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Home My WebLink AboutVA200900005 Legacy Document 2009-09-04 (6)County of Albemarle Department of Community Development Memorandum To: Members, Board of Zoning Appeals From: Amelia McCulley, Zoning Administrator Division: Zoning Date: August 24, 2009 Subject: AP 2009-05 and VA 2009-05 James Crews There are two different applications set for public hearing on the same property. We suggest that the appeal application be heard first. This is an appeal of a notice of zoning violation for construction of a prohibited use in the floodplain — a structure designed or intended for human habitation. The second application is made under the "waiver, modification and variance" of floodplain regulations. To our knowledge, this is the first request under this Zoning Ordinance provision. This application is subject to the criteria specified within the Zoning Ordinance floodplain regulations rather than solely the criteria specified for other variances. Please see the attached memorandum from Andrew Herrick, Senior Assistant County Attorney regarding the appeal. COUNTY OF ALBEMARLE MEMORANDUM TO: Albemarle County Board of Zoning Appeals FROM: Andrew H. Herrick, Senior Assistant County Attorney DATE: August 24, 2009 RE: James E. Crews; Appeal No. 2009-5 On behalf of the County, the County Attorney's Office submits the following summary of the issues associated with James E. Crews' appeal of the determination by the Zoning Administrator on May 8, 2009. 1. Summary of Facts James E. Crews ("Mr. Crews") is shown as the owner of Tax Map Parcel 139A-20. This entire parcel is located in the 100 -year floodplain and therefore the Flood Hazard Overlay District (FH). Code Enforcement Officers visited the property on April 22, 2009 and found that a new single-family structure had been built in the floodplain. Albemarle County Code § 18-30.3.04 lists uses that are prohibited in the Flood Hazard Overlay District. Among those prohibited uses are "Structures designed or intended for human habitation, including mobile homes, regardless of proposed usage." Based on the observations of the Code Enforcement Officers visiting the property, the Zoning Administrator issued a Notice on May 8, 2009 that the property was in violation of the zoning ordinance. Mr. Crews is appealing 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). 3. Because the new structure is designed for human habitation, it is prohibited in the Flood Hazard Overlay District. As noted above, Albemarle County Code § 18-30.3.04 prohibits "structures designed or intended for human habitation, including mobile homes, regardless of proposed usage" in the Flood Hazard Overlay District. The term "human habitation" does not require a long-term residency, but is simply meant to distinguish overnight use by people from housing for farm animals, equipment storage, and other similar uses typical in Rural Areas. In this case, Mr. Crews' structure has power, plumbing, satellite television, a security alarm, a propane supply, ample parking adjacent to the structure, fencing and gating. Most or all of these amenities reflect an intended use by residents or guests, rather than by farm animals or equipment. Again, regardless of the length of stay of the residents or guests, these amenities make Mr. Crews' structure "designed or intended for human habitation," in violation of current Flood Hazard Overlay District standards. 4. The new structure is not "grandfathered" as a legal non -conformity in the Flood Hazard Overlay District. Despite the current zoning ordinance, in his Notice of Appeal dated June 5, 2009, Mr. Crews essentially asserts that the structure existed prior to the zoning ordinance(s) it violated, and therefore was grandfathered as a legal non -conformity. As a general rule, uses or structures that exist prior to the zoning ordinance(s) they violate are allowed to continue as legal non -conformities, provided they continue uninterrupted, and are not abandoned for a defined period, generally two years. In fact, Virginia Code § 15.2-2307 provides in part that unless a building damaged or destroyed by a natural disaster or other act of God "is repaired, rebuilt or replaced within two years of the date of the natural disaster or other act of God, such building shall only be repaired, rebuilt or replaced in accordance with the provisions of the zoning ordinance of the locality." As indicated elsewhere, the prior structure on this property had been vacant for decades, well over the two-year standard provided here. In addition, special standards apply to non -conformities in the Flood Hazard Overlay District. Albemarle County Code § 18-6.1 specifically provides: "The purpose of this section 6 is to regulate nonconforming uses, structures and lots in a manner consistent with sound planning and zoning principles, except for nonconforming signs regulated by section 4.15, and nonconforming uses and structures within the flood hazard overlay district regulated by section 30.3." Albemarle County Code § 18-30.3.09 confirms the applicability of its own standard in the Flood Hazard Overlay District: "Irrespective of the provisions of section 6.0 of this ordinance, for the purpose of this section, the following shall apply to the flood hazard overlay district:" Albemarle County Code § 18-30.3.01 explains why special standards apply in the Flood Hazard Overlay District: "[T]hese provisions are intended to restrict the unwise use, development and occupancy of lands subject to inundation which may result in: danger to life and property; public costs for flood control measures and/or rescue and relief efforts; soil erosion, sedimentation and siltation; pollution of water resources; and general degradation of the natural and man-made environment. P) It is further intended that these provisions shall be adequate for qualification and continuation of Albemarle County on the regular program of the National Flood Insurance Program as administered by the Federal Insurance Administration and the Federal Emergency Management Agency (FEMA). To these ends, provisions have been developed in accordance with regulations governing the regular program." Albemarle County Code § 18-30.3.09 outlines standards for two different types of works in the Flood Hazard Overlay District: (a) restorations of damaged or destroyed non -conformities and (b) substantial improvements or expansions of non -conformities. Because there may be some question as to whether Mr. Crews' structure is a restoration or an improvement or expansion, this memo will outline the standards for each. First, Albemarle County Code § 18-30.3.9.1 allows for limited restoration of destroyed or damaged non -conforming structures or activities: "If a nonconforming structure or activity is destroyed or damaged in any manner to the extent that the cost of restoration is equal to or greater than fifty (50) percent of the cost of entire reconstruction, it shall be restored only if such complies with the requirements of this ordinance." In other words, an owner may spend up to one-half the cost of an entire reconstruction without complying with the other Flood Hazard Overlay provisions. This provision effectively limits restorations to cases where damage to a structure represents less than 50 percent of its value. Any restoration costing one-half or more of an entire reconstruction cannot be grandfathered as a legal non -conformity because it must comply with all other Flood Hazard Overlay provisions. Second, Albemarle County Code § 18-30.3.9.2 does not allow non -conformities to be substantially improved or expanded at all: "Any substantial improvement or expansion of a nonconforming structure or activity shall comply with the requirements of this ordinance." In short, non -conformities in the Flood Hazard Overlay District may not be substantially improved or expanded at all, and may be restored only up to a cost of 50 percent of an entire reconstruction. All other substantial improvements, expansions, and restorations must comply with the other restrictions of the Flood Hazard Overlay District. Regardless of whether Mr. Crews' structure is considered a substantial improvement or expansions or a mere restoration, it does not meet either standard for a legal non -conformity. Again, to be legally non -conforming, a mere restoration must cost no more than 50 percent of an entire reconstruction. In this case, the prior structure on the property had an assessed value of zero, after significant flood damage rendered it essentially a total loss and left it unused for decades. Mr. Crews' building permit application (filed only after this project had been completed) estimates a value of the work at $75,000. Therefore, to be legally non -conforming, the cost of an entire reconstruction would have had to be greater than $150,000. In this case, the cost of reconstructing a structure of zero value is zero. Therefore, Mr. Crews' estimated restoration cost of $75,000 exceeds one-half the cost of an entire reconstruction and is not allowed as a legal non -conformity. However, given that it bears no recognizable resemblance to the prior structure, Mr. Crews' new structure is better characterized as a substantial improvement or expansion. Again, those simply aren't allowed at all in the Flood Hazard Overlay District unless they comply with other District regulations, which a "structure designed or intended for human habitation" does not. ftl 5. The Flood Hazard Overlay District restrictions still allow for reasonable use of one's Property. Despite Mr. Crews' claim that without this structure, he would be deprived any reasonable use of his property, the Flood Hazard Overlay District does allow for reasonable use consistent with sound land use principles. Albemarle County Code § 30.3.05.1.1 lists by right uses of property in the floodway. They include: agricultural uses, recreational uses, flood warning aids and devices, fences, electric, gas, oil and communications facilities, water distribution and sewage collection lines and appurtenances, and personal wireless service facilities. While intensive development of a floodway is neither allowed nor even advisable, these by -right uses lend compensable value to properties in the floodway. 6. By proceedine without the required buildine permit, Mr. Crews has created a self- imposed hardship. Though Mr. Crews claims that removal of his structure would represent a hardship, that hardship is self-imposed. Mr. Crews completed construction without applying for a County building permit. Only after construction was completed and the Code Enforcement Officers had visited the property did Mr. Crews apply for the required building permit. If Mr. Crews had properly applied for a building permit before beginning construction, he could have been advised of the prohibition against structures designed or intended for human habitation in the Flood Hazard Overlay District. As it stands, by proceeding and completing a structure without the required building permit, Mr. Crews bears full responsibility for any hardship from the resulting zoning violation. 7. Conclusion Albemarle County Code § 18-30.3.04 prohibits "structures designed or intended for human habitation, including mobile homes, regardless of proposed usage" in the Flood Hazard Overlay District. Furthermore, Mr. Crews' new structure does not meet the limited circumstances that would allow for restoration, improvement, or expansion of legal non - conformities in the Flood Hazard Overlay District. Therefore, the Zoning Administrator's Notice of Violation should be affirmed. Cc: Amelia McCulley, Zoning Administrator 4