WebLinkAboutLOD200800021 Letter of Determination 2008-10-30� OF ALB
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COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 22902-4596
Phone (434) 296-5832 Fax(434)972-4126
October 24, 2008
Fred Payne
Payne & Hodous, L.L.P.
414 East Jefferson Street
Charlottesville, VA 22902
Re: Zoning Determination — effect of park easement on right to develop TM61,
Parcel 167C
Dear Fred:
This is in response to your letter dated August 25th and is in follow-up to our several
email discussions on the matter. This question relates to the portion of the property
(approximately 6 acres) which is subject to easements relating to the construction of the
Meadowcreek Parkway, park and trail. In formulating this decision, I have consulted
with the County Attorney's office, the Director of Planning and the Chief of Current
Development.
You have asked that in my responses I also assume the property might be rezoned and
indicate whether the determination would be different. The questions and responses
are as follows:
1. Can property subject to easement count towards aggregate acreage for
calculating the number of dwellings which can be developed on the
Property?
Yes, it can. The maximum number of units (in conventional development) would
be the total orgross acreage (in easement or not x 4 DU/ac.
The area and bulk regulations within the Albemarle County Zoning Ordinance
reference "gross density." Gross residential density is defined with Section 3.0
as: "The total number of dwelling units within a development divided by the gross
residential area and expressed in dwelling units per acre." Gross residential area is
defined as: "The total area of land and water within a residential development." Area
within easements is not expressly excluded but it is part of the total area of the
property.
Fred Payne
October 24, 2008
Page 2
If the property were rezoned, the gross density of that new zoning district would
also be applied to the gross residential area. That area includes easements.
The rezoning review could also include consideration that the permanent
easement encumbers the property to the extent that the full density under the
current zoning is not feasible to develop.
2. Can the portion of the property which is subject to easements be included
as satisfying the requirements of open space and/or recreation (Sections
4.7 and 4.16)?
Yes, that is possible.
A. OPEN SPACE — Open space must currently be approved by the Planning
Commission and it is a review under the criteria of Section 4.7. Staff
could not recall a situation in which an easement such as this
encumbered property designated as open space. Section 4.7.2 allows
utilities in open space although we will need to make sure there won't be
manmade features or other features that will explicitly require Commission
approval. Open space will have to meet the design requirements for open
space (4.7.3) In addition, we will need to review the proposal under
Section 4.7.4 Ownership, to make sure the easement arrangement still
ensures maintenance and preservation for the purpose for which the open
space is intended.
B. RECREATION — Must be found to be appropriate and meet standards
under Section 4.16. This includes the installation of certain equipment
and improvements for the residents.
Because a rezoning is a legislative act, it provides for further consideration of
issues that would not be applicable in a ministerial act. A rezoning to a
Planned Development designation could include a request to modify these
regulations within Section 4 (See Section 8.2).
3. If the portion of the property subject to easements were to be dedicated to
public use for park purposes, would such dedication be entitled to density
bonuses?
The purpose of the current easement as stated in the deed is for the purpose of
a publicly owned park. This appears to include the construction, maintenance,
access to and use of a public park. Based on the information currently available
to us, there does not appear to be an added value to the public in the dedication
of the land fee simple. Therefore, it would be difficult to find the standard for a
density bonus has been met. If you have further thoughts or additional
information for our consideration on this issue, we welcome it.
Fred Payne
October 24, 2008
Page 3
1f you are aggrieved by this determination, you have a right to appeal it within thirty (30)
days of the date notice of this determination is given, in accordance with Section 15.2-
2311 of the Code of Virginia. If you do not file a timely appeal, this determination shall
be final and unappealable. An appeal shall be taken only by filing with the Zoning
Administrator and the Board of Zoning Appeals a notice of appeal which specifies the
grounds for the appeal. An appeal application must be completed and filed along with
the fee of $120. The date notice of this determination was given is the same as the
date of this letter.
Sincerely,
Amelia G. McCulley, A.I.C.P.
Zoning Administrator
cc: CV reading file