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Home My WebLink About2004-10-27A&N October 27, 2004 (Adjourned and Night Meeting) (Page 1) An adjourned meeting of the Board of Supervisors of Albemarle County, Virginia, was held on October 27, 2004, beginning at 4:00 p.m., in Room 235 of the County Office Building, 401 McIntire Road, Charlottesville, Virginia. PRESENT: Mr. David P. Bowerman, Mr. Ken C. Boyd, Mr. Lindsay G. Dorrier, Jr., Mr. Dennis S. Rooker, Ms. Sally H. Thomas and Mr. David C. Wyant. ABSENT: None. OFFICERS PRESENT: County Executive, Robert W. Tucker, Jr., County Attorney, Larry W. Davis, Clerk, Ella W. Carey, Director of Current Development, Bill Fritz, and Director of Planning, V. Wayne Cilimberg. Agenda Item No. 1. The meeting was called to order at 4:05 p.m., by the Chairman, Mr. Dorrier. _______________ Agenda Item No. 2. Work Session: Groundwater Ordinance. Mr. Graham first introduced new staff member, Tamara Green, Water Resources Manager. Mr. Graham stated the Board had a work session on July 7, 2004. At that time the Board had two questions that it asked staff to address: 1) Should the standards be made more stringent by requiring Tier 4 (aquifer and pump testing) for subdivisions plats of a certain size and/or density, and providing for certain plats to be rejected if some threshold of water yield could not be met, as determined by the test and 2) Another concern raised was that the proposed program does not necessarily prevent new wells on individual rural lots (not part of a newly platted division) from becoming contaminated from known petroleum releases, as happened in the Red Hill area in the early 1990’s. Mr. Graham said the Groundwater Committee talked about aquifer testing, and does not believe there is enough technical data to come up with a basis for rejecting a subdivision plat based on the groundwater testing. The geology is too complex and staff has too little of a database to understand all of those impacts. The purpose of this ordinance especially with the Tier 3 and Tier 4, would be to provide the opportunity to look at how subdivisions are developing, the potential groundwater impacts and to start building a database, so that over the long term the County could have a better understanding of those impacts and in the future be able to determine if it was appropriate to regulate groundwater discharges. Mr. Rooker asked if it is not possible to at least permit staff to have some input into the site plan for the development based upon the findings of these reports. Mr. Graham said he thinks that is possible as part of the groundwater assessment. The Tier 3 and the Tier 4 process provide the opportunity for staff to have a considerable amount of input. In addition, the one change that has been brought forward is the concept that with these Tier 3 assessments, when the Groundwater Manager is looking at this and there is enough question about the impacts, a Tier 4 study could be required. He thinks that process is built into the program at this point. Mr. Rooker asked if it is clear that the actual layout and the design of the subdivision can be changed. Can staff require that a proposed site plan for a subdivision, not taking away development rights, be changed if somebody comes in with a plan and wants to lay it out in a certain way. The person has a Tier 3 or Tier 4 report that indicates there are problems with groundwater and there are certain opportunities for groundwater in certain areas, etc., he asked if it is clear under this proposed ordinance, that the staff has the ability to reconfigure the subdivision plan based upon the findings. Mr. Graham replied “no” and there is a lot of reluctance from the Committee and staff to make that kind of requirement because staff simply does not have enough technical data to be able to defend that position. Ms. Thomas commented that if the Tier 3 or Tier 4 report indicates that there are good and bad places for the location of the wells impervious surface, this ordinance still does not allow staff to respond even with the adequate information. Mr. David Hirschman, former Watershed Management official, said the material has to be submitted with the preliminary plat if the preliminary’s stated purpose is having an influence on the design, the subdivision cannot move forward until the groundwater management plan is approved (similar, to the storm water management plan). So there is a process of negotiation that is built in and starts with the preliminary plat. As more detailed information comes forward with the final plat, the purpose of this whole process is for the subdivision design to respond to information about groundwater. The staff does have to approve a plan and the plan has to demonstrate that the groundwater has been studied and the subdivision design is responsive to it. Mr. Rooker asked Mr. Hirschman if he was saying that it was clear this ordinance requires that the subdivision plan be responsive to that report. Mr. Hirschman responded, “yes”. The Groundwater Management Plan is a plan that shows that groundwater has been investigated and the Best Management Practices, including subdivision design, are responsive to the groundwater information that is generated for the site. Mr. Wyant asked Mr. Hirschman if he was talking about the geology and how much water different rocks within the County can bear without doing any drilling. Mr. Hirschman said the County’s study of geology of soil by a Geologist and an assessment of general groundwater availability using the County’s database, and other tools available is helpful, but it is not going to provide quantative informa- tion, i.e., this rock can give us 7 gallons a minute. That is site specific information that is hard to know. Mr. Wyant asked if that will really help the County. Mr. Hirschman said this refers to particular sites. The October 27, 2004 (Adjourned and Night Meeting) (Page 2) plans would be expected to be more precise with regards to the geology of the site. The County still would not know how much water until right before the applicant drills. Mr. Wyant said he is trying to figure out how the County can be sure that before building houses in subdivisions, there will be enough water for the communities. He feels the groundwater plan really does not provide for that right now. It is almost as if the well has to be drilled first to find out gallons per minute. Mr. Hirshman said that is correct and is right, what the applicant would have to do before getting a building permit. Mr. Rooker said he is interested in making certain that if the County is going to require a plan that it has some use. He thinks the information developed in these plans could be helpful if staff can configure the subdivision in a way that protects water resources and takes advantage of the best resources on the property. In some ways it will help the people that move into the subdivision because they are going to be a lot better off if the wells are dug in areas that have optimized the water resources available rather than the other way around. Mr. Wyant agreed. He is also concerned about contaminants. He wants to make sure when the applicant does drill a well on each of the approved lots that there is water available. Ms. Thomas said the people who currently live in the rural areas are seeing these subdivisions going in next door and are the ones seeing their wells run dry. The residents believe that the new houses on the street have some connection or will have some connection to their wells and they want to make sure they continue to have water. Her hope was the County will require the applicant, through this ordinance, to do something that will give some kind of assurance to the residents that are being impacted. She has had this conversation with Mr. Graham and with Mr. Hirschman, and she knows it is not easy to offer that kind of reassurance. If this assurance cannot be offered she does not want to collect data just because it can be collected. Mr. Wyant said that is his concern He asked how the County gets this information and the assurance that an applicant does not do something that draws down the neighbors’ water supply. Mr. Rooker said he’s not sure the County has the power to do that. He is convinced that the County should make certain that when a subdivision gets up to a certain number of lots or industrial use, the applicant gathers certain information and make certain that the site design and construction of the septic location is in such a way that it does not interfere with groundwater recharge in the area immediately around the area of the drilling. The County can require certain kinds of landscaping, etc. be kept in place where important recharge areas are located. The County can influence construction to take place away from recharge areas and the paving of roads, etc. Maybe this is the best the County can do based upon the current state of the science but at least we can assure that as the County has larger subdivisions in the rural areas, some consideration is being taken with respect to the protection of the groundwater. He would prefer to know how much one well is going to draw down on another area but the County is not there yet, and neither is state law. Mr. Bowerman said the County does not have the kind of detail needed for site specificity for recharge area. Generally, it is known where these things take place, but not site specific. Mr. Graham stated ENSAT did a good analysis on a County wide basis but on the sites specific basis the groundwater assessment would give you a better idea where that is. Mr. Dorrier asked if there are different depths that drillers have to go for different sites in Albemarle County. Mr. Graham replied “no”, staff has no recommendations for well depths. The applicant has to drill and submit the Health Department form to the County so staff can verify there is a viable well on that site before issuance of the building permit. Mr. Dorrier asked if there are sites in the County where an applicant could drill thousands of feet and not hit water. Mr. Wyant said there are areas he would caution issuing approval because the rock does not bear water and a lot of developers over the years have had difficulty. Ms. Thomas asked, in going back to the beginning of the discussion, if the proposed wording is adequate to get at what the Board wanted in relation to subdivisions. Mr. Graham said, “yes”. Tier 3 and Tier 4 allows staff to influence the subdivision design. It does not allow staff to prescribe the subdivision design. Staff can go through the assessment and make sure everybody understands the layout and verify that there is an apparent adequate supply of water. Mr. Davis said under the design manual criteria for a Tier 3 it states that the plan and plat must demonstrate that the site’s groundwater provisions have been considered through the division’s layout and design. The word that would be a contentious is the meaning of “considered”. If considered means that the applicants have to be consistent with it, it takes into account Ms. Thomas’ and Mr. Rooker’s concerns. If it means, the applicants have considered it and is not what they want to do, the ordinance language does not go any further than what the design manual does for a Tier 3. Mr. Rooker suggested using the words “responsive to” as opposed to “considered”. Mr. Davis suggested “or shall incorporate”. Tier 4 language states, a final groundwater management plan that incorporates County staff comments from the preliminary stage, as well as a Groundwater Assessment Report, must be approved prior to approval of the final site plan or plat. Mr. Wyant asked about coordination between the County and the Health Department. October 27, 2004 (Adjourned and Night Meeting) (Page 3) Mr. Graham said regardless of County’s requirements, an applicant has to meet the Health Department regulations. The assessment would allow the County, in advance of them going out and drilling a well, to assure that there is an adequate well site for that property. Mr. Davis said if the Board wants to mandate that the Tier 3 assessment be incorporated into the subdivision plat, staff can draft language to do that before going to public hearing. The issue for staff is whether or not they want to mandate the assessment being incorporated in a Tier 3 review. Mr. Graham said staff is recommending for Tier 3, revising the language to allow staff to require a Tier 4 if staff thinks the conditions are warranted and then the language for Tier 4 would come into play. Mr. Davis said that was a different approach and could work as well. Mr. Boyd asked if the committee purposely wrote the language the way it is written or is it just something they did not think about. Mr. Hirschman said the intent was that the study have some influence if it is possible on the subdivision layout. If there is something that is generated by the technical information that suggests one particular area is important for recharge, then maybe that area stays in forest or if there is a particular area that looks like it is better for yield that might be the area to put some of the lots. It is going to end up being a highly subjective judgment between the geologist (doing the assessment), the engineer (who is laying out the subdivision) or the surveyor, and a professional of the County who is going to be engaging these people in a better/responsive design. He thinks the County has to be realistic. The intent of this process and of the committee is that groundwater resources are investigated up front and that definitely has a bearing on the layout of the subdivision. Mr. Graham said he thinks the purpose of that assessment is to influence the design rather than to prescribe the design for the layout of that subdivision. Mr. Rooker asked if the County is requiring Best Management Practices. Mr. Graham said the County requires identification of Best Management Practices as part of the assessment. Mr. Rooker asked if Best Management Practices are required to be incorporated into the design of the subdivision. Mr. Graham replied, “yes”, through what they are providing with the assessment. Mr. Rooker asked if that was clear in the ordinance. If so, his concern with the existing Tier 3 and Tier 4 language are not as great. Mr. Davis said he thinks that Tier 3 encourages Best Management Practices, it does not necessarily make it a mandate. Mr. Hirschman said Best Management Practices are a required part of the Groundwater Management Plan. There has to be specific practices with the Groundwater Management Plan that are part of the subdivision plat. Mr. Davis said in the Water Protection Ordinance, Best Management Practices are required as part of the subdivision review but if there are Best Management Practices outside of the scope of the Water Protection Ordinance, he thinks they are aspirational only. Mr. Graham said Best Management Practices will be in the design manual which is incorporated by reference in the ordinance under Sec. 17-403. Mr. Rooker asked if that was applicable to a Tier 3. Mr. Graham replied, “yes”, on page 3, Sec. 17-403, of the proposed ordinance the language reads: The Groundwater Management Plan shall comply with the requirements for such plans in Chapter 5 of the Design Manual. By putting the remainder of this in the Design Manual, he thinks the staff has that captured. Mr. Rooker said he thinks the import of this is to protect groundwater and make certain that in the development of property, the County is taking reasonable steps to do that. Mr. Hirschman said the intent of this is to focus like a storm water management plan that identifies storm water management pertaining to the computations that is equivalent to the investigation and then provide for the practices that mitigate the impact. It is a very similar type of approach. Mr. Bowerman asked about the statement “House designs incorporate water conservation measures”. Mr. Graham said staff provided that as an example. Although, not a requirement, it would be an option that is available under the Best Management Plan. Mr. Bowerman asked if there is a relationship between the Best Management Practices that were approved in the beginning and the way the developer actually builds the house. Mr. Graham said there would have to be a relationship at some point because that is what they indicated with their Best Management Plan. Ms. Thomas referred to page 2, staff’s recommendation for modification to the design standards related to special areas of concern and asked if the proposed change would prevent what happened in Red Hill. Mr. Graham responded that is what staff hoped to accomplish with the change. He added that the Department of Health and DEQ are now sharing data so they are aware of those situations as they develop before the Department of Health issues a well permit. Ms. Thomas asked if the Design Standard would let someone identify such areas and then treat even a single family home, including making the design and other issues relating to building in areas of concern. Mr. Graham said that is difficult because if it is an existing lot, the staff would not be aware of it until the developer submitted their well form with their building permit. Staff could look for those situations when the building permit is submitted, i.e., flag them if it appears the Health Department has missed something. Staff would like to try this for a year and then report back to the Board on whether it seems to be effective. October 27, 2004 (Adjourned and Night Meeting) (Page 4) Mr. Graham asked if the Board is looking for staff to duplicate what the Department of Health is supposed to be doing now through their permit process. Mr. Rooker asked if the staff are aware of areas of concern can they get that information to the Department of Health. Mr. Graham replied, “yes”. Mr. Bowerman asked if administratively the DEQ and the Health Department name a parcel similar to the County. He asked what was the common denominator when contacting those two organizations and the staff would know that everyone is talking about the same parcel. Mr. Graham said DEQ provides a GIS coordinate system on where the site is and the Department of Health then looks for any of those sites in proximity of the proposed well. If the Health Department has the coordinates on all the known sites supplied by the DEQ, they can look at the map and look at the potential well site, and make a determination on whether they think there is a potential for influence. Mr. Bowerman asked if that was easy to do. Mr. Graham replied, “yes”. Ms. Thomas asked if they are doing that. Mr. Graham said they are supposed to be. Staff can go forward and see how well it works with the presumption that these entities are doing that or staff can duplicate that effort to provide an additional quality control. Staff is recommending that for the first year see how well the process is working with the Department of Health and DEQ, and then staff report back to the Board on whether they think there is a need for staff to take on that additional quality control problem. Mr. Wyant said at one point, he did some work for the Health Department using GPS to put the data in the GIS. The Health Department wants to know where existing wells are located so when they site something on a parcel, they know what is surrounding the area. The staff should confirm to see if the Department of Health has that database of well locations. Ms. Thomas again asked if a constituent calls her about a subdivision and its affect on their well, there is nothing by state law or in this ordinance that she can tell them that can put their concerns to rest. Mr. Graham said some of their concerns can be put to rest in that it is being assessed and looked at. Ms. Thomas commented that the County is not doing a draw down test. Mr. Graham said that would apply if it is a Tier 4 assessment. If the Groundwater Manager sees the need, he has the option to elevate application to a Tier 4. Mr. Rooker said the Board should understand that it can require applicants to site in a certain way, etc. Ms. Thomas said the language does not state that. Mr. Davis said currently under a Tier 3, if there is a sensitive area, the Program Authority may require additional groundwater assessment data but it does not state that it can require it to be treated as a Tier 4. The Tier 4 language states that it has to incorporate the assessment plan into the subdivision plan. In order to accomplish staff’s recommendation, he thinks the Board needs to change the language in the Tier 3 assessment ordinance that states “that if it is a sensitive area the Program Authority may require a Tier 4 assessment”. Mr. Graham said that is somewhat similar to the language for a Tier 2 where it provides for that opportunity to escalate from a Tier 2 to a Tier 3. The Committee is recommending similar language in Tier 3 to provide that option to escalate to a Tier 4. Mr. Davis said staff needs guidance from the Board on what it wants. Mr. Rooker said he would like to have that language, but Board members need to understand that under state law, it cannot stop somebody from drilling a well on property because the County thinks it might draw down on somebody else’s water. The County can require the subdivision be sited in a certain way and stay away from recharge areas, and can try to protect groundwater, but staff cannot favor an existing landowner over a proposed landowner with respect to the use of water. Ms. Thomas said she also wants the language included. Mr. Wyant asked Mr. Graham how the observation well network works. Mr. Graham said it goes to this question about how much data the County has on the effects of the groundwater and trying to build up more of a database by long term monitoring of the groundwater. Mr. Hirschman said the Committee was thinking that a Groundwater Manager, with the necessary technical skills, would be able to prioritize the locations. Based on available funding, the wells would be drilled and monitored for the long term, (monthly or whatever the frequency). In subdivisions, when the plat is approved there are no wells in the grounds, so they are not pumping. So if that monitoring well is in the ground and pumping, and as houses are built, then staff can learn about draw down and possible influences on-site and off-site. The water can be tested periodically, once a year for instance, for contaminants. The County can start building up an information base that staff currently knows nothing about. Mr. Wyant said he has a problem with a single monitoring well. In his opinion, every well in this County is a monitoring well. It should be possible to map the ground water elevation if this is done as the subdivisions grow. Mr. Hirschman said that is possible and something the Groundwater Manager could incorporate. Mr. Wyant said some builders might say differently but he thinks it is one of the things staff could put in a plat. Mr. Davis said he thinks that would have to be a voluntary program rather than a mandated program. He is not sure the County can require someone to make their private well available to the County to inspect and monitor. October 27, 2004 (Adjourned and Night Meeting) (Page 5) Mr. Wyant said he was suggesting the County monitor the situation as droughts occur. Mr. Rooker said he thinks the only thing that is necessary is to have a group of volunteers that would allow the County to monitor data over a period of time. Starting that kind of program might be a good idea and it seems to him that people may want to participate, especially if the County is offering some kind of contaminant testing. Mr. Dorrier asked if staff needs any more information from the Board on the proposed ordinance. Mr. Graham said he wants to make sure the Board wants to add the provision on Tier 3 to allow the escalation to a Tier 4 if the Groundwater Manager identifies an area of concern. Mr. Hirschman suggested the language read “requires additional assessment data or completion of a Tier 4” so there is an option if more information is needed. Board members concurred with that suggestion. Mr. Graham said staff will be bringing the proposed ordinance to the Board for public hearing on th December 8. There was no further discussion. _______________ Agenda Item No. 3. Recess. The meeting recessed at 5:05 p.m. _______________ Agenda Item No. 4. The meeting was called back to order in the Auditorium at 6:03 p.m., by the Chairman, Mr. Dorrier. _______________ Agenda Item No. 5. Pledge of Allegiance. _______________ Agenda Item No. 6. Moment of Silence. Mr. Dorrier asked that everyone remember Mrs. Charlotte Y. Humphris, former member of the Board of Supervisors who passed away earlier this week. She was Chairman of the Board for a period of time. He said she was a fine person and did a lot for Albemarle County. _______________ Agenda Item No. 7. Appeal: SDP-2004-023. Faulconer Construction Office and Shop Final Site Plan. TM 58, P 37, contains 27.37 acs. Znd LI. Loc on Morgantown Rd (Rt 738) approx 1 1/8 mi W from intersect of Morgantown Rd & Rt 250 at Ivy. Samuel Miller Dist. Mr. Bill Fritz, Director of Current Development, summarized the staff’s report. He said the request is for approval of a Final Site Plan to construct a maintenance shop, three pole barns for storage, and two offices. The property is located on Dettor Road near the Virginia L. Murray Elementary School. The property was rezoned to Light Industry in 1980. In September 2003 a preliminary site plan was approved by the Planning Commission (“Commission”) subject to conditions for both the site plan and for critical slope waivers. In September 2004, the Commission acted to deny the final site plan and an appeal of that decision is before the Board tonight. Mr. Fritz said he would mention some of the conditions recommended for the preliminary site plan and for the critical slopes waiver. One condition reads: “The 30-foot buffer which runs along the western/northern side of the property shall be increased to a 50-foot buffer. The same activities that are prohibited in the existing 30-foot buffer are prohibited in the additional 20-foot buffer.” He said there are notes and delineation of a buffer in that area on the plan, but the Commission required that the notation be clarified. Mr. Fritz said that on the preliminary site plan one condition regards the submittal and approval of the certified engineer’s report. Originally staff approved that engineer’s report. Based on comments from the public and Commission members, the Commission said the conditions should be modified to require a revised certified engineer’s report explaining the methodology used to draw the conclusion that the proposed use complied with the requirements of the Zoning Ordinance. Mr. Fritz said another condition on the preliminary site plan required a photometric plan demonstrating that parking area luminaries were in compliance with the Zoning Ordinance. The Commission said the lights in the barn required a revised photometric plan since those lights are considered indoor lighting and are not subject to Zoning Ordinance regulations for lighting. There was also a condition on the preliminary site plan regarding submittal and approval of a landscape plan in conformance with the Zoning Ordinance. That Plan had to include a tree conservation plan; that plan has been submitted and approved. Staff approved the landscape plan but the Commission required additional landscaping, which is allowed by the Ordinance. He said the other conditions have been complied with for both the preliminary site plan and the critical slopes waivers. He then offered to answer questions. Mr. Cilimberg said the Commission, on September 7, 2004, denied approval of the final site plan based on eight reasons outlined in the action letter dated September 13, 2004. He noted that although October 27, 2004 (Adjourned and Night Meeting) (Page 6) the Commission has not yet approved the minutes for its September 7 meeting, a copy of the draft minutes was delivered to the Board with the materials for this meeting. Mr. Rieley, Planning Commission member, has noted some corrections to Pages 24 through 34 of those draft minutes, and a copy of those changes was given to the Board today. He said the eight reasons noted for the denial were: 1. Submission of a revised Certified Engineers Report as required by Section 32.7.4.2, to address each provision of Section 4.14, explaining methodology and including measurements of actual equipment where appropriate. 2. Submission of as-built plans and structural analysis to verify adequacy of pavement width and strength of Dettor Road from Morgantown Road to the Faulconer entrance as provided by Section 26.12.1. 3. Provision of street trees across Morgantown Road frontage as required by Section 32.7.9.6. 4. Provision of a double staggered row of shade tolerant evergreen screening trees such as holly or bayberry, planted 15 feet on center adjacent to Rural Area property to provide screening as required by Section 32.7.9.8.c.2 5. The lighting plan shall be revised to comply with Section 4.17.4. 6. Sidewalk notes and dimensions must be corrected. 7. Revise all buffer notes to indicate a 50 foot buffer. 8. Vehicles coming to the site shall be verified to be of a scale that may be safely accommodated by Morgantown Road as provided by Section 26.12.1. Mr. Cilimberg said the Commission’s meeting on September 7 was held in this Auditorium and the sound system did not work well that night. There were gaps in the recording of the meeting. Mr. Rieley believes there was a discrepancy in the wording of reason No. 8. He believes that in No. 8, the Commission intended to refer to other traffic that would be using Morgantown Road, and has suggested that it read: “Vehicles coming to the site shall be verified to be of a scale that may be safely accommo- dated by Morgantown Road as provided by Section 26.12.1 with consideration of other traffic as well.” Mr. Dorrier said he has a question about the process. This is an appeal of a final site plan from the Commission. Mr. Cilimberg said it is an appeal by the applicant of the denial of the site plan by the Commission. Mr. Dorrier asked if the Board has normally allowed a public hearing for this process. Mr. Cilimberg said “yes.” Mr. Davis said there is no legal requirement for a public hearing. It is within the discretion of the Board to hear the applicant for due process purposes, and then any comments from the public that the Board chooses to hear. But, there is no legal requirement that a public hearing be held on this matter. Mr. Dorrier said he thinks the Board will hold a public hearing. Mr. Rooker said he believes the Board decided to hold this meeting at a time when the public could attend with the idea that it would be a public hearing. Mr. Dorrier asked if any Board member had a question for staff. Mr. Rooker said as to process, he understands that when the Commission denies a site plan, they must state how to cure the problem. Mr. Davis said anytime a site plan is denied, the role of the Commission and now the Board, is to look at the ordinance and determine whether the site plan complies with all the applicable Zoning Ordinance sections. When a site plan is denied, the reasons the site plan failed have to be identified and the specific Code section(s) cited. Theoretically, the by-right use can then come back after the omissions are cured and the site plan be approved. Mr. Dorrier asked if there is now a court case in process involving a portion of this application. Mr. Davis said the Zoning Administrator made a determination as to what constituted a by-right use in the LI District in relation to this case. That determination was appealed to the Board of Zoning Appeals which upheld the Zoning Administrator’s determination. The Board of Zoning Appeals’ determination was appealed to the Circuit Court which upheld the Zoning Administrator’s interpretation. That is now on a writ of certiorari which is a request for an appeal which has been filed with the Virginia Supreme Court and has been argued. The Supreme Court has the discretion as to whether or not to hear that appeal. That decision has not yet been submitted. The only part of this which is in litigation at this point is the Zoning Administrator’s determination that this use is a by-right use. Mr. Dorrier said that has no bearing on what the Board is doing tonight. Mr. Davis said “no.” The law requires that the County approve or deny a site plan within a prescribed time period. That determina- tion of use has been made; the determination that it is a proper use is valid at this point. The Board has to determine that the use is valid until the Supreme Court rules otherwise. The Board has to move forward with this process unless the applicant desires to delay it. October 27, 2004 (Adjourned and Night Meeting) (Page 7) Mr. Rooker said if the Supreme Court reversed the Circuit Court and basically determined that the use was improper in that zoning district, the applicant would be required to cease the use. Mr. Davis said if the Supreme Court reversed on the use the applicant would be in violation of the Zoning Ordinance, and the County would treat it as a zoning violation until such time as it was cured. Mr. Boyd said Mr. Davis has said the ruling by the Commission was based on some requirement that was not filled. There are eight things listed in the action. He asked what ruling was used by the Commission to specifically deny the site plan. Mr. Davis said there were eight bases for denial. The first seven relate to specific elements that needed to be shown on the plan itself. In the appeal to the Board, the applicant is willing to comply with the first seven if the Board finds that they are necessary. The eighth condition listed in the letter of denial from the Commission did not cite a specific Code section, but clearly it refers to Section 26.12.1 of the Zoning Ordinance. That is a more problematic requirement. The basis for that requirement appears to be an inadequacy of off-site public facilities. Whether or not that condition can be required is much in doubt. The Board knows the County does not have the authority to require as a basis for denial of a by- right use the improvement of off-site public facilities. That section, interpreted in that fashion, would be contrary to clearly established law. To his knowledge, the County has never interpreted it in that way. It is his opinion that the Board cannot require the applicant to demonstrate that off-site public facilities are adequate in order to deny the site plan. The Board cannot condition approval upon the applicant improving inadequate off-site public facilities. That is because this is a by-right use, a ministerial process. If it was a rezoning application, or a special use permit, which is a legislative process, the Board would have broader discretion. That is not what is before the Board today. It is a site plan. For that reason the Board must require the applicant to meet all the clearly established regulations of the Zoning Ordinance. The Board cannot require the applicant to make off-site improvements even if the Board finds there are inadequate public facilities off-site. Mr. Rooker asked if Mr. Davis is saying that No. 8 is not legal; it cannot be legally imposed. Mr. Davis said if the effect of No. 8 is to require the applicant to either make off-site public improvements, or that the use is denied because of inadequate off-site improvements, that would not be a valid condition. Mr. Bowerman asked what course of action is before the Board tonight. Mr. Davis said on an appeal of a site plan, the Board has the authority to approve, modify or deny the decision of the Commission. This is basically before the Board tonight as a new application. The Board can approve it, can find other conditions of the Zoning Ordinance if they exist on which to base a decision for denial, or vary that. He said the decision before the Board tonight is whether to approve or deny the site plan. Mr. Rooker said he is confused. If the applicant has not met No. 1 through No. 7 at this time, and No. 8 may not be legally required, can the Board deny the site plan based on the fact that No. 1 through No. 7 has not been met? Mr. Davis said the typical process would be for the Board to cite the deficiencies and require that they be met prior to administrative approval of the final site plan. Typically, on final site plan submittal, the Commission and staff would not deny it based on those reasons. They would simply condition that those requirements be met prior to final sign off on the site plan. If the Board denied the site plan on the basis of the first seven, the applicant could simply resubmit and it would be back before the Board having met those seven conditions. If the applicant chose not to address those seven, staff would determine it had not met the Board’s conditions of approval, and the site plan would not be approved. It basically “puts the ball in their court” to meet the seven conditions if the Board imposes those seven. If the applicant did not meet those seven, the site plan would be denied. If the applicant did meet those seven conditions, the final site plan would be approved. At this time, Mr. Dorrier asked the applicant to come forward and speak. Mr. Richard Carter was present for the applicant. He asked that he be given more than three minutes to speak. Mr. Dorrier said he could have five minutes for his presentation. Mr. Carter said this is an appeal from the Commission’s decision. He forwarded to the Board a letter containing the basis for this appeal (on file in the Clerk’s Office with the permanent records of the Board of Supervisors). He said the Commission gave eight reasons for denial of the final site plan, all eight reasons being stated for the first time at that meeting. He said the staff’s report said the applicant met all conditions for approval of the final site plan. At the preliminary site plan approval stage, conditions were listed which the applicant needed to meet in order to gain final site plan approval. Then, although the Commission said the applicant met all of those conditions, he did not meet No. 1 through No. 8 listed in the action letter of September 13. Mr. Carter said they are not appealing No. 1 through No. 7 because they can do all of those, but are appealing No. 8 which is a disguised requirement for the applicant to make off-site improvements to Morgantown Road. The Commission is trying to come in the side door when they know they can’t come in the front door. That front door requiring off-site improvements to gain site plan approval has been closed by the courts, both the Virginia Supreme Court and the Federal Court in the State of Virginia. The courts have said site plan approval is a ministerial rather than a discretionary act. Off-site improvements cannot be required for site plan approval. Site plans are specifically covered under Section 32 of the Albemarle County Code. Not finding what it wanted in Section 32, the Commission went to Section 26 which is entitled “Industrial Districts-Generally.” If the applicant were asking for the property to be rezoned or for a special use permit, the applicant would have to meet all the requirements in Section 26. However, the property has already been zoned for this use. Supposedly, in 1980 when it was rezoned that is when all of the requirements in Section 26 were addressed. If these requirements could not be October 27, 2004 (Adjourned and Night Meeting) (Page 8) met, this property could not have been rezoned for this use. The matter of use is not before the Supervisors tonight. Mr. Carter said Section 26.12.1 says in part that “pavement widths and strengths of both internal and external roads shall be adequate to accommodate projected traffic from the district.” A fair reading of that language would be that internal roads are within the site itself. An external road would be the road on which the site enters, in this case it is Dettor Road. To give that a broader reading and say that all external roads must be wide enough to accommodate traffic would mean the applicant would need to give a certification for every road upon which his vehicles might travel. That is not possible. As previously stated, this is illegal for site plan approval. Mr. Carter said the Assistant County Attorney, at the Commission meeting, said the responsibility of the state’s roads lies with the state. It is the state’s decision as to when public roads are upgraded and the level of that improvement. Since the state has put no restrictions on Morgantown Road, not only is the test required by the Commission illegal for site plan approval, it is outside the ability of the applicant to do. Section 26 is the side door. The Courts have closed that door, and VDOT has closed it also. As pointed out at previous Commission meetings, the perception of large trucks with earth-moving equipment constantly traveling Morgantown Road is not accurate. This site will be used for offices, maintenance and storage yard. The equipment will be kept on the job site. When maintenance is required and it can be performed on the job site, it will be. The applicant hopes that business will be good enough to keep all equipment on job sites. Mr. Carter said that in summary, the applicant received preliminary site plan approval. The applicant met all the requirements for final site plan approval. Pursuant to Section 32.4.3.9 of the Albemarle County Code, the Board of Supervisors may affirm, reverse or modify in whole or in part the decision of the Commission. The applicant asks that the Board reverse the decision of the Commission, or in the alternative modify the Commission’s decision by deleting the reason for denial No. 8 and require the applicant to comply with the other seven items referring the matter to staff for administrative approval. He then offered to answer questions and said he had with him tonight, engineers, architects and every guru possible to answer questions of a technical nature. At this time, Mr. Dorrier opened the matter to public comment. Mr. Andrew Grider said he is the principal at Murray Elementary School. He has concerns related to the final site plan for the Faulconer construction shop. As principal of Murray, one of his goals is to establish and maintain a positive instructional environment. Murray is committed to providing the best educational atmosphere possible for the students. He said it is still not clear how the proposed Faulconer construction site will affect the school with oversized traffic conflicts on Morgantown Road. Specifically, how will this increased traffic affect the arrival and departure of buses during school hours? There is also a concern related to noise generation emanating from machinery and vehicles. Finally, because Murray derives its water supply from an underground well, there is some concern regarding provision of adequate water quality. They hope Faulconer shares their concerns and will make every effort to work with the school on providing a safe educational environment for the students, staff and volunteers who work in the school. He asked the Board to consider his concerns as it makes its decision. Ms. Diane Behrens, Executive Director of Support Services for Albemarle County Schools, spoke next. She said the School Division realizes this is a by-right site plan. It has concerns about the proposed Faulconer use and how it will affect the school use with oversized traffic conflicts on Morgantown Road, increased noise levels, provision for adequate water quality and fire protection, and the possible generation of toxic fumes. They wish to maintain a safe instructional environment for the students. If the Board chooses to approve the appeal, they hope the principal leaders in the Faulconer Construction Company will work with them to voluntarily restrict traffic during drop-off and pick-up times, or to actually make changes in the use of that property. Mr. Brian Wheeler asked that the Board uphold the rejection of the Faulconer site plan. After three years of review, the Commission and Board have more information today than what was available to the Zoning Administrator in 2001. That evidence was not ignored by the Commission. If this Board “turns a blind eye” to the problems with this project, he said the Board is telling the public the site plan review process means nothing. He would like to assure Mr. Carter that the community does not want Morgantown Road improved at all by Faulconer Construction. In 2001 for the Home Depot project, County Attorney Larry Davis advised the Board that since plan approval is a ministerial act and if the Board found that the site plan met all requirements of the ordinance, the Board was required to approve the plan. If the Board denied the request, it was probably a matter of litigation. The next month Mr. Davis was asked by Charles Martin if what the Commission did was legal. Mr. Davis said “I cannot answer the question in those specific terms. The decision of the Commission is defendable if it is not arbitrary and capricious.” Mr. Wheeler said that during discussion of the Home Depot proposal, another supervisor said if every application were cut and dried, neither the Board nor the Commission would need to participate. That supervisor also said he thinks these decisions go with leadership, both elected and appointed, to decide, and each is unique and specific. The site plan review process means something and Faulconer has had its due process. He does not think the Commission was either arbitrary or capricious, nor as Mr. Carter charges offensively and incorrectly in his appeal, acting illegally. The Commission’s minutes will show that Mr. Kamptner never said that to the Commission. The County zoning code protects all Albemarle residents from industrial activity when it threatens the quality of life. It is not anti-business. He October 27, 2004 (Adjourned and Night Meeting) (Page 9) would welcome Faulconer’s office to the Ivy Business Park. The zoning code contains common sense. Some industrial activity can leave its borders and threaten public health and safety. Mr. Wheeler said staff will tell the Board that it cannot require Faulconer to change certain things outside of its site. But, he thinks they looked narrowly at public safety issues. The Commission does not have those limitations, and neither does this Board. The Commission cited that fact when they said Faulconer’s vehicles must be compatible with Morgantown Road according to Code Section 26.12 and 26.12.1. That section of the ordinance applies to all applicants of the industrial site and not just the ones which might have been there when the zoning was put in place. The County cannot require Faulconer to pay for the road widening, sidewalks and traffic lights, but he thinks the Board must apply the ordinance which clearly states that all plans for industrial sites must have these off-site factors assessed, not by VDOT, but by the County. He asked that the Board uphold the verdict of the Commission which worked on this for three and one-half years. He asked that the plan be rejected as being totally incompatible with public safety and inconsistent with the character of this particular light industrial site. Mr. Wheeler asked that all members of the audience who agreed with his statement stand. Mr. Dorrier asked that the record show that about 70 people stood. Ms. Carrie Coulson said she lives in Ivy. She asked that the Board uphold the Commission’s rejection of Faulconer’s final site plan for several reasons. She believes the Commission gave careful consideration to the staff’s report, the zoning code, the plan and site itself. She said the final site plan was determined to be incomplete so that should have required that staff deny the site plan according to Section 32.4.3.3. Because Planning staff allowed an incomplete plan to go forward, the Commission placed eight additional requirements on the applicant, all supported by County Code. In Mr. Carter’s letter of appeal he states the applicant can comply with all but one condition, that vehicles coming to the site shall be verified to be of a scale that may be safely accommodated by Morgantown Road as provided by Section 26.12. She said Mr. Carter stated that this condition is unfounded in law. She disagrees. She then read from Section 26 on industrial districts. She said Mr. Carter stated correctly that the applicant cannot be required to make off-site road improvements. No one asked them to. The Commission required that Faulconer Construction show that their proposed use of the site is of such a scale that it would not negatively affect off-site roads, schools and homes as required by code. When the Zoning Administrator originally made her determination of use for this applicant she said it was not site specific so roads and public safety could not be addressed at that time. VDOT told them they are limited to evaluating only the area of ingress and egress from the site. VDOT does not review external road structure. It is left to the County to assess public safety during the final site review process. She thinks the Commission placed appropriate and thoughtful conditions on this application. She asked that the Board support the decision made by the Commission. Ms. Robin Hamil-Ruth said one of the issues from the beginning has been that the current Faulconer site is not comparable to this site. There are a number of issues. One is the site plan process. Faulconer’s current site on Woodburn Road was grandfathered, in fact Faulconer pre-existed development of the Agnor-Hurt School. The Morgantown Road site has undergone a proper site plan review with significant attention being paid to details of the zoning code. Another issue concerns water. Woodburn Road is served by both public water and sewer. Morgantown Road has well water with septic systems, and an aquifer shared by a pre-school, an elementary school and the immediately adjacent residences. During the drought a number of people on the road had to redrill their wells because their aquifer was already strained. The headwaters of Ivy Creek are immediately adjacent to this site. Ivy Creek leads to the County’s water supply. The question of spills has not been adequately addressed. In terms of Murray school and safety issues, Agnor-Hurt’s entrance is 1.1 miles from the current site. There are two intersections and a traffic light between the Faulconer site and the Agnor-Hurt school. The Murray Elementary entrance is .1 miles from the entrance to the proposed site, with the Millstone Pre- school being located between those two. Ms. Hamil-Ruth then showed some overhead slides comparing the locations of the two schools and the differences between Woodburn Road and Morgantown Road. Basically, the two sites are not comparable, and there are very severe safety issues involved. She asked that the Board consider these issues as it reviews the plan. Mr. Shawn Evans said at the Commission meeting there were more reasons discussed which would be appropriate for denying approval of this plan than the eight reasons stated. In the certified engineer’s report (Section 5.2.3) Faulconer states that there would be no permanent storage of explosives on-site. There would be only an infrequent, short-term, less than four-hour, presence of explosives. No where in the plan or the engineer’s report is the required magazine or bunker as determined by the Table of Distance and Construction Requirements listed in Federal Law Section 27 CFR, Part 555, Sub-part K, shown. He said County staff and Faulconer argue that explosives will not be stored but will be merely present on the site. According to the letter he received from the Deputy Chief of Arson, Firearms, Explosives Program Division, Mark Sieber, at the Department of Justice Bureau of ATF, Mr. Sieber says there is no such condition as short-term presence of explosives. He then read from the letter. “According to Section 27 CFR, Part 555.205, all explosive materials must be kept in locked magazines meeting the standards in 27 CFR, Part 555, Sub-part K, unless they are (a) in the process of manufacturing, (b) being physically handled in the operating process, (c) being used, or (d) being transferred to a site for use or storage. The standards in sub-part K refer to magazine construction and Table of Distance Standards, therefore, if the contractor’s explosives are not meeting one of the requirements stipulated above, including the truck that delivers the explosives at the site, then the explosives would need to be immediately stored in a magazine meeting both the construction requirements and the Table of Distance required listed under sub-part K.” Mr. Evans said he thinks the plan should either be denied or be redrawn to include a magazine. A magazine and bunker would dramatically affect an overcrowded and extreme site plan. Since the October 27, 2004 (Adjourned and Night Meeting) (Page 10) Federal government rules that the presence of explosives is called “storage of explosives” and the government of Albemarle County according to Section 27.2.1.17 ruled that the storage of explosives is prohibited in light industrial zones, he believes this brings into question the by-right use of this applicant as ruled by the Zoning Administrator. He asked that the Supervisors uphold the Commission’s decision and deny this site plan. If the Board decides to modify the site plan, he asked that it not be persuaded by the applicant’s attorney that staff should gain administrative control over the plan allowing them to rubberstamp whatever Faulconer wants. He said there has been too much public input into this process to allow it to go forward without continued public examination of input. He believes there are many issues which could cause this plan to be denied Mr. Roger Ruth said he would like to talk about noise. He then gave a short explanation of a human’s auditory system. Noises can be so loud that they actually injure that system. However, that is not what he is speaking about tonight. Noises can also be annoying and a nuisance. That has been recognized by the County and by most communities throughout the United States. In 1974, the EPA published guidelines which are what Albemarle and most communities use today. He said sounds and noises are characterized by several measurements; how loud it is, its intensity, the frequencies that occur, the duration of the sound, and distance from the sound. One thing mentioned in the staff’s report was that some of the machinery might omit a sound as loud as 90db. From the records he found, that was 90db measured at 50 feet. Because sound decreases by distance, if there is a 90db sound and the distance is doubled to 100 feet, the sound is reduced. At 200 feet it would be about 78db. It would not get down to the 60db threshold in the County’s ordinance until the distance was increased to 1600 feet. Looking at the site plan, the residences and the pre-school in the community are within those 1600 feet. It is conceivable that the noise created at this site will exceed that permitted by the ordinance. Dr. Ruhi Ramazani said he has spent more than 50 years in the study and teaching of law and in the study and teaching of politics, so he feels well qualified to speak on this matter. He mentioned that he had recently written a book “The Future of Liberal Democracy, Thomas Jefferson and the Contemporary Word.” He said they are relevant words and it is time to hear what Thomas Jefferson had to say about a board of supervisors in terms of its authority in interpreting law. On September 20, 1810, answering John Corbin as to whether circumstances sometimes occur which make it the duty in offices of high trust like the supervisors, to assume authorities beyond the law. Thomas Jefferson wrote “a strict observance of the written law is doubtless of the high duties of a good citizen, but is not the highest.” Thomas Jefferson also said “the laws of necessity”. What is relevant to the schools is public safety. That is the law of necessity. Control the written laws. In other words, a scrupulous appearance to written law would be to absurdly sacrifice the end to a means. The other dimension to this hearing raises the question of what is now the centerpiece of our foreign policy and the world is looking as never before. Mr. Dorrier said Dr. Ramazani had used his three minutes for speaking, and he asked that he summarize his statement. Dr. Ramazani said never before has the world been so focused on democracy because our government has made it the centerpiece of our foreign policy. Tonight, in this gathering, democracy is at work. Democracy, in essence, means the will of the people. The Board would be responding to the will of the people here. Mr. Lawrence Eagleburger said all have heard tonight about various waivers on various problems apparently existing on this particular site. He suggests that trying to deal with those without dealing with the fundamental issue which has not received much discussion is “putting the cart before the horse.” The educators from the schools have expressed their concern about a safe environment. The only problem he has with their statements is that they were too nice. They were not specific enough as to the responsibility of this Board and Albemarle County to recognize that there is no way that trucks the size of those mentioned, even if they were not kept there, can be put on this site. Although the speaker earlier said the trucks would be maintained off-site if they could be, he asks what if they could not be maintained off-site. The fundamental point is that there are two schools immediately adjacent to this site. He does not understand the definition of light industrial if it encompasses the kinds of equipment he thinks Faulconer would be using, at least some of the trucks. Because the two schools are there, he does not think there is any solution to the problem other than to deny the request. There can be talk about ways to alleviate some of the problems, but unless the Board can find a way to alleviate the danger to the lives of the children who are within a short distance of the traffic there, and the kinds of vehicles which would be there even if not kept on the site, there is no solution other than to deny the appeal. Ms. Pam Evans said hundreds of citizens have brought their concerns about this site plan to County government. Staff and citizens worked together to correct mistakes, and to express concerns. They educated themselves and followed an open process which led to the Commission denying a site plan with too many problems after three years of trying to make it work. She has no problem with the business building in the Business Park. She and her husband bought their adjoining property in good faith. They asked County staff what could go in the business park. They were informed that it could be nothing larger than what existed at that time. She asked that the Board support the work of the Commission and its decision to deny the plan. She then read a list of concerns brought up by the Commissioner’s at their meeting on September 7: The engineer’s report did not address the noise ordinance. If Faulconer uses heating oil, where would the tank be stored? How would all the other types of oils used be stored? Where would diesel fuel be stored? What about diesel fumes in a school area? What about contamination at the headwaters of Ivy Creek? Where is the evergreen screening as required by ordinance? Is there another way to incorporate a truck turning lane without putting it in a neighbor’s residential driveway? She said the Commissioners expressed concern about the large number of cars and trucks that would enter this site daily. There were questions about the disappearance of a 200-foot buffer and whether residents were notified of its disappearance. As regards safety issues and Morgantown Road, Mr. Kamptner said there was an exception which allowed using 26.12.1 if the need for substantial improvement is generated by a project. VDOT told residents at a meeting three October 27, 2004 (Adjourned and Night Meeting) (Page 11) years ago that the road was not rated for heavy industrial traffic. It is an intense use to have to put in 12.5 foot retaining walls. There are too many discrepancies on the front page with the rest of the site plan. She said she had many more comments that could not be mentioned because she does not have the time to do so. She than asked that the Board not try to fit an “elephant into a mouse’s cage.” Ms. Jean Wheeler encouraged the Board to uphold the Commission’s decision that this site plan be rejected. She worries about her safety, the safety of buses, and the safety of everyone traveling on Route 250 between Crozet and Charlottesville should Faulconer be allowed to bring those trucks to Ivy. Her daughter will be driving those roads soon and she does not want her to meet one of the oversized loads around a blind curve. In July 2002, Mr. Jack Sanford, in addressing this Board, said he was concerned about the safety of his children being endangered on their way to school by a large dump truck carrying asphalt. She then related a story about a child brought to the hospital that needed surgery but the surgery was denied because of the parent’s religious beliefs. The surgeon operated anyway in spite of legal ramifications, and it was the right thing to do. She said that is what integrity and good judgment is all about. She also expressed her sympathy at the passing of Charlotte Humphris who symbolized integrity and had a passion for protecting Albemarle County. She said Ms. Humphris had attended one of the first meetings of the Ivy Community Association regarding the Faulconer project. She asked that the Board put itself into their shoes and do the right thing. If there should be a tragedy on this road, it would be the worse kind, a preventable tragedy. She asked that the Board do the right thing. Mr. Will Crowder said he lives at 2980 Morgantown Road. He said Faulconer has argued that it has done everything the Commission asked of them and denial of their final site plan was egregious. Faulconer has been diligent in coming before the Commission with site plans and changes it believed would meet the use requirements of this light industrial site. The citizens of Ivy have worked just as diligently to demonstrate to Planning staff and Commission the hazards and safety threats of this plan to their children, their homes and their community. If this plan were indeed light industrial, then the proposal would have likely proceeded to the site review process with few concerns from the citizens of the surrounding community. It is an indication of everything that is wrong with the plan that the Commission asked Faulconer to “go back to the drawing board” two times, and then ultimately decided that the plan did not fit the use. Mr. Crowder said this site plan is not for the light industrial business originally proposed to the Zoning Administrator three years ago. Faulconer has argued that the objections voiced are to use and the use was determined valid under present zoning. The citizens argued that all of the details of the site plan were not known to the Zoning Administrator at the time of her decision, and if had been known they would not have been termed light industrial.Those are grounds for the Board to deny this proposal. In the alternative, he would ask that the Board request that the Zoning Administrator look at the site plan again to establish if the use remains light industrial. Faulconer also argued that the Commission inappropriately applied the County Code in its denial. He believes that in this case and all cases the County Code is to protect the safety and welfare of all citizens. The Commission denied the site plan because in its final review they thought Faulconer did not meet the standard for safety. Further, he argues that application of the County Code is not restricted to the moment in time of the zoning determination, but the safety designs and principles of the Code apply to the total review process. He said VDOT’s Culpeper Office, in a memorandum dated September 9, 2004, three years after the Zoning Administrator’s decision, addressed safety concerns at the intersection of Tilman Road and Route 250 West, and recommended that any future development in the area that would generate side road binds be considered in the planning process. He asked if the safety concerns should be ignored because of by- right stipulations or allow for the appropriate application of the Code to protect the safety and welfare of the community. He encouraged the Board to stand by the Commission and support its decision to deny this plan based upon the County Code and the safety concerns cited by the Commission at its meeting on September 7. Mr. Phil Marx said he and his family have lived on Morgantown Road for over 20 years. This issue is not simply a matter of by-right use in which the applicant has attempted to comply with requirements. There have been misguided decisions made by County staff going back 30 years which have been compounded, covered up, ignored and excused ever since. No one in this room can defend this proposal as an appropriate use in the community where it is planned. He then read the definition of zoning from the Code. He asked that the Board rely on the Code as it makes its decision and that it uphold the Commission’s decision to deny this application. For over three years residents of Ivy have struggled to get this point of zoning and its accompanying determination of appropriate use recognized. Staff has ignored the tenets of zoning, the applicant’s actual use, and the history of zoning decisions relevant to this site. He does not think staff properly conveyed the decision of the Commission to the applicant or to the Board as it pertains to the denial of this site plan. He said 24 years ago, staff rezoned the original agricultural 200-foot protected buffer on this site to light industrial by coloring on a map during a comprehensive rezoning. He said Mr. Kamptner is quoted in the minutes as saying this “may” have required notification of adjacent property owners. That was not done. Staff contends that this oversight became moot due to subsequent zoning reclassifications. He urges the Board to seek the truth. The Commissioners have cited County Code requirements that this site plan and its use fit within the Ivy Community. He urged the Board to support the Commission and to uphold its decision. He believes the original zoning determination of this application was based on a misstatement of the applicant’s intended use. That is the subject of a suit brought against the County which is now being considered by the Supreme Court of Virginia. The Zoning Administrator made her determination stating the applicant’s use beyond office and storage might consist of occasional sharpening of a blade. Extensive discovery undertaken by Ivy citizens, using Faulconer’s own records, show their current and intended operations actually constitute a minimum of a garage, a use not permitted in LI without a special use permit, yet staff never required one. Five years ago County staff assured prospective purchasers of residential property October 27, 2004 (Adjourned and Night Meeting) (Page 12) adjacent to this site that nothing larger than a dishwasher could ever be manufactured or permitted in any light industrial use on this site. They have repeatedly asked the County to create a zoning text amendment clearing the current language which allows a contractor’s office and storage yard in both light industrial and heavy industrial zones without requiring a determination of whether the use is light or heavy. Faulconer’s intended use is not light, and will not protect the surrounding area from adverse influences as required by County Code. He asked again on behalf of all present and future citizens of Ivy, that the Board uphold the decision made by the Commission and reject this appeal. Ms. Carolyn O’Neal said she lives in Peacock Hill, and is manager of its water and sewer company. There are about 160 homes in Peacock Hill which get their water supply from groundwater, so water quality is important to them. She had a document from the Nature Conservancy setting out ways to effectively protect the Rivanna watershed. She presented a slide show and read from the document. They outlined things which are a threat to local watersheds: equivalent and impervious surface as a percentage of the total watershed area; forest cover as a percentage of the total watershed area; forest riparian buffer as a percent of the total watershed area; a 300 meter road buffer as a percent of the total watershed area; and, soil erodibility. The results indicate that the watersheds of Ivy Creek should be a high conservation priority. Mr. Michael O’Neal said he is a sixth grader at Henley Middle School. He attended Murray School from kindergarten through the fifth grade. He read a speech made by Mr. George Bailey at the Board of Zoning Appeals meeting on September 11, 2001 (see BZA minutes) about the size of the road. Mr. Tom Hutchinson said he will present slides (slides and copies of those slides were handed to the Board members). He said this is a relatively large area to be taken up by Faulconer. He said exhaust fumes from Faulconer Company, fumes which are highly toxic, will blow straight across Millstone Pre- school and Murray Elementary. He said small children are highly susceptible to toxic waste. Recently, they heard about what happens in the headwaters of Ivy Creek. There are streams which come through the area. He pointed out a six-foot culvert that goes under the railroad track and any spillage which might occur will go through that culvert. He pointed to a slide and asked if the types of equipment indicated are the things which are going to need repair. Everything cannot be done in the field. They do not want it to turn into what Ms. McCulley says is a light industrial operation. He then showed a slide comparing the size of two trucks. The essence of this was taken from the Commonwealth of Virginia Professional Occupational Regulations. Regardless of what the Zoning Administrator said, the Board regulates highway-heavy as one of its items. On the website Faulconer says they are a Class A construction company which also has offices in North Carolina, South Carolina, West Virginia, etc. If Faulconer is a light industrial operation, it is not licensed appropriately to operate in the State of Virginia. The whole point is that there are two items here, public pressure and a cavalier attitude. The citizens’ position is that Mr. Rieley was cavalier. Everyone knows Will Rieley. There is no way that Will Rieley and members of the Commission are cavalier. What is cavalier? Cavalier is a showing of disregard and a dismissive attitude toward the suffering of others. Some people in this room tonight have been showing that for a while. He urged the Board to do what their hearts and souls think is the right thing to do, and to deny this petition. Mr. Drew Battista said the most important issue tonight may be the scale of the proposed site plan and the size of Faulconer’s equipment. This is why Section 26.12 of the County Code and Item 8 of the Commission’s September 7 denial of the Faulconer plan are critical. He said that in Mr. Carter’s most recent letter to the Board, he exhorts the Board to overturn the Commission’s denial on the ground that the County cannot legally require that his plan address issues external to the site, mainly the inadequacy of Morgantown Road. Regardless of whether Mr. Carter’s or Mr. Kamptner’s interpretation of the law may be right, the Board cannot allow that possibility to interfere with its duty to defend the interests and safety of Albemarle County’s children. He thinks this is what Mr. Rieley meant when he added Item 8 to “see where it goes”. Mr. Battista said he did not interpret that as a cavalier attitude, but along with a majority of the Commission members it acknowledged that the matter was sufficiently vague that courts might have to make the legal determination. He asked that the Board not passively accept Mr. Carter’s argument. His particular concern has to do with school bus safety, so he will give a review of the question. Since September 7, there have been three school bus accidents in Charlottesville and Albemarle. During the past six weeks, there have been two fatal accidents in the United States. In both cases drivers were edged off of a narrow rural road and the bus rolled over. He said Morgantown Road is two and one-half feet narrower than Woodburn Road and has no shoulder. Morgantown’s narrowest points will not allow passage of a school bus and Faulconer’s heavy equipment at the same time. It took the death of a neighbor before VDOT got serious about improving safety at the intersection of Route 250 and Tilman Road. This is the intersection which will carry most of Faulconer’s heavy equipment. He asked what it will take for this Board to get serious about the safety of Murray’s Elementary School. Mr. Gary Hatter said he has spoken on this topic on several previous occasions. This is a complex, contentious issue owing in part to past oversights and procedural errors with strong legal arguments on both sides. Fundamentally this is an issue of common sense. Such a development is inappropriate and inevitably tragic from its impact on the community. During the past two years, he has been amazed at the investment of personal time and energy by his neighbors. This hall has been filled at every public hearing and that speaks volumes about the importance of this issue to the life of the community. He said there have been hundreds of hours devoted to legal research, staff interaction and countless community meetings. The other side has logged a lot of time, but that is their job. They are here because they believe in this process and in the Board. They are determined to do everything possible to oppose this dangerous intrusion. He said this use presents an extreme hazard. Executives and attorneys cannot change the basic realities of roads that are unsuitable for such enormous vehicles. Accidents involving oversized trucks and school buses and family vehicles on narrow winding roads are October 27, 2004 (Adjourned and Night Meeting) (Page 13) not a matter of if, but when, how often, and most important, how tragic. Some see this as an example of NIMBY, but it is not. It is a unique instance that merits a new acronym, NIOSY (not in our school yard). It is a complex issue but the legal merits and process debates provide ample rationale for the Board to deny this plan. He implores the Board to do the right thing. Mr. Jahan Ramazani said he also asks the Board to deny the Faulconer Construction site plan. This project is immediately adjacent to the two schools attended by his sons. He has a vital and immediate interest in making sure these plans never turn into a reality. In 1966 he entered Murray Elementary as a first grader. The school, which had just been integrated, was less than half its present size. He graduated six years later so he is happy that his own children can attend the same excellent school in the same beautiful environment. He was born and raised in Ivy where his parents have lived for 44 years and where he has chosen to raise his children. His education took him through County schools and he was a member of the first graduating class of Western Albemarle High School. Because of his family’s deep and abiding love for Ivy and the two schools, and because he has lived here nearly all his life, he is stunned by this proposed transformation of the area and its roads has gone this far. He travels Morgantown Road nearly every day and cannot imagine that anyone thinks the road could handle Faulconer’s heavy industrial machinery. He cannot image anyone would allow transportation of explosives in and out of a site immediately adjacent to hundreds of small children, or the interjection of machine noise pollutants and other non-predictable hazards into this area. Having reviewed the site plan, there is only a miniscule buffer between the site and the sensitive areas surrounding it. He cannot imagine how this could be happening in his beloved county. When he returned to teach here, he never imagined County officials might allow such a thing to happen. He is speaking to add his voice to his father’s and the other residents of the area by imploring the Board to not allow this monster project, to not risk destroying the roads and setting, and the schools in Ivy. He asked that the Board consider the potentially profound and damaging impact of the project on the immediate area and not allow it to proceed. Nothing would so betray the trust of the citizens of the County in their representatives. He hopes the Board will agree that nothing is more important than the safety of the children. Ms. Kim Houchens said she lives on Grassmere Road. She and her family live directly across the tracks in sight of the Faulconer site. At a previous Commission meeting, several members voted in favor because it was said that Mr. Faulconer bought the land in good faith. She thinks that just because someone bought property in good faith it does not mean the intended use of the site is suited for the purpose of that buyer. She said the sole purpose and proven intentions for this site are over use of the land. The community has had to vision and live with the long-term effects of this site that has already received rubber-stamp approval. What will this construction site look like in a few years? She said Faulconer Construction is well known in the area so company growth can be expected and with that will come need for more employees, more equipment, more junk, more parts, more dynamite, more chemicals, more septic issues, more pollution and runoff, more demand for groundwater, more noise, more lighting, more safety issues concerning their children, and, more traffic. The people in the community who also bought their properties in good faith will be faced with the task of monitoring this giant, out-of-place, construction company. She was told by an inspector from the Health Department that the septic system at the Dettor building located next to this site failed because there are too many people working in the building. She thinks she will have to start having her well water tested for e-coli and other hazardous materials. As to transportation, getting to the site by Faulconer employees has proven to be very challenging. When accidents start to occur, she asked that the Board members remember that the community told it many times that this would happen. Since Faulconer is using diesel fuel, what concerns should the community have because these vehicles have no omission controls? She asked that the Board deny the site plan. Mr. Don O’Neal said he would refer to Mr. Carter’s letter of appeal. Mr. Carter said “The planning staff reviewed each condition of the critical slopes waiver and each condition of the preliminary site plan. In the staff report . . . the staff found that Applicant met each and every condition.” Mr. O’Neal said he does not believe staff did its job. He said Mr. Carter was upset because the Commission did not rubberstamp the staff’s report. He looked up the duties of the Commission and found that they are to be an advisory group to the board of supervisors. It is also to improve public health, safety, convenience and welfare of County citizens. So, they are important and he wants them in the process. He thinks they did their job when they advised the Board to deny this request. In another paragraph, Mr. Carter says “It is unfortunate that the majority of the commissioners chose to give in to public pressure . . . .” He thinks the term “public pressure” sounds like the community is just throwing a tantrum hoping Mr. Sanford will not use his property. In reality, this public pressure has been focused on specific legal issues that staff and Mr. Sanford did not address. He said Mr. Evans spoke earlier this evening about the storage of explosives on the property and he wonders why Mr. Evans had to do the research on this subject. He thinks that is what staff is paid to do. He said Mr. Sanford does this for a living, so should he not know what he has to do with these explosives. Why was that not covered in the initial site plan three years ago? He said there are other issues such as safety, sound levels and aesthetic resources. None of those were put into the site plan until community members brought them to the attention of the Commission. Rather than say the Commission gave in to public pressure, a more accurate statement is that the Commissioners saw this site plan for what it is, deceptively planned, fully executed, with inadequate consideration for the neighborhood in which they want to build. Ms. Elizabeth Sinclair said she is a resident of the area. She said it has been said that right is right even if everyone is against it, and wrong is wrong even if everyone is for it. She does not believe knowing right from wrong is the problem. The problem is the human tendency to place self before others and at the expense of others. A group of folks have united to say to Faulconer Construction and the Board not to do this. Don’t value financial gain for a few above the dreams of thousands who held in their heart a vision of a quality of life when they bought their home. She does not believe the members of the October 27, 2004 (Adjourned and Night Meeting) (Page 14) Supervisors would want this site in their neighborhood. She asked that it not be put in their neighborhood. The Golden Rule is a good rule and the Board will feel good if it follows it. Ms. Beryl Solla said she is a County school teacher. She is familiar with children and what they need. She is concerned with their safety. She said this proposal is unacceptable in every possible way. There is nothing in the plan that will work for this community. She thinks it was conceived improperly on “911” and should not have been passed then. It did pass because all of these citizens were at home “freaking out” over the disaster which had occurred that day. She does not think the site plan would have gotten past that meeting if these citizens had been there that day. The plan slid through on the “auxiliary use” thing. The auxiliary use is the problem. There is no problem with an office building. Big equipment, toxins and explosives are a problem. She asked that this plan be denied and that the Board support the citizens. Mr. James Yates said he moved to Ivy five years ago to escape unchecked development in south Florida. He is appalled to see the same forces at work in Albemarle County. There are many reasons why Faulconer should not be given the right to endanger the community, its environment, and the future of the children. This is the fourth time he has attended a meeting concerning this issue. He is sickened by the prospect of another hearing in which the self-interests of a single corporation are pit against the safety and well-being of an entire community. He is shocked and dismayed that this issue has gone this far. Only those people working for Faulconer have spoken in favor of this plan at any of the meetings he has attended. Shame on Faulconer for putting profits and self-interest first, while blatantly ignoring the common good. He has watched the elected and appointed officials at all levels of government give in to corporations which similarly put profit and self-interest before the common good. This has resulted in the degradation of communities, the environment and the way of life. When communities have resisted this assault, corporations had the time and money to persist in the face of such resistance until they wore the community down. He asked that this not be another example of a corporation winning the war of attrition. He said that Thomas Jefferson and James Madison foresaw this sad state of affairs and warned of the dangers of “the moneyed corporations” and their opposition to the public interest. They saw the job of government as putting the interests of the public first. He said the Board members as elected officials are sworn to protect and serve the interests of the people, not corporations. He asked that the Board do its job and listen to the people, and put the safety and well-being of this community first by upholding rejection of the site plan. Mr. Lyle Solla-Yates said his parents live in Ivy, and he is an urban planning graduate from the University of Virginia. He read several principles from the American Institute of Certified Planners Ethics and Professional Conduct, and commented on each. First: “A planner’s primary responsibility is to serve the public interests.” A basic principle of planners is “A planner must have special concern for the long- term consequences of present actions.” He said that a big, polluting construction firm may make economic sense in Ivy now. But, will it in five years, or twenty years? Will the tax revenues make such a difference that the long-term threat to child safety and environmental quality can be ignored? He said another principle reads: “A planner must pay special attention to the inter-relatedness of decision.” Breaking zoning rules to benefit Faulconer and hurt the community will have consequences in every area. Land values will go down. Child safety will suffer. Walking will be less safe. People will use their cars more. Traffic will be a problem. There will be more accident deaths. Breaking the rules for a company is bad policy. He then read: “A planner must strive to provide full, clear, accurate information on planning issues to citizens and governmental decision-makers.” He said neighbors were not told about this for 23 days, and some were never told. He read: “A planner must strive to give citizens the opportunity to have a meaningful impact on the development of plans and programs. Participation should be broad enough to include people who lack formal organization or influence.” He said the citizens had to hire a lawyer. This would have been a classic example of a planner telling people instead of asking what should be done except it was kept secret for a while. He read: “A planner must strive to expand choice for all persons recognizing a special responsibility to planning for the needs of disadvantaged groups and persons, and must urge the alteration of policies, institutions and decisions which oppose such needs.” “A planner must strive to protect the integrity of the natural environment.” He said the EPA recently discovered that diesel emissions are responsible for 80 percent of the added cancer risk in Albemarle County. He read: “A planner must strive for excellence in environmental design and endeavor to preserve the heritage of the built environment.” He said this project violates the four principles of urban planning. He is proud of the Commission for turning it down. He asked that the Board support their decision. Mr. Peyton Taylor said he has written to each of the Board members so will not repeat himself. He sees no redeeming social value to this proposal. He is concerned about the safety of the children. He is concerned about those who reside directly on Morgantown Road. He finds the potential storage of explosives unmanageable, even with a bunker. He is concerned about the safety of the water supply. He is also concerned about the “back door approach” to the widening of Morgantown Road and disruption to the sense of community. This is a fairly small community in the County, but is a fairly close knit community which is a cross-section of the entire society. If Morgantown is widened, which seems inevitable, he does not know what that would do to the people who live there. He asked that the Board deny the plan. Mr. David Carr said he has been a resident of Glenaire since 1990. It is located just across Route 250 from the proposed project. He is concerned about the impact of this project on the public’s safety. In early September, the Planning staff said they could look at the off-site impact of this project. He thinks the Commission did the right thing in considering the off-site impacts. Legally, and as a policy matter, he thinks it would be irresponsible to ignore off-site impacts. County Code Section 26 has been cited several times. It says that if off-site roads are not adequate to handle the equipment to the site, then the project need not go forth. He does not think the Board needs to require that the roads be improved; it October 27, 2004 (Adjourned and Night Meeting) (Page 15) should simply deny the application. The Code also says site planning should provide for protection of surrounding areas from adverse impacts within the district. There will be adverse impacts on existing residences and uses. He said a property owner has a right to develop his property, but it must be done in a way so it does not harm the public good. Although an office building on this site might be acceptable, the increased traffic would be a problem. But, having a heavy equipment repair center, and moving that equipment in and out of the area, presents adverse impacts for both local residents and school traffic. The intersection at Tilman Road and Route 250 is busy and dangerous. At previous meetings, Faulconer said that they have co-existed with the Agnor-Hurt School. It was pointed out earlier tonight that the Faulconer facility and Agnor-Hurt are not on the same road. Also, in that case, Faulconer was there before the school was built. In this case, Murray School was there before this application was filed. In this case, Faulconer has a choice and the Board has a choice. He asks the Board to look at the larger picture and uphold the Commission’s denial. Most of the residents in Ivy do not want their roads rebuilt and expanded to accommodate heavy equipment. They would prefer that these uses travel on Interstate 64 and similar roads which can accommodate them. Ms. Bessie Jackson said she grew up in the Ivy Community on Grassmere Road. In the 48 years she has lived here, there have been three landfills, a wood yard, a little bit of everything. Now, all of a sudden everybody realizes what is happening to the community. When her father was seven years old, he had two fingers blown off by a dynamite cap that was thrown into the woods at the back of his house. They don’t want that to happen in this community. Her parents are still driving on this road. There is a church that is 130+ years old located on this road. Will it be shaken off its foundation? Will it be condemned in order to make way for the road to be widened? She said the Board is the elected officials, and they were elected to make a difference in the community. They need the Board to stand behind them because the community voted for the Board members. Mistress Faith Hatter said there are horses near the Faulconer plant. Terrible things can happen to the horses. She does not want to be run over. The noise will scare some kids. Please don’t let Faulconer do this. Mistress Maggie Sprindel said she does not like big trucks going down their school road. The trucks might hurt them and they don’t want to take the risk. While they are in school, they are trying to concentrate and they don’t want to hear the loud sounds of the trucks. She does not want her friends to get hurt, or any of her teachers. Mistress Rachel Cooke said Faulconer is going to ruin their community because their trucks are noisy and when they are in school, they don’t want to hear those noises. Mr. Douglas McKibbin said he has lived in Ivy for the past 12 years. He is concerned with the interaction of the oversized traffic with pedestrians, bicycles and buses on this narrow road. His children went to Murray Elementary so he has used the road many times. As a general surgeon for the past 25 years he has been called upon to treat many adults and children who have been seriously injured in motor vehicle accidents. In his opinion, the mix of traffic on this road is completely inappropriate and dangerous. He said all manage risks in their lives without consulting VDOT rules or the County Code. They do so automatically using common sense. He hopes the Board will use its common sense. Don’t wait for a tragedy to prove the point. Mr. John Tranero said he lives in Glenaire. He thinks it was unfair that the initial meeting was held on “9-11”. It should have been rescheduled. Decisions should not have been made on a day like that with so many other things happening. The road sizes are insufficient. The roads don’t have the weight capacity to carry this equipment. The vertical and horizontal alignment and the sight lines are not good for this kind of activity. The explosive storage has not been addressed. The prevailing winds will blow unregulated fumes from diesel fuel, fuel which is high in particulate matter and a cause of asthma. The Ivy Creek headwaters are at risk. The environment will clearly suffer. Unfortunately, cleanliness is not the hallmark of heavy equipment operators. The office function is actually an accessory use to the business of excavation, not the other way around. Repairs will be occurring on a constant basis. Engines will be run at high volumes and for long periods of time. The tax benefits to the County are minimal relative to the dangers. Staff appears to have rubber-stamped the applicant’s development plans. He does not think staff has researched many aspects of the plan. The adverse impacts to the public outweigh the supposed adverse impacts to the applicant. He thinks there have been insufficient attempts by the applicant to secure alternate sites. He does not think staff has made a public attempt to help this business find an alternate site. Perhaps this is not a typical staff charge, but extraordinary cases such as this need alternate solutions. He said VDOT’s purchase (of the Faulconer property on Woodburn Road) happened three or more years ago, and the bypass probably will not happen in that location. It is not realistic that this site is the only site for this business. It is an extremely mountainous site to develop. Ms. Debby Steva said she is the parent of a middle school student and a high school student who both attended Murray Elementary. She is very familiar with the roads and the character of the community. She asks that the Board think about what its decision will say to those who believe in the democratic process. Her teenage son is skeptical about almost everything. She has attended many of these hearings, and he thinks she is wasting her time because he does not think it will make a difference. She asks that the Board not prove her teenage son right and do the right thing and deny this proposal. Mr. Jack Sanford said he is the president and owner of Faulconer Construction Company. He said they have cohabitated with the Agnor-Hurt School, the SPCA, and the soccer teams for a number of years. They started on that site in 1963 when the road was a gravel road. They have never had an accident or a traffic problem on that road. He is amazed that the County just approved construction of a October 27, 2004 (Adjourned and Night Meeting) (Page 16) new 6000 square foot daycare center off of Berkmar Drive. That daycare center backs up to his property line and to their dynamite storage bunkers for which they have a permit. There have been some allegations that they will have explosives on the new site, but that is not correct. The site plan clearly states that they will only transfer explosives from an incoming supply truck to one of their vehicles to go to a job site, which is permitted. There will be no overnight storage of explosives at that site. He said Mr. Evans had his facts wrong. They have worked for three years with staff of the Albemarle Planning Commission to get this plan right. They have done everything staff has asked them to do. Critical slopes, parking, slopes on the entrance road and landscape planning is extensive. Nobody has taken the time to look at their plan and put in perspective the three dimensional aspects of the plan. He will not be able to sit in his office and look at his shop yard due to the landscaping and the topography. They are only here tonight because they are building a new building. There is actually a building there today that has space in it to rent. He could operate there tomorrow without coming to the Board at all. They had to go through the planning process because they are building a new building. They have not asked for a rezoning or a special use permit. They are on the property as a by-right tenant. He asked that the Board approve the plan before it tonight. As Mr. Davis told the Board earlier tonight, Mr. Rieley was advised by the Commission that he was out of bounds. He replied that he knew he was out of bounds, but he wanted to see where his language would take him. He thinks Mr. Davis said tonight that the language takes him no where. He said the responsibility for the state highway system in this county and all others in the state resides with the state. He asked that the Board approve this plan. Mr. Scott Syverup, cub scout leader at Murray Elementary, said he believes in business and jobs. He thinks development is important to Albemarle County. He believes in responsible business. A responsible business hearing what it has heard from this community for three years would look for alternatives to this site. This is the first time that Mr. Sanford has spoken. He asked that the Board of Supervisors act responsibly because it has to live with the responsibility for its decisions. As an emergency physician at the University of Virginia Hospital, he says consequences will happen. If the Board decides to approve this plan then it should think back to tonight if one of those accidents occur. Ms. Adelle Wood said she moved to Ivy in 1978, and to Albemarle County in 1952. She would like to reemphasize the part about the heavy machinery garage which is being called a shop. From the Faulconer website she took a picture of one of the machines which is a front shovel. She went to their references and looked up a front shovel which looks like a caterpillar. The only front shovel listed on that site is Model No. 5090B which weighs 201,900 pounds, with fuel an additional 5395 pounds. A trailer with a 50 ton capacity would be needed and it weighs 21,750 pounds, and a heavy duty rig to pull it and it would weigh 92,000 pounds, with fuel at another 937 pounds for a total of 321,982 pounds. On the way to this meeting, she walked across Morgantown Road, which took her only 12 steps to the center and 12 steps further. The trailer is 11.5 feet wide and this is a combined vehicular weight of over a quarter of a million pounds. Mr. Brandon Fauquet said he grew up in Lorton, Virginia. Ten years ago it was a beautiful place to live. It had rural country roads. People came out from Washington, D.C. on the weekends to drive through the roads. Now it is the industrial outskirts of D.C., Springfield and the rest of Northern Virginia. Roads where he used to drive on Sundays are now choked off by diesel trucks. Clifton, another town in Northern Virginia, had the foresight in their planning to keep industrial out of their neighborhood surrounded by what are the industrial areas of Manassas, Woodbridge, Springfield and the rest of Northern Virginia. In Clifton there is nothing but rural country roads, it is a historic place. Every year they have Clifton Days where 20,000 people come into Clifton for one-half a day of activities in the town. He said Charlottesville has been one of the top 10 places to live in the United States for the past three years, and it is not because of the light industrial areas that dot the rural countryside out of Charlottesville City. It is because of the beauty, the scenery and the people, the same people who are here tonight saying they don’t want light industrial areas next to their elementary schools and the threat of explosives right beside kids. He asked the Board to think about those people. Where one light industrial area might not make a difference now, what about 10 years from now? What the Board does tonight sets precedents for the future. At 8:18 p.m., the Board recessed, and reconvened at 8:25 p.m. Mr. Dorrier said if no one had anything new to add, he would close the public hearing at this time. He said the matter is before the Board, and invited comments. Mr. Rooker thanked all who came to speak tonight. He said speakers were eloquent and gave a lot of good information about the application. He does not think anyone thinks this is a good location for this use. The zoning of this site took place originally in 1970, and was rezoned again for light industrial in 1980. This is not a re-determination of the use issue. The property is zoned light industrial. There was a question of whether the activity being applied for is permitted in the LI zone. That was determined by the Zoning Administrator, and appeals to the Board of Zoning Appeals. The BZA decision was appealed to the Circuit Court which upheld the BZA. That decision is now pending before the Supreme Court of Virginia. That is the decision on the use, and that is not before the Board. Mr. Rooker said he does not think this is a good location for this particular use. He does not think it is a good location for an industrial park. He met with Mr. Sanford a number of months ago and talked to him about the possibility of staying at the Woodburn Road site. He met with the Commonwealth Transportation Board member from this district to see if it would be possible to sell that land on Woodburn Road back to Mr. Sanford. He is interested in trying to avoid having that Ivy site used for this particular use. October 27, 2004 (Adjourned and Night Meeting) (Page 17) Mr. Rooker said before the Board tonight is a site plan request. Site plan applications are not discretionary. Under the statute they are ministerial, which means that often they are determined by staff. If an applicant meets the requirements, he is entitled to approval of a site plan. In this case, the Commission called up the site plan. They went through it and added a number of requirements to the site plan approval. Those were reflected in a letter (dated September 13, 2004) which the Board has before it tonight, and which is being heard on appeal. As a matter of law, a site plan cannot just be denied. It can be approved with requirements which can be legally required under State law. The Commission recommended denial, but set out eight requirements. If the applicant meets those requirements, he would be entitled to approval of the site plan. The Board has before it tonight an application with the eight requirements. The question is whether the Board affirms the Commission which included eight requirements. He will ask Mr. Davis again if the Board can legally include that eighth requirement on a site plan. He asked if the Board can deny the site plan based on that eighth requirement. Mr. Davis said the eighth requirement is intended to prevent the use because of off-site facilities. Under Virginia law, the Board cannot deny a site plan because of inadequate off-site facilities. In his opinion, that eighth requirement as cited by the Commission is not a legally permissible requirement. Mr. Rooker asked if under Section 26.12.1, the Board could just deny the application. Mr. Davis said for the same reasons he does not believe that would be a legally valid basis for denial. Mr. Rooker said mentioned tonight were Federal law requirements regarding explosives. He asked if it is possible to add a requirement to site plan approval requiring a bunker or magazine on the site for even brief storage of explosives. Mr. Davis said that is not a requirement of the County’s ordinance. That issue is controlled by ATF regulations. If explosives were brought onto the site and are in violation of ATF, the applicant would be charged by ATF with the assistance of the County’s Fire Marshal. Those are not zoning requirements, but regulatory requirements regarding explosives. Mr. Rooker asked if the Board, as a requirement, can attach something to do with the provision of a magazine or bunker, if they have explosives on site. Mr. Davis said “no.” That is not a Zoning Ordinance requirement, but a Federal law and would not be an appropriate site plan requirement. Mr. Wyant said there is a note on the site plan that any explosives cannot be on the site more than four hours. He said the dynamite caps, which are the dangerous part, are not allowed on the site at all. They are prohibited by that note. Mr. Davis said that is what the applicant has indicated. If the applicant chooses to store explosives on site, they would need a facility as required by Federal law to house those explosives. That would require a site plan amendment for the structure itself. Mr. Rooker asked if four hours is permitted without that requirement. Ms. Thomas said “no.” The four hours was proposed by County staff in an attempt to arrive at a useful figure before the Federal regulations were fully explored. For any presence of explosives in a truck, when the truck driver gets off of that truck the truck is storing dynamite on site and that will require a separate facility. If they want to go to a separate site plan amendment for a facility to store dynamite, that would be their choice. Mr. Rooker asked if the Board chooses to approve this application, if there can be a requirement added regarding the storage of dynamite. He personally thinks four hours is too long. Mr. Davis said if the applicant chooses to store dynamite, all ATF requirements will have to be met or he will be subject to criminal prosecution. If ATF determines that four-hour storage requires a facility, the applicant will have to do that. He does not think the Board can pre-suppose a violation of Federal law. There is no requirement for this building to have that facility unless they store dynamite or explosives. Mr. Rooker said the site plan itself brings up the four hours of on-site holding of dynamite. Assuming that is an accurate representation of what might take place, can the Board impose a requirement for a facility on-site to handle that? Mr. Davis said if in fact they store dynamite there pursuant to Federal law, and they are required to have that facility, that will be a Federal requirement and not a Zoning Ordinance requirement. The facility would have to meet all Zoning Ordinance restrictions and regulations, but the Ordinance does not require that. Mr. Wyant asked if they can be required to meet ATF regulations. Can that be a condition? Mr. Davis said the note on the site plan is basically a voluntary restriction the applicant has offered to limit what they can do if the site plan is approved. It does not excuse them from Federal law. If it is a violation of Federal law for them to store it there for two minutes, they will have to deal with it. The site plan does not protect them from that requirement. Ms. Thomas asked if the applicant follows the site plan notation and has explosives on site for three hours 55 minutes, and the Board knows that is within the definition of storage of explosives on site, would the Board be remiss to adopt that site plan. The Board would have been agreeing with the breaking of Federal regulations. Mr. Davis said the Board is pre-supposing a violation. If the applicant violates the law, he will be prosecuted by the Federal government. The Zoning Ordinance does not require that type of storage facility for explosives. Ms. Thomas said she disagrees with that advice. She thinks that when the Board accepts the site plan, and it says on the site plan “storage of explosives for something less than four hours”, the Board is agreeing that there shall be storage of explosives for less than four hours. She does not think that is a proper action for the Board to take either legally, or in terms of health, safety and welfare. October 27, 2004 (Adjourned and Night Meeting) (Page 18) Mr. Rooker said there was mention at one time of a two-hundred foot buffer. It apparently was eliminated somewhere along the line. Mr. Davis said the property has a long history. In 1980 during the comprehensive rezoning that occurred in the County there was a 200-foot strip of A-1 property left in place from the prior rezoning of the County that reflected a 200-foot buffer; that buffer had been a condition of a conditional use permit granted years earlier. During that comprehensive rezoning, the A-1 strip was eliminated on the zoning map. Later, when the zoning text eliminated the use that buffer was related to, there was no longer a basis for having that condition of a 200-foot buffer because that use (which was a warehouse use), became a by-right use. When it became a by-right use, it no longer carried the conditions with it. The combination of the comprehensive rezoning in 1980, and the elimination of that special use in effect vanquished that buffer. Mr. Rooker said an issue was raised about the noise which might emanate from the site. He said that in enforcement of the County’s Noise Ordinance, the County does not pre-suppose that someone will violate that ordinance. If someone is in violation, the County has injunctive capabilities and fining capabilities. Mr. Davis said that is correct. Mr. Rooker said the Board could add a condition about noise, but it can’t presuppose that someone will violate the noise ordinance. Mr. Davis said noise is taken into account during site plan review. Mitigating factors are put into place if it is anticipated to be an issue. The Noise Ordinance prescribes certain decibel levels that are not prohibited beyond the boundaries of the property. If that noise level is exceeded after that use is in place, they will be cited with a zoning violation and be required to take whatever action is necessary to stop making the noise level that violates that ordinance. He does not think the County’s position has ever been to pre-suppose that a violation would occur. In this case, steps have been taken to try and address that issue in advance by having the sound engineers submit a report to try and address that issue in advance so the County does not approve a site which will have that problem. If that engineer’s report is incorrect and they violate the decibel level, the County will take enforcement action. Mr. Rooker said if the activity conducted on the site turns out to be different from the activity upon which the Zoning Administrator originally made her decision, can that issue come back to the Zoning Administrator? Mr. Davis said if the use on the site exceeds the boundaries of what is a contractor’s office and equipment storage yard at any time that would be a zoning violation. The Zoning Administrator has reviewed this use as it has played out and has not determined that what has been represented is different from the facts on which she based her opinion. Mr. Dorrier said a main concern is Morgantown Road and requirement No. 8 deals with that issue. He asked if there is any present plan to improve that road, anything the Highway Department is considering as a result of this request. Ms. Thomas said there are VDOT plans for putting a blinker light at the Tilman Road intersection. Otherwise there are no plans that deal with Morgantown Road. Mr. Rooker said there was discussion of the applicant voluntarily restricting traffic in some way. He asked if that potential was ever discussed by staff. Ms. Thomas said she can speak anecdotally of neighbors who have had such conversations and have not received any assurance that the trucks would not go in front of the school. Mr. Dorrier said Mr. Sanford has said that he is presently in a site that is near a public school and there is no conflict between that school and his equipment. He asked Mr. Sanford if any equipment goes by the school. (Mr. Sanford replied from the audience, but the answer was not heard by the recording equipment.) Ms. Thomas noted that the recording equipment cannot pick up answers from the audience. Mr. Dorrier said he believes Mr. Sanford said between six in the morning and six in the evening, but he is not sure whether that is constant traffic or sporadic traffic. Mr. Rooker asked if the Board makes a decision tonight that the applicant does not find acceptable, does the applicant have the right to appeal that decision? Mr. Davis said the Board’s decision can be appealed to Circuit Court. Mr. Rooker said he is concerned that the Board might make a decision tonight that is not legal, although popular, so all the Board would be doing is putting the decision over to a court. That simply drags out and adds expense on both sides to an inevitable decision. He thinks the Board needs to be careful about proceeding in a way that is contrary to the recommendations of counsel. There is a sense of right and wrong here and also a sense of what can be done legally. He thinks the Board needs to do what is right legally Mr. Dorrier said it seems the objection to the site in general is to the use for light industrial purposes, but that decision was made years ago. Ms. Thomas said she assumes the Board members want to do “the right thing.” She appreciates the civility of everyone who spoke because the stakes are high for the people who have invested money, and for the people who have their homes beside this site. The history of the property is long. In the 1970s, Albemarle County had boards of supervisors who never saw a development they didn’t love (it October 27, 2004 (Adjourned and Night Meeting) (Page 19) was a pro-development board of supervisors). At that time the talk was only about a warehouse and it required a 200-foot buffer. Changes in the code which were not specific to this site, but happened either in the language of the Code or in zoning text amendments, lost that buffer. It is an example of what all live in dread of, that there will be unintended consequences to the Board’s actions. Along the way, boards of supervisors took actions that led to this situation today. Now there is a contractor’s office and equipment storage yard that is a by-right use of the property; not intended, not advisable, not appropriate, but by-right. According to the site plan there will be 16 heavy vehicle trips per day by the sort of vehicles described by one of the speakers tonight. Ms. Thomas said staff found from eight to a dozen more suitable sites with negotiable costs and zoning. The applicant chose not to go to any of those other sites. The applicant is totally sticking to the choice of using this site, and that is his choice. That does not remove the Board’s ability to use its judgment. Because it is a site plan, the Board can only rely on the site plan ordinance, which means that some members of the audience may be puzzled by the Board’s focus and discussion. The Comprehensive Plan and the Zoning Ordinance stages of decision should have looked into the many issues raised here tonight. She quoted Mr. Bowerman about a site plan in his district that eventually went to court when he said “If every site plan application were cut and dried, neither the Board nor the Commission would need to participate. These are decisions that go to leadership, both elected and appointed, to decide. Each is unique and specific.” Ms. Thomas said the Board has taken actions in the past which have gone to court. That path has led this Board to be leaders in the State, for example, in cell towers and in the protection of the reservoir. The Board is required by law to give due consideration to the actions of the Commission when dealing with an appeal of its decision regarding a site plan. A member of this Board who is a former member of the Commission once said “The Planning Commission should be upheld by the Board of Supervisors if the Planning Commission did not act arbitrarily or capriciously whether or not the Board agreed with the Planning Commission in all aspects.” If those are the standards to follow, the Board might add other standard requirements. In the Commission’s minutes is a list of items from Commissioner Marcia Joseph of things which were scarcely handled in the site plan. They show that the site plan conditions show laxness, not that they were over burdensome. Noise and storage of dynamite are still left as issues. Condition No. 8 is the one the applicant regards as too burdensome and is the focus of the Board’s consideration. She said Mr. Rooker has brought up what might be a second focus, and that is the dynamite. As to capricious and arbitrary, capricious would indicate a failure to reason clearly. This session has given Board members sufficient reasons, just as the Commission by a 4:2 vote heard and responded. Ms. Thomas said if one has ever driven down Morgantown Road, they have heard about a school (one of the separate but equal schools in the old days) which has now been through several student bodies since then. The Board has heard about school buses, the daycare center, an historic church which is right on the road, historic small houses close to the road, and a road which has no shoulders. The Board members have agreed with her that it is a neighborhood that should not have a cell tower looming over the church, and that request was denied. The Board has agreed with her to place a special speeding district requirement on the road. There are reasons which require that the traffic generated by the nature of the use of the site “shall be verified to be of a scale which may be safely accommodated by Morgantown Road as provided in Section 26.12.1”. Ms. Thomas asked if it is arbitrary, without precedent for support by staff or the law. She said the Commission acted without the full support of the staff. Staff did not tell them their action was illegal, but rather that staff could not find the words for the action the Commissioners were trying out amongst themselves. She thinks the Board members will understand that when Mr. Rieley said they would keep it in and “see what going to fly”, he didn’t know whether he was going to be voting by himself, or whether he would have other members vote with him. She thinks it shows minds at work and not a cavalier attitude. She finds it strange that the Commission could not find the words they were looking for, because in recent times staff has advised the Commission to turn down two site plans for much the same reason. There are two live precedents for which the Commission has turned down site plans in much the same situation. Those cases have not been appealed to this Board so the Board members are not familiar with them and staff did not bring them to the Board’s attention. That does not keep them from being precedents. Ms. Thomas said the first was called “Franklin Court.” It was a site plan request in 2003 with a contractor’s office, warehouse shop. Access was onto Franklin Street, which is an industrial street in the Scottsville District, on the edge of the City. The City had no problem with traffic coming onto that street. The land use designation was Industrial Service so it was by-right, but staff and the Commission denied the site plan. Their reasons related to the requirement that “each development be provided with safe and convenient ingress and egress to one or more public roads designed to reduce or prevent congestion on the public streets, minimize conflict and friction with vehicular traffic on the public street and on-site to minimize conflict with pedestrian traffic and other things with the general umbrella being safety.” Mr. Rooker asked if the Franklin Street decision was by the City. Ms. Thomas said “no”, it was by the County. The County Planning Commission and the County Planning staff in their staff report urged that the site plan be turned down because of off-site conditions. Mr. Bowerman asked if it was a site development plan. Ms. Thomas said it was a site plan. The second precedent happened on October 19 of this year. It was called “The Gabezo.” It was turned down as not having safe and convenient access and the roads October 27, 2004 (Adjourned and Night Meeting) (Page 20) that served the site are inadequate, and approval would constitute a danger to the public health, safety or general welfare. It was a by-right use. The request was for approval of a site plan for a shopping center. The relevance is that the off-site road’s inadequacy was the deciding factor. The Commission’s decision to turn down the site plan will probably be taken to court. She does not want what the Board does tonight to “be a nail in its coffin”, that is, if the Board refuses to adopt Condition No. 8 because it deals with an off- site situation, the safety factors of Morgantown Road. The Board would then make it more difficult for legal counsel to uphold County action when The Gazebo appeal goes to court. Mr. Rooker asked if in those cases the Commission simply turned down the permit without imposing requirements which if met would enable the applicant to obtain a permit. Ms. Thomas said the Commission followed staff’s recommendation which was to deny. They had reasons such as structures on critical slopes, parking, site does not have safe and convenient access which is the 4.12.6.1 that the applicant’s attorney mentioned this evening, and the road serving the site are inadequate (32.5.8.1) and approval constitutes a danger to public health, safety or general welfare (32.5.24). Those were all reasons included in the staff’s report and agreed to by the Commission. Mr. Boyd said he is not familiar with the Scottsville situation, but is with The Gazebo Place. That one was also turned down by VDOT. VDOT said they would not authorize it because of the ingress and egress to the site. He asked if that was the same situation with the site plan in the Scottsville District. Mr. Davis said that is correct. In both of those instances, VDOT refused to authorize entrance permits because the access was in violation of VDOT standards. The County has taken that position on many site plans over the years and successfully denied site plans which could not meet that VDOT requirement. That is not the case for those who oppose the Faulconer site in Ivy. VDOT has not indicated that it has any standards which cannot be met with the entrance requirement to the site. Ms. Thomas said the County might need to use its own judgment separate from VDOT’s. Mr. Davis said it is a VDOT determination as to whether they will issue a permit. Ms. Thomas said the County’s Zoning Ordinance includes the various points about having safe and convenient access. She said she had missed reading one reason because it does not relate to the Morgantown situation, that is “The entrance does not have VDOT approval.” In the County’s ordinance it says that roads serving the site shall be adequate, and that is not present in this situation. Rather than getting into the details of those, the point is that there are precedents for turning down site plans because of off-site inadequacies. That is precisely what the Commission and particularly Condition No. 8 did do for the Commission. She thinks the Board has a precedent. She will argue that the Board can be responsive to its own ordinances, and to its public charge to consider safety and welfare over all else. The Board can fit its appellant status which is that it shall consider the Commission’s action. With all of those conditions, she thinks the Board can uphold the Commission’s action on the Faulconer Construction Company site plan. She has gone through all of this and she assumes the Board members would want to do the right thing, if only it could find a way to do so. She is sorry that it seems to be her, a total amateur, against the Board’s legal staff, but having found these precedents, she thinks the Board has the grounds for action and that it should do what is the right thing. Mr. Dorrier asked Mr. Davis if there is any legal way to limit the truck traffic to certain non-school hours. Mr. Davis said that is beyond the scope of site plan approval for a by-right use. Mr. Rooker said the difficulty he has with Condition No. 8 as worded is that it says “vehicles coming to the site shall be verified to be of a scale that may be safely accommodated by Morgantown Road.” Who does the verification in that case? Ms. Thomas said she thinks the word could be changed somewhat on that condition. It is because of the designated use of the site that the vehicles are going to be larger than the road. Mr. Bowerman asked the criteria that would say the vehicles are too big or too wide. Ms. Thomas said it might be the same as the Commission used in the other cases. Mr. Rooker said in The Gazebo situation, he thought they were dealing merely with the point of access of the development onto the service road by I-64. A condition could pick up the exact language of Section 26.12.1 and say “The applicant shall demonstrate the pavement widths and strengths of both internal and external roads shall be adequate to accommodate projected traffic generated from the site.” He asked Mr. Davis if that language would have a better chance of withstanding a legal challenge than the wording of the existing requirement. Mr. Davis said that language is more consistent with the ordinance. However, he has to advise that if that is the basis for denial based on off-site public facilities, the case law is very clear, that is not a proper basis for denial of a site plan. Ms. Thomas asked why staff has used that as the basis for denial and recommendation of denial, and the Commission followed through without being told they cannot do it in at least the two cases she mentioned earlier. Mr. Davis said it was done in conjunction with a VDOT denial of safe and convenient access. Ms. Thomas said she doubts staff went to VDOT in this case to be told that this is a road that is appropriate for the size or weight of the trucks going on it. She said it does not take a highway engineer October 27, 2004 (Adjourned and Night Meeting) (Page 21) to know that the narrow residential Morgantown Road is an inadequate road for the vehicles that sixteen times a day will be traveling on it if the site plan notation is accurate. Mr. Rooker asked if VDOT has looked at this. Mr. Davis said Mr. Fritz can explain VDOT’s relationship to staff’s review process. Ms. Thomas said she understands that VDOT did not say the road is inadequate only because of Faulconer, the road is already inadequate. Mr. Fritz said that is essentially correct. Mr. Rooker asked if it was VDOT’s position that the road is already inadequate so they would find this additional use to be against safety, health and welfare because the road is already inadequate. Ms. Thomas said that is correct. Mr. Fritz said that is essentially correct; VDOT’s comments were limited largely to the entrance. Mr. Rooker asked about a condition with language that tracks Section 26.12.1, basically saying the applicant must establish that the pavement widths and strengths of both internal and external roads shall be adequate to accommodate projected traffic generated from the district. That picks up the ordinance language, word for word. Ms. Thomas asked if that creates a total rebuilding of Morgantown Road which would destroy an historic African-American community. She does not want the wording to be such that it says the applicant shall widen the road. Mr. Rooker said he thinks existing Paragraph 8 is problematic. He does not know who would verify vehicles to be of the size and scale that could safely be accommodated by Morgantown Road. That language does not track the ordinance that the Board is relying on. He has difficulty telling an applicant he cannot do something because of a condition, yet he cannot repair the condition. This would be saying the Board does not want either side of this; it does not want an unsafe road, and yet it does not want the applicant to make it a safe road. Ms. Thomas said the idea is to have the applicant make the vehicles safe for the size of the road where he has chosen to put his business. She thinks that is why Paragraph 8 was worded that way. It could be reworded in terms of how to define the vehicles. She does not think vehicles come into the site, but vehicles which are part of the use of the site more accurately describe what is needed. Coming to the site might be delivery trucks or things over which the applicant has no control, whereas vehicles which are integral to the use of the site would be vehicles under the applicant’s control. Mr. Rooker said he thinks that is a difficult distinction to make. Mr. Dorrier said he tends to agree with Mr. Rooker that it makes no sense to deny the application which the Board knows will be appealed to court, and the Board will lose in court. It is a futile proposition. If the Board can deal with No. 8 and come up with language that addresses the large vehicles, the Board can protect the public and still approve the application. Mr. Bowerman said he thinks the Board will be in court anyway. Mr. Rooker said he is not comfortable imposing a condition that is consistent with Section 26.12.1, but he thinks it would be disingenuous to impose a condition that would in effect say the applicant cannot cure the condition. Ms. Thomas asked Mr. Rooker to read again his proposed condition. Mr. Rooker said if the Board is relying on Section 26.12.1, simply pick up the language “The applicant shall demonstrate the pavement widths and strengths of both internal and external roads shall be adequate to accommodate projected traffic generated from the site.” Mr. Bowerman said the Board knows the applicant cannot do that. Ms. Thomas said if that leads to an attempt to widen Morgantown Road all the way from one link to the other, she thinks the Board is assuming that is an expensive undertaking, but it is dealing with a construction company that does that for a living. She does not think it was the intention of the Commission that the neighborhood be turned upside down for the sake of a new industrial use in its industrial park. She does not think that was ever the intention in any part of the Zoning Ordinance, rather the intention of the site plan section that limits the Board’s ability to act is surely to defend the existing uses and neighborhood against inappropriate, dangerous situations. Maybe Section 32.5.8.1 that says “roads serving the site are inadequate” would be a better condition to impose. Mr. Bowerman said it needs to be something the applicant can do. Mr. Rooker said that even then he does not think that prohibits the applicant from improving the condition. Mr. Wyant said there have been large tractor trailers going in and out of Dettor, Edwards & Morris over the years. He was told that instead of going east on Morgantown, they were conditioned to going west on road. He asked if the Board could, at a minimum, make that requirement. He does not want to see Morgantown Road widened. He also does not want to see the kids put in harm’s way. October 27, 2004 (Adjourned and Night Meeting) (Page 22) Ms. Thomas said Westvaco has a site there also, and they have agreed that they would only go east on Morgantown. Mr. Dorrier asked if it would be a one-way road. Mr. Wyant said “no.” The contracting firm’s only access and egress would be from Tilman Road. It is a shorter path, and does not go by the school at all. He would strongly encourage Faulconer to make such an agreement. Mr. Sanford asked that he be heard. He hears the concerns and understands the situation at Westvaco because they have traveled into Westvaco for a number of years. He said they are not willing to make a concession to go east on Morgantown Road because they are a taxpaying citizen and the State of Virginia licenses their trucks and they designate which roads they can travel on. It makes no sense for them to go east on Morgantown Road with heavy dump trucks or tractor trailers and equipment. It is not their intent to go east. He would agree to a condition that they turn left and go west out to Route 250 with those heavy loads. That is what they intend to do. He does ask that his personal car or a pickup truck or somebody visiting their office, or delivery trucks that he has no control over, be exempted. They would have no way of verifying that traffic pattern. As for their internal use, they will go to the west with the heavy trucks. They don’t want to interact with the school, and he does not want to disrupt Morgantown Road or change the complexion of that neighborhood. He will consent to an agreement or an amendment to this proposal that they take their internal trucks to the west. He has no control over any other delivery truck that might be in that park. He is not the only tenant in the park. Mr. Jahan Ramazani stood and asked to be heard. He said such a concession would do nothing to address the central issue which is buses encountering massive trucks whether or not that equipment goes one way or the other way, the buses on Morgantown Road go each way. This would do nothing to address the concerns. Mr. Rooker said he would be comfortable with a Condition No. 8 that picked up the language of Section 26.12.1. Mr. Dorrier asked Mr. Rooker to read the language of Section 26.12.1. Mr. Rooker said the language says “The applicant shall demonstrate the pavement widths and strengths of both internal and external roads shall be adequate to accommodate projected traffic generated from the site.” Mr. Bowerman said the Board members need to understand that would be denial of the site plan because the applicant can’t do it. Mr. Boyd asked for a clarification. Mr. Bowerman said if there were a Condition No. 8 as Mr. Rooker has read straight from the code, there is no way the applicant can meet that condition. There is a way he could meet it, but all know that Morgantown Road will not be improved or its geometrics changed. Since the applicant can’t do that, the Board might as well deny the site plan. Mr. Rooker said there is no question that the Board will deny the application based upon the first seven requirements. The question is whether this Board will add a requirement to that denial. If the applicant came back and met the requirements, the site plan would be approved. That is the status of the site plan at this time. The Commission did not just deny it, but said if the applicant could meet their eight requirements, the site plan would be approved. The question is whether the Board wants to go with the first seven requirements, change any of those requirements, or add a requirement. Mr. Davis said the only issue he has with that condition is that the condition would refer to what is adequate to accommodate the traffic. He is unaware of the County having any standards for VDOT roads other than VDOT standards. He assumes that VDOT would make that determination. Mr. Rooker said he thinks VDOT should be required to make that determination. He thinks that in this case they have not done so. He is bothered that VDOT was not willing to act in this case because the road was already inadequate. To him that does not seem to be a strong reason. At a minimum, he thinks the Board should put that decision to VDOT. Mr. Davis said he just raised that point; VDOT may say the road is adequate. He does not know what VDOT would say to that question under these circumstances. If VDOT says they are inadequate, then the Board clearly has the issue of whether the County can require off-site improvements as a condition of site plan approval. That issue will be clearly before the courts. He feels obligated to advise the Board that that issue has been clearly decided. Ms. Thomas asked if the same would hold true for the citations used by the Planning staff in the other cases where staff recommended denial based on such things as: the site does not have safe and convenient access; roads serving this site are inadequate; approval constitutes a danger to the public health, safety or general welfare. Mr. Davis said the same thing would hold true if that were the sole basis for the denial. Staff tries to address as many public safety issues as it can. They raise issues which are beyond the scope of the October 27, 2004 (Adjourned and Night Meeting) (Page 23) Zoning Ordinance. Staff goes as far as they can in these matters to address these concerns. However, if it comes to a posture where the sole issue is whether there are off-site improvements which are necessary that go beyond entrance requirements that are regulated by VDOT in the site plan process, that is a different situation. Ms. Thomas said these reasons are add-ons but not sole reasons for turning down a site plan. Mr. Davis said in the staff reports, staff cites every reason that may be the basis, but off-site improve- ments is never the sole basis. Ms. Thomas said there are eight reasons set out in the letter for denial, so No. 8 is not the sole reason either even though the applicant has said the first seven can be met more easily than the eighth, but there are eight reasons. The Board could add one about dynamite storage and then there would be nine. That is far from having a sole reason, or the Board could add the three she has been referring to. Mr. Bowerman said Mr. Davis has said the Board cannot put the explosive issue on it because the ordinance does not require it. That is a federal requirement. Ms. Thomas said they will have to come back for another site plan approval when they find they need a bunker. They might prefer that the requirement be put on at this point. Mr. Dorrier asked Mr. Davis if changing No. 8 to read “Vehicles coming to the site shall be safely accommodated by Morgantown Road as provided by Section 26.12.1” would work. Mr. Davis said he does not think that changes the substance of the requirement. Ms. Thomas said she would like to get a sizeable enough vote for this to reach some agreement among the members this evening. She is willing to go with the Chairman’s suggestion, or with trepidation, Mr. Rooker’s suggestion. Other Board members have not said which of these proposals would win some further support. Mr. Dorrier said he could support No. 8 if it read: “Vehicles coming to the site shall be safely accommodated by Morgantown road as provided by Section 26.12.1” along with the other seven. Mr. Bowerman said he has an obligation to uphold public safety, but he also has an obligation to do what is lawful. At this time, he does not know if that were made a condition if that would automatically be adjudicated and the County lose. He has heard that it would not be. Mr. Dorrier said it knocks out the verification part, and says vehicles shall be safely accommodated by the road. Mr. Bowerman said he does not believe VDOT will say that. Mr. Rooker said the question is who makes that determination. Mr. Bowerman said it will not be the County. Mr. Rooker said the County has no standard to use in making such a determination. There is a standard in Section 26.12.1. If the Board is going to impose a condition which somewhat encompasses what is intended by No. 8, it is on firmer ground if the language is tied directly to the ordinance. Mr. Bowerman said the Commission’s action was to deny approval of the petition, and they gave a remedy for it with the eight conditions. What would the Board be proposing? Mr. Rooker said he thinks that ultimately VDOT should make the determination as to whether or not the traffic from this site can be safely accommodated. Mr. Bowerman said the Board would then deny the application and agree with the Commission without changing the wording of Condition No. 8. Mr. Rooker said that is what he is suggesting. He thinks there is no question that the Board is of a mind to deny the application. What are the requirements is the question. He does not think there is disagreement on the first seven. Mr. Wyant said that for large heavy loads and wide loads VDOT requires a permit. That is not done at the local level, but the permits are issued from Richmond. So, either the District Office or Richmond would make that determination before issuing the permit. Mr. Rooker said VDOT has an objective set of criteria for making those determinations. Mr. Wyant said they consider the capacity of the bridges which will be crossed, and the route from one site to another. The wide loads that are seen on the roads all the time don’t just stay on the interstate highways. They have to get onto the secondary roads. Ms. Thomas said combining that with what Mr. Rooker has been saying might get the Board an objective standard for No. 8 with wording from the County’s own regulations. Mr. Rooker asked if Ms. Thomas wished to put forth a motion. October 27, 2004 (Adjourned and Night Meeting) (Page 24) Ms. Thomas said she thinks her constituents are expecting her to do so. However, if she proposed a motion and it failed by a 3:3 vote, it failed. She would prefer that someone else make a motion. moved Mr. Rooker then for denial of SDP-2004-023, Faulconer Construction Final Site Plan, with the inadequacies and requirements set forth in the Planning Commission action dated September 13, 2004, Nos. 1 through 7, with a modified No. 8 that says: “Pavement widths and strengths of both internal and external roads shall be adequate to accommodate projected traffic generated from the site.” second Mr. Bowerman gave to the motion. Ms. Thomas asked if it should also say “as provided by Section 26.12.1.” motion Mr. Rooker added to the the language “... as provided by Section 26.12.1 of the Albemarle County Code.” Mr. Wyant asked for a clarification. If the applicant meets these conditions, is the site plan approved? Mr. Rooker said if the Board voted to uphold the Planning Commission action and the applicant met the eight conditions, the site plan would be approved today. What this motion does is modify No. 8 to conform to Section 26.12.1 which he assumes will ultimately be a VDOT determination based upon their criteria. Mr. Davis said as a point of clarification, if this motion is approved by the Board and the applicant submits a revised site plan showing the eight revised criteria, that site plan would be approved by staff. Is that Mr. Rooker’s intent? Mr. Rooker said if the applicant had met the requirements of the Planning Commission action they would be entitled to approval. Mr. Davis asked if the Board is requesting that it be handled in any other way. Ms. Thomas said it would be nice to have legal advice if there is some other way this can be handled. She thinks Mr. Davis understands the Board’s intent. Mr. Rooker said he thinks the Board is asking that staff or the applicant obtain a determination from VDOT concerning compliance with the description in Code Section 26.12.1. Somebody in the audience asked if this would go back to the Commission. Mr. Dorrier said the law is that this is a ministerial action if the applicant complies with all of the conditions. Mr. Davis said the ordinance does not address this situation clearly. The way it is normally handled, once conditions cited are met, staff can administratively approve the site plan. Mr. Rooker said the Commission has the right to call that site plan back if they want to. Mr. Bowerman asked if that is true. Mr. Davis said a condition of preliminary site plan approval can be to have the final site plan brought to the Commission for review. That was a condition in this process. The Commission has done that. The site plan has been appealed beyond them. The Board is now the deciding board in this matter. The process can be modified and the Board takes the position that the final site plan comes back for it to review or the final site plan can be approved by staff. The ordinance sets out no process for the site plan to go back to the Commission, but the Board could ask the Commission to review it and advise this Board or staff as to whether or not they feel those conditions have been met. It is not the Commission’s decision at this time. Mr. Bowerman said if the site plan is passed with those conditions, he does not think it needs to come back to the Board. He wonders now if that is the kind of motion he wants to support. Ms. Thomas said No. 8 as written by the Commission deals with vehicles, and not with the road. The Board has been told in the staff’s report that the road is already inadequate. Maybe VDOT will take some action to verify that the road is inadequate. What the Commission suggested was that the burden be on the applicant to verify that their vehicles could be safely accommodated by Morgantown Road. She said Mr. Wyant said earlier that VDOT can make that determination. Mr. Wyant said VDOT generally issues permits to move over secondary roads all over the state. So if there is a wide load and pilot cars are needed, there may be a certain time of day when that can occur. If there is a 20-foot wide road, the applicant would not want to move something 16 feet wide over that road. VDOT ran into this problem many years ago when moving double-wide homes, but they could not be denied because the homes had to get to their site. That is what VDOT will end up doing; it will issue a permit subject to conditions. Ms. Thomas asked if they would need pilot cars. October 27, 2004 (Adjourned and Night Meeting) (Page 25) Mr. Bowerman said whatever they are doing now is the way they should be doing it. Mr. Wyant said when VDOT issues a permit, they have certain conditions attached. Mr. Bowerman said he has seen the Faulconer vehicles moving around town with the wide trailer and there are no pilot cars. Mr. Wyant said they may have a general permit, so they only get a permit once a year. Ms. Thomas said it sounds like either way VDOT will be making the call on No. 8. That answers the question of whether vehicles can be verified to be of a scale because VDOT can verify that through its permitting system. Mr. Rooker said it may be a meaningless condition. If Faulconer is permitted to travel on secondary roads, are they then not verified by VDOT? Who does the verification? If it is VDOT, it seems the permitting process is to allow vehicles to travel on secondary roads or only primary roads or only under bridges of a certain height. He is not sure the existing Commission requirement cannot be easily met. Mr. Bowerman said the motion could be changed to incorporate the Commission’s original language. Mr. Rooker said he is more comfortable sticking with Section 26.12.1 of the County Code. Ms. Thomas said at least that is a County regulation. Mr. Bowerman said that motion is on the floor. Mr. Dorrier asked if there were any further discussion. Mr. Boyd asked if the motion is to deny the application with the seven conditions, plus adding the eighth one which has been modified as stated by Mr. Rooker. Mr. Rooker said that is correct. Mr. Davis said it still needs to be clarified as to how the Board wants a resubmittal of the site plan handled. Mr. Bowerman said there should not be anything other than administrative approval. Mr. Rooker said he thinks it would go through the normal process for an application after requirements have been stated in a denial. If not, he envisions that the eighth condition would be something on which staff would seek VDOT’s determination. Ms. Thomas said the site plan can come back to this Board to make sure it is satisfied that the applicant meets all eight conditions. She asked if that is what Mr. Davis is saying. Mr. Davis said staff can provide that information to the Board. Mr. Bowerman asked if the site plan would come back to the Board in a state of either complying or not complying with the conditions. Mr. Davis said that is the decision the Board must make. Staff can advise the Board of its decision, or they can bring the site plan back to the Board so the Board can make the decision. Ms. Thomas said she would prefer the latter. Mr. Boyd said he has been silent tonight and guesses he should state his position. He is in favor of denying this request for a lot of reasons. It is very conflicting for him because of his underlying principles of property rights and rule of law. Sometimes those get conflicting with representative government and common sense government. He does not think this is the proper location for this particular use. He feels that with what the Board has proposed VDOT will approve it and say the road is okay. Then, he wonders, if the site plan comes back to the Board, what will the Board do? Will the Board think up another condition to delay this more? Is it fair to drag this on forever? He is tempted, because he is opposed to it, to just say “bring it back.” But, by the same token, the Board may just be setting this matter up to be overturned by the courts. Ms. Thomas said if the site plan comes back to the Board, the Board is not in a position to add more conditions. If the Board asks that the site plan come back to it, it is to verify that all eight conditions have been met. Mr. Boyd asked what happens if VDOT says that the eighth condition is met. What will the Board do then? Mr. Rooker said the Board is in that position with respect to every application where safe and convenient access is an issue, be it at the point of entry or on the road serving the site plan. VDOT, in the Gazebo case, opined that the road serving the proposed development does not provide safe and convenient access. If they make that determination here, that is an objective determination on which the October 27, 2004 (Adjourned and Night Meeting) (Page 26) Board can rely. If VDOT makes the determination the other way, he thinks there has to an objective determination on which the Board also relies. Mr. Boyd said in that case, the site plan would not come back to the Board. Mr. Rooker said it is fine with him if the site plan comes back to the Board and the Board goes through these eight requirements and satisfies itself that the eight requirements have been met. This property is in Ms. Thomas’ district and if she wants the site plan to come back to the Board, he will not oppose that request. Mr. Dorrier said he agrees. He then asked that the roll be called on the motion. The motion carried by the following recorded vote: AYES: Mr. Rooker, Ms. Thomas, Mr. Wyant, Mr. Bowerman, Mr. Boyd and Mr. Dorrier. NAYS: None. _______________ Agenda Item No. 8. From the Board: Matters Not Listed on the Agenda. Ms. Thomas said the recording system in this room is inadequate, particularly for the public to hear what the Board is saying. At the Planning Commission meeting, the recording could not pick up everything that was being said, so there were blank spots in the tape. __________ Mr. Wyant noted that all the Board members had been invited to a luncheon at The Meadows tomorrow at noon. _______________ Agenda Item No. 9. Adjourn. With no further business to come before the Board, the meeting was adjourned at 9:45 p.m. ________________________________________ Chairman Approved by the Board of County Supervisors Date: 02/09/2005 Initials: EWC