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HomeMy WebLinkAbout1980-11-05 adjNovember 5, 1980 (Adjourned Meeting from 10-29-80) An adjourned meeting of the Board of Supervisors of Albemarle County, Virginia, was held on November 5, 1980, at 3:00 P.M., in the Board Room the Albemarle County Office Building, Charlottesville, Virginia. This meeting was adjourned from October 29, 1980. BOARD MEMBERS PRESENT: Messrs. Gerald E. Fisher, J. T. Henley, Jr. (arrived at 3:40 P.M.), F. Anthony Iachetta, C. Timothy Lindstrom, Layton R. McCann and Miss Ellen V. Nash. OFFICERS PRESENT: Messrs. Guy B. Agnor, Jr., County Executive; George R. St. John, County Attorney; Robert W. Tucker, Jr., Director of Planning; and J. Ashley Williams, Assistant County Engineer. Agenda Item No. 1. Call To Order. Chairman, Gerald E. Fisher. The meeting was called to order at 3:07 P.M., by NOT DOCKETED: Mr. Fisher noted receipt of a preliminary census report from the United States Census Bureau regarding the 1980 census. He noted that the population figure shown was in error and the the true figure should be about 55,518. Mr. Fisher said hopefully the final report will be more accurate. Agenda Item No. 2. 1980.) ZMA-80-16. Thomas E. Worrell, Jr. (Deferred from October 27, Mr. J. Ashley Williams posted a map indicating the rights-of-way, easements, present and proposed road widths from the applicant and whether or not the present roadway will accommodate a County standard road. Mr. Williams stated the right-of-way widths for the entire length of Broomley Road. Mr. Williams said in conferring.with Mr. Max Evans and Mr. Ray Snow, the existing road carried a 30 foot right-of-way, that is 15 feet on each side of the centerline of the road. Mr. Fisher asked Mr. St. John the legal implications of using the present roadbed even if it lies outside the dedicated right-of-way. Mr. St. John said the Board should not get the terms dedicated and right-of-way confused. He said not all roads are dedicated to public use. He added that only a portion of Broomley Road is actually a ~0 foot dedi- cated public right-of-way, the rest is 30 feet wide and either an easement available for this additional road construction, or a fee simple right-of-way owned by Thomas E. Worrell, Jr. He added that there is no legal reason to shift the road in order to make the necessary improvements, nor is there any need to abandon the present road in order to construct a road anywhere else. Mr. Fisher then asked if there is any legal cloud prohibiting public school buses from using this road. Mr. St. John said he did not know of any such restriction~ Mr. Fisher said he would reluctantly reopen the public hearing and allow additional comments. First to speak was Mrs. Arnhoff, who said she supports a public road for this proposed development, but requested any widening of the road be in an easterly direction toward the Worrell property and not toward her property. Mrs. Peters asked about notations on deeds for lots 17 and 19 on Broomley Road, which state "private road, not to be dedicated". Mr. St. John said in looking at those deeds, it is his opinion that to dedicate those roads would be a breech of contract between the buyer and seller of that private property. Mr. St. John added that that portion of the road is already part of a dedicated public right-of-way. Mr. Max Evans reviewed the entire length of Broomley Road, indicating the centerline of the road and the amount of right-of-way and easements available for widening for the Worrell project. (Mr. Henley arrived at 3:40 P.M.) Mr. Evans noted the difference of land which would be disturbed in constructing the County standard road versus the road variance which the applicant has requested. Mr. Watterson said with regard to the restrictions to subdivide which Farmington has on Broomley, he indicated that about only half of the Broomtey property comes under those restrictions. He said of the total of 120 acres, about 59 acres are restricted in five lots; the remaining approximate 60 acres could have access to Broomley Road. Mr. Lindstrom asked Mr. St. John if the Board were to grant a variance for construc'- tion of this road at this time, would it set a precedent for all future requests~ Mr. St. John said such a precedent would only apply if the future case were identical to this situation. Mr. Lindstrom said he has reviewed the proposed alignment for the road if the var- iance is approved. He said it would substantially improve entrances for several pro- perties, and be about equal for several other properties. He said if a County standard road is approved, any future development will have to come back before the Board with plans for a full state standard road. He added that if the variance road is constructed, it will be less devestating to the already established properties, and will still require review if any future development occurs along that road. Finally, Mr. Lindstrom said he felt that if a State maintained standard road were required, it would require a complete review of the Comprehensive Plan and zoning for the area as well as the personal impacts · it would'put on present property owners along the road. Mr. Lindstrom said he would support the request for a variance. Mr. Lindstrom concluded that if a future request for such a variance came before the Board, if.the situation were the same, he would have no trouble supporting a variance. Mr. Fisher said he agreed with Mr. Lindstrom that a variance is the best choice for this situation. Mr. Fisher said he was still concerned that homeowners agreements should be worked out for the maintenance of Broomley Road, and that those be presented for~review by the County Attorney. Mr. McCann said he has no problem granting a waiver of County road standards in this case, but suggested 'that the Board set a policy for old/existing private roads and handle them differently from new requests for private roads. 393 November 5, 1980 (Adjourned Meeting from i0-29-80) Dr. Iachetta asked if it would be possible to require state standard roads along the present alignments where there is sufficient right-of-way. Mr. St. John said Mr. Worrell ownes sufficient right-of-way, but that it would be legally very difficult to force other property owners to dedicate their property for such a road. Mr. St. John said the]0nly alternative to property owners donating their property for right-of-way would be condem- nation, and most likely this would go to court with the argument that such a road widening would be for private purposes, not'the good of the public. Mr. McCann asked what the impact on property would be if the County standard pavement width were used along with the variance widths for shoulders and ditch. Mr. Evans said particularly in sections A, B and C, the major effect would be the removal of several prominent trees. Mr. Lindstrom said he would suggest a condition to deal with this problem. He suggested a modification of condition #3 to read as follows: "County Engineer review of improvements to Broomley Road. Said improvements shall be brought to the standards of Section 18-36 of the Subdivision Ordinance as modified by the applicant's waiver request of August 26, 1980. Prior to approval of such ~ final road plans, the applicant shall present a permanent and binding agreement for the future maintenance of such road, said agreement shall be reviewed for approval by the County Attorney's office. No bu±lding permit shall be issued prior to the granting of approval of the road maintenance agreement." Mr. McCann and Dr. Iachetta said they did not feel such a maintenance agreement was necessary, since the road as proposed would not even meet County standards. Mr. Fisher said he was very concerned that such an agreement be signed among property owners, because this ±s the only thing that will assure proper maintenance of the road. Mr. Lindstrom reread his proposed condition and Mr. McCann stated that he felt such an agreement would protect the resident~-o~Flordon. Dr. Iachetta said he would second the motion, and support it against his better judgment. He said if the property owners are willing to live with such a proposed road and maintenance agreement, he won't argue with them. Mr. McCann said he would support such a condition, and that he would look favorably upon similar future requests. Mr. Henley said he would not support this condition, since he feels this road should be constructed to state standards and if that is not possible, an alternate access should be developed. Miss Nash said she would not support the variance, because of the potential for additional future development along the rear of the road. She added that it should be developed to state standards. There being no further discussion, roll was ~alled, and condition #3 as previously stated by Mr. Lindstrom and seconded by Dr. Iachetta, was adopted by the following recorded vote: AYES: NAYS: Messrs. Fisher, Zachetta, Lindstrom and McCann. Mr. Henley and Miss Nash. Mr. Fisher said he would next like to discuss the problem of access over Brook Road into Farmington. Mr. Fisher noted the private agreement between Mr. Worretl and Farmington to allow three property owners private access into Farmington via Brook Road. Mr. Fisher noted that those three lots will be remote from Brook Road. He further noted that the attorney representing Mr. Worrell brought up the point that it is not up to the Board of Supervisors to enforce private agreements. Mr. Fisher said on that basis he would like to see no vehicular access between the Worrell RPN and Farmington. Mr. Lindstrom asked if the private agreement regarding Brook Road binds the Board. Mr. St. John said no, the 'Board could impose any reasonable conditionss necessary. Mr. St. John noted that the deed does not give access to the Worrell RPN over the right-of-way to a public road; access is given to the Farm±ngton Club facilities to the owners of three lots in the Worrel! subdivision. Dr. Iachetta asked why the agreement should even be discussed, when in fact it is not part of the site plan. Mr. St. John said it does not have to be considered, but since it i~as been brought to the Board's attention~, and it is the wish of the B~rd~to~xtinguish that right of access which runs with the land, it can be made a part of the conditions. Dr. Iachetta asked if the site plan could be approved with a cul-de-sac at the proposed point of access, and leave out all statements regard±n~ access by three lot owners. Mr. St. John said he felt that could be done. He said this would in effect be putting the applicant on notice that the Board is extinguishing the right that he has, and it would then be up to the applicant to either accept that or withdraw the application. Mr. Lindstrom said he does not mind having access onto Brook Road, but he was concerned about how it could be limited to three lots. Mr. McCann said if the Board is truly interested in good planning, they wo~ld eliminate this access and also require that Broomley Road be brought up to full state standards. Mr. Dennis Rooker, attorney for the applicant, said that if the applicant-violated an agreement to limit the number of lots allowed access over Brook Road, Farmington Country Club could close that access. Mr. Fisher said he could agree to a pedestrian access, but that he cannot visualize any way'to control vehicular access. Mr. Lindstrom then~offered motion to add a condition #11 on this rezoning approval which would state: "Access limited to Broomley Road only, and no access onto Brook Road." Mr. Henley said he d~s not usually support taking away property owners rights, but felt this instance very unusual and agreed to second the motion. Mr. McCann said he supported condition #3 even though he felt it was against good planning; now he feels this condition is interfering in a private agreement and he said there is no way he can support such a condition. There was no further discussion and the motion as offered by Mr. Lindstrom carried by the following recorded vote: AYES~ NAYS: Messrs. Fisher, Henley, Iachetta, Lindstrom and Miss Nash. Mr. McCann. 394 November 5,1980 (Adjourned from 10-29-80) Mr. Fisher next requested indepth discussion of Planning Commission condition #9, which states "show on subdivision plat provision for private road connection to serve properties currently served by the old Durrette Road. Please note that Mr. Bowerman clarified condition 9 and stated that the Commission could not require the applicant to grant access over the proposed right-of-way to surrounding property owners. He added that the provision for a connection was there should the applicant and these property owners reach an agreement in the future." Mr. Lindstrom stated that his concern about this condition is that it will open up the adjoining property to the rear of this development. Mr. Fisher said this conditior as it stands, would give adjacent property owners rights that they don't now have to use Broomley Road, which would increase the traffic. Mr. St. John said this condition as stated would require the developer to show on the plat a connection to serve the rear properties who now use the Durrette Road. Mr. St. John said this would create an access ~which does not really exist and which no one has the power to require and added that he felt it would be a mistake to leave in this condition. Motion was offered by Mr. McCann to remove condition #9 from the list of conditions on this zoning map amendment. The motion was seconded by Dr. Iachetta and carried by the following recorded vote: AYES: NAYS: Messrs. Fisher, Henley, Iachetta, Lindstrom, McCann and Miss Nash. None. Motion was then offered by Dr. Iachetta, seconded by Mr. Lindstrom to approve ZMA-B0-16 with the conditions as amended. Mr. McCann said he does not like the condition limiting access over Brook Road, because he feels it is intervening between two parties. He added that he does not want to hold up the applicant any further, so he would agree to support the motion for approval. Dr. Iachetta said he would support this ZMA and added that he felt the concession made for private roads on Broomley Road more than made up for removing access over Brook Road. Miss Nash said she would not support this ZMA, because she felt the waiver of County standard roads for Broomley Road was a mistake. Mr. St. John stated his strong concern about the condition removing access over Brook Road. He said this is a right bought and paid for by the applicant from Farmington, Inc. and he felt it would be difficult to argue the Board's case if taken to court. Mr. St. John said the applicant should be given a period of time to consider these conditions before the rezoning becomes effective. Mr. Fisher said this is something the Board has never done before, that once the vote is taken, the rezoning is established and is final' Mr. Lindstrom said the motion is on the floor and he would like to see it voted on. Mr. Lindstrom added that the applicant has always had the right to withdraw this rezoning request or state his dissatisfaction with any of the conditions which the Board has placed on its approval. Mr. McCann said once the Board votes, the applicant is locked in to this rezoning. Mr. Rooker requested one week following the vote to either accept or reject this rezoning application. Miss Nash said the applicant may or may not have an understandable knowledge of the conditions. Mr. Lindstrom said if the legal aspects of this are going to be further discussed, it should be done in executive session because of the possibility of compromising the County's position in this matter. Mr. Lindstrom said this may facilitate a decision on this matter today. Motion was then offered by'Mr. Lindstrom to adjourn into executive session to discuss legal matters. The motion was seconded by Dr. Iachetta. At 5:20 P.M., the motion carried by the following recorded vote: AYES: NAYS: Messrs. Fisher, Henley, Iachetta, Lindstrom, McCann and Miss Nash. None. At 5:40 P.M., the meeting reconvened. Mr. Fisher said that prior to the executive session there was a motion on the floor offered by Dr. Iachetta, seconded by Mr. Lindstrom, to approve the rezoning with the following conditions: Approval is for a maximum of 33 single family lots. Location and acreages shall comply with the approved plan. In the final sub- division process, open space shall be dedicated in substantial accordance with the number of lots approved; 2. Compliance with the Soil Erosion and Runoff Control Ordinances; e County Engineer review of improvements to Broomley Road. Said improvements shall be brought to the standards of Section 18-36 of the Subdivision Ordinance as modified by the applicant's waiver request of August 26, 1980. Prior to approval of such final road plans, the applicant shall present a permanent and binding agreement for the future maintenance of such road, said agreement shall be reviewed for approval by the County Attorney's office. No building permit shall be issued prior to the granting of approval of the road maintenance agreement. County Engineer approval of interior road plans prior to final Planning Commission approval; County Attorney approval of homeowners' agreements to include the maintenance of roads, open space, lakes, drainage and appurtenant structures and the use of open space for septic drainfields if necessary and where permitted; Virginia Department of Highways and Transportation approval of entrance of Broomley Road into Route 677; November 5, 1980 (Adjourned from 10-29-80) 7. Fire Official approval of dry hydrant prior to final approval; Albemarle County Service Authority approval of water plans to serve the development, if required; Survey of C and 0 bridge to determine current capacity and safe load as part of subdivision plat; 10. 11. Safety record of bridge to be made available to Planning Commission prior to Planning Commission review of the plat. Access limited to Broomley Road only, and no access onto Brook Road. Roll was called, and the motion carried by the following recorded vote: AYES: NAYS: Messrs. Fisher, Henley, Iachetta, Lindstrom and Miss Nash*. Mr. McCann. * Miss Nash wished to emphasize that her vote for approval of this zoning map amendment did not include her support for condition three. Mr. Rooker stated that during the executive session he spoke with the applicant and then requested a period of time to consider the implications of condition #11. Mr. Fisher said the la~ter~Of~no~i~ication~Sent~bY the Planning Commission informing the applicant of the day and time of the Board of Supervisors meeting indicates "You or your representative must be present for that meeting." Mr. Fisher said that Mr. Rooker represents the principal in this instance, and he had an opportunity before the vote to state any objections which he may have had. Mr. Rooker said he feels the applicant should have a reasonable amount of time to consider this since the Board has taken an action which he feels substantially diminishes the value of the properties. Mr. Fisher said he would like to note for the record that condition #3 was on a piece of paper handed to Mr. Max Evans two weeks ago which stated that no vehicular access would be permitt~d~b~ween the subject RPN and Brook Road in Farmington. Mr. Fisher said an opportunity was allowed for discussion of this condition today. He added that the rezoning was made on the Board's best judgment for the use of the land. Mr. Rooker again asked for one week to consider the conditions before accepting the rezoning. Mr. Fisher said the rezoning has occurred. Mr. Rooker said he did object to that condition as it was being imposed, and he strenuously objects to it now. Mr. Fisher said he disagrees with Mr. Rooker and as a matter of procedure that if the applicant of every rezoning and special permit were allowed a period of time to accept the conditions then the Board would never get anywhere. He said the extreme circumstances surrounding this application brought about an extraordinary amount of public meetings and discussion which allowed the applicant sufficient time to state his position. Mr. Fisher concluded by stating that all of the records of these meetings are available to Mr. Rooker if he so desires. Agenda Item No. 3. At 5:47 P.M., Mr. Fisher declared the meeting adjourned.