HomeMy WebLinkAboutAP200800006 Staff Report 2009-01-27STAFF PERSON: Amelia G. McCulley
PUBLIC HEARING: February 3, 2009
STAFF REPORT AP 2008 -006
APPLICANT/APPELLANT: Barracks Road Land Trust; C W Hurt Contractors
(owners 1 appellants)
Description of Property:
This property is known as Tax Map 60, Parcel 68. This (one tax map parcel) property
consists of a total of 21.815 acres in two pieces which are separated by parcel 68E.
The western portion is the larger of the two pieces of the property. The subject property
is the portion of parcel 68 which is the eastern portion of the property. This portion of
the property (hereafter called "the property ") is not built.
The subject property is partially wooded. There is an entrance off Rt. 654 Barracks
Road. There is a short road section leading from the entrance across the dam of the
existing silt basin.
Background of Appeal:
A brief history relevant to this appeal is as follows:
• Barracks Road Land Trust (the property owner) applied for an Erosion Control
Permit to conduct fill or waste activity on Tax Map Parcel 60 -68. The bond was
posted in December 2006. The permit (WPO 2006 -0072) was issued effective
April 10, 2007.
• On May 23, 2008, the Zoning Administrator made an official determination of
zoning violation relating to Violation #2008 -123. This was a determination that
the accumulation of metal, wire trash and debris constitutes a junkyard. This
determination was not appealed. The County is pursuing civil penalties in court.
• On October 7, 2008, the Board of Zoning Appeals heard an appeal of the
Program Authority's determination under the Water Protection Ordinance. The
BZ4 decided to allow the appellants to continue the fill or waste activity until
December 31, 2008.
• On October 30, 2008, the County executed a search warrant to investigate and
determine if prohibited materials remained on the property as fill. The County
contracted a track hoe which dug 17 test pits that were about 10 feet deep. We
found various materials such as metal, fiberglass, plastic and the like. They
ranged from base plates to bollards, pipes and the like. We photographed our
findings and retained several representative items that were found. The holes
were then filled and the property was restored.
AP- 2008 -006 2 February 3, 2009
On November 7, 2008, the Zoning Administrator made an official determination
of zoning violation relating to Violation #2008 -228. This was a finding that
materials which are neither inert nor are soil, have been filled on the property.
This determination is the subject of this appeal.
On November 17, 2008, an appeal was filed.
On January S, 2009, the BZA set this appeal for the February meeting.
Determination:
This is an appeal of the Zoning Administrator's determination of zoning violation
(Attachment A) on November 7, 2008. This determination was made based on
observations of the property on October 30, 2008 and states: "Fill on the property
contains metal, wire, plastic, trash and other materials which are neither soil nor are
they inert materials. Disposal of these materials in a fill or waste area is prohibited." To
simplify, staff will refer to this violation as illegal fill materials. Photographs showing
representative materials are found in Attachment D.
The Board is advised that there are two other determinations that are not the subject of
this appeal. One of those determinations, the decision of the Program Authority of the
Water Protection Ordinance about the time limit for the fill activity, was the subject of
the prior appeal (AP 2008 -002 Barracks Road Land Trust). The other is a
determination of zoning violation (for a junkyard) that was not appealed. The County is
currently pursuing civil penalties in court under this determination.
Relevant Zoning Ordinance Regulations:
(See Attachment B for the Supplemental Regulations and Attachment C which are the
relevant ordinance language to this appeal.)
Each borrow, fill or waste area shall be subject to Section 5.1.28 Borrow, Fill and Waste
Areas. This Zoning Ordinance section includes this requirement:
Each fill or waste area shall be only for the disposal of soil or inert
materials. The disposal of any other materials in a fill or waste area is
prohibited. [Section 5.9.28 a (3) underline emphasis added].
The term, "inert materials," is defined in the Zoning Ordinance as:
Solid materials that are physically, chemically and biologically stable from
further degradation and considered to be nonreactive, including rubble,
concrete, bricks, broken bricks and blocks, and asphalt pavement.
[Section 3.0]
The Zoning Ordinance definition of "inert materials" intentionally follows the definition of
"inert waste" found in the Virginia Waste management Board's Solid Waste
Management Regulations (9 Virginia Administrative Code 20- 80 -10). The definition for
"inert waste" utilized by the Virginia DEQ, is:
AP- 2008 -006 3 February 3, 2009
solid waste which is physically, chemically and biologically stable from further
degradation and considered to be nonreactive. Inert wastes include rubble,
concrete, broken bricks, bricks, and blocks.
The Zoning Ordinance definition consists of two parts in one sentence: the first part
provides the basic criteria and the second part provides a list of examples of materials
that may be inert if they otherwise meet the rest of the definition. These examples (the
second part) do not modify what qualifies as an inert material. For example, if rubble
consists of materials which are physically or chemically unstable, such as metal, that
rubble does not constitute an inert material.
(See Attachment E for the memo from the County Attorney's office addressing this
point.) A material fails the definition of "inert materials" if it is either:
a. Not solid or
b. Physically unstable or
c. Chemically unstable or
d. Biologically unstable or
e. Subject to further degradation or
f. Not considered to be nonreactive
This Zoning Ordinance was amended as a result of a zoning text amendment in April,
2001 applied for by C. W. Hurt Contractors, LLC. ZTA #01 -06 Fill and Waste
established the definition or "inert materials" currently found in the Zoning Ordinance.
The applicant's letter of justification for this zoning text amendment, includes the
statement: "C.W. Hurt Contractors, L.L.C. is applying for a zoning text amendment
hearing on April 23`d, 2001, to propose that the ordinance conforms with and is identical
to the Commonwealth's guidelines." By earlier reference in the same justification letter,
these are the guidelines by the Commonwealth of Virginia Department of
Environmental Quality (DEQ). The purpose is mentioning the origin of the current
definition is twofold: 1) to show that the purpose for the "inert materials" definition was
to be consistent with the DEQ guidelines; and 2) while ignorance of the law is not a
defense, this also shows that the appellant has full knowledge of the current regulations
regarding permitted materials for fill and waste.
Grounds for Zoning Administrator's Decision:
This is a case in which the language of the Ordinance does not need interpretation
because the language is explicit. The appellants do not dispute the explicit language in
their appeal. This decision involves applying the facts of this case to the provisions of
the Ordinance.
In order for material to be considered inert, it must meet each component of the
definition: The material must be solid AND be physically stable AND be chemically
stable AND be biologically stable AND not be subject to further degradation AND be
AP- 2008 -005 4 February 3, 2009
considered nonreactive. If it fails to meet even one component of the definition, it is not
an inert material.
In formulating the determination that the materials cited as prohibited are NOT INERT,
the Zoning Administrator consulted with both the County Engineer and staff from the
DEQ. Both sources confirmed that metal, plastic, and other materials fail to meet the
definition of "inert" because they are subject to additional degradation. For example,
metal can rust and change in time. (See Attachment ❑ for photographs of
representative prohibited materials.)
APPELLANT'S JUSTIFICATION FOR APPEAL: (See Attachment F for the Appeal
Application and G for the supplemental Letter of Justification.)
The appeal application (Attachment F) includes a justification letter from Tucker Hurt
dated November 17, 2008. In this letter, Mr. Hurt explains that these materials are from
the 700 truckloads resulting from the demolition of a UVA parking garage. He contends
that the material is rubble because it meets the definition of "rubble" as found in the
American College Dictionary and the Merriam - Webster Dictionary. He also contends
that "there is a little bit of trash and other materials in 700 loads of demolition; however
these other materials are a very small percent of the total pile of demolished parking
garage...,,
The supplemental letter from William Tanner raises new and additional objections. Two
of the three additional grounds for overturning the Zoning Administrator's determination
of violation relate to proper process for the administrative search warrant. The search
warrant was obtained after first seeking permission from the owner /appellant. The
search warrant was issued by the Circuit Court. The issues raised regarding the search
warrant are not properly before the BZA (see Andy Herrick's memo, Attachment E).
The final of the three points that is relevant is not explained, but simply stated as "the
determination is incorrect on the facts."
STAFF RESPONSE:
Staff is not able to respond to the contention that the determination is incorrect on the
facts without further explanation from the appellant. The Ordinance requires that an
appeal "specify the grounds thereof." Staff objects because this statement does not
adequately specify grounds. Instead it allows the appellant to have an open door to
introduce new justification later without staff having adequate time to prepare and
respond.
We will not respond to the allegation about the search warrant process because it is not
the BZA's purview and we will ask that you refer to Mr. Herrick's memo. Staff will
respond to two other points:
1. The appellant's own letter of justification (Attachment F) concedes "Of course
there is a little bit of trash and other materials in 700 loads of demolition;
AP -2608 -606 5 February 3, 2009
however, these other materials are a very small percent of the total pile of
demolished parking garage..." Trash is not an inert material because it fails
to meet the definition on several counts. There is nothing in either the
definition or the supplemental regulation relating to fill, that allows for a minor
or de minimus amount of prohibited material to remain on property. By the
appellant's own admission, there is prohibited material on this property.
2. The appellant has continued to argue that the items we consider prohibited,
do in fact meet the definition of "rubble." Rubble which satisfies the definition
of "inert materials" is permitted. For example, bricks and block without
additional items such as metal or plastic, can be inert materials. Rubble that
includes materials such metal and plastic which do not meet the definition of
inert materials, is not an inert material.
a. It is clear from the record for this zoning text amendment, that the Board
intended to adopt the same definition for "inert materials" used by ❑EQ as
found in the Virginia Administrative Code. ❑EQ has stated that the
materials in question are not inert.
b. If the Board had simply intended to allow all rubble, concrete and the like
(in the list of examples) to be considered inert materials, the definition
would have expressly stated that. The fact is that the definition does not
state that all rubble, concrete and the like are inert.
c. If you were to adopt the appellant's reasoning about rubble, then the list of
examples of inert materials would allow materials which do not meet the
first part of the definition. That would be an absurd result. In addition, the
appellant has improperly utilized a dictionary definition for rubble. If as he
maintains, rubble is an inert material, it is limited by the definition provided
for inert material.
We ask that the Board supports staff in this decision.
This situation has continued for some time. Several neighbors have expressed
concerns to the County. We hope that the owner /appellant will at some point agree to
meet to discuss a remediation plan for the property to resolve the situation.
AP -2008 -006 6 February 3, 2009
APPEAL
LIST OF ATTACHMENTS
Attachment A: Notice of Official Determination of Violation (NOV) dated
November 7, 2008 (VIO 2008 -0228)
Attachment B: Section 5.1.28 Supplementary Regulations for Borrow, Fill or
Waste Areas
Attachment C: Section 3.0 Definitions for "Inert Materials"
Attachment D: Photos of Materials found Onsite
Attachment E: Memo from Andy Herrick, Senior Assistant County Attorney
Attachment F: Appeal Application
Attachment G: Supplemental Letter of Justification from Attorney, William
Tanner
COUNTY OF ALBEMARLE
'Community Develogrii'ent-Department-
401 McIntire Road
Charlottesville, Virginia 22942 -4596
AP200800006
ATTACHMENT A
FAX (434) 972 -4I26 TELEPHONE (434) 296 -5832 TTD (434) 972 -4412
NOTICE OF OFFICIAL DETERMINATION OF VIOLATION
The Date this Notice of Determination is given is November 7 2008. No: VIO- 2008 -40228
CERTIFIED MAIL # 7005 0394 0043 9642 2343 CERTIFIED MAIL # 7005 0390 4003 9642 2367
Barracks Road Land Trust
P.O. Box 8147
Charlottesville, VA. 22906
Property: 06000 -00 -00 -06800
Tax Map and Parcel Number
Zoning: Rural Area [RA] District
Dear Barracks Road Land Trust,
Barracks Road Land Trust
CIO CW Hurt Contractors
195 Riverbend Drive
Charlottesville, VA 22911
Barracks Land Trust
Owner of Record
This notice is to inform you that the above described property being used as a fill or waste area is in
violation of the Albemarle County Zoning Ordinance, This determination is based on the fact that a Code
Enforcement Officer visited the listed property on October 30, 2008 and found that the following
conditions existed:
Fill on the property contains metal, wire, plastic, trash and other materials which are neither
soil nor inert materials. Disposal of these materials in a ell or waste area is prohibited.
The described use or structure did not exist prior to the zoning ordinance(s) it violates. Therefore, it
is not a legal, but non - conforming use or structure. Accordingly, the following section of the Zoning
Ordinance has been violated.
Section 5,1.28 Borrow, rill or waste areas;
a. Each borrow, fill or waste area shall be subject to the following:...
3. Each fill or waste area shall be only for the disposal of soil or inert materials. The disposal
of any other materials in a fill or waste area is prohibited. (Amended 10- 3.01; 7 -3 -02)
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 responsible party.
VIO -2008 -00228 Page 2 November '7', 2008
You must bring the property into compliance by December 8, 2008 to avoid court action. Bringing the
property into compliance after this date does not preclude the County frorn pursuing legal action based on
current conditions.
ff y..o-u-ar-e-aggrieYed_b�y_ this - determination ,_yAu- aaye_a-right- to_apReaLit- within thixty_(Ja)slays -Q tbiL
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 with the Zoning
Administrator and the Board of Zoning Appeals a notice of appeal that specifies the grounds for the
appeal. An appeal application must be completed and filed along with the fee of $120. Notice of this
determination was given on the same date as this letter.
If you have any questions, please contact Robert Lee Bishop, Jr. Code Enforcement Officer, at 434-
296 -5832 Ext 3033.
I 14A 0. h If 144 A V I 1 00 amt
Amelia McCulley, A.K.P.
Zoning Administrator
County of Albemarle
AP200800006
ATTACHMENT B
Attachment B: Section 5.1.28 Supplementary Regulations for Borrow, Fill
or Waste Areas
*Bold emphasis added to relevant section: 5.1.28 a (3)
Sec. 5.1.28 Borrow, fill or waste areas
a. Each borrow, fill or waste area shall be subject to the following:
1. Each active borrow, fill or waste area shall be shaped and sloped so
that no undrained pockets or stagnant pools of water are created to the
maximum extent reasonably practicable as determined by the program
authority. All undrained pockets and stagnant pools of water resulting from
drainage shall be treated as required by the Virginia Department of Health
to eliminate breeding places for mosquitoes and other insects. (Amended
10 -3 -01; 7 -3 -02)
2. No fill or waste area shall be located either within the flood hazard
overlay district, except as authorized by section 30.3 of this chapter, or in
any stream buffer area as defined by Chapter 17 of the Code of
Albemarle. (Amended 10 -3 -01; 7 -3 -02)
3. Each fill or waste area shall be only for the disposal of soil or inert
materials. The disposal of any other materials in a fill or waste area is
prohibited. (Amended 14 -3 -01; 7 -3 -02)
4. Each borrow, fill or waste area shall be reclaimed within seven (7) days
of completion of the borrow, fill or waste activity, or such later time
authorized by the program authority for reclamation activities of a
seasonal nature. Reclamation shall include, but not be limited to, restoring
the area so that it approximates natural contours; shaping and sloping the
area to satisfy the requirements of subsection (a)(1); covering the area
with clean fill to a minimum depth of two (2) feet in order to allow for
permanent stabilization and reclamation; and establishing a permanent
vegetative ground cover; provided that the program authority may reduce
the minimum depth of clean fill to one (1) foot if the area is unlikely to be
redeveloped. (Amended 7 -3 -02)
5. The zoning administrator, or the program authority for those borrow, fill
or waste areas subject to subsection (b), may require the owner to submit
a reasonable performance bond with surety, cash escrow, letter of credit,
any combination thereof, or such other legal arrangement acceptable to
the county attorney, to ensure that measures could be taken by the county
or the program authority at the owner's expense should he fail, after notice
is given to perform required reclamation work specified in the notice. The
amount of the bond or other surety shall be based on unit pricing for new
public or private sector construction in Albemarle County, Virginia, and a
reasonable allowance for estimated administrative costs and inflation
Page 2
Attachment B
Section 5.1.28 Supplementary Regulations for Borrow, Fill and Waste
Areas
which shall not exceed twenty -five (25) percent of the estimated cost to
initiate and complete the reclamation of the borrow, fill or waste area, and
to comply with all other terms and conditions of the plan or narrative
required by subsection (b). If reclamation work is required to be taken by
the county or the program authority upon the failure of the owner to
do so, the county or the program authority may collect the reasonable cost
of the work directly from the owner, to the extent that the cost exceeds the
unexpended or unobligated amount of the surety. Within sixty (60) days
after the reclamation work is completed and inspected and approved by
the county engineer, the bond or other surety, or any unexpended or
unobligated portion thereof, shall be refunded to the owner. (Added 7 -6-
83; Amended 7- 3 -02))
b. If the aggregate area of a borrow, fill or waste activity will be greater than ten
thousand (10,000) square feet, then, as part of any permit issued pursuant to
section 17 -207 of the Code of Albemarle, the program authority shall first
approve a plan or a narrative for such activity that satisfies the requirements of
subsection (a) and the following: (Amended 7 -3 -02)
1. All inert materials shall be transported in compliance with section 13-
301 of the Code of Albemarle. Before a transporting vehicle leaves the
parcel or parcels on which the borrow, fill or waste area is located, it shall
be cleaned so that no inert materials outside of the vehicle's load -bed can
be deposited on a public street. (Amended 7 -3 -02)
2. The borrow, fill or waste area and the access roads thereto shall be
treated or maintained to prevent dust or debris from blowing or spreading
onto adjacent properties or public streets. Depending on the anticipated
intensity and duration of the activity and the character of the development
of adjoining properties, the program authority may require setback, fencing
and landscaping requirements as deemed appropriate, but which shall not
exceed the requirements of sections 30.4.6, 30.4.7 and 30.4.9 of this
chapter. (Amended 7 -3 -02)
3. Borrow, fill or waste activity involving industrial -type power equipment
shall be limited to the hours of 7:00 a.m. to 9:00 p.m., except in cases of a
public emergency declared pursuant to section 2 -1003 of the Code of
Albemarle. (Amended 7 -3 -02)
Page 3
Attachment B
Section 5.1.28 Supplementary Regulations for Borrow, Fill and Waste
Areas
4. Borrow, fill or waste activity shall be conducted in a safe manner that
maintains lateral support, in order to minimize any hazard to persons,
physical damage to adjacent land and improvements, and damage to any
public street because of slides, sinking, or collapse.
(Amended 7 -3 -02)
5. The placement of fill or waste shall be completed within one (1) year of
its commencement, except for reclamation activities and any other
activities associated with the final stabilization of the area. The program
authority may extend the date of completion upon the written request of
the applicant, demonstrating that factors beyond the control of the
applicant prevented the completion within the one -year period. The
program authority may then extend the permit for a period of time that, in
its sole discretion, is determined adequate to complete the work. (Added
7 -3 -02)
6. In lieu of a plan or narrative, the program authority may accept a
contractual agreement between the Virginia Department of Transportation
and its contractor for a public road project; provided that the program
authority determines that the agreement satisfies at least to an equivalent
extent the requirements and intent of this section. (Amended 10 -3 -01; 7 -3-
02)
( 5.1.28, 12- 10 -80, 7 -6 -83; Ord. 01- 18(6), 10 -3 -01; Ord. 02- 18(5), 7 -3 -02)
AP200800006
ATTACHMENT C
Attachment C: Section 3.0 Definitions
Inert materials: Solid materials that are physically, chemically and
biologically stable from further degradation and considered to be
nonreactive, including rubble, concrete, bricks, broken bricks and blocks,
and asphalt pavement. (Added 7 -3 -02)
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III
COUNTY OF ALBEMARLE
AP200800006
:1. ATTACHMENT E
as
MEMORANDUM
TO: Albemarle County Board of Zoning Appeals
FROM: Andrew H. Herrick, Senior Assistant County Attorney
DATE: January 22, 2009
RE: Barracks Road Land Trust; Appeal No. 2008 -6
On behalf of the County, the County Attorney's Office submits the following summary of
the issues associated with Barracks Road Land Trust's appeal of the determination by the Zoning
Administrator on November 7, 2008.
I. Summary of Facts
Barracks Road Land Trust (the "Trust ") is shown as the owner of Tax Map Parcel 60 -68.
Code Enforcement Officers visited that property on October 30, 2008 and found that the
following conditions existed: "Fill on the property contains metal, wire, plastic, trash and other
materials which are neither soil nor inert materials. Disposal of these materials in a fill or waste
area is prohibited."
Albemarle County Code § 18- 5.1.28(a)(3) provides in part: "Each fill or waste area shall
be only for the disposal of soil or inert materials. The disposal of any other materials in a fill or
waste area is prohibited." In turn, Albemarle County Code § 18 -3.1 defines "inert materials" as:
"Solid materials that are physically, chemically and biologically stable from further degradation
and considered to be nonreactive, including rubble, concrete, bricks, broken bricks and blocks,
and asphalt pavement."
Based on the observations of the Code Enforcement Officers visiting the property, a
Notice of Violation was issued November 7, 2008. The Trust appeals from this determination.
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 its Notice of Appeal dated November 17, 2048, the Trust essentially disputes the
determination that the observed fill and waste material was not allowable "inert material.", The
Trust contends that because the observed material was from a demolished structure, it constitutes
"rubble" and thus allowable "inert material."
3. No unstable or reactive materials are allowed in fill or waste areas.
The first part of the definition of "inert materials" in Albemarle County Code § 18 -3.1 is
critical in determining what types of materials are allowed in fill or waste areas: "Solid materials
that are physically, chemically and biologically stable from further degradation and considered to
be nonreactive ..." Therefore a material fails the definition of "Inert material," if it is either:
(a) Not solid or
(b) Physically unstable or
(c) Chemically unstable or
(d) Biologically unstable or
(e) Subject to further degradation or
(f) Not considered to be nonreactive,
The list that follows ( "rubble, concrete, bricks, broken bricks and blocks, and asphalt pavement ")
merely provides examples of materials that may be inert if they otherwise meet the rest of the
definition.
While that list of examples should not be ignored, neither can the first part of the
definition. If the Board of Supervisors had intended to allow all rubble, concrete, bricks, broken
bricks and blocks, and asphalt pavement, it could have simply defined inert materials as: "all
rubble, concrete, bricks, broken bricks and blocks, and asphalt pavement." Instead, the Board's
actual definition follows the definition of "inert waste" found in the Virginia Waste Management
Board's Solid Waste Management Regulations (9 Virginia Administrative Code 20- 80 -10). By
including the stability and reactivity of the materials in the actual definition, and by putting that
part first, the Board clearly intended that those criteria be considered, and considered first and
foremost.
4. The observed fill is not allowed "rubble."
Though the appellant cites definitions of "rubble" that apparently would allow the use of
demolished structures, the cited definitions are not authoritative or definitive. While the
Albemarle County Code does not provide a definition of "rubble," other definitions would not
include even the observed material. For example, The American Heritage*; Dictionary of the
English Language, Fourth Edition. defines the term as:
I. A loose mass of angular fragments of rock or masonry crumbled by natural or human
forces.
2.
a. Irregular fragments or pieces of rock used in masonry.
b. The masonry made with such rocks."
Houghton Mifflin Company. 2004. htt :'.-"dictioiiar reference.coiii 'bi-owse /rubbic
(accessed: January 19, 2009)
Likewise, Webster's Revised Unabridged Dictionary defines "rubble" by reference to stone and
rocks, not demolished buildings. MICRA, Inc. htt :Ildictiona .reference.com /browse /rubble
(accessed: January 19, 2009). The above definitions allow only for rock and masonry, not for
2
the metal or wires actually found on the site. Again, even if all "rubble" were allowed in a fill
area, the appel.lant's metal and wires would not meet the above definitions of that term.
A reasonable interpretation of the term '-rubble" in the definition of "inert materials"
essentially means "broken rocks." To argue that "rubble:" within the definition of "inert
materials" can contain non -inert materials would be an absurd result. By contrast, the Zoning
Administrator's interpretation of "rubble" as crushed stone or rock is consistent with the class of
other examples in the definition: "concrete, bricks, broken bricks and blocks, and asphalt
pavement."
5. The appellant concedes the presence of unauthorized material.
In its appeal letter, the appellant concedes: "Of course there is a little bit of trash and
other materials in 700 loads of demolition; however these other materials are a very small
percent of the total pile of demolished parking garage, which, per the dictionary, is still rubble."
While the appellant's honesty is commendable, "trash and other materials" of any quantity are
not authorized fill material.
6. The administrative search warrant was lawful, and is not subject to BZA review.
Prior to entering the property, the County sought permission of the property owner.
When the property owner denied that permission, the County had to resort to the Circuit Court
for an administrative search warrant. The County followed the same accepted procedures it had
used in zoning enforcement administrative search warrants. After considering the County's
application in this case, the Circuit Court duly granted the administrative search warrant.
Pursuant to the terms of the warrant, the Zoning Administrator duly notified the appellant
following the issuance of the warrant but prior to entry on the property. However, neither the
appellant nor its attorney appealed to the Court or noted any objection to the warrant during that
period or at any time prior to January 14, nearly three months later. Regardless, this warrant was
validly issued by a Circuit Court following established procedure.
More importantly, the Circuit Court's issuance of this warrant is beyond the scope of the
BZA's review. As previously noted, on appeal, the BZA is limited to considering whether the
determination of the Zoning Administrator was correct. See Board of Zoning Appeals of James
City County v. University Square Associates, 246 Va. 290 (1993). To the extent that the
appellant questions the validity of a Court- issued search warrant, those are questions about the
admissibility of evidence at trial that are reserved for the Courts.
7. Conclusion
Albemarle County Code § 18- 5.1.28(a)(3) allows the placement of only soil or "solid
materials that are physically, chemically and biologically stable from further degradation and
considered to be nonreactive" in fill or waste areas. The actual materials observed in this fill
area were not "physically, chemically and biologically stable from further degradation and
considered to be nonreactive." Therefore, the Zoning Administrator's Notice of Violation should
be affirmed.
Cc: Amelia McCulley, Zoning Administrator
3
Application for ■ X
Appeal of Zoning Administrators Deterr- --
AP2oo8000ob
Rended. Appeal of Zoning Administrator's Detcrminati ATTACHMENT F
(To be if the decision of the Zoning Administrat,
Project Name: C°l�4a,. '� 7 � 1`til
W"4�-���.
Tax map and parcel: 060( 00_�l� ' LN Magisterial District: Zoning-
Physic a I Street Address (if assigned): fV&
Location of property if determination is made regarding; a property (landmarks. intersections, or other): 6-6-t-711
Contact Person (Who should we calllwrite concerning this project ?): C
Address -P i `t - City L.Ut6- =T�SSFf {(!� state VA VA zip ` Z ! 6.
Daytime Phone} � —g! i,ax # (93) E -mail tLaGrAt]['T� U1 Pq�l� jd,,+s�1�.�^1�r'�1�� co•
Owner of Record Z& i-r- , 6 !z� &l A
Address -P< D, La x �� ` + City. C_k&r 1.4+eS 11e, State Y4 Zip G 2
Daytime Phone (__) —SO—C- 1:5L16 Fax # (__) S eC 610 LC, E -mail
Applicant (Who is the Contact person representing ?): R w.� -
Address Litv
Daytime Phone (_1 Fax # {_} E - mat
Board of Zoning Appeals Action ote: } Q
i CA
Zip
Feb iuT C4 0
Board of Zoning Appeals Chairman's signature: Date:_
FOR OFFICE USE ONLY AP # 4( � r l ..' SIGN #
`J � �
Fce Ainowtt $ i 2a Gb Date Paid + 1 + 1vhn' gteccipt # . k #4'/J; By
County of Albemarle Department of Community Development
401 McIntire Road Charlottesville, VA 22902 Voice: (434) 295 -5832 Fax: (434) 972 -4126
711!08 Page I of 1
The following information shall be submitted with the application and is to be provided by the applicant:
I ) Completed application including subject of appeal.
2) Justification for applicant's position, including error in Zoning Administrators determination. You may use the space below to
provide this information or submit an attached sheet.
3) if applicable, a copy of the latest deed for the property involved, and the approved and recorded plat.
4) if applicable, the appropriate drawings showing all existing and proposed improvements on the property and any special conditions
fo the situation that may justify the appeal.
5) Reference to the relevant Zoning Ordinance section or other applicable regulations or case precedence to justify the appeal.
U) Appropriate fee made payable to the County of AIhemarle.
7) Explanation of error in determination and jfustification ofapplicant's position:
AP200800006 (Sign # 1) Barracks Road Land Trust (Owners /Appellants).
Appeal of the Zoning Administrator's determination of violation that illegal fill
(materials that are not inert) has been placed on the property. Appellant claims
these materials are rubble which is permitted. The property is described as Tax
Map 60, Parcel 68, and is located on Barracks Road (Rt. 654) , approximately .5
mile east of Old Garth Road (Rt. 601). Property is zoned Rural Area, Entrance
Corridor, and Airport Impact Area.
Owner /Applicant Must Read and Sign
I hereby certify that the information provided on this application and accompanying information is accurate, true
and correct to the be of m kn wl dge and belief.
IZI 71z)3
Signature of U er, Contract Purchaser, Agent Date
Print Name Daytime phone number of Signatory
711108 Page 2 of 2
AP200800006 (Sign # 1) Barracks Road Land Trust (Owners /Appellants).
Appeal of the Zoning Administrator's determination of violation that illegal fill
(materials that are not inert) has been placed on the property. Appellant claims
these materials are rubble which is permitted. The property is described as Tax
Map 60, Parcel 68, and is located on Barracks Road (Rt. 654) , approximately .5
mile east of Old Garth Road (Rt. 601). Property is zoned Rural Area, Entrance
Corridor, and Airport Impact Area.
Owner /Applicant Must Read and Sign
I hereby certify that the information provided on this application and accompanying information is accurate, true
and correct to the be of m kn wl dge and belief.
IZI 71z)3
Signature of U er, Contract Purchaser, Agent Date
Print Name Daytime phone number of Signatory
711108 Page 2 of 2
VIRGINIA LAND COMPANY
195 RIVERBEND DRIVE
CHARLOTTESVILLE, VA 22911
(P) (434) 979 -8181 (F) (434) 296 -3510
November 17, 2048
Board of Zoning Appeals
County of Albemarle
401 McIntire Road, North Wing
Charlottesville., VA 22902 -4596
SUBJECT: Appeal of Notice of Violation dated November 7`h, 2008
Dear Board Members,
We would like to appeal the Notice of Violation sent on November 7th, 2008 to Barracks Road
Land Trust.
We believe the material at the Colthurst site is inert. This material, some 700 truckloads,
which is currently stored in a pile on the site, not buried, came from the demolition of a UVA
parking garage. The material is rubble.
We have based our definition on rubble from the dictionary. The American College Dictionary
defines rubble as "broken bits and pieces of anything, as that which is demolished." The
Merriam - Webster Dictionary defines rubble as broken fragments "resulting from the decay or
destruction of a building."
Of course there is a little bit of trash and other materials in 746 loads of demolition; however
these other materials are a very small percent of the total pile of demolished parking garage,
which, per the dictionary, is still rubble.
The County ordinance states, in Section 3, that inert materials "[includes] rubble..."
Therefore by the standards of the County ordinance, the rubble at Colthurst is inert material.
Furthermore in Section 5.1.28(a), the County ordinance states that a waste area shall be "for the
disposal of soil or inert materials."
We believe we are within our rights as laid out in the County ordinance. We reserve the right to
present additional authorities to the Board of Zoning Appeals. Thank you for considering our
appeal.
Sincerely,
Tucker Hurt
AP200800006
ATTACHMENT G
Frederick W. Payne
Robert P. Hodous
Donml R. ❑eLoria
William W. 'ranner
Jessica F. Smith
Ki- istina M. Hal'monn
Payne & Hodous, I,.I,.P.
Allurneys ;d Law
414 Earl Jefferson Streel
Charloliewille. Virginia 22902
January 14, 2009
Amelia G. McCulley, Zoning Administrator
Department of Community Development
'01 1v�: h-mr c Rciad, Nur1 Lh Wing
Charlottesville, VA 22902 -4596
Board of Zoning Appeals
Department of Community Development
401 McIntire Road, North Vying
Charlottesville, VA 22902
Re: Zoning determination dated November 7, 2008, # VIO- 2008 -00228
Barracks -Road Land Trust.
Dear Ms. McCulley:. : � :
Telephone: 434- 977 -4507
Facsimile: 434 -977 -6574
Please note that this firm is representing Barracks Road Land Trust with respect to your
zoning determination letter dated November 7, 2008. We will be appearing at the Board of
Zoning appeals hearing, which we understand is scheduled for February 3, 2009.
In addition to the grounds stated in Charles W. Hurt's letter dated November 17, 2008,
we will further pursue the following as grounds for overturning your determination:
1. That the administrative warrant pursuant to which you conducted your search of the
property was unlawful, in that the County has not authorized the zoning administrator, or
anyone else, to apply for and obtain such administrative warrants pursuant to the
appropriate enabling legislation;
2. That the administrative warrant did not and does not state probable cause for the search;
3. That the determination is incorrect on the facts.
We further reserve the right to present any and all defenses as they may appear fi-onl
i nvesti -at i on of the case and throughout the hearing.
With best regards; l am
Sincerely yours,
William W. Tanner
cc: Larry W. Davis, Esq.
Charles W. Hurt