HomeMy WebLinkAboutAP201000001 Application 2010-04-27Application for
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Board of Zoning Appeals Action/vote: S
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Board of Zoning Appeals Chairman's signature: - ,
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FOR OFFICE USE ONLY
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County of Albemarle Department of Community Development
401 McIntire Road Charlottesville, VA 22902 Voice: (434) 296 -5832 Fax: (434) 972 -4126
7/1/08 Page 1 of
The following info rM ation shall be submitted with the application and is to be provided by the applicant.
1) 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
for 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.
6) Appropriate fee made payable to the County of Albemarle.
7) Explanation of error in determination and justification of applicant's position:
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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 best of my 0
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Signature f Owner, Contract` Purchaser, Agent Date
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Print Name Daytime phone number of Signatory
7/1/08 Page 2 of 2
Kent Sinclair
417 Key West Drive
Charlottesville, VA 22911
TO: Zoning Administrator of Albemarle County, and
Albemarle County Board of Zoning Appeals March 15, 2010
SPD200900004 - NO'T'ICE OF APPEAL
TAKE NOTICE that pursuant to Virginia Code § 15.2- 2311(A) and (B), and Albemarle
County Code § 18 -34.3, the undersigned hereby appeals to the Board of Zoning Appeals from the
decision of the Albemarle County Planning Commission made February 16, 2010 approving a
zoning modification for the applicants' property in the above - captioned proceeding.
This Notice of Appeal asks for review of the action of the Planning Commission applying
Zoning Ordinance § 18 -4.2.5 (hereinafter: "ZO 4.2.5 "), which is a provision purporting to authorize
the Planning Commission to grant "modifications" of generally applicable zoning restrictions
relating to critical slopes disturbance and construction, upon the application of a "developer or
subdivider." By its action on February 16, 2010, the Commission granted a zoning modification,
interpreting the terms "developer of subdivider" to authorize an application by a residential
homeowner who has lived in a completed house on her lot for more than 30 years, and a cellular
telephone company seeking to erect a broadcast tower on a small leased area in the lady's back yard.
The undersigned Appellant, an objecting abutting landowner, argued to the Planning
Commission at its August, 2009 public hearing re SPD200900004 that ZO 4.2.5 is void, and that its
terms do not permit applications for zoning modifications by the particular parties seeking that
relief in SPD200900004. In connection with the February 16, 2010 public hearing in the Planning
Commission, your Appellant made a similar oral argument and objections, supported by written
explanation submitted in advance of the session. The Planning Commission granted the
modification request over such objections.
The Zoning Administrator and the Board of Zoning Appeals may be aware that a lawsuit has
been filed in the Circuit Court of Albemarle County, challenging the validity of ZO 4.2.5 on the
grounds (1) that it is in conflict with the Code of Virginia provisions prescribing mandatory
standards to be applied in deciding applications for variances or modifications of zoning ordinances,
and in denying state - mandated appellate review of such actions, and (2) that ZO 4.2.5 violates
Dillon's Rule by vesting zoning modification power in the Planning Commission rather than the
Zoning Administrator and the Board of Zoning Appeals, where the Legislature has placed that
authority. That action is captioned Sinclair v. Albemarle County Board of Supervisors, Civil Case
No. CL 10000138 -00. If the Board of Zoning Appeals gives notice that it expects to address either
of those two legal challenges the undersigned will so advise the Circuit Court.
A third Count of that pending lawsuit alleges that the Planning Commission misapplied ZO
4.2.5 on its face because the applicants in SPD200900004 include neither a "developer" nor a
"subdivider" as those terms are used in Virginia, as a matter of plain usage and as a matter of zoning
Statutes. In their Answer to that lawsuit, dated March 12, 2010, the County parties take the position
it is ripe for Circuit Court review, or this
. Answer, 148. Accordingly, this notice of
appeal is filed.
At a hearing in the Albemarle County Court proceeding on March 15, 2010 the undersigned
will ask the presiding Judge to defer proceedings in that Court on the Count of the lawsuit relating
to interpretation and application of the terms "developer" and "subdivider" in ZO 4.2.5 so that the
Board of Zoning Appeals will have full opportunity to consider and act upon this Appeal during the
period that proceedings in furtherance of the above - captioned Planning Commission application in
SPD200900004 are stayed under Code § 15.2- 2311(B) pursuant to this Notice of Appeal.
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Kent inclair
See attachment summary of Objections.
1. Arguments Made Available in Writing to the Planning Commission prior to February 16, 2010:
- Who May Apply for a Modification or Waiver?
The option to make an application for a modification of the critical slopes zoning ordinance is allowed —
under the actual language of the Zoning Ordinance only to a "subdivider" or a "developer." The
Commission should interpret the waiver provision to be inapplicable to a homeowner who has a fully built -out
residential property she has lived in for 30 years.
When the County Ordinances want to empower a "landowner" or "owner" to make a waiver or
modification application, it does so expressly. Thus :
18 -4.6.6 authorizes a "landowner" to seek a waiver of driveway grade requirements, and a "landowner" to
appeal from the denial of such a requested waiver.
18 -4.8.1 allows a "landowner" to seek approval of an "unspecified" use.
18- 4.15.15 allows an "owner or lessee" to seek a "certificate of appropriateness" for deviations
18- 4.17.5 allows the "owner" and "owner's agent" to seek waiver of lighting ordinance provisions.
18- 4.18.07 allows "the owner" to seek modification or waiver of sound restrictions in the ordinance.
Thus when the critical slopes provision, 4.2.5., authorizes a "developer or subdivider" to seek this relief,
the intent to limit access to this variance from the slope building limits to those actors is clear. Nor are
wireless /cellular situations different. The entire wireless ordinance structure and the county's guiding policy
documents all talk about "applicants" and "owners" not developers or subdividers. Words have meaning and
they have consequences. The critical slopes waiver provision is not designed to allow the present application.
It deals instead with siting the original residences on parcels in a development to give developers and
subdividers options in locating the homes.
In Virginia law the use of different terms in a legislative enactment such as these Ordinances is not chalked
up to "sloppy drafting." The plain meaning applies in Virginia and use of such terms demonstrates that
homeowners of long standing, whose homes were long since built, whose driveways are in, are not
subdividing or acting as developers. "Subdivision" and "development" are defined for zoning purposes by the
Code of Virginia, and do not describe either the present homeowner or this application. § 15.2 -2201.
2. Detailed Explanation of Appellant's Objection to the Planning Commission's Interpretation
A. The Ordinance Only Authorizes "Developer" and "Subdivider" Applications
The option to make an application for a "modification" of the Critical Slopes Construction
Ban Zoning Ordinance is allowed — under the actual language of the Planning Commission Zoning
Modification Section — only to a "subdivider" or a "developer." ZO 4.2.5 provides in this regard
simply:
a. Modification or waiver by the commission. The commission may modify or waive any
requirement ... as follows:
1. Request. A developer or subdivider requesting a modification or waiver shall
file a written request in accordance with section 32.3.10(d) of this chapter and
identify and state how the request would satisfy one or more of the findings set
forth in subsection 4.2.5(a)(3). (Emphasis added).
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At - its February 16, 2010 meeting the Planning Commission interpreted that provision to -allow an - - - -
application for modification of the zoning by a homeowner, or by a cell -phone company as her
agent and prospective lessee of a portion of her back yard, on the construction that they are
"developers." Appellant, an objecting abutting landowner, asks the Board of Zoning Appeals to
determine that Z.O.4.2.5 is not and was not available to applicants such as those in SPD 2009
00004, and that the modification granted to them must be reversed, and the application denied.
Interpretation of a statute is a matter of law in Virginia. Virginia Polytechnic Inst. & State
Univ. v. Interactive Return Service, 271 Va. 304, 309, 626 S.E.2d 436, 438 (2006). The standard
rules of statutory interpretation apply equally to the interpretation of zoning ordinances. See
Capelle v. Orange County, 259 Va. 60, 65, 607 S.E.2d 103, 105 (2005)(citing cases and applying
traditional interpretation rules to a zoning ordinance).
Under standard canons of interpretation in Virginia, the zoning modification ordinance is
not available, on its face, to the homeowner and cell phone company who applied for the zoning
modification in this the SPD 2009 00004 proceeding, and the Planning Commission erred as a
matter of law in allowing the application to go forward.
B. "Developer" and "Subdivider" Have Accepted and Plain Meaning, Consistent with the
Statutory Definition in the Zoning Statutes, that Excludes the Present Applicants.
The terms "developer" and "subdivider" are not defined in the Albemarle County
Ordinances, which have extensive definitions of other terms in Section 3 of the zoning ordinance
provisions.
The Code of Virginia, however, has defined "development" and "subdivision" specifically
for zoning purposes in Virginia, at the outset of the zoning Article of the Code. In Code § 15.2-
2201 a "development" is defined as a tract of land used for business or industrial purposes, or a
residential tract "to contain three or more residential dwelling units." A subdivision likewise is
defined in terms of a parcel being divided into "three or more lots or parcels."
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Defendant Elledge's parcel is a zoned for residential use, not business or industrial uses and - -
is in fact used as a residence. It is only one parcel; it does not contain, nor would it be permitted by
law to contain, "three or more residential dwelling units."
When the County Ordinances are designed to empower a "landowner" or "owner" to make a
waiver or modification application, or their "agent" or "lessee" the Ordinances do so expressly.
Thus..
• 18 -4.6.6 authorizes a "landowner" to seek a waiver of driveway grade
requirements, and a "landowner" to appeal from the denial of such a requested
waiver.
• 18 -4.8.1 allows a "landowner" to seek approval of an "unspecified" use.
• 18- 4.15.15 allows an "owner or lessee" to seek a "certificate of appropriateness"
for deviations
• 18- 4.17.5 allows the "owner" and "owner's agent" to seek modification of lighting
ordinance provisions.
• 1 8- 4.18.07 allows "the owner" to seek modification or waiver of sound restrictions
in the ordinance.
Likewise, the Albemarle County wireless /cellular ordinance provisions use specific terms of
art. The entire wireless ordinance structure and the county's guiding "wireless policy" documents
all talk about "applicants" and "owners" and never refer to persons seeking permission to erect cell
towers as developers or subdividers.
Thus it is apparent that the Albemarle Supervisors know full well how to state in an
ordinance the intention to allow a "landowner" or home "owner," or her "agent," or her "lessee" to
apply for a modification from zoning requirements, and the County has done so in several other
instances in the zoning laws noted above. But the Supervisors did not use those words in ZO 4.2.5
— it did not use the words enacted in those several other ordinances designed to authorize an
"owner" or her "agent" or "prospective lessee" to make a zoning "modification" application relating
to the Critical Slopes Construction Ban.
Thus when the express language of the Planning Commission Zoning Modification Section,
ZO 4.2.5, authorizes a only a "developer or subdivider" to seek this relief, the intent and effect of
" this language in limiting access to this mechanism -for seeking a variance from the slope building - - - - --
prohibition to those listed authorized applicants is clear.
Normal canons of construction applied to enactments in Virginia require that when a body
of enactments use different terms in various provisions, it is presumed that the choice of different
terms must result in a different meaning, and the difference will not be assumed to be accidental or
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sloppy drafting, or to amount to a distinction of no meaning or consequence.
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The doctrine that an enacting body's use of different terms is presumed to have meaning and
not to have been pointless or accidental, as well as the accepted Virginia maxims of construction
such as expressio unius est exclusio alterius (legislative designation of one category excludes other
readily expressible categories by use of one specific example), limit ZO -4.2.5 as a matter of law to
the applicant categories it actually provides for, developers or subdividers.
In Virginia, words used in enactments are held to have meaning, and they have
consequences. The critical slopes zoning modification provision is not designed to allow the
present application. It deals instead with siting the original residences on parcels in a development
to give developers and subdividers options in locating the homes on at least one building site on
each of the parcels involved.
Plain Meaning and the "Absurdity" Test. In Virginia law the "plain meaning" is given
to terms used in enactments absent a specialized definition provided in the enactment. Albemarle
has not adopted a specialized definition in its Albemarle ordinances,for the concepts of "developer"
or "subdivider ". Plain meaning of the terms is used unless that interpretation would be impossible
or would produce "absurd results." There is nothing absurd about a "modification" procedure that is
available to developers and subdividers - to help assure that there is at least one building site on
each parcel - but does not authorize an application by an existing homeowner who already lives in a
residence built decades ago as the only dwelling permitted on the parcel. The entire structure of
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114.2" of the ordinances shows why such a result is not absurd since the principal divisions of 4.2 -
are:
4.2 CRITICAL SLOPES (explaining the policy behind the ban on building on
critical slopes)
4.2.1 BUILDING SITE REQUIRED (making sure that a lot that has not yet been
built upon will have at least one approvable building site for a home; effectively telling a
subdivider to shape land parcels so there's at least one flatter location on each parcel in a
subdivision) _
4.2.2 BUILDING SITE AREA AND DIMENSIONS (further implementing the
focus of 4.2 on making sure that the slopes construction ban leaves one usable site per lot
to the developer or subdivider)
4.2.3 LOCATION OF STRUCTURES AND IMPROVEMENTS (stating the
construction and disturbance ban applicable to slopes 25% or more)
4.2.4 LOCATION OF SEPTIC SYSTEMS (dealing with initial location of septic
tanks)
4.2.5 MODIFICATION (the developer or subdivider provision involved in this
lawsuit)
4.2.6 EXEMPTIONS (for preexisting structures and the like)
Thus it is hardly "absurd" to apply the "modification" provision exactly as it is written as Virginia
law requires, allowing a developer or subdivider to seek exemption for the initial division of the
properties into building lots but not allowing a homeowner with an existing residence to come in —
decades down the road — with a request to be exempted from the critical slopes building ban. This
is the express language of ZO 4.2.5, and it is fully consistent with the statement of policy in Section
4.2 itself, which recites that "These provisions are intended to direct building and septic system
locations to terrain more suitable to development and to discourage development on critical slopes."
With this focus on development in the normal sense, allowing the "modification" application to be
made by a developer or subdivider is not absurd, but a perfectly viable option for the Supervisors to
have adopted in structuring the ordinance's actual language. It does not cause enforcement of the
ordinance as it was actually written to be unworkable or absurd. Thus, since the express and plain
meaning of the modification provision is to authorize applications by only developers or
subdividers, it would be error to construe the ordinance in any other fashion.
M
_ In reported decisions the Supreme Court -of Virginia has turned over 100 times in recent --
decades to Webster's Third New International Dictionary for the "common meaning" or "plain
meaning" of terms that are not defined in a contract or enactment. That authoritative dictionary
defines "developer" at p. 618 as a person who develops something "habitually or as an occupation:
as ... a person who develops real estate: often one that improves and subdivides land and builds
and sells residential structures."
Applying the definitions of development in the Code of Virginia set forth above, and the
obvious plain and common meaning of the term "developer" in the English language, ZO 4.2.5 is
not available to a residential housewife who lives in an established single family home on her
parcel, and has done so for 30 years, such as Defendant Elledge, nor a cell -phone company as her
"agent" or "lessee."
Thus the Board of Zoning Appeals should rule that under the express terms actually used in
enacting ZO 4.2.5 the application for a zoning modification in SPD 2009 00004 was not and is not
available to those applicants because they are neither a developer or a subdivider of property.
Approval of SPD 2009 00004 in violation of the express terms of the ordinance should therefore be
reversed by the Board of Zoning Appeals, and the application for a zoning modification denied.
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