HomeMy WebLinkAboutAP200900005 Staff Report 2009-09-04STAFF PERSONS: Robert Heide / Amelia McCulley
BZA HEARING: September 1, 2009
STAFF REPORT— AP20090005 of Notice of Violation
APPELLANT: James E. Crews
In accordance with Albemarle County Code § 18 -34.3, Mr. James E. Crews (the
Appellant) has appealed the Zoning Administrator's determination of May 8, 2009.
Description of Property: Tax Map 139A, Parcel 20 is a 1.0 -acre lot adjacent to the
confluence of the James and Rockfish Rivers. The property is zoned Rural Areas (RA)
and Flood Hazard Overlay (FH). (See Zoning Map in Attachment 1.)
Background of Appeal:
Mr. Crews has owned this property since August 2003. At that time, an unoccupied
two -story single family dwelling was present on the parcel. According to County
assessment records, the dwelling had been damaged during numerous major flooding
events in recent decades. It sat vacant until its demolition by Mr. Crews sometime
during 2008. The County Assessor has placed no value on the unoccupied dwelling
since at least 1976. In April 2009, it was noted that a new structure had been built on
or near the site of the original dwelling, without a County building permit.
Following the Zoning Administrator's determination that the new structure was not
permitted in the Flood Hazard Overlay District, Notice of Violation ZV10200900087 was
sent on May 8, 2009. The property owner filed his appeal of this NOV on June 5, 2009.
Determination:
The Determination of Zoning Violation for ZV10200900087 cites section 30.3.04. This
section of the Zoning Ordinance lists the "Prohibited Uses" of the Flood Hazard Overlay
District. (See Attachment 2.) In relevant part, that section prohibits "Structures
designed or intended for human habitation, including mobile homes, regardless
of proposed usage" in the Flood Hazard Overlay District (FH).
Grounds for Zoning Administrator's Decision:
Photos dated April 22, 2009 show a new structure built on stilts. This structure is
clearly built and intended for human habitation. In fact, it appears to be built for people
staying overnight as it has power, plumbing, satellite television, security alarm, propane
supply, ample parking adjacent to the structure, fencing and gating. A photograph of
the old home (circa 1975) shows a two -story home with a one -story room to the right of
the residence, with a chimney between the two levels. The chimney structure appears
older than the rest of the current home and the current footprint drastically changed
from the original structure. As previously noted, the new structure was built without a
County building permit.
AP200900005 Page 2 September 1, 2009
Appellant's Justification For Appeal:
The Appellant states in his appeal that he removed or changed only certain
components of the house by saving the wall with the fireplace. He maintains that he
upgraded all electrical and plumbing, but used original material to reconstruct most of
the house. He further argues that because he used materials from the original dwelling,
the reconstruction project is "grandfathered," thereby exempting it from current zoning
regulations.
Staff Response:
Zoning Ordinance §30.3.09 contains two subsections, each of which address
nonconforming structures in different situations. Subsection 1 applies to mere
restorations of damaged or destroyed nonconforming structures, while subsection 2
applies to "any substantial improvement or expansion." The Appellant's structure does
not meet the requirements of either subsection. In addition, the Appellant's argument
(materials from the old structure were used in the new structure) is not a consideration
in the Flood Hazard Ordinance provisions.
Zoning Ordinance §30.3.09.1 states, "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." If the
Appellant's (new) structure is just a restoration of the prior structure, the cost of that
restoration could not be equal to or exceed 50 % of the prior structure's value without
having to meet the requirements of the ordinance. Because the structure has had no
assessed value in over 30 years, the baseline value for allowable restoration (without
complying with all current zoning provisions) was effectively, zero or no value.
Therefore, the prior structure effectively lost its non - conforming status due to decades
of flood damage and neglect. Even if you do not take the position that the
nonconformity was lost prior to any reconstruction, the appellant's restoration failed to
meet the standard (restoration or reconstruction of less than 50 % of the cost of the
entire reconstruction).
Given the substantial increase in value and the significant changes from the original
structure, the new structure is considered a "substantial improvement or expansion,"
subject to subsection 2. Section 30.3.09.2 states, "Any substantial improvement or
expansion of a nonconforming structure or activity shall comply with the requirements of
this ordnance."
A comparison of the two photos in Attachment 3 reflects changes in the roofline,
elevation, exterior dimension, and footprint. Zoning Ordinance §30.3.09.2 requires that
all zoning regulations of the Flood Hazard Overlay District ( §30.3) be met for a
substantial improvement. Staff is of the opinion that a substantial improvement was
constructed when the original, uninhabitable structure was demolished and a new,
habitable one was built. The appellant has not provided any information to confirm that
AP200900005 Page 3 September 1, 2009
the new construction did not constitute a substantial improvement in value. (See
attachment 4.)
As stated in the Ordinance, any substantial improvement shall comply with the
requirements of the Ordinance. This property is located within the floodway. Structures
of any kind are excluded even as related to agricultural or recreational uses. Section
30.4.4 expressly prohibits "Structures designed or intended for human habitation,
including mobile homes, regardless of proposed usage." The ordinance language
(designed or intended and regardless of proposed usage) does not provide an
allowance or exemption for seasonal or part-time usage of a structure in the floodplain.
The agency which is directly responsible for overseeing the federal flood insurance
program and local floodplain zoning regulations, FEMA, defines "finished (habitable)
area" as "an enclosed area having more than 20 linear feet of finished walls (paneling,
etc.) or used for any purpose other than solely for parking of vehicles, building access,
or storage." This structure clearly has a purpose other than solely for parking of
vehicles, building access or storage. Therefore, because this structure is expressly a
prohibited use AND because it is not a permitted use in the floodway, it does not
comply with the requirements of the Ordinance.
Conclusion:
Because the original dwelling had no assessed value, no amount may be spent on its
restoration without compliance with all the zoning laws of the Flood Hazard Overlay
District. The original dwelling lost its non - conforming status due to the combination of
having no value and the costs of reconstruction. No "substantial improvement or
expansion" may be made except in compliance with existing zoning requirements. The
existing zoning requirements do not permit this structure because they expressly
prohibit a structure designed or intended for human habitation, regardless of proposed
usage.
If the Appellant had applied for a building permit prior to undertaking the construction of
this structure, it would have been denied for failure to comply with the Zoning
Ordinance. Instead, he undertook this construction and this investment without the
necessary approvals.
Attachments
1. Zoning Map of Crews Property
2. Notice of Violation
3. Side -by -Side Comparison Photo
4. Section 30.3 Flood Hazard Zoning
Improvement Definition
Regulations, including Substantial
A W A.
_ O � �, � D ��� r � �D 'may
X N a
o S
fco
CD
� f
W
a
W l
A to r•
w
ti A
N
N O
O �
N w
D
so
D
� ✓AMF`SRiVFR C7
z
N
m. 441 • .
Z�
�86
FAX (434) 972 -4126
COUNTY OF ALBEMARLE
Community Development Department
401 McIntire Road
Charlottesville, Virginia 22902.4596
TELEPHONE (434) 296 -5832
ATTACHMENT 2
NOTICE OF OFFICIAL DETERMINATION OF VIOLATION
The Date this Notice of Determination is given is May 8, 2009.
CERTIFIED MAIL # 7004 0550 0000 5447 7303
James E. Crews
292 Logan Road
Scottsville, Virginia 24590
Property: 139AO -00 -00 -02000
Tax Map and Parcel Number
Zoning: Rural Areas [RA] District
Overlay: Flood Hazard [FH] Overlay District
Dear Mr. Crews,
TrD (434) 9724012
No: ZVI0200900087
Crews, James E.
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 April 22, 2009 and found that the following conditions existed:
A new single — family structure has been built in the floodplain.
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:
30.3.04 PROHIBITED USES (in the flood hazard overlay district)
4. Structures designed or intended for human habitation, including mobile homes, regardless of
proposed usage.
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 June 7, 2009 to avoid court action.
Compliance past this date does not preclude the County from pursuing legal action.
ZVI0200900087 Page 2 May 8, 2009
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 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.
If you have any questions, please contact Andrew Kellerman, Code Enforcement Officer,
at 434 - 296 -5832 ext. 3415.
nhmflDIM 411 It, ci I Pon hd
Amelia McCulley!A.I.C.P
Zoning Administrator
County of Albemarle
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road
Charlottesville, Virginia 22902 -4596
Phone(434)296 -5832
AFFIDAVIT
DATE: S a - 09
Fax (434) 972 -4126
I, Johnathan T. Newberry, Zoning Technician, hereby certify that the attached
notice(s) were sent on the above date to all persons listed on said notice(s),
(si ature)
State of Virginia
City of Charlottesville
The foregoing instrument was ACKNOWLEDGED before me by 7ohnathan T.
Newberry, Zoning Technician this day of q 200_
(Signature of Notary)
\ 01--'� �A!A
(Notary Registration Number » »_
My commission expires the L_ day of 20A(_.
I was commissioned notary as
(» »Include ONLY if name change after your first notary commission or renewal)
a
.�
.�
a
c�
z
y
W