HomeMy WebLinkAbout1979-03-21AMarch 15, 1979 (~djourned from March 14, 1979)
Not Docketed: Mr. Roudabush said he had read of the minutes of the January 17 (night)
meeting and found no errors. Motion was offered by Dr. Iachetta, seconded by Mr. Roudabush,
to approve these minutes as presented. The motion carried by the following recorded vote:
AYES:
NAYS:
ABSENT:
Messrs. Dorrier, Fisher, Iachetta, Lindstrom and Roudabush.
None.
Mr. Henley.
Agenda Item No. 4. At 10:13 P.M., motion was offered by Dr. Iachetta, seconded by Mr.
Lindstrom, to adjourn this meeting until March 21, 1979, at 1:30 P.M. The motion carried by
the following recorded vote:
AYES: Messrs. Dorrier, Fisher, Iachetta, Lindstrom and Roudabush.
NAYS: None.
ABSENT: Mr. Henley.
March 21, 1979 (Afternoon Meeting-AdJoumn~df~m~m~2M~rlch 15, 1979)
An adjourned meeting of the Board of Supervisors of Albemarle County, Virginia, was held
on March 21, 1979, beginning at 1:30 P.M., in the Board Room of the County Office Building,
Charlottesville, Virginia; said meeting being adjourned from March 15, 1979.
Present: Messrs. Lindsay G. Dottier, Jr. (arriving at 1:43 P.M.), Gerald E. Fisher,
J. T. Henley, Jr., F. Anthony Iachetta, C. Timothy Lindstrom and W. S. Roudabush.
Absent: None.
Officers present: County Executive, Guy B. Agnor, Jr.; County Attorney, George R.
St. John; and County Planner, Robert W. Tucker, Jr. (arriving at 3:00 P.M.).
Agenda Item No. 1.
a moment of silence.
The meeting was called to order at 1:35 P.M. by the Chairman, with
Agenda Item No. 2. Request from Electoral Board.
request a change in certain polling places as follows:
Mr. Richard Florence was present to
In the Earlysville Precinct, the polling place to be moved from the Parish Hall to
Broadus Wood Elementary School. This change is necessary because the Parish Hall has no
toilet facilities and there is no heat in the building.
In the Scottsville Precinct, the polling place to be moved from the Fire House to the
Scottsville School on Page Street. This change is necessary because the Fire House is too col,
In Porter's Precinct, the polling place to be moved from the library at Yancey
Elementary School to the cafeteria at Yancey Elementary SChool.
In Jack Jouett Precinct, the entrance to the polling place at Jack Jouett School be
moved from the main entrance at the front of the school to the cafeteria entrance on the si~de
of the building. This entrance is more accessible by the citizens.
Mr. Florence said that whenever possible, the Electoral Board has been moving polling
places'to schools for the convenience of the citizens. The School Board has been agreeable
to this idea. These changes are requested at this time because they must be approved by the
Justice Department and no changes can be made'in polling places closer than 60 days to an
election.
Mr. Lindstrom asked about moving the entrance to the Jack Jouett Precinct. Mrs. Mary
Lou Matthews, Registrar, said there were complaints from citizens about the long walk from
the front of the building to the cafeteria. This change is being requested to accomodate
citizen complaintS, but the main entrance to the building can still be used since it will be
open. However, the official entrance will be at the cafeteria door.
Mr. Dorrier arrived at this time and after being briefed on the Board's discussion, he
said the change in the Scottsville polling place should have been changed long ago. The
School offers parking and there is better access to the building. Mr. Roudabush asked if. the
Scottsvitle School is in the Town of Scottsville. Mrs. Matthews said yes. Mr. Dorrier
thought it was outside of the Town limits. Mrs. Matthews said even if it is not in the Town
limits, it can be arranged so that elections can be held at the School. She gave as an
example the fact that the Free Bridge Precinct had voted in the City Limits of Charlottesville
for several years.
Dr. Iachetta then offered motion to adopt the following resolution:
March 2Z~ 1979 (Afternoon Meeting -
Adjourned from March 15, 1979)
BE IT RESOLVED that the Board of Supervisors of Albemarle County,
Virginia, does hereby concur in request of the Albemarle County Electoral
Board to make the following changes ~n voting places:
1) Jack Jouett Magisterial District: Entrance to voting place
to be moved from the main entrance of Jack Jouett School to
the Cafetorium entrance at Jack Jouett School.
2) Rivanna Magisterial District: Earlysville Precinct. Voting
place to be moved from the Parish Hall to Broadus Wood School.
3) Scottsville Magisterial District: Scottsville Precinct. Voting
place to be moved from the Fire House to the old Scottsville
School on Page Street.
4) Scottsville Magisterial District: Porter's Precinct. Voting
place to be moved from the Library in Yancey School to the
Cafeteria in Yancey School.
BE IT FURTHER RESOLVED that the change for ~he Scottsville Precinct is
approved only if the new voting place can be used for all elections.
The foregoing motion was seconded by Mr. Roudabush and carried by the following recorded
vote:
AYES: Messrs. Dorrier, Fisher, Henley, Iachetta, Lindstrom and Roudabush.
NAYS: None.
Not Docketed: At this time, Mr. Fisher introduced Mr. Bob Brickhouse of the Daily
Progress. Mr. Brickhouse replaced Mr. Peter Bacque.
Agenda Item No. 3. Discussion: Industrial Development Policy. (Deferred from March 14,
19~92~7 Mr. Fisher noted that Mr. Charles Smith, President of the Chamber of Commerce, w~as
present and asked if Mr Smith would like to make a statement.
Mr. Smith said on behalf of the Chamber he would like to commend the Board for taking
steps to develop a policy statement on economic development. The Chamber hopes that the
Board will acknowledge that some of the land presently zoned for industrial uses is unsuitable
for Such use because of excessive slopes. The Chamber hopes the Board will consider trading
some of that land for other lands, which although not presently zoned for industrial uses,
have better terrain. Mr. Smith said that in 1977, Albemarle County had 1440 households with
a spendable income after taxes of less than $3,000. There were 1130 households with an
income between $3000 and $5000, and 1745 households with an income between $5000 and $8000.
In all of these households, more than one family member ~as working He mentioned these
figures becaus~'~he Chamber feels that the draft policy has conflicting goals as presently
written. The policy calls for industries that will employ the currently unemployed people in
Albemarle, but at the same time calls for active solicitation of industries that meet the
high quality of Albemarle County. Since the labor force of Albemarle County is cbmposed
mainly of unskilled labor, the Chamber feels it would be better to work toward upgrading the
level of the worker. This would help find a job for the person who does not have a job and
at the same time find a better job for the person who is trying to find a better lifestyle.
It is very important that the policy be drafted to cover those persons "underemployed", and
to provide jobs for those persons graduating from the University and local high schools who
want to stay in the area. Mr. Smith mentioned that this year there will be 432 graduating
seniors at Albemarle High School; 246 from Western Albemarle High School; and 365 from
Charlottesville High School. There will be ~!arge number of graduates from the University
and Piedmont Community College presently has 2773 in attendance. Some of these persons will
have to be absorbed into the economy of the area. The Chamber hopes that from this statement
of policy there will come a stimulus for the County to actively seek the types of employment
opportunities that best suit Albemarle County, rather than sitting back and accepting or
rejecting what is offered.
Mr. Smith then offered several suggestions for changes in wording of the draft policy:
Numbered Paragraph (1). Add to the end of the sentence the following words:
"... and to consider those industries which will develop jobs giving an
upward thrust in both skills and opportunities to those who are underemployed,
encouraging the retention of our emerging youth as well as established
and older citizens and the disadvantaged."
Paragraph Numbered (3). Mr. Smith said rather than hamper future possibilities,
delete the words "...without affecting existing zoning..." and add at the end
of the sentence the following words: "... to identify and recommend zoning
of sites as best suited for industrial use which by topography, access and
availability of utilities will minimize the need to disturb the land, will
conserve transportation fuels and will maximize the proximity of water,
sewer, production fuels and power."
Paragraph Numbered (4). Strike the word "only". Mr. Smith felt this
phrase referred to the Economic Development Commission and he did not think
the Commission should be held to an "only" situation. He felt the Commission
will work to the best of its ability with the sites that have been identffied.
Paragraph Numbered (5). Mr. Smith said the basic idea on speculative
zoning" is probably all right, but he suggested wording for (6) to take
care of this idea.
Paragraph Numbered (6).
Add at the end of the paragraph the followin~ s~t~-
March 21, 1979 (Afternoon Meeting -
Adjourned from March 15, 1979)
Add a paragraph numbered (7) to read: "To cooperate in community with the
City. of Charlottesville where such cooperation appears to fulfill the basic
economic objectives for both."
Mr. Fisher thanked Mr. Smith for his presentation and requested a written copy of his
comments. The Board then began their work session on the policy.
Mr. Fisher said one point Mr. Smith had made was about "underemployment" It might be
well for the Board to consider the concept of "underemployment" and "unemployment". Dr.
Iachetta felt the Board should address the problem of how to upgrade the skills of persons
who never find employment with the kinds of industry the County would like to
may
encourage
because of a lack of skills. Mr. Lindstrom said an upwardly mobile economy can be created,
but this sometimes creates a spiral. If this spiral is created and draws people in from
outside of the County, there may be lay-offs if the local economy is based on the National
economy rather than on the fundamental types of Jobs that are now a part of Albemarle's
economy. The trick is to identify the Job needs of the area residents. In last Sunday's
issue of the Daily Progress, Mr. John Fitzwater said the number of persons presently unemployec
in the County are statistically considered to be hardcore unemployed.
Mr. Dorrier felt the policy should encourage industries to hire high school graduates
and underemployed persons. He said there are a lot of people in the community who hold
masters degrees and doctorates who have taken lower skilled jobs and he feels that these
people are underemployed. Dr. Iachetta felt this situation has come about because of the
transient nature of the work force. He personally is more concerned with the part of the
population that does not have even minimal skills.
Mr. Roudabush said the first objective of the policy does not say how the statistics on
employment will be used. He suggested that these statistica~night be made available to the
educational institutions in the County so they .~a~doul~~train persons for the types of
available employment, and the statistics also be made available to industries wanting to
locate in the County. Dr. Iachetta said Piedmont College and the Vo-Tech School have been
trying to respond to this need through specialized educational programs. Mr. Lindstrom said
the purpose of paragraph numbered (1) is to give the Board and those people who will be
meeting with prospective industries, an idea of what is needed to fill the employment needs
of the County rather than seeking an industry which cannot meet the needs of the County. Mr.
Lindstrom suggested changing (1) to read: "The Board shall direct its appointees, agents and
employees to determine the actual levels of unemployment and underemployment among County
residents and to identify the types of employment and/or training that would meet the needs
of those unemployed or underemployed." Mr. Lindstrom suggested adding a second paragraph
giving the task of establishing criteria ~nd formal procedures, to whatever body it is determi~ ~d
will do this job. Mr. Dorrier felt the Board should direct the County members of the Economic
Development Commission to keep this data and make periodic reports to the Board. Mr. Lindstro~
said he had purposedY left this point vague because he has reservations about continuing the
Economic Development Commission. Mr. Henley said Albemarle does not have a lot of employment
problems. His son graduated from the University of Virginia with a degree in music and
Latin, but he works on the farm. Mr. Lindstrom said he feels people choose the lifestyle
they want. The question of underemployment is a different question. This paragraph ~No. i)
i~ really a directive to assess the situation. Mr. Henley said that is fine, but he did not
think the County should spend a lot of money studying the Situation.
Mr. Fisher said there are a number of people in the County who do not meet the definition
of "underemployed'" because of the seasonal nature of some jobs, but he would like to have
whoever is appointed to carry out this policy match the unemployed and underemployed to new
job opportunities. In Planning District 10, Albemarle County has the lowest unemployment
rate and has had the lowest for a few years. Mr. Smith's ~commen~ about the large number of
people below certain income figures is probabl ~ ~ ~ ~ ~
y ~~y t~e ~a~$ student population living
on the grounds at the University who are included in Albemarle's census figures. State
figures show that the median income of Albemarle County is below that of Charlottesville, but
Charlottesville says that the large number of University students depress the median income.
It is possible the median income is low, and yet there are not people available to work.
Also, in working with CharlottesVille, .if the County actively promotes industrial or commercia]
development in the County, it may hurt Charlottesville's economy because the two localities
would be in competition for the same tax base. Dr. Iachetta said, speakin~ strictly in terms
of industrial development, the City does not have the land areas required for industrial
development. Retail and commercial operations are a different story. Mr. Roudab~sh felt the
City would benefit from retail sales and "spin-off" service operations supporting a large
industry.
Mr. Lindstrom said Mr. Smith took exception to the words "existing zoning" in paragraph
(3) and suggested some specific language about the type of land that should be considered for
resorting. Mr. Lindstrom said he feels the reference made in that paragraph to the criteria
of the Comprehensive Plan is sufficient. Although Mr. Smith stated that there is a lot of
land zoned industrial that is not appropriate for that use, Mr. Lindstrom assumes the revised
zoning map, in conjunction with the revised zoning ordin.ance, will take those mistakes into
consideration. He is concerned that if the Board rezones land without being shown a specific
need, the Board ?-ioses its ability to mee~ the goals of this policy and the phasing called
for in the Comprehensive Plan. Mr. Roudabush asked how the policy could be worded to give
the Board some flexibility in location of sites.
(2) the words "provision of flexibility for site location". Mr. Lindstrom suggested adding to ~
paragraph
Dr. Iachetta said the Comprehensive Plan gives details on the meaning of "potential
industrial sites", but this policy should also set this out so a person does not have to know
the Plan in order to find this information.
Mr. Fisher said he received a copy of a report yesterday (Industrial Site Development
Considerations for Rural Communities), conducted by V.P.I. Included in the V.P.I. report
are the results of a 1973 survey conducted by the Department of Commerce of 700 businesses
who were planning to expand their operations. AmonE the most important considerations for
locational selection were: 1) transportation, 2) highways, 3) rail service, and 4) trained
'~ *~ *~ ~v~v listed zonin~ as a critical
March 21, 1979 (Afternoon Meeting -
(Adjourned from March 15, 1979)
Mr. Lindstrom asked if there was anyway, without actually rezoning land, that the Board
can protect sites that have been identified as s~itable industrial sites from inconsistent
uses. He was worried that someone might buy land and build a subdivision on one of the sites
so identified. Dr. Iachetta said if an area is identified and shown in the Comprehensive
Plan as a potential industrial site, there is then on record a public document that puts any
potential buyer on notice that an industrial use might locate on that site at some future
time. Mr. Roudabush felt this would encourage anyone whose land is identified for such use
to try and have the land rezoned. Mr. Henley suggested the Board might develop some incentive
like the land use tax.
Mr. Dorrier said the Board had not discussed the last paragraph of the policy, which
essentially says the Board will take a "hands off" attitude toward encouraging or discouraging
industry. He felt this might be a mistake What happens will depend on the activity of the
Economic Development Commission. There should be better communications between the Commission
and the Board. Mr. Roudabush asked if Mr. Dorrier was suggesting that the Board cooperate
with potential industries until they have picked a site. Mr. Dorrier said some wording
needed to be added that does not commit the Board to anything, but shows that the Board will
be courteous. Mr. Lindstrom said courtesy is different from becoming directly involved in
negotiating and discussing specific applicants and specific industries. If there is no
application before the Board, he did not think the Board should become involved in such
discussions. If the Board adopts this as a public policy, Mr. Lindstrom felt it would be
inappropriate for the Board to meet with individual industrial prospects.
Because the time for discussion of this policy had elapsed, Mr. Roudabush offered
motion to defer this agenda item to April 4, 1979, at 3:30 P.M. in the Board Room and requeste,
that the Board be furnished a written copy of Mr. Smith's comments prior to that meeting.
The motion was seconded by Mr. Lindstrom and carried by the following recorded vote:
AYES: Messrs. Dorrier, Fisher, Henley, Iachetta, Lindstrom and Roudabush.
NAYS: None.
The Board recessed at 2:57 P.M. and reconvened at 3:09 P.M.
Agenda Item No. 4. Tom Clausen Final Subdivision Plat Appeal. (Plat showing Tax Map
81, Parcel 18B, The Tom Clausen Property, Rivanna District, Albemarle County, drawn by Robert
L. Lum, dated May 12, 1978; revised January 7, 1979.)
Mr. Tucker gave the staff's report:
Tom Clausen Final Plat (formerly Donald Waldron)
Location: West of State Route 799 near Fluvanna County line.
Zoning: A-1 Agricultural
Acreage: 2.5+ acres
History: A plat of this property was recorded sometime in 1974. It was later
' ' determined that the recordation was illegal and was subject to t,he
Albemarle County Subdivision Ordinance and Planning Commission
approval. The Building Inspections Department is holding up a
building permit until approval is granted.
Proposal: The applicant is requesting approval of a 2_.5+ acre subdivision for
residential purposes.
Staff Comment: The southeast side of this parcel coincides with the Fluvanna
County line. The status of "Ridge Road" is in question as to
whether it is a private road or an old County public road. This
proposed division meets the requirements of the Land Subdivision
and Development Ordinance and the staff recommends approval of this
division with the following conditions:
1) Written Health Department approval.
2) Legal proof of the existence of an easement to this property to the
satisfaction of the County Attorney.
3) Compliance with private road requirements.
4) County Engineer approval of access road from Route 799.
5) Virginia Department of Highways and Transportation approval of entrance
location on Route 799.
6) Adjacent owners must include the owner of Parcel 18 on Tax Map 81.
7) Owner's notarized signature.
Mr. Tucker said the Planning Commission, at its meeting on February 6, 1979, approved
the plat subject to the staff's recommended conditions, but dropped No. 3.
Mr. Fisher noted the following appeal had been filed:
"February 9, 1979
In behalf of my clients, Nick and MarJorie Theodose and D. Cary Jackson, I
want to appeal the decision of the Albemarle County Planning Commission made
on February 6, 1979, in granting approval of the Tom C!ausen final subdivision
plat (formerly Donald Waldron) on the grounds that my clients are aggrieved
by the decision of the Planning Commission.
Very truly yours,
(Signed) Francis L. Buck"
March 21, 1979 (A~ernoon Meeting -
Adjourned from March 15, 1979)
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March 21, 1979 (Afternoon Meeting-
Adjourned from March 15 1979)
Mr. Buck noted that adjoining property owners, the Howell's and Roebuck's are also
opposed to this subdivision, although he does not represent them. His clients appealed the
Planning Commission's decision because this parcel is located on a very rough, dirt road of
only eight to ten feet in width which also serves four or five other tracts of land; all
parcels being 15 to 20 acres or greater in size. Th~a~O~g owners do not feel they
should have the burden of an additional use that is incompatible (acreage being only 2.5) or
the alternative which was presented by the Planning Commission, of entering into a private
road maintenance agreement to meet the needs of Mr. Clausen and any future subdivision which
might occur on this road. Mr. Buck said the argument was made at the Planning Commission
hearing that this is a hardship case for the Clausen,~.. He feels the hardship is on the
adjoining property owners. When an attempt was made to subdivide the property in 1974, Mr.
Buck contacted the Planning Office. On October 22, 1974, Mrs. Mary Joy Scala advised the
attorney for the Anconas/i (who sold and subdivided the property), that it was not a legal
subdivision and could not be subdivided until approved by the Planning Commission. Mr. Buck
said he was also advised that his clients were protected. When it was learned last summer
that the property might be subdivided and sold to the Clausenm~ Mrs. Scala advised in writing
that: "I spoke to Fred Payne, Deputy County Attorney, regarding the status of this subdivision
He stated he felt the prospective purchasers would be protected by a title search. He also
said I should inform the Building Inspections Department again that this particular property
has never received subdivision approval and they should not issue a building permit." Mr.
Buck said both the Waltons~ and the Anconas were given notice several years ago that this
subdivision was in violation, so they should not now be claiming a bad situation and asking
for relief. Of particular concern is the fact that another person has expressed an interest
in subdividing and putting rental units on the tract of land at the end of this dirt road.
Mr. Buck said there have been two lawsuits to establish whether this dirt roadway is a
public road, a prescriptive easement, or simply a trespasS. There has never been a judicial
determination on this question. The road goes through the Theodose property and they have no
objections to its present usage. As showm on the plat drawn by Robert L. Lum, at one time
there was a roadway across the Ancona parcel (Ridge Road) to the Theodose parcel that served
a l~t of people. It has never been determined that this road was ever a part of the public
highway system, and no plat has ever been found which shows that the road ever went through
the Theodose property. The only reference to the road that goes through the Theodose property
was made about 1~70. When the Theodoses~ bought this property, there was no use of this road
by any other person. They did not realize they were buying property that would be faced w~th
the problem of future development.
Mr. Buck said since there are six separate parcels that front on this roadway, the
County's Private Road Ordinance requires that there be a I4-foot wide roadway. At the present
the road is from eight to ten feet in width. To compl~ywith this requirement would encroach
further on surrounding properties. For all of these reasons, Mr. Buck asked that the Board
reverse the decision of the Planning Commission in approving this plat.
Mr. Theodose said if this is a public road, there are only 300 yards of it left. To
his knowledge, and he has lived here since 1955, only a few farmers have used the road to
take cattle back to the undeveloped 70-acre parcel. The rest of the road is completely gone.
Mr. Cary Jackson said he sold the Theodose~, their property. Aside from the difficulties
with the road, the subdivision proposed by the ClausenS~ is not compatible with the other
land uses in the area.
Mr. Fisher said a plat drawn by Kurt Gloeckner shows a road going all the wayl from State
Route 799 to Interstate 64 labeled "Ridge Road". He asked if there is legal access to Mr.
Clausen's parcel across the Theodose property. Mr. Buck said there is nothing of record.
There have been two lawsuits, but the most recent lawsuit was settled when Mr. Theodose sold
Mr. Howell an easement across his property. The only basis for saying there is a prescriptive
easement is by virtue~of the fact that this may have been a public road which was never
brought into the State system in 1932. The plat drawn by Mrs. Gloeckner was done for purposes
of litigation to simply show where Ridge Road might have been located. The plat has never
been put to record to establish anybody's legal title. Mr. Fisher said for purposes of the
record, the plat drawn by Mr. Gloeckner is dated November 12, 1975, and is a plat purporting
to show a survey of Ridge Road.
Mr. Clausen was present with his attorney Mr. Paul Peatross. Mr. Peatross said he
could not understand Mr. Buck's legal objection to this subdivision. Condition No. 2 imposed
by the Planning Commission requires Mr. Clausen to furnish legal proof of an easement to the
satisfaction of the County Attorney. Without that proof, there is no subdivision. Mr.
Clausen is willing to abide by all six conditions imposed by the Planning Commission. Also,
Mr. Clausen is willing to enter into a private road maintenance agreement, but the other
property owners refuse. It is not a question of hardship, but it is impossibie to have a
private road maintenance agreement.
Mr. Peatross then reviewed the history of this parcel. It originally was part of a
tract and it was sold to the Anconas~ by the WeakleyS'? in 1973. The majority of the parcel.
rests in Fluvanna County. The 2.61 acres rest in Albemarle County. The Anconas~ sold the
2.61 acres in question to the Waldrons~~ in 1974 and then the Waldrons~ sold it to the Clausens~
in June, 1978. The remainder of that 33-acre tract, which was subdivided off of the 2.61
acres and which lies partially in Albemarle County, never came before the Planning Commission
for approval as a subdivision. No question was ever raised about that being a lawful subdivis
When the Waldrons owned the property, their attorney, Mr. John Dezio, checked to see if they
could get a building permit and wrote the WaldronsV'-~saying: "There is no reason, according
to the County Planner, why a building permit could not be issued." Mr. Clausen purchased the
property in June, 1978. He talked to the Zoning Administrator and did obtain a building
permit on December 13, 1978. He proceeded to prepare the land for building. Then, on
January 3, 1979, he was called and told to stop building, the County was going to withdraw
the building permit because he did not have the proper approvals. At that point, he stopped
building and came before the Planning Commission to get the subdivision approved. Mr. Peatros
said he did not understand the objections. Mr. Buck's clients are simply saying they do not
want another house built in the area, but Mr. Clausen can, by right, build a house on a two-
acre parcel. Mr. Clausen is
March 21, 1979 (Afternoon Meeting-
Adjourned from March 15,1979)
There is no way to enter into a private road maintenance agreement because the other property
owners are unwilling to do so. Mr. Peatross said he did not think there was any hardship for
his client to prove and asked that this subdivision plat be approved as approved by the
Planning Commission.
Mr. Roudabush asked if Mr. Theodose owns property on both sides of "Ridge Road" Mr.
Buck said yes; the road cuts through his property and very close to his house.
Mr. Lindstrom asked how this parcel of land was created. Mr. Peatross said the Ancona ~
brought the 33-acre tract, sold 2.61 acres to Mr. Waldron, and the other parcel to other
parties, eventually being owned by the Roebuck's. Mr. Buck said the HowellS~ and the Roebuck
property lies about 99% in Fluvanna County and that is why these parcels were not presented
to the Albemarle County Planning Commission.
Dr. Iachetta said from looking at Mr. Gloeckner's plat, it appears that the entrance to
this road~is not on the land owned by either Mr. Theodose or Mr. Clausen. Mr. Buck said he
believes it is on property owned by Mr. Dabney. Dr. Iachetta asked how Condition No. 4 could
be imposed when the applicant does not own the land at the entrance to this road.
Mr. Fisher said it appears that Mr. Clausen owns a parcel of land that meets zoning
requirements for a dwelling unit in Albemarle County. There should be some mechanism that
would allow him the use of that parcel. Mr. Peatross said his client is willing to show the
County Attorney that he has a legal right of way over the Theodose property. Mr. Roudabush
asked why the Court had never decided this question. Mr. Peatross said the Court has never
heard this question on its merits; the cases have been non-suited and settled. Mr. St. John
said he could not make any ruling that would bind Mr. Theodose. If the Board approves this
plat, with the conditions of the Planning Commission, Mr. Theodose would still have the
option of going to Court and having the road ,closed. Mr. St. John said the question of a
right of way, or no right of way, is not before the Board. This Board has no power to rule
on such a question. There is an anomaly here in that the whole subdivision was put to record
illegally. This opinion was given by the County Attorney's Office to the Planning staff
several times, but a building permit was issued; ostensibly (although there are no facts to
prove this statement) because the applicant took Mr. Dezio's letter to the Zoning Administrato~
and asked for a building permit.
Mr. Roudabush said he is reluctant to approve a subdvision where the only access is
across land belonging to another person and that second party has to prove that no right of
way exists. In this case, the burden of proof is falling on the wrong person. He felt Mr.
Clausen should prove to the Planning Commission that he has right of way to his property
which is acceptable under existing County ordinances and then return for approval of the
subdivision. Mr. Henley felt this question should be before a court and not before the Board.
Mr. Lindstrom suggested that the Board deny the subdivision until the question of right
of way is clarified. Mr. Peatross said his client can show the County Attorney proof that he
has a legal right of way. If the Board deals only with the lawful request for a subdivision,
Mr. Theodose can seek an injunction to stop use of the road if he so chooses. Mr. Fisher
said the Board has seen no such proof. Mr. Peatross reiterated that his client has title
insurance insuring the property and the right of way. Mr. Clausen is willing to submit this
to the County Attorney. Mr. St. John ~aid if the Board looked at such evidence, they would
have to let the objectors present all the evidence they had, and the Board would be trying a
right of way case. Mr. Lindstrom said that is a question for the judiciary. Mr. Dorrier
felt that instead of trying the Guestion of right of way, the Board should not approve the
subdivision.
Mr. Lindstrom then offered motion to deny the approval of the subdivision granted by the
Planning Commission on February 6, 1979, based on the facts presented at this meeting. The
motion was seconded by Mr. Roudabush. Mr. Henley said he would not support the motion because
nobody has presented any facts that Mr. Clausen does not have a right of way. The motion
carried by the following recorded vote:
AYES:
NAYS:
Messrs. Dorrier, Fisher, Iachetta, Lindstrom and Roudabush.
Mr. Henley.
Agenda Item No. 5. Pine Run Plat Appeal. (Subdivision Plat of Lots 9 - 12, Pine Run,
Rivanna District, Albemarle County, Virginia, drawn by Wm. Morris Foster, dated January 19,
1979, revised February 6, 1979.)
Ms. Mason Caperton, Planner, gave the staff'e report:
"LoCat'ion: South off Route 759 just east of Route 616
~c~eage: 10.435 acres
Zoning: A-1
History: Lots 1 - 8 were approved on March 22, 1976
Staff Comment: Staff recommends approval subject to conditions.
Eeco~me~de'd 'CO'~ditions of 'Approval:
1. Health Department approval.
2. Comply with private road ordinance including:
ga) County Engineer approval;
(b) Maintenance agreement.
3. Comply with Virginia Department of Highways and Transportation
recommendation to make frontage improvements placing the shoulder
Break point at 15 feet and the ditch at 18 feet from the center of
the road.
Ms. Caperton said~ the Planning Commission, at their meeting on February 20, 1979, gave
conditional approval to this plat, subject to the conditions recommended by the Staff.
218
Mr. Fisher noted the following letter had. been received noting this appeal:
"February 26, 1979
Mr. Robert W. Tucker, Jr.
Designated Agent
Board~of Supervisors
County of Albemarle
Charlottesville, Virginia
Dear Mr. Tucker:
March 21, 1979 (Afternoon Meeting -
Adjourned from March 15, 1979~)~
As the representative of the owners of the proposed Lots 9-12 "Pine Run";
I wish to appeal the decision of the Planning Commission regarding the
conditions of approval of the plat of Lots 9-12, "Pine Run".
The condition being appealedai~h~i~rginia Department ~f Highways and
Transportation recommendation for frontage improvements placing the shoulder
break at 15 feet and the ditch at 18 feet from the centerline of the road.
It would be greatly appreciated if you would submit this plat to the Board
of Supervisors for their review at the earliest meeting possible.
Sincerely yours,
(Signed) W. Morris Foster"
Mr. Foster was present. He said no other conditions imposed by the Planning Commission
were of concern but No. 3. Mr. Gordon Wheeler, agent in the sale of the property, was also
present. Mr. Wheeler said that Route ?59 is a gravel road of only about one mile in length.
This condition would mean improving a section of t000 feet in length in the middle of that one
mile length, at a cost of about $5,000. Mr. Wheeler did not believe the Highway Department
will make any improvements to Route 759 in the next ten years and this is the wrong way to go
about upgrading County roads. Subdivision has already occurred further down this road and
this same condition was not imposed on that property owner. He also felt that a spot improve-
ment such as this would be a safety hazard. The owners of this property are poor people and
if they have to sell the property as one parcel they will get a lesser price. He asked the
Board, for the sake of the property owners, to drop this condition.
Mr. Kendrick Dure asked if there had been a determination made that there would be a
substantial increase in traffic on Route 759 as required by Section 18-39(o) of the Subdivisio
Ordinance. Mr. Fisher said he did not know if the Planning Commission had made such a ~.
determination.
Mrs. Frances Hederick, one of the owners of the parcel in question, Said they want to
sell this land so they can pay for her mother's home. Across the road from this land there
have been about 40 homes built and none of the other developers were required to do anything
to the road.
Mr. Fisher asked for the traffic counts on Route 759. Br. Dan Roosevelt, Resident
Highway Engineer, said in 1976 there were 76 vehicle trips per day, and in 1978, there were
99 vehicle trips per day. Mr. Fisher said at the Annual Road Hearing, the Board received many
complaints from citizens that their road was fine until additional development took place. Mr.
Fisher asked that the Board proceed with hearing Agenda Items No. 7, 8 and 9 before taking
action on any particular one, since the appeals are similar.
Agenda Item No. 7. Harry L. Wise Final Plat Appeal. (Plat showing Lots 1, 2, 3, & 4 - a
division of Tract "A" owned by Harry L. and Elizabeth A. Wise, Samuel Miller District, ~
Albemarle County, Virginia, drawn by Wm. Morris Foster, dated January 5, 1979.)
On the west side of Route 678 south of Decca (near Meriwether
Lewis Elementary School).
Acreage: 8 acres
Zonin.~: A-1 Agricultural
Proposal: To divide four parcels of 2+ acres each~to have access from
State Route 678 and to be served by private wells and septic
facilities.
Staff Comment: The plat would meet all the requirements of the Land
Subdivision and Development Ordinance and Staff recommends
approval provided that the following conditions are met:
Recommended Conditions of Approval:
1. Maintenance agreement between Lots 1 and 3 for the 30-foot joint
driveway easement to be approved by the County Attorney.
2. County Engineer approval of ~0-foot joint~ driveway easement.
3. Virginia Department of Highways and Transportation approval of private
entrance locations for Lots 2 and 4 and frontage improvements.
4. Written Health Department approval.
5. Waiver of Section 18-36(d) of the Subdivision Ordinance."
"Location:
Ms. Caperton said, the~Planning Commission, at its meeting on February 27, 1979, gave
conditional approval to this plat, with the Staff's recommended conditions, but changing No. 3
to read: "Virginia Department of Highways and Transportation approval of private entrance
locations for Lots 2 and 4 and frontage improvements, as recommended in their letter of
February 8, 1979, and a waiver of the tree requirements." The Planning Commission also added
Condition No. 6 reading: "Show 75-foot setback from Route 678."
Mr. Fisher read the following recommendation from a Highway Department letter dated
January 8, 1979: "The area indicated is adequate for private entrances. Adequate sight
March 21, 1979 (Afternoon Meeting -
Adjourned from March 15, 1979)
distance exists. We recommend that' frontage improvements of the property be required by
placing the shoulder break point at 15 feet from the centerline of the existing road, ditch at
18 feet."
Mr. Kendrick Dure noted that he had filed the following letter appealing the Planning
Commission's decision:
"March 2, 1979
Reference is made to Action Letter dated March 1, 1979, signed by N. Mason
Caperton, a copy of which is hereto attached.
Please be advised that Harry L. Wise and wife hereby, by me, as their attorney,
request an Appeal to the County Board of Supervisors with respect tO Condition
No. 3 as set forth in the letter referred to above, in so far as said Condition
No. 3 relates to State road frontage improvements. In short, we hereby ask for
Board of Supervisors review of the road frontage improvement requirement noted
in the Highway Department letter dated February 8, 1979, copy also attached."
Mr. Dure then referred to a letter he had written t'o Mr. St. John:
"20 March, 1979
George R. St. John, Esq.
Attorney for the County of Albemarle
416 Park Street
Charlottesville, Virginia
Re:
Offsite highway improvements
recommended by Highway Dept.
Dear George:
As I stated at the last Board of Supervisors meeting on March 14, 1979, I feel
there are serious constitutional problems with the recent "across-the-board"
Highway Department recommendation pertaining to subdivision off~site road
improvements which generally provides as follows:
We recommend that frontage improvements of the property be
required by placing the shoulder break point at 15 feet from
centerline of the existing road (center of the) ditch at 18 feet.
Reference is made to Attorney General Opinion to Spotsylvania County Attorney
dated June 1, 1976 wherein it was opined that Virginia Code Section 15.1-466
"adequately support(s)" a county subdivision ordinance virtually identical
to Albemarle County Code Section 18-39(o). It is my understanding that said
County Code section is the source of authority for Planning Commission imple-
mentation of the above-quoted Highway Department recommendation. This being
the case, there must be a determination that there will be an "increase in
traffic which may reasonably be expected to result from the development of
such subdivision" and a finding that a proposed subdivision's "roads will be
inadequate" for such increase in traffic.
The Highway Department has stated to me personally and to the press that this
road frontage recommendation stems from a request by the Board of Supervisors
and an effort by them to find alternative means to stretch County tax dollars
for improvement of secondary County roads.
Reference is made to Board of Supervisors v. Rowe, 216 Va. 128 (1975) wherein
the Court states at page 138:
The precise question before us is whether a local governing body
has the power 'to enact a zoning ordinance that requires individual
landowners, as a condition to the right to develop their parcels,
to dedicate a portion of their fee for the purpose of providing a
road, the need for which is substantially generated by public traffic
demands rather than by the proposed development. Our enabling
statutes delegate no such power.
The Court then cites Article I, Section 11 of the Constitution of Virginia
stating the prohibition of taking private property for public use without just
compensation. The Court held invalid the dedication requirement at issue.
It is my opinion that the imposition of off-site road frontage improvement
requirements based on the need to stretch tax dollars to provide for greater
overall road improvement and bearing no direct relation to the traffic impact
of the specific individual subdivisions involved, is unconstitutional under the
Rowe decision and the Constitution of the Commonwealth.
Lastly, should such off-site requirements be deemed tax assessments, de facto
or constructive, they would be by implication contrary to Sect±on 15.~-J-4~-~-~
and Section 15.1-1239 ~.~. seq. of the Code of Virginia.
For reference purposes, I am representing Mr. and Mrs. Harry L. Wise on an
appeal of the above-referenced requirement pertaining to their proposed eight-
acre subdivision on State Route 678. Your due consideration will be appreciated.
Very truly yours,
March 2l, 1979 (Afternoon Meeting -
Adjourned from March 15, 1979)
Mr. Dure said he understands that the frontage improvements being imposed on this plat
are from Section 18-39(o) of the County Code. This section provides that a finding be made
that the road is inadequate and there will be an increase in traffic from the development of
Mr. Wise's property. He did not believe there has been a finding that the traffic from this
subdivison will necessitate these road improvements. He referred the Board to the oPinion in
the Rowe case and generally went over the points in his letter to Mr. St. John. Mr. Dure ther
showed to the Board photographs of the property in question to bring out his point that this
requirement is unreasonable for this subdivison. He said that grading 15 feet from the
centerline of the road, and putting the center of ditch at 18 feet, will take a 21 foot
improvement on an~ existing 30-foot right of way. This improvement will require the felling
of about 80 hardwood trees along the road. It will also require moving 27,500 square feet of
earth because of the severe banks along the road. In fact, the road would have to be graded
back about 30 additional feet in order to have a slope down to the ditch. Also, if the State
ever straightens this road, it will make most of these improvements meaningless. To improve
this short stretch of road leading into the hairpin curve at the end of Lot 4, is not wise
because it will be an invitation for people to speed through the improved area. These ~,
requirements are unrealistic for a four-lot subdivison on a road of this nature. It might be
found by the court to be confiscatory if the requirements are so stringent that they deny the
owner the use of his property.. The Planning Commission waived tree requirements in this case
since when trees are taken down on the State right of way, they must be labeled as to species
and replaced on site or funds put into a tree escrow fund so they can replaced at another
location.
Mr. Fisher said he did not know about this requirement for replacement of trees. He the~
-asked the Highway Engineer, Mr. Dan Roosevelt, to give the traffic counts for Route 678. Mr.
Roosevelt said, in 1976 there were 58 vehicle trips per day; in 1978 there were 72. If the
Highway Department's standard of seven vehicle trips per day is applied to these four lots,
the traffic count would be over 100. Mr. Roosevelt said, in thinking about the way the
Department normally improves a gravel road, he thinks the road would be improved along the
existing centerline to a point about 75 feet from the southern property line of Lot 4. The
last 75 feet would not fit in with the future improvement of the road because of the curve.
The "tree" policy referred to by Mr. Pure is used when the Department already owns right of
way and a developer is not required to dedicate additional right of way, but wants to make
frontage improvements along the existing right of way and this improvement requires the takin
of trees. Referring to the plat before the Board, Mr. Roosevelt said at least 10 feet of
right of way is being dedicated as the result of this subdivision. Since the Highway Depart-
ment has requested these improvements, the Department will not further burden the developer
with replacement of trees. Mr. Roosevelt said it is his impression that Mr. Dure is saying
that the Highway Depatment and the County came up with a scheme that may or may not be legal
to get developers to build roads. These recommendations for frontage improvements came about
by the County changing its ordinances to require off-site improvements. The Highway
Department feels that any development along a highway, no matter what size the development,
warrants minimum improvements to the frontage on a State road. Mr. Dorrier said that may not
be economically feasible for this property owner. Mr. Roosevelt said that is a decision for
the governing body. Dr. Iachetta asked if it is not a question of the subdivision itself
necessitating the improvements. Mr. Roosevelt said in each of these cases, the road does
not meet tolerable road standards. The Highway Department can see that further development
will make the road even more intolerable. If the cost of these minimum improvements is pro-
rated against the greater cost of a total improvement project, it can be see that the cost is
not that great.
Agenda Item No. 8. John Gibbs Preliminary Plat Appeal. (Plat showing 17 lots situated
on State Route 618, Albemarle County, Virginia, Tax Map Sheet 105, Parcel 20C, drawn by B.
Aubrey Huffman & Associates, Ltd., dated January 9, 1979.)
Ms. Caperton gave the staff's report:
"Location: On State Route 618 west of Route 53 near Fluvanna County
kcreage: 48.5 acres
Zoning: A-1 Agricultural
Proposal: For 17 residential lots with an average size of 2.8 acres
Staff Comment: The plat would meet the requirements of the Land Subdivision
and Development Ordinance and the Staff recommends approval pro-
vided the following conditions are met:
Recommended Conditions of Approval:
l) Written Health Department approval.
2) Provide written and signed statement regarding improvements required of
the developer (Section 18-52(m) of the Ordinance).
3) Virginia Department of Highways and Transportation approval of frontage
improvement's.
Ms. Caperton said, the Planning Commission, at its meeting on February 27, 1979, gave
conditional approval to this plat subject to Conditions 1 and 2 as recommended by the Staff,
but changing Condition No. 3 to read: "Virginia Department of Highways and Transportation
approval of frontage improvements as recommended in their letter of February 8, 1979, with a
waiver of the tree requirements." The Planning Commission also add ed Condition No. 4
reading: "Note on the plat that iots 14 - 17 shall have no access on the private or CCC
road."
Mr. Fisher noted receipt of a letter dated March 8, 1979, from George M. Coles, Jr.,
appealing the decision of the Planning Commission on this plat.
"This will serve as notice of Mr. Gibbs' intention .to appeal the approval
of his two requests for subdivision of property located on State Routes 618
and 729 respectively. Specifically, Mr. Gibbs objects to the conditions
numbered 2 and 3 respectively on the attached letters requiring him to
make certain frontal ~t~provements suggested by the State Highway Department."
March 21, 1979 (Afternoon Meeting -
Adjourned from March 15, 1979)
Mr. Coles referred to his letter of March 20, 1979, addressed to George R. St. John,
County Attorney:
"I am writing on behalf of my client, John W. Qibbs, Jr., to protest the
requirement that he make certain frontage improvements to existing public
roads as a condition of approval of his subdivision on State Routes 618 and
729. This action has been taken pursuant to Section 18-39(o) of the County
Subdivision Ordinance allowing the Planning Commission to require improve-
menv of public streets prior to approval of a subdivision plat where they
find the subdivision traffic will result in the existing roads being made
inadequate.
My research has convinc~ed me this ordinance is illegal and in violation of
the provisions of the Virginia Constitution. Article 1, Section 11 of the
Constitution prohibits "any law whereby private property shall be taken or
damaged for public uses, without Just compensation." The Virginia Supreme
Court has decided that the money necessary to fund the performance of such
requirements is property within the meaning of this section of the Constitution.
Board of Supervisors v. Rowe 216 Va.128. Some commentators have attempted to
limit the holding of this case to the situation where such requirements are
imposed by zoning law without regard to the necessity of such requirements.
See articles in 9 Richmond Law Review 435 and 10 Richmond Law Review 440.
I can see no such distinctions either in the Constitution or in the language
of the Court in Rowe.
Further, we believe the ordinance as now drafted amounts to a disguised special
assessment in violation of the constitutional restrictions on such taxes.
It is specifically provided that while the General Assembly may authorize the
taxation or assessment of local property owners for abutting local public
improvements, such assessments may not be in excess of the peculiar benefits
resulting from the improvements to such abutting property owners. Virginia
Constitution Article I, Section 3.
The County Ordinance assesses property not on the basis of the benefit accruing
to the property but on the chance happening that a particular property owner's
subdivision creates the necessity for such improvement. In such case, the
landowner is required to make improvements that benefit all who employ the road
and require an expenditure far in excess of the peculiar benefit to his land.
By phrasin~ this tax as a condition of subdivision, the County has attempted
to evade these constitutional limitations and the specific procedures by
which special assessments may be made. See Va. Code Section 15.1-239 et seq.
However, we insist this law must be examined in terms of its substance and not
its form; in this light it is a tax, and nothing else, that attempts to shift
the County's burden of maintaining the existing road system onto the private
citizens.
We urge you to make your own consideration on this ordinance and we will, of
course, appreciate any response you may have to our position. We ask only that
you keep in mind the basic principle that "the responsibility for building and
maintaining County and district roads is on the board of supervisors, not on
the individual citizen or the Courts. Michie's, Vol. 18, Taxation, Section 7,
p. 122."
Mr. Coles said the letter makes two points: 1) Is the CounTy's ordinance valid as it
reads? and 2) Is the ordinance as it be being construed, legal? It appears that the ordinanc
is being construed to read that if the Highway Department wants improvements, these improvemen'
are required. He insisted that the ordinance does not read that way. The question that the
Board should consider is, will the road will be inadequate after the subdivision is completed?
Mr. Roosevelt has not made such a finding. In every case before the Board today, the roads
are already inadequate. Mr. Coles said where the roads are already inadequate, he does not
feel this ordinance can be imposed. Mr. Coles asked the definition of "inadequate" as applied
in this case. He did not think the Highway Department has proved~that after construction of
this subdivison the road will be inadequate. It also does not make sense to improve a 4000- .
foot section on a five-mile unimproved road when the Highway Department will be making improve~
ments to this road in the future.
Mr. Fisher asked Mr. Roosevelt for traffic counts on Route 618. Mr. Roosevelt said there
were 57 vehicle trips per day in 19Z6 and 80 vehicle trips per day in 19?8. Multiplying 17
lots by the Highway Department's figure of seven vehicle trips per day would make a total of
119. Mr. Fisher asked if Route 618 is in a tolerable condition. Mr. Roosevelt said in order
to meet a tolerable standard the road would have to have a 16-foot paved surface. This road
is no more than 22 feet from ditch to ditch. This section of Route 618 (near the Fluvanna
County line) was brought to the Board's attention at the Annual Road Hearing last week as
being in need of improvements.
Agenda Item No. 9. John Gibbs Final Plat Appeal. (Plat showing division of Parcel 20D
on Sheet 105, County Tax Map, Albemarle County, Virginia, drawn by B. Aubrey Huffman &
Associates, Ltd., dated January 15, 1979.)
Ms. Caperton gave the staff's report:
"Location:
Acreage:
Zoning:
Proposal:
On the north side of Route 729 near Fluvanna CounTy
10+ acres
A-1 Agricultural
For five residential lots of approximately 2+ acres each to be
served by individual wells and septic facilities and to have
March 21, 1979 (Afternoon Meeting -
Adjourned from March 15, 1979)
3) Shared entrances be located, where possible, subject to the approval of
the Virginia Departments of Highways and Transportation.
4) The road dedication on the plat be shown as stated in Virginia Department
of Highways and Transportation letter of~February 8, 1979.
Ms. Caperton said, the Planning Commission, at its meetin~ on February 27, 1979, gave
conditional approval to this plat, subject to the Planning Staff's recommended conditions, but
adding the words "with a waiver of the tree requirements" to Condition No. 2.
Mr. Fisher referred to the letter from the Highway Department dated February 8, 1979:
"John Gibbs Final Plat~ Route 729: Route 729 has been staked to obtain right of
way for a proposed improvement in the future. Ail of the property owners along
these roads have signed Daeds of Dedication which are at this time being placed
in line for recordation, The plat shown does not reflect the limits of that
right of way which has been agreed to be dedicated at this time. At the common
corner of Lot B and C proposed, the right of way is into the property farther
with no additional right of way needed in the area of corner A and B. Adequate
sight distances exist for private entrances. We would recommend that frontage
improvements placing the shoulder break point at 15 feet and the bottom of the
ditch at 18 feet from the center!ine be required across Lots E and D. However,
due to the change in alignment this widening should not continue across Lots
C, B or A."
Mr. Roosevelt said the Highway Department's letter refers to right of way which has been
dedicated so the plat will accurately reflect that dedication. He then gave the following
traffic counts: in 1976 there were 78 vehicle trips per day, and in 1978, there were 90
vehicle trips per day. This road has a 16-foot graveled surface and is only 20 feet from
ditch to ditch.
Mr. Coles said he had the same questions about constitutionality as on the last plat.
Also there is a hardship involved because 400 feet of frontage improvements are being required
for these five lots. Since Mr. Roosevelt has already said that this road is inadequate, he
does not believe the Board can impose this requirement.
Mr. James Wooten, attorney for the applicant on Agenda Item No. 6, asked why their appeal
was not being considered with the other plat appeals. He felt their plat was being singled
out for separate treatment. Mr. Fisher noted that the Board had already spent several hours
discussing the Blue Ridge Estates Plat and he understood the implications of hearing this
petition separately. He also noted that Mr. Roudabush cannot participate in the discussion of
Blue Ridge Estates.
Mr. Gibbs was present and said he understands the concern of the Planning Commission and
the Board is with health and safety. He noted that if any of the property owners before the
Board today were subdividing their properties into tracts of five acres or larger, these
owners would not be subject to approval by this Board and would not be assessed any road
improvements. He does not believe this piecemeal improvement of one-half of one side of the
road will achieve anything for health or safety reasons. He also did not believe that money
spent to improve a road in this way will serve any useful purpose,
Mr. Roosevelt said he would take exception to Mr. Gibbs statement. He feels that widenin
a road along the frontage of the property will be an improvement even recognizing that on each
end of the property, the road will narrow back to 18 feet from ditch to ditch. Mr. Roosevelt
said he had previously indicated that an added advantage to these frontage improvements is
that any future improvement of the roadway will not affect the grading which has already been
completed.
Mr. Fisher then asked the County Attorney about the legal questions raised. Mr. St. John
said he had no substantial disagreement with the law as stated by these attorneys. The County
Attorney's Office advised the Board at the time the County's Ordinance was adopted that there
is a justiciable question on the constitutionality of the Ordinance itself; this question havi] g
never been decided by the State Supreme Court. Mr. St. John said there is an Attorney. General s
opinion saying that an ordinance in Spotsylvania County, exactly in the same terms as Albemarl.
County's ordinance is valid. This same opinion says that while construction can be required
in a given set of facts, a fee for escrow money for general improvements cannot be required.
The keystone in the Rowe case is that there must be a factual finding that the need for the
improvements will be uniquely and specifically generated by the development in question. If
the Board has made such a finding, and that finding is based on provable facts, the imposition
of these requirements to both subdivisions and site plans, is supportable in court.
Mr. Coles asked if Mr. St. John would agree that where the Highway Department says the
road is already inadequate, this is a finding that the subdivision will create the need for
these improvements. Mr. St. John said if the need is rationally related to the public safety
and well being; if the-need is generated by the particular development; and if the need is
substantially-fulfilled by the requirements, the Board is within the allowable limits of the
law in making these requirements.
Mr. Dorrier said these roads are already in need of improvements. These developments
will not help, but they will not substantially generate the public traffic that will require
the improvement. He said the whole question hinges on the word "substantially .
Mr. Lindstrom said the facts presented indicate that there will be an increase in traffic
directly in front of the development, therefore application of the ordinance is warranted.
Mr. Fisher said based on Highway Department calculations, for the Pine Run Subdivision
there will be an increase of 28%;.[ for the Harry Wise plat, there will be an increase of 39%;
for the Gibbs preliminary plat, there will be a 149% increase; and for the Gibbs final plat,
there will be a 39% increase. Ail four roads are designated by the Highway Department as non-
tolerable and it does not make sense to permit development (no matter what size) on roads in
that condition without requiring some improvements. The people who will live in these new
March 21, 1979 (Afternoon Meeting -
Adjourned from March 15, 1979)
subdivisions will benefit from the improved road and he feels it is reasonable to uphold the
Planning Commission's recommendation.
Mr. Henley said he feels the Board has enough evidence to justify applying the ordinance
to these subdivisions.
Dr. Iachetta said the roads being discussed are roads that basically serve the people
living on those roads, as opposed to major highways which serve through traffic. He has no
trouble with requiring improvements on parcels where the improvements will benefit the owners
of those parcels and he also-feels that these improvements will help the safety aspects of the
roads.
Mr. Dorrier said there is a distinction between improvements on-site and those off-site.
He has trouble supporting off-site improvements, but will support the Highway Department's
recommendations in these cases. Mr. Dorrier said he was sympathetic ~to Mr. Dure's statement
about removing trees, banks and other things because he feels that when such things are required,
it prices land "out of the reach" of the average citizen. In making a decision such as this,
the Board is doing something that has a direct affect on the cost of housing, but safety does
come first.
Mr. Roudabus~ said he is familiar with both Route 618 and Route 729. He agrees that~both
are inadequate and in need of improvement, but this method of making improvements has not been
uniformly applied. Some roads have more burden to bear than others and he cannot support
putting the burden entirely on the property owners. Mr. Roudabush said he hopes the Board
will, in the near future, look at a policy which can be uniformly applied.
The Board having heard these plat appeals, b~gan the vote as follows:
Agenda Item No. 5. Pine Run Plat Appeal. Mr. Roudabush offered motion that the Planning
Commission's requirement with respect to Condition No. 3 be overruled There 'was no second to
this motion. '
Motion was then offered by Mr. Henley to concur with the action of the Planning Commissio
on February 20, 1979, in approving this plat. The motion was seconded by Mr. Lindstrom and
carried by the following recorded vote:
AYES: Messrs. Dorrier, Fisher, Henley, Iachetta and Lindstrom
NAYS: Mr. Roudabush. '
Agenda Item No. 7. Harry Wise Final Plat Appeal. Mr. Lindstrom offered motion to concur
with the action of the Planning Commission on February 27, 1979, in approving this plat. The
motion was seconded by Mr. Dottier who then asked if the requirement that the shoulder break
point be placed at 15 feet from the centerline and the ditch at 18 feet meant that the trees
and banks, shown in~ the pictures earlier in the meeting, would be substantially moved. Mr.
Roosevelt said the road is currently about 18 feet from ditch to ditch. The new ditch will be
18 feet from the centerline of the existing road. This will take an additional nine feet on
that side of the road with a foot or so down to the bottom of the ditch and then a one-to one-
and-one-half slope back to the adjacent property. Mr. Lindstrom said the Highway Department
has recently recommended full frontage development, but it was stated today that because of
the realignment that might be required on the curve just past Lot 4, that the H~ghway Departme~ t
would not recommend improvement immediately prior to the entrance to that curve. Mr. Lindstr~
said he did not know at what point the Highway Department would recommend termination of the
improvement. Mr. Roosevelt said the Highway Department will have to determine the future
alignment of Route 678. Words to the effect that the ditchline will be placed along the
future alignment will be sufficient.
Mr. Lindstrom then amended his motion to concur with action of the Planning Commission on
February 2Z, 1979, in approving this plat, but changing Condition No. 3 to read: "Virginia
Department of Highways and Transportation approval of private entrance locations for lots 2
and 4 and frontage improvements." The amended motion was seconded by Dr. Iachetta. Mr.
Dorrier said he had some trouble voting for the motion because it will be a lot of expense for
just four lots, but if the Board does not make these requirements for safety reasons, there
will be trouble in future years. The motion carried by the following recorded vote:
AYES: Messrs. Dottier, Fisher, Henley, Iachetta and Lindstrom
NAYS- Mr. Roudabush. ·
Agenda Item No. 8. John Gibbs Preliminary Plat Appeal~ Mr. Coles asked the County
Attorney if the applicant could withdraw both the plat and the plat appeal at this time. Mr.
Roudabush said the plat is not approved until all conditions are met. Mr. St. John .said
recording the plat is the actual act of subdivision. Mr. Gibbs said he does not wish to be
stopped from coming back to the Planning Commission aft.er other remedies have be~n exhausted.
Mr. St. John said the act of noting an appeal does not wipe out what the Planning Commission
has done. -Motion was then offered by Mr. Henley to concur with the action of the Planning
Commission Onfollowing recorded February vote: 27', 1979. The motion was seconded~ by Mr. Lindstrom and carried by the
AYES:
NAYS:
Messrs. Dorrier, Fisher, Henley, Iachetta and Lindstrom
Mr. Roudabush. ·
Agenda Item No. 9. Jo~hn Gibbs Final ~lat Appeal. Mr. Lindstrom offered motion to concur
w~th the action of the Planning Commission on February 27, 1979. The motion was seconded by
Dr. Iachetta and carried by the following recorded vote:
AYES: Messrs. Dorrier, Fisher, Henley, Iachetta and Lindstrom
224
March 21, 1979 (Afternoon Meeting -
Adjourned from March 15, 1979)
Agenda Item No. 6. Blue Ridge Estates Final Plat Appeal. (Subdivision Plat of "Blue
Ridge Estates" located on State Route 692 near Greenwood., Samuel Miller Magisteria1 District,
Albemarle County, Virginia, drawn by William S. Roudabush, Inc dated January 22 1979,
revised February 13, 1979.) '' ·
(Mr. Roudabush abstained.)
Mr. Fisher said the Board had heard an appeal on the Blue Ridge Estates Preliminary Plat
at their meetings of February 14 and March 7. The preliminary plat was approved subject to
eight conditions.
"Location:
Acreage':
Zoning:
History:
Ms. Caperton then gave the Planning Staff's report:
On Route 692 near Greenwood
27.6+ acres
A-1 Agricultural
The Planning Commission approved the preliminary plat on
January 9, 19Z9, with conditions.
Proposal: For 12 residential lots of 2+ acres each to be served by individual
wells and septic facilities and to have access from a 50-foot
private road.
Staff Comment: The plat appears to meet the requirements of the Land Subdivision
and Development Ordinance, and therefore, the Staff recommends approval,
subject to:
Recommended_ Conditions of Approval:
1) Waiver o£ scale required.
2) Written Health Department approval.
3) Compliance with private road ordinance, including:
a) County Engineer approval of road plans.
b) Maintenance agreement to be approved by the County Attorney.
4) Virginia Department of Highways and Transportation approval.
5) County Engineer approval of drainage easements.
Ms. Caperton said the Planning Commission, at its meeting on February 27, 1979, gave
conditional approval of the plat, subject to the conditions recommended by the staff (chan
the word "required" to "granted" in Condition No. 1), but adding the following conditions:
6)
7)
8)
Waiver of Section 18-36(d) granted as for existing entrance.
Virginia Department of Highways and Transportation approval as per their letter of
December 7, 1978.
Note on plat: "No further division using 30-foot or 50-foot easements
without Planning Commission approval."
Mr. Fisher then noted receipt of the following letter:
"March 1, 1979
Mr. Robert W. Tucker, Jr.
Director of Planning
Albemarle County
414 East Market Street
Charlotltesville. Va. 22901
Re:
Blue Ridge Estates - Final Plat Appeal
of decision of Planning Commission
Dear Bob:
Pursuant to Section 18-4 of the Land Subdivision and Development Ordinance
of Albemarle County, Virginia, please be advised that my clients, Mr. and
Mrs. Charles G. Aubry, adjacent property owners of Blue Ridge Estates, are
aggrieved by the decision of the Planning Commission on February 27, 1979,
and hereby note their appeal to the Board of Supervisors.
The reason for this appeal was the failure of the Planning Commission to
require off site improvements to State Routes 691 and 692 as provided for in
Section 18-39(o) of said Ordinance.
Due to the fact that State Route 692 is or exceeds capacity at the present
time, my clients feel it is imperative to improve this road and State Route
691 before further subdivision of Blue Ridge Farm occurs.
Very truly yours,
(Signed) Paul M. Peatross, Jr."
Mr. Fisher asked Ms. Caperton to explain the differences between the preliminary and the
final plat for Blue Ridge Estates. Ms. Caperton said they are basically the same. The only
difference is that the cul-de-sac at the end of the private road has been moved to within the
boundaries of this property rather than being on the residue of the property and a 30-foot
access easement to the residue has been reserved. Also, the Planning Commission required the
owners to include the residue of the property in the maintenance agreement.
Mr. Peatross was present. He said the Planning Commission did not require any off-site
road improvements when they approved this final plat. Mr. Peatross then restated highway
traffic counts on Routes 691 and 692 which are set out in the minutes of February 14, 1979.
March 21, 1979 (Afternoon Meeting -
Adjourned from March 15, 1979)
225
He asked that the Board rea'dopt Conditions No. 5 and 8 relating to road improvements, as they
were placed on the preliminary plat approval. Mr. Peatross said his clients feel justified in
making this request since this subdivision will be generating traffic and according to the
Highway Department's defintion, making the road non-tolerable.
Mr. James Wooten, attorney for Blue Ridge Estates, was present. He stated again, his
concern that the requirement for off-site road~improvements in this case is unconstitutional.
The applicant can, by right, develop this property in two-acre lots. Since there is nothing
in the Constitution, statutes or case law of the State of Virginia which requires private
landowners to construct or maintain public facilities as a condition for development, the
applicant resists the imposition of this condition. He then asked if Mr. St. John would give
his opinion as to whether the improvements required of the developer on the preliminary plat
are constitutional.
Mr. Lindstrom said Mr. St. John was asked for a legal opinion on this question at the
March 7th meeting. He gave an opinion that night and restated it today on a different matter.
Mr. Lindstrom said the Board cannot sit and wait for a 100% sure case before making a decision
the Board must act on every case. In this instance, Route 692 was built at public expense,
but will serve a private purpose. When public facilities are used to generate private profit
and those public facilities are inadequate, or will be made inadequate by this private purpose
Mr. Lindstrom said, as an elected official, he feels an obligation to be concerned with the
assessment of the costs involved to make the facilities adequate. He suggested that the
same conditions be placed on the final plat as those placed on the preliminary plat.
Mr. Dorrier said this case is somewhat different~! from those heard earlier today. He
feels the present traffic connt is already high enough to warrant improvements to Route 692
and does not feel the additional 70 or 80 cars which Blue Ridge Estates will generate is
~ufficient to require the developer to make the off-site road improvements. Therefore, he
cannot support the recommended condition of requiring off-site improvements, although he
does support on-site frontage improvements.
Mr. Lindstr'om suggested deleting Condition No. 7 recommended by the Planning Commission
and rewording it to read: "Road improvements to 18 feet in width with shoulder and
ditching improvements from Blue Ridge Estates entrance on Route 692 to the intersection of
Route 691 subject to approval of Virginia Department of Highways and Transportation."
He also suggested changing Condition No. 4 to read: "Approval of commercial entrance, turn
lane and taper, and frontage development in accordance with Virginia Department of Highways
and Transportation letter of December 6 -1978." Mr. Lindstrom's moiion was seconded by
Dr. Iachetta.
Mr. Henley said he will support the motion again because the applicant has stated
that his land it too high priced and he has to develop it. This is one way of getting a
small portion of the road improved along with the frontage of his property without making
him improve someon~ else's property. Although ~his seems like a lot for 12 l~ts, Mr. Henley
said he is basing his decision on the fact that many more lots will be developed and
put more vehicles on this road.
Mr. Fisher said he will support the motion because he feels these improvements will
benefit the people who will live there and in that sense there is some reason to say it
is a reasonable request.
Roll was called and the motion carried by the following recorded vote:
AXES: Messrs. Fisher, Henley, Iachetta and Lindstrom.
NAYS: Mr. Dorrier.
ABSTAINING: Mr. Roudabush.
Agenda Item No. 10. At 6:20 P.M., t~he meeting was adjourned.