HomeMy WebLinkAboutAP200900005 Staff Report 2009-09-04 (2)STAFF 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
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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)
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ATTACHMENT 4
ALBEMARLE COUNTY CODE
30.2.5 NOISE PERFORMANCE STANDARDS
Any building or structure intended for human occupancy or use proposed to be located within the
noise impact area shall be designed and constructed in accordance with the acoustical performance
standards in section 30.2.5, 1. Building plan conformance to these requirements shall be certified
by the Albemarle County building official prior to initiation of construction activities. "As- built"
conformance to these requirements shall be. certified by the building official prior to the issuance
of any certificate of occupancy,
Plats or plans of lands witlun the noise impact area approved by any Albemarle County official
shall prominently display a disclosure statement that such plat or plan includes land and/or
buildings within die AIA noise impact area,
30.2.5.1 ACCOUSTICAL PERFORMANCE STANDARDS
30.2.6 CLUSTER DEVELOPMENT, BONUS FACTORS
No cluster development or bonus level provisions or regulations will be permitted unless the
commission shall determine that such development will reduce or be equivalent to hazard and/or
noise impacts anticipated under standard level - conventional development of the underlying zoning
district.
30,3 FLOOD HAZARD OVERLAY DISTRICT - FH
30.3.01 INTENT
It is intended that the flood hazard overlay district hereby and hereafter created shall be for the
purpose of providing safety and protection from flooding, More specifically, these 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.
Il 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
adnunistered 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. (Amended 2 -5 -05)
18 -30 -5
Zoning supplement 1133, 2 -5 -05
Maximum Interior
Land Use Category
Noise Levels fdB(a)l
Residential
Ldn < 45
Public and quasi - public use:
School
Ldn <45
Library
Ldn <45
Church
Ldn < 45
Hospital
Ldn < 45
Auditorium, concert hall, etc.
Ldn <45
Parks and recreation, sports arena
Ldn < 70
Office
Ldn < 55
Commercial
Retail
Ldn < 55
Movie theatre
Ldn < 55
Hotel, motel
Ldn < 55
Distribution, industry
Ldn < 70
Manufacturing and assembly industry
Ldn < 70
30.2.6 CLUSTER DEVELOPMENT, BONUS FACTORS
No cluster development or bonus level provisions or regulations will be permitted unless the
commission shall determine that such development will reduce or be equivalent to hazard and/or
noise impacts anticipated under standard level - conventional development of the underlying zoning
district.
30,3 FLOOD HAZARD OVERLAY DISTRICT - FH
30.3.01 INTENT
It is intended that the flood hazard overlay district hereby and hereafter created shall be for the
purpose of providing safety and protection from flooding, More specifically, these 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.
Il 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
adnunistered 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. (Amended 2 -5 -05)
18 -30 -5
Zoning supplement 1133, 2 -5 -05
ALBEMARLE COUNTY CODE
(§ 30.3,01, 12- 10 -80; Ord, 05-18(l),1-5-05, effective 2 -5 -05)
30.3.02 APPLICATION
30.3.02,1 DEFINITIONS -- GENERALLY
The flood hazard overlay district sliall include all areas subject to inundation by the waters of the
one hundred year flood. The source of this delineation shall be file Flood insurance Study for
Albemarle County and Incorporated Areas and the Independent City of Charlottesville prepared by
FGMA, effective on and after February 4, 2005 (the "flood study "). (Amended 2 -5 -05)
The following definitions shall apply in the administration and interpretation of this section 30.3
1, One- hundred year flood: The tenn "one - hundred year flood" is a design storm of a specific
intensity and duration with a return frequency of one- hundred years or a one - percent
probability of being equaled or exceeded in a given year. The teen "one- hundred year flood"
is also referred to as the one (l )- percent annual chance flood. (Added 2 -5 -05)
2. Base flood elevation (Bl /s): The term "base flood elevation" is the one - hundred year
flood elevation that has been determined at a cross section of a stream reach, as
designated in the flood study. (Added 2 -5 -05)
3. Flood plain: The term "flood plain" means any Iand susceptible to being inundated by
the flood waters generated by a one - hundred year flood, as designated in the flood study.
(Added 2 -5 -05)
4. Floodway: The term "floodway" means the stream channel and that portion of the adjacent
flood plain that must be reserved to carry and discharge the waters of the one - hundred year
flood, as designated in the flood study, without increasing the flood water surface elevation at
any point more than one (1) foot above the base flood elevation and provided that hazardous
velocities are not produced, (Amended 2 -5 -05)
5. Floodway fringe: The Tenn "floodway fringe" mums that portion of the flood plain that lies
between the floodway, and the outer limits of the flood plain, as designated in the flood study.
For the sole purpose of determining permissible uses under sections 303,05,12 and
30.3.05.2.2, the floodway fringe also shall include the approximated flood plain. (Amended 2-
5-05)
6. Approximaled flood plain: The term "approximated flood plain" means those flood plain
regions where base flood elevations have not been determined, as designated in file flood
study. (Amended 2 -5 -05)
7. Developm.enl: The tenn "development" means, for the purposes of this section only, any man-
made change to improved or unimproved real estate, including but not limited to buildings or
other structures, mining, dredging, filling, grading, paving, excavation or drilling operations.
(Amended 2 -5 -05)
8. Substantial improvem.enl: The term "substantial improvement" means, for the purposes of
this section only, any repair, reconstruction or unprovement of a structure, the cost of which
equals or exceeds fifty (50) percent of the market value of the structure either (1) before the
improvement or repair is started, or (2) if the structure has been damaged, the market value
before the damage occurred. For the purpose of this definition "substantial improvement" is
considered to occur when the first alteration of any wall, ceiling, floor or other structural part
of the building commences, whether or not that alteration affects the external dimensions of
the structure. The tern does not, however, include either (1) any project for improvement of a
structure to comply with existing state or local health, sanitary or safety code specifications
18 -30 -6
Zoning Supplement /133, 2 -5 -05
ALBEMARLE COUNTY CODE
which are solely necessary to assure safe living conditions, or (2) any alteration of a structure
listed on the National Register of Historic Places or the Virginia Historic Landmarks
Commission. (Amended 2 -5 -05)
Start of construction: The term "start of construction" means, for the purposes of this section
only includes substantial improvement, and means the date the building permit was issued,
provided the actual start of construction, repair, reconstruction, placement or other
improvement was within one hundred eighty (180) days of the permit date. The actual start
means either the first placement of permanent construction of a structure on a site, such as the
pouring of slab or footings, the installation of piles, the construction of columns or any work
beyond the stage of excavation. Permanent construction does not include land preparation,
such as clearing, grading and filling; nor does it include the installation of streets and/or
walkways; nor does it include excavation for a basement, footings, piers or foundations or the
erection of temporary forms; nor does it include the installation on the propert}, of accessory
buildings, such as garages or sheds not occupied as dwelling units or not part of the main
structure. (Added 6- 10 -87; Amended 2 -5 -05)
(§ 30.3.02.1,12-10-80; 6- 10 -87; Ord. 05-18(l),1-5-05, effective 2 -5 -05)
30.3.02.2 DETERMINATION OF FLOODWAY FRINGE IN THE APPROXIMATED FLOOD
PLAIN
Except for such uses permitted in the floodway in accordance with section 303.5, no use, structure
or building shall be established and no rezoning petition, site development plan, subdivision plat,
building permit or other county approval shall be given for lands located within any approximated
flood plain, prior to verification by the county engineer as to the limits of the floodway fringe
within such lands. In his determination of the limits of the floodway fringe, and one hundred year
flood elevation, the county engineer may request assistance from the Federal Insurance
Administration, the United States Army Corps of Engineers, and such other qualified agencies and
persons as he deems appropriate. The county engineer shall require the applicant to provide such
information as he deems reasonably necessary to make his determination. The cost of such
determination shall be borne entirely by the applicant.
(§ 30,3.02.2,12-10-80; Ord. 01-18(6),10-3-01; Ord, 05-18(l),1-5-05, effective 2 -5 -05)
30.3.03 GENERAL REQUIREMENTS FOR FLOOD HAZARD OVERLAY DISTRICTS
30.3.03.1 LOCATION OF UTILITIES AND FACILITIES
All new or replacement water and sewer facilities shall be located and designed to: minimize or
eliminate infiltration of flood waters into such systems and in the case of sewer facilities,
discharge of effluent into flood waters; minimize damage or impairment caused by flooding. In
review for and issuance of a permit for the installation of a septic system or well, the local office
of the Virginia Department of Health should be mindful of the intent of tlus section.
All new utilities such as gas lines, electrical and telephone systems to be located in the flood
hazard overlay district shall be located and designed to minimize damage and impairment and to
prevent flotation or dislocation due to flooding.
30.3.03.2 DEVELOPMENT PERMIT; BUILDING PERMIT; GRADING PERMIT
In order to comply with the requirements of the regular program of the National Flood Insurance
Program, no construction or other development shall be undertaken without prior issuance by the
zoning administrator of a development pernut. The purpose of such permit shall be to determine
the effects of the proposed construction or development on the flood carrying capacity of the water
course. No development permit shall be issued for any use, structure, activity, fill, new
18 -30 -7
Zoning supplement 1133, 2 -5 -05
ALBEMARLE COUNTY CODE
construction, substantial improvements or other development which in the opinion of the county
engineer would result in any increase in flood levels during the occurrence of a one hundred year
flood discharge. In making such determination, the county engineer shall obtain, review and
reasonably utilize any base flood elevation and floodway data available from a federal, state or
other source and may request assistance from lie Federal Insurance Administration, the United
States Army Corps of Engineers and such other qualified agencies and persons as lie deems
appropriate. (Amended 6- 10 -87)
Where buildings and structures and substantial improvements thereto arc permitted under the
terms of this section within any subdistrict of the flood hazard overlay district, the sank shall be
designed and/or modified to prevent flotation, collapse or lateral movement as a result of flooding
and shall be constructed only in accordance with the requirements of the Virginia Uniform
Statewide Building Code for potential hazards. In addition, materials and utility equipment
employed in such construction shall be resistant to flood damage. For all new construction and
substantial improvements, folly enclosed areas below the lowest floor that are subject to flooding
shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing
for the entry and exit of flood waters. Designs for meeting this requirement must either be
certified by a registered professional engineer or architect or must meet or exceed the following
minimum criteria: a minimum of two (2) openings having a total net area of not less than one (1)
square inch for every square foot of enclosed area subject to flooding shall be provided. The
bottom of all openings shall be no higher than one (1) foot above grade. Openings may be
equipped with screens, louvers or other coverings or devices provided that they pennit the
automatic entry and exit of flood waters. (Amended 6- 10 -87)
For purposes of the regular program, the zoning administrator, at time of issuance of a building
permit for new construction, shall make and maintain record of: the one hundred year flood
elevation on the lot or parcel on which the building or structure is to be located; the elevation of
the lowest floor of such building or structure, including basement or cellar; and where flood
proofing of the building or structure is proposed, the elevation of the finished flood proofing.
No building permit, including special footings and foundation permits, or grading permit, shall be
issued within any subdistrict of the flood hazard overlay district until the applicant for such permit
has demonstrated to the reasonable satisfaction of the zoning administrator that all necessary
permits and/or other approvals have been received from those governmental agencies from which
approval is required by Federal Water Pollution Control Acts Amendments of 1972, 33 U. S. C.
1334. (Amended 6- 10 -87)
30.3.03.3 ALTERATION OR RELOCATION OF A WATERCOURSE
Whenever a person intends to alter or relocate a watercourse within any of the three (3)
subdistricts of the flood hazard district, the person shall notify in writing by certified mail all
adjacent communities and the State Water Control Board of all such intended activities prior to
any alteration or relocation of the watercourse, and shall submit copies of such notification to the
Federal Insurance Administration. The person shall also assure the board of supervisors in writing
(hat the flood carrying capacity within the altered or relocated portion of the water course in
question will be maintained.
30.3.04 PROHIBITED USES
1. Storage of gasoline, kerosene and other petroleum products and flaummable liquids, dynamite,
blasting caps and other explosives, pesticides and poisons and other such materials which
could result in hazard to life and/or water pollution in the event of flooding.
2. Storage of machinery and vehicles except as accessory to a permitted use.
3. Stockpiling of debris, logs, junk cars and similar materials.
18 -30 -8
Zoning Supplement ff33, 2 -5 -05
ALBEMARLE COUNTY CODE
4. Structures designed or intended for human habitation, including mobile homes, regardless of
proposed usage.
30,3.05 PERMITTED USES
The following uses may be permitted within the flood hazard overlay district in accordance with
the requirements of this section and as specifically provided in the underlying zoning district.
30.3.05.1 BY RIGHT
The following uses shall be permitted subject to the requirements and limitations of this
ordinance:
30.3.05.1.1 BY RIGHT WITHIN THE FLOODWAY
The following uses or activities are authorized within the floodway as a matter of right:
1. Agricultural uses, excluding structures of any kind, limited to field crops, pasture, grazing,
livestock, raising poultry, horticulture, viticulture and forestry.
2. Recreational uses (excluding structures of any kind and uses involving human habitation)
such as parks; swimming areas, golf courses and driving ranges; picnic grounds; wildlife and
nature preserves; game farms; fish hatcheries; shooting preserves; target, trap and skeet
ranges; hunting, fishing and hiking areas; athletic fields; and horse show grounds.
3. Flood warning aids and devices, water monitoring devices and the like.
4. Fences,
5. Electric, gas, oil and communications facilities, including poles, lines, pipes, meters and
related facilities for distribution of local service and owned and operated by a public utility,
but excluding tower structures. (Added 7 -1- 81) (Amended 5- 12 -93)
6. Water distribution and sewage collection lines and appurtenances owned and operated by the
Albemarle County Service Authority, but excluding pumping stations and holding ponds;
public water and sewer transmission lines, main or trunk lines, and interceptors, but excluding
treatment facilities and pumping stations, owned and/or operated by the Rivanna Water and
Sewer Authority (reference 5.1.12.30.3.03.1, 31.2.5). (Added 7 -1 -81) (Amended 5- 13 -09)
7. If paragraphs (a) through (d) are each satisfied, projects which: (i) are designed or directed by
the county, a soil and water conservation district, or a public agency authorized to carry out
flood control or environmental restoration measures; or (ii) are reviewed and approved by the
department of community development in accordance with the water protection ordinance.
(Amended 5- 13 -09)
a. The purpose which will be served by the project, as determined by the department of
engineering and public works, is either flood control or environmental restoration;
b. The amount of fill material placed within the floodway, floodway fringe or approximated
flood plain does not exceed the amount of cut material removed from the same floodway,
floodway fringe or approximated flood plain in which fie fill was placed;
c. No natural streams will be relocated; and
d. The project will use natural materials such as rock and vegetation, and will not use
engineered structures such as those identified in section 30.3.05.2.1(5).
18 -30 -9
Zoning Supplement N52, 5 -13 -09
ALBEMARLE COUNTY CODE
8. Tier I and Tier II personal wireless service facilities (reference 5.1.40), (Added 10- 13 -04)
(Ord. 98- 18(2); 9- 16 -98; Ord. 04- 18(2), 10- 13 -04; Ord. 09- 18(2), 5- 13 -09)
30.3,05.1.2 BY RIGHT WITIIIN TIIE FLOODWAY FRINGE
1. Uses permitted by right in tic floodway.
2, Accessory structures to uses permitted by right in the floodway, excluding structures for
human habitation; provided that any such structure permitted shall be firmly anchored to
prevent flotation, collapse or lateral movement due to flooding.
3. Pedestrian and multi -use paths that are within county owned or operated parks and
greenways; provided that any filling or land has been approved by the county engineer in
accordance with section 30.3.06.1(1) (hrough (5); and any footbridges necessary to cross
tributary streams, watercourses and swales have been approved by the county engineer.
(Added 2 -5 -05)
($ 30.3,05.1,2, 12- 10 -80; Ord. 05- 18(1), 1 -5 -05, effective 2 -5 -05)
30.3.05.2 BY SPECIAL USE PERMIT
The following uses shall be permitted only by special use permit approved by the board of
supervisors pursuant to section 31,2.4.
30.3.05.2.113Y SPECIAL USE PERMIT WITHIN THE FLOODWAY
The following uses or activities are authorized within die floodway by special use permit:
I . Dams, levees and other structures for water supply and flood control.
2. Water related uses such as boat docks, canoe liveries, bridges, ferries, culverts and river
crossings of transmission lines of all types.
3. Sod farming, topsoil, sand and gravel removal.
4. Pump stations for water or wastewater including power supply and control devices, holding
ponds and other appurtenances.
5. Engineered structures including, but not limited to, retaining walls and revetments made of
non - natural materials such as concrete, and gabion baskets, which are constructed along
channels or watercourses for the purpose of water conveyance or flood control.
6. Hydroelectric power generation (reference 5.1,26).
(Added 4- 28 -82)
7. Tier III personal wireless service facilities (reference 5.1,40). (Added 10- 13 -04)
(Ord. 98- 18(2); 9- 16 -98; Ord. 04- 18(2), 10- 13 -04)
30.3,05.2.2 BY SPECIAL USE PERMIT WITHIN THE FLOODWAY FRINGE
1. Uses by special use permit in die floodway.
2. Aircraft landing strip excluding structures and aircraft parking/storage.
3. Landfill pennit (reference 30.3.6).
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4. Electrical transmission lines and related towers; nhicro -wave and radio -wave transmission and
relay towers.
30.3.06 LANDFILL PERMITS FOR FLOOD PLAIN ALTERATION
30.3.06.1 PERMIT REQUIREMENTS
In addition to such conditions imposed by the board of supervisors in approval of a special use
permit, a landfill permit approval by the county engineer is required for die filling of land in the
floodway fringe. No permit shall be issued or approved until the site development plan for such
fill of land shall have been submitted to the county engineer indicating die following requirements
have been met:
1, In tie case of residential usage, die finished grade shall be at or above the one hundred year
flood elevation for die lowest floor, including basement or cellar of a structure. For a
nonresidential structure, watertight flood proofing in accordance with die Virginia Uniform
Statewide Building Code may be provided in lieu of the f nislied grade described herein;
2. The filling of land shall be designed and constructed to minimize obstruction to and effect
upon die flow of water and more particularly that:
a. Such fill will not, in the opinion of the county engineer, result in any increase in flood
levels during the occurrence of a one Hundred year flood discharge;
b. The flood carrying capacity of the watercourse shall be maintained;
c. No fill shall be placed in the floodway;
3. Fill shall be effectively protected against erosion by vegetative cover, riprap, gabions,
bulkhead or other acceptable method, Any structure, equipment or material permitted shall be
firmly anchored to prevent dislocation due to flooding;
4. Fill shall be of a material that will not pollute surface water or groundwater;
5. Where in the opinion of the county engineer additional topographic, engineering and other
data or studies are necessary to determine the effects of flooding on a proposed structure or
fill and/or the effect of such structure or fill on the flow of water in flood stage, the county
engineer shall require the applicant to submit such data or studies.
30.3.06.2 Repealed 2 -5 -05
30.3.07 AMENDMENT OF THE FLOOD HAZARD OVERLAY DISTRICT
The delineation of the flood Hazard overlay district may be revised, amended and modified by the
board of supervisors in compliance with die National Flood Insurance Program when any of the
following conditions are met:
1. Upon completion of a fill operation in accordance with section 30.3.06.1; and, county
engineer receipt of notification from FEMA that a map amendment based on the placement of
fill has been issued; and, at such time as die county engineer is reasonably satisfied that such
fill is stabilized, at a finished grade above the one hundred year flood elevation, and in
compliance with any related conditions imposed by the board of supervisors in approval of a
special use permit; the county engineer shall notify the board of supervisors of such finding.
The board of supervisors shall review such finding for amendment of the flood hazard overlay
district as generally provided in section 33.0 and particularly provided in section 30.3.07. In
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die event of amendment, lands deleted from the flood hazard overlay district shall enjoy all
uses of the underlying zone, as such uses are permitted therein. (Added 2 -5 -05)
2. Thcre arc changes through natural or other causes.
3. There are changes indicated by FEMA issuance of letters of map amendment (LOMA) or
letters of map revision (LOMR). (Added 2 -5 -05)
4. There arc changes indicated by future detailed hydrologic and hydraulic studies.
All such changes are subject to the review and approval of FEMA.
(§ 30.3.07, 12- 10 -80; Ord. 05- 18(1), 1 -5 -05, effective 2 -5 -05)
30.3.08 WARNING AND DISCLAIMER OF LIABILiTY
The degree of flood protection required by this ordinance is considered reasonable for regulatory
purposes and is based on engineering and scientific methods of study. Larger floods may occur on
rare occasions. Flood heights may be increased by man-made or natural causes, such as bridge
openings restricted by fill or debris. This ordinance does not imply that areas outside the flood
hazard overlay district or land uses penmitted within such districts will be free from flooding or
flood damage. This ordinance shall not create liability on the part of Albemarle County or any
officer, agency or employee thereof, for any flood damage that results from reliance on this
ordinance or any administrative decision lawfully made hereunder.
30.3.09 RESTORATION OR REPLACEMENT OF NONCONFORMING USES
Irrespective of the provisions of section 6.0 of this ordinance, for the purpose of this section, die
Following shall apply to the flood hazard overlay district:
30.3.9.1 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.
30.3.9.2 Any substantial improvement or expansion of a nonconformng structure or activity shall comply
with die requirements of this ordinance.
30.3.10 WAIVER, MODIFICATION AND VARIANCE OF REGULATIONS
In order to assure continued qualification for the regular program of the National Flood JuSUM, FIX
Program, no waiver, modification or variance of the regulations of section 30.3 shall be granted by
any board, commission or officer of Albemarle County until comment has been received from the
Federal Insurance Administration. Notice to die Federal Insurance Administration shall be in
accordance with section 15.2 -2204 of the Code. Failure of die Federal Insurance Administration
to respond within thirty (30) days of such notice shall be deemed tacit agreement with such
request.
In addition to the foregoing and section 34.2, the following shall apply:
1. No variance, modification or waiver shall be granted to section 30.3,4.
2. No variance, modifhcaton or waiver shall be granted which would result in any increase in
flood levels during the occurrence of a one hundred year flood discharge.
3. Variance, modification or waiver shall only be issued upon: (a) a finding of good and
sufficient cause; (b) a determination that failure to grant such variance would result in undue
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hardship to the applicant; and (c) a determination that the granting of such variance would not
result in additional threat to public safety, extraordinary public expense, create public
nuisance, cause fraud or victimization of the public or conflict with local laws or ordinances.
4. Where such variance would result in the location, construction or substantial improvement of
a structure below the one hundred year flood elevation, the zoning administrator shall notify
the applicant that such development may result in increased premium rates for flood insurance
and that such development -may result in increased hazard to life and property.
5. The zoning administrator shall maintain records of all such variance applications including
such material considered in review and disposition of the same for review upon request of the
Federal Insurance Administration.
30.4 NATURAL RESOURCE EXTRACTION OVERLAY DISTRICT - NR
30,4.01 INTENT
This natural resource extraction overlay district (herein referred to as NR) is created to provide for
the utilization of spring water for off -site consumption, sand, gravel, stone or other mineral
deposits within the county in a manner compatible with adjacent land uses.
NR districts may be established where deposits of sand, gravel, stone or other minerals exist;
where the uses permitted hereunder are unlikely to create effects adverse to public health, safety
and welfare or to the value of adjacent properties; and specifically where existing roads will not
make it necessary to conduct trucking operations through developed residential areas or areas
likely to be developed for residents during the course of any extractive use. (Amended 6- 10 -92)
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