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HomeMy WebLinkAboutSP201700020 Application Special Use Permit 2017-09-18 - FOR OFFICE USE ONLY SP# dt,O 1 BOO av U SIGN# Fee Amount$ Date Paid By who? Receipt# Ck# By: ZONING ORDINANCE SECTION Application for ► Special Use ,cult:Ti �rt+rarn� IMPORTANT: Your application will be considered INCOMPLETE until all of the required attachments listed on page 2 have been submitted. Also,please see the list on page 3 for the appropriate fee(s)related to your application. Staff will assist you with these items. PROJECT NAME:(how should we refer to this application?) Re-Store'N Station PROPOSAL/REQUEST: Amend the SP2009-00034 CONDITIONS ZONING ORDINANCE SECTION(S): EXISTING COMP PLAN LAND USE/DENSITY: RA LOCATION/ADDRESS OF PROPERTY FOR SPECIAL USE PERMIT: 6115 Rockfish Gap Turnpike TAX MAP PARCEL(s): TM 558- 1 ZONING DISTRICT: Highway Commercial #OF ACRES TO BE COVERED BY SPECIAL USE PERMIT(if a portion,it must be delineated on a plat):, 4.06 Is this an amendment to an existing Special Use Permit?If Yes provide that SP Number.SP-2009-00034 m YES 0 NO Are you submitting a preliminary site plan with this application? 0 YES m NO Contact Person(Who should we call/write concerning this project?): Project Development LLC/Jo Higgins Address 2564 Mt Torrey Rd City Lyndhurst State VA Zip 22952 Daytime Phone( ) 434-326-0334 Fax#( ) E-mail musxit@aol.com Owner of Record Jeffries II LLC Address P 0 BOX 910 City Crozet State VA Zip 22932 Daytime Phone( ) Fax#( ) E-mail Applicant(Who is the Contact person representing?): Owner of Record Address Same City State Zip Daytime Phone( ) Fax#( ) E-mail Does the owner of this property own(or have any ownership interest in)any abutting property? If yes,please list those tax map and parcel numbers: Interest in parcel abutting the south property line- 55B-3 in the name of Jeffrey& Michelle Sprouse FOR OFFICE USE ONLY History: U Special Use Permits: Concurrent review of Site Development Plan? ❑YES ❑NO • County of Albemarle Department of Community Development 401 McIntire Road Charlottesville,VA 22902 Voice: (434)296-5832 Fax: (434)972-4126 Special Use Permit Application Revised 03/19/2015 Page 1 of 3 • ar ' REQUIRED ATTACHMENTS& i'HER INFORMATION TO BE PROV 1:.1J for THE APPLICATION TO BE OFFICIALLY SUBMITTED One(1)completed& signed copy of the Checklist for a Special Use Permit. One(1)copy of the Pre-application Comment Form received from county staff 0One(1)copy of any special studies or documentation as specified in the Pre-application Comment For ❑ Seventeen(17)folded copies of a Conceptual Plan. ® Seventeen(17)copies of a written narrative with section TITLES as follows: • PROJECT PROPOSAL The project proposal, including o its public need or benefit; o how the special use will not be a substantial detriment to adjacent lots, o how the character of the zoning district will not be changed by the proposed special use,and o how the special use will be in harmony with the following; • the purpose and intent of the Zoning Ordinance, • the uses permitted by right in the zoning district, • the regulations provided in Section 5 of the Zoning Ordinance as applicable,and • the public health,safety and general welfare. (be as descriptive as possible, including details such as but not limited to the number of persons involved in the use,operating hours,and any unique features of the use) • CONSISTENCY WITH COMPREHENSIVE PLAN The proposed project's consistency with the comprehensive plan, including the land use plan and the master plan for the applicable development area; • IMPACTS ON PUBLIC FACILITIES&PUBLIC INFRASTRUCTURE The proposed project's impacts on public facilities and public infrastructure. • IMPACTS ON ENVIRONMENTAL FEATURES The proposed project's impacts on environmental features. One(1)copy of the most recent recorded plat,that shows the Deed Book/Page Number, of the parcel(s) gP ( ) composing the proposed project,or a boundary survey if a portion of one or more parcels compose the proposed . 11 project,both of which shall include a metes and bounds description of the boundaries. One(1)copy of ownership information(if applicant is not also the owner). If ownership of the property is in the name of any type of legal entity or organization including,but not limited to, the name of a corporation,partnership or association,or in the name of a trust,or in a fictitious name,a document acceptable to the County must be submitted certifying that the person signing below has the authority to do so. If the applicant is a contract purchaser,a document acceptable to the County must be submitted containing the owner's written consent to the application. If the applicant is the agent of the owner,a document acceptable to the County must be submitted that is evidence of the existence and scope of the agency. Please attach the owner's written consent. See Attachment A in the Land Use Law Handbook for more information. ® As the owner/agent I certify that any delinquent real estate taxes,nuisance charges, stormwater management utility fees,and any other charges that constitute a lien on the subject property,which are owed to the County of Albemarle and have been properly assessed against the subject property, have been paid. PLEASE CONSULT THE LIST OF ITEMS WHICH WILL BE REVIEWED BY STAFF FROM THE LINK BELOW: STAFF ANALYSIS OF ZMA& SP REQUESTS Special Use Permit Application Revised 03/19/2015 Page 2 of 3 • !"` r 1 Owner/Applicant Must Read and Sign I hereby certify that I own the subject property,or have the legal power to act on behalf of the owner in filing this application. I also certify that the information provided on this application and accompanying information is accurate,true, and correct to the best of my knowledge. By signing this application I am consenting to written comments, letters and or notifications regarding this application being provided to me or my designated contact via fax and or email. This consent does not e lude such w itten communication from also being sent via first class mail. Signature of Owner/Agent or Contract Purchaser Date L-V\ A9k/K)LASe- (41734) — (t, (P Print Name aytime phone number of Signatory Required FEES to be paid once the application is deemed complete: What type of Special Use Permit are you applying for? ❑ New S.ecial Use Permit $2,000 ❑ Additional lots under section 10.5.2.1 $1,000 ❑ Public utilities $1,000 ❑ Day care center $1,000 ❑ Home Occupation Class B $1,000 ® To amend existing special use permit $1,000 ❑ To extend existing special use permit $1,000 ❑ Farmer's markets without an existing commercial entrance approved by the VDOT or without existing and adequate parking $490 ❑ Farmer's markets with an existing commercial entrance approved by the VDOT and with existing and adequate parking $110 U Signs under section 4.15.5 and 4.15.5A(filed for review by the Board of Zoning Appeals under the Variance Schedule) $500 To be paid after staff review for public notice: Most applications for a Special Use Permit require at least one public hearing by the Planning Commission and one public hearing by the Board of Supervisors. Virginia State Code requires that notice for public hearings be made by publishing a legal advertisement in the newspaper and by mailing letters to adjacent property owners. Therefore,at least two fees for public notice are required before a Special Use Permit may be heard by the Board of Supervisors. Applications reviewed by the Board of Zoning Appeals,however,only require one public hearing and therefore require just one fee for public notice. The total fee for public notice will be provided to the applicant after the final cost is determined and must be paid before the application is heard by a public body. Staff estimates the total cost of legal advertisement and adjacent owner notification to be between$350 and$450 per hearing. This estimate reflects the average cost of public notice fees for Special Use Permit applications,but the cost of certain applications may be hither. D Preparing and mailing or delivering up to fifty(50)notices $200+actual cost of first-class postage D Preparing and mailing or delivering each notice after fifty(50) $1.00 for each additional notice+actual cost of first-class postage D Legal advertisement(published twice in the newspaper for each public hearing) Actual cost (averages between$150 and$250) D Modification or waiver of requirements-provide written justification with application-$425 Other FEES that may apply: D Deferral of scheduled .ublic hearinl at a..licant's re•uest $180 Resubmittal fees for original Special Use Permit fee of$2,000 D First resubmission FREE D Each additional resubmission(TO BE PAID WHEN THE RESUBMISSION IS MADE TO INTAKE STAFF) $1,000 Resubmittal fees for original Special Use Permit fee of$1,000 D First resubmission FREE D Each additional resubmission(TO BE PAID WHEN THE RESUBMISSION IS MADE TO INTAKE STAFF) $500 The full list of fees can be found in Section 35 of the Albemarle County Zoning Ordinance. Special Use Permit Application Revised 03/19/2015 Page 3 of 3 SPECIAL USE PERMIT CHECKLIST for Restore'N Station Water Usage SP Amendment/TMP 55S-1 3(9;4009-03 d:Adl---. ‘, Project Name/Tax Map Parcel Number ii _ `b li ler After the mandatory pre-application meeting,county staff will mark this checklist appropriately Natal' that it is clear to the applicant the information from Section 33.4(c)that must be submitted with RF the official application Name or initials of Required for Provided with staff filling out form application? application (County Staff) (Applicant) SECTION 33.4(c) X X YES NO El ❑ Fs A narrative of the project proposal,including its public need or benefit; ❑ f �' A narrative of the proposed project's consistency with the comprehensive plan, �) including the land use plan and the master plan for the applicable development area; 0 I[ '—/ A narrative of the proposed project's impacts on public facilities and public infrastructure. El ❑ ('-y A narrative of the proposed project's impacts on environmental features. ❑ 0 ('" A narrative of the proffers proposed to address impacts from the proposed project. ❑ One or more maps showing the proposed project's regional context and existing natural and manmade physical conditions; ! ❑ n/ A conceptual plan showing,as applicable: ❑ ID the street network,including dreulation within the project and connections to i--, existing and proposed or planned streets within and outside of thero P kms; 2)typical cross-sections to show proportions,scale and streetscape/cross- U ❑ ., i 1 sections/circulation; 1 ❑ El 3)the general location of pedestrian and facilities; ❑ CD1 Er • 4)building envelopes; - ❑ ❑ ❑ 5)parking envelopes; ID11 ❑ 6)public spaces and amenities; ❑ ❑ ❑ 7)areas to be designated as conservation and/or preservation areas; SPECIAL USE PERMIT CHECKLIST 04/2013 Page 1 of 2 . 1 ` • •18) uaf s�onrswater f �• - c �`:'. _ an separate exhibit rather an ElEl r---� 9)conceptualon concc;ept plan ( � if applicable-can be part • separate e • rather than on concept plan Other special studies or d ., -•"--;:-'z . , ' applicable,and any other information identified as necessary by the county on the pre-application comment form. Water analysis for existinguses and / .-� © additional • ....__• uses 1p( r-444 1 r / Please note: There are additional submittal requirements outlined on the official application for a Special Use Permit. Read and Sign I hereby state that,to the best of my knowledge,the official application submitted contains all information marked on this checklist as required for application. kle;j - Signature of person c eting this checklist Date - A. - g31-/- 3z6 - 0 33 11 Print Name Daytime phone number of Signatory SPECIAL USE PERMIT CHECKLIST 04/2013 Page 2 of 2 /w' 4,1111. 1: iH • COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road,North Wing Charlottesville,Virginia 22902-4596 Phone(434)296-5832 Fax(434)972-4126 Memorandum To: Jo Higgins From: Bill Fritz Date: August 18, 2017 Subject: Mandatory pre-application meeting for Tax Map Parcel 055B0000000100 and proposed amendment to SP200800056 The following are County staff comments regarding the above noted pre-application meeting. This meeting satisfies the requirement for a pre-application meeting prior to submittal of your zoning map amendment application ("rezoning")and/or a special use permit application. The purpose of for the meeting is summarized below: The purposes for a pre-application meeting are to:(i)provide the applicant and the county a common understanding of the proposed project;(ii)inform the applicant about the proposed project's consistency with the comprehensive plan,other relevant policies,and county regulations;(iii)broadly identify the planning,zoning and other issues raised by the application that need to be addressed by the applicant; (iv)inform the applicant about the applicable procedure;and(v) allow the director to identify the information the applicant must submit with the application,including the supplemental information delineated in subsection(c). Receiving the relevant supplemental information will allow the application to be comprehensively and efficiently reviewed. (i) Common understanding of the project The applicant wishes to modify conditions of SP200800056 to potentially allow for 9 pump stations without restriction on the number of nozzles or potentially to remove any restrictions on fueling stations other than being located under existing canopies. (Kerosene would be permitted outside of canopy areas. Have the ability to operate 24 hours a day, remove a condition that restricts overnight customer parking, remove the restriction of building square footage and instead restrict development to that shown on the approved final site plan. The following are staff comments: (ii) Consistency with the Comprehensive Plan: During the review of SP 2015-32 staff offered the following comments regarding the consistency with the Comprehensive Plan. That request involved more changes than currently proposed. However, it did have similar proposed amendments to the conditions as we discussed at our meeting on August 14th. "The zoning of this property HC, Highway Commercial is inconsistent with the Comprehensive Plan land use recommendation which directs development into the development areas. However, as has been previously stated the decision to zone this property HC, Highway Commercial has been made and the County has never initiated any action to change the zoning designation. The use was analyzed for consistency with the Comprehensive Plan. The use, as specified in the Zoning Ordinance is the consumption of more than 400 gallons of water per acre per day. The applicant is not proposing any increased water consumption above that permitted by the conditions of SP 2009-34. Based on no new use being proposed the application may be considered to be consistent with the Comprehensive Plan. It is important to remember that this application is an amendment to an existing approval. If there were no prior approvals on this site this application would clearly be inconsistent with the Comprehensive Plan because the approval of water consumption would be for uses not consistent with the Comprehensive Plan's Rural Area designation of the site. However, there is a prior approval and staff's recommendation is that this factor limits the scope of the review. Because the changes to the conditions do not alter the level of water use allowed on site staff cannot find that approval of this application would be inconsistent with the Comprehensive Plan." (iii) broadly identify the planning, zoning and other issues raised by the application that need to be addressed by the applicant: The application should include commentary to address how relief of conditions may impact daily water use. (iv) applicable procedures • Please also be advised that a Community Meeting is required as part of the review of the rezoning/SP request. It is preferred that the community meeting be held in conjunction with the Crozet Community Advisory Committee meeting. You are responsible for setting up that meeting with staff and the CAC chair. This meeting should be held, if possible, within 30 days from the date the special use permit is submitted, and can be held prior to the submittal of the special use permit application. Adjacent property owners and neighborhoods(and the Coordinating Reviewer/planner)should receive advance notification of this meeting (date/time/location). (v) Identify the information the applicant must submit with the application, including the supplemental information In addition to the information required by the ordinance for a completed application please provide commentary to address how relief of conditions may impact daily water use. Submittal of water use figures may be helpful to the review. Information on the characteristics of the proposed fueling positions may also be helpful. If you have any further questions, please contact me. Jeffries II LLC TM555B-1 MAP \ 720 ft. * 4 �A 6481ft "..-!,,,z-,,,,,,,.,,,' o' C§ 0-1;0S __ �Q „ 55E -�A2 L .%,„, r C �, J 61 " , 64 �� �JQ 5617F- io, S � $5 _c 712,ft �i Fl. .p Ott 1 55E=01 Al 7 -ft -arr. o ik\_tr., \....\ b 1-` �/✓ G�;, ,I V: Henle 557103F P�' �` f . sy." -:.4.•�a`x LP� gy.' tet• "`m` �'yii Mkt F 55-104A1 .� �� - Q 6082 P.tPKE�� 6�.. X03 /p _ ��� N:pP [ 65A-��0.1 '7' ? rRpCK�ts ---1 N. --^' fi084K ft !8 N 6098 _.----_-.----. . -70: -6 -� i�' '' v` / 556-19 55-106-n. -�---'- . .u`'55=103D•tm 720- t 6037 / �"• "�- ''6254 'o, i, � © 6059 5B-16 ` ;�`f� 'T?, / 6286 /� / S 1 556=17 ` /� ;D `...'- ,-� �'�?+�-�� ro•d. � f r680 \gyp 5: � _�---- 1, I I �,ORp'L-N 61�1 . 6135 `. ��.: - � (� 5 B 16A55-110 d ! 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No expansion of the development is proposed and no change to the Site Plan approved 3/28/13. After operating for a period of years to establish the water use, the water usage data (See Attachment C) proves that the 250 GPD average usage and a peak usage of 383 GPD is only 24% of the 1,625 GPD allowed for this site. This request is to modify the permit conditions to provide relief from the (involuntary*) conditions as they are unreasonable and disproportionate** to the water use. One (1) gallon of water was all the special use granted above the volume allowed for 4.06 acres -since it has not been used —there is no impact from the development on this site to mitigate. To address the items per application instructions: o its public need or benefit; This 4.06 acre is zoned Highway Commercial and provides service to the community. There is no changes proposed to the site plan. This business is located on property zoned for uses as exist and it does generates significant tax revenue that is anticipated in the County budget. This business provides employment to 9- 10 people in its operation. o How the special use permit will not be a substantial detriment to adjacent lots; This property has been used for commercial purposes since before the ordinance was adopted and is designated as Highway Commercial zoning. Its current use as convenience store with gas sale and office meets current site development requirements. Specific measures were incorporated into the site design such as fencing, screening plantings, and buffers as required by the ordinance to site design standards. There is an existing 6ft high board-on-board privacy fence, an undisturbed buffer along the South and West edges where trees were protected during development, and screening trees planted along the rear(eastern border). The planted buffer trees and the original protected trees have grown significantly since 2013. Adjacent lots—to the East is HC zoned property current use is vehicle storage, to the North is HC zoned property current use is convenience store with gas sales, to the West is RA zoned property current use is brewer operation, to the South is RA zoned property current use is residential. o How the character of the zoning district will not be changed by the proposal special use,and The character of this section of RT250 is substantially commercial although outside the growth area. The east abutting parcel is HC, with several other HC parcels to its east. The west abutting parcel is zoned RA currently a brewery operation with HC parcels on its west side, then industrial zoning properties more to the west. Directly across the road is HC zoning convenience store. The existing use on this parcel is convenience store/office will not change the character of the zoning district. o How the special use will be in harmony with the following; • The purpose and intent of the Zoning Ordinance, The intent of the ordinance is to provide measures such as setbacks and other regulations to dictate zoning buffers and screening requirements have all been met. The ordinance also dictates that under HC zoning it is necessary should any use not served by public water exceed 400 gallons per site acre per day to obtain a special use permit to allow an increase in the volume of water it exceeds by. In this case, this 4.06 acre site can use up to 400 x 4.06= 1,624 gallons per day. When proposed in 2008, water studies done at that time to show it will operate within the limit of 1,624 GPD. Regardless, Zoning determined it would"likely exceed"and obtaining a special use permit was a condition of the site plan approval. For the record, the special use permit request provided water data showing the 1,624 gpd would not be exceeded but in order to enable a permit— 1 single gallon per day was requested. SP2009-00034 was approved in 2010 with conditions. • The uses permitted by right in the zoning district, The underlying uses of convenience/retail/office uses are by right in this HC district. Over a period of years, it has been proven that the development uses only a fraction of the water allowed so this is to 1 e request relief from a few of the conditions imposed. No change the water usage amount is requested. No change the site plan. The development remains in harmony with the HC zoning district. • The regulations provided in Section 5 of the Zoning Ordinance as applicable,and All have been complied with. • The public health,safety and general welfare. The development of this site included improvements to the public road RT 250 for a VDOT approved entrance that provides safety measures that do not exist at the entrances to other commercial properties on this stretch of RT 250. It is the only convenience store of the 3 in proximity that meets the parking requirements on-site rather than having vehicles park in the state right of way. • Impacts on Public Facilities&Public Infrastructure There no impacts to the public facilities for the amendment to the SP conditions. • Impacts on Environmental Features There are no impacts on environmental features. Please refer to the map provides which shows there are no stream buffers or critical slopes on this property. *Involuntary-The Albemarle County Land Use Law Handbook,:Pg 12-6,Section 12-610:states - "Unlike proffers that accompany a rezoning considered by the locality's governing body,special use permit conditions are not volunteered by the landowner..." Only conditions 1,2,3,and 7 were voluntary in this case. All others were imposed by the BOS to mitigate impact which was anticipated but has not happened. There is no impact if the water usage is less than the 1,624 GPD. The involuntary conditions are not reasonable but rather excessive and not proportional to any impact. *" The Albemarle County Land Use Law Handbook;Pg 12-8,Section 12-620:state - "... such as a condition to a special use permit,it must be certain that these conditions of approval;(1)have a nexus that is related to the impact of the proposed development;and(2)are roughly proportional to the extent of the impact". In this case,the Special Use is the granting of 1 gallon of water in excess of what can be used by-right. The only reason that 1 gallon of water was requested was NOT because Re-Store'N Station needed it to successfully operate so there was no choice but apply for the permit to complete the process for the site plan approval. 2 DETAILED DESCRIPTION: Conditions 1, 2, 3,4,7,and 8 remain unchanged. Request is to modify Condition 5 and Condition 6 to provide some relief from the restrictions as warranted. Since there is an approved site plan, Condition 9 should be updated. (See Attachment A-CONDITIONS of SP2009-00034 with requested changes incorporated dtd 9.18.17) CONDITION 1,2,3—NO CHANGE REQUESTED DISCUSSION: These conditions require a meter to measure the water usage,restrict the water usage to 1 GALLON above the by-right amount for a total of 1,625 GPD,and require a flow restriction device so the water limit of 1,625 GPD can never be exceeded. The peak usage of 383GPD proves that the water allowed has not been used. It means that the one(1)gallon that was added by the special use permit has never been needed. With a flow restriction device,it is impossible to exceed the 1,625 GPD. CONDITION 4— NO CHANGE REQUESTED: DISCUSSION: This was not a voluntary condition. At this time,there is no request to modify as no change to the site plan is proposed. CONDITION 5—REQUEST IS TO ALLOW 4 ADDITIONAL HOURS OF OPERATION&NOT RESTRICT THE PUMP STATION OPERATION; DISCUSSION: This was not a voluntary condition. Currently the store operates 16 hours per day.This request is to allow 4 additional hours for a total of 20 hours AND to NOT restrict the fuel pump operation so service to credit card customers is allowed when store is closed. As it relates to store hours,the store would not operate between 12:30am and 4:20am which is consistent with Condition#8. Allowing 4 additional hours will provide flexibility on weekends for customers after sporting events and other evening activities in the community. Although customer activity is least during the evening hours,the 16 hour limit currently prevents competition in the market and does not allow flexibility during the summer season. This does not mean the store would be required to stay open 20 hours but it lets the business owner decide. With water usage peak of 383 GPD which is 24%of what is allowed,4 more hours of operation will have very little impact on water usage. (See Attachment D—Engineer Review-Letter). In relation to the fuel pump stations operation- It should be noted that since the store opened in 2013 through summer of 2016,the pumps were never turned off. After hours fuel sales is standard with all convenience stores that accept credit cards so that shift workers and travelers have an opportunity to purchase fuel. When the store is closed,there is zero water usage as customers have no access to restrooms.This wording must be added to make clear the pump operation is not restricted. If the pump station restriction is not removed,the condition imposes a restriction not related to water usage in any way,it is not reasonable or proportional to the"use"which is water—it is not lawful per the Albemarle County Land Use Law Handbook„Kamptner/June 2017—Chapter 12—12-100. Pre-App Mtq Comment:STAFF ASKED HOW WILL EACH REQUESTED RELIEF FROM CONDITIONS IMPACT WATER USAGE? First—consider that Condition#3—flow restrictor makes it impossible to exceed the allowed amount of water. Second—The evening hours of the day have the lowest customer frequency. Water Analysis of the WORST case scenario(as if customers use the same water at night as during daytime hours): Based upon Peak water usage of 383 GPD divided by the current 16 hours of operation = 23.9 gallons of water per hour. Multiply 20 hours x 23.9 gallons per hour = 478 GPD. 383—478 equates to an additional 95 GPD If this worst case applied- A 20 hour operation may increase the water usage from 25%to 29%of the allowed water volume. Allowing the fuel pumps to operate after hours—not one drop of water is used. Restricting the pump operation after store hours is NOT related to water usage in any way. UNLESS THE 1,624 PDG IS EXCEEDED—THERE IS NO IMPACT. CONDITION 6—REQUEST IS TO ALLOW TWO(2)ADDITIONAL PUMP STATIONS&DELETE THE LANGUAGE RELATED TO NOZZELS SO THE PUMP STATION DESIGN CAN ACCOMMODATE ALTERNATIVE FUEL: DISCUSSION:This was not a voluntary condition. Seven(7)pump stations were allowed. Of these,only 5 serve vehicles. The other two (2)are one(1)for kerosene and one(1)for"off-road"fuel. The revised language changes the 7 to 9. The two(2)pump stations to be added will serve vehicles. More simple language to achieve the same result is to remove the nozzle quantities which is confusing. For a pump station to dispense alternative fuel,each type of fuel must have separate hose/nozzle pieces. This does not change the fact that only one vehicle can be served on each side of the pump station at any timer.Alternative fuel was specifically allowed but the language using "nozzle"quantities inadvertently prevented the installation of pumps meeting industry standards to dispense alternative fuel. Allowing 2 additional fuel pumps will not change the site layout or canopies. Fuel dispenser sheet—see Attachment E. Pre-App Mtg Comment:STAFF HAS ASKED HOW WILL EACH REQUESTED RELIEF FROM CONDITIONS IMPACT WATER USAGE? It should be stated that there is no water study that establishes a correlation between the number of pump stations and water usage.Pumps don't use water—customers use water. It is reasonable to understand that if a customer needs fuel and has to wait in line because a pump is not available,they spend more time on site and are more likely to come into the store to use the restroom. Having 2 additional pump 3 r stations are to handle fuels sales efficiently. Modem fuel pump stations/dispensers are point of service(POS)so each customer pays with a credit card at the pump—only a portion of the customers come inside to pay cash. First—consider that Condition#3—flow restrictor makes it impossible to exceed the allowed amount of water. Water Analysis of the WORST case scenario(as if each pump accounts for 1/7 of the water used): Based upon Peak water usage of 383 GPD divided by the 7 pump stations = 54.7 gallons of water per pump per day. Multiply 9 pumps x 54.7 gallons per pump = 492 GPD. 383—492 equates to an additional 109 GPD If this worst case applied-2 additional pumps may increase the water usage from 24%to 30%of the allowed water volume. UNLESS THE 1,624 GPD IS EXCEEDED—THERE IS NO IMPACT. Special Use Permit"conditions must be reasonably related to the impacts to be addressed,and the extent of the condition must be roughly proportional to the impacts." Per AC Land Use Law Handbook— Kamptner/June 2017—Chapter 12—Section 12—100 under"Key Principles to Know About Special Use Permits". Not allowing the additional pumps would not meet the"reasonably relate to the impacts"which is criteria for conditions. CONDITION 8 -NO CHANGE REQUESTED: Discussion: There is no correlation between water usage and overnight parking at this site. Per the AC LU Handbook,"conditions must be reasonably related to the impacts to be addressed". CONDITION 9—WORDING IS OUT OF DATE: There is no change proposed at this time so SDP2008—0154 approved March 28,2013 is the applicable development plan. FOR COMPARISON PURPOSES- THERE ARE TWO(2)OTHER SPECIAL USE PERMITS FOR WATER USE AT PROPERTY NOT SERVED BY PUBLIC WATER THAT HAVE BEEN APPROVED IN THIS COUNTY: See Attachment F 1) —SP2008—00033—FOR Convenience Store was APPROVED 12/3/08—WITH NO CONDITIONS. (Not even a condition stating the water limit) Allowing 1,000 gpd on this 1.18 acre site is equivalent to allowing 847 gallons per site acre per day. This is more that 2 TIMES the by right amount of water of 400 gallons per site acre per day. 2) SP2015—00012—FOR Restaurant was APPROVED 8/5/15 WITH TWO(2)CONDITIONS Condition#1 is to install a water meter and Condition#2 restricts the water usage to 5,000 gpd. Allowing 5,000 gpd on this 1.39 acre site is equivalent to allowing 3,597 gallons per site acre per day (5,000/1.39) This is almost 9 TIMES the by right amount of water of 400 gallons per site acre per day. This request is for relief from unreasonable and disproportionate conditions that are excessively limiting the operation of its store on 4.06 acres. The MAJORITY of the water allowed has not been used.The one(1) GPD added by the Special Use Permit has not been used. If the potential increase in water usage from the change to conditions is added together: 4 additional hours of operation (109 GPD) Plus additional 2 fuel pump stations (95 GPD) Based upon peak usage of 383 GPD+ 109 GPD+95 GPD =„587 GPD. The PEAK water volume will ONLY BE increased from the peak 25%to 36%of what is allowed. This is still 1000 GALLONS PER DAY LESS THAN THE THRESHOLD OF 1,625. With the historical water meter data over the past 2 years submitted,the reasonableness and proportionality of the conditions that were imposed can be clearly evaluated. The Albemarle County Land Use Law Handbook, KamptnerlJune 2017 provides the legal reference(s)to rely upon that must be used in this consideration. ATTACHMENTS: A—CONDITIONS of SP2009-00034 with requested changes incorporated dtd 9-18-17 B—SP2009—00034 Approved 11-3-2010 Action Letter dtd 11-12-10 C- WATER METER DATA dtd 9-11-17(PERIOD OF TWO YEARS) D —Letter—Engineer Review of Water Data dtd 9—15—17 E—Fuel Dispenser Product sheet F- Other Special Permits—SP2015-00012&SP2008-00033 G—The Albemarle County Land Use Law Handbook,Kamptner/June 2017—Chapter 12-Special Use Permits 4 • e CONDITIONS OF SP 2009-00034 WITH REQUESTED CHANGES INCORPORATED: dtd 9-18-17 1. The applicant shall install and maintain a meter on the well head to monitor water consumption. Prior to installation, the model of the meter shall be subject to approval by the Zoning Administrator in conjunction with the County Engineer. Results of daily water consumption shall be made available within forty -eight (48) hours of a request from the Zoning Administrator; 2. Water consumption from all wells on site shall not exceed one thousand six hundred twenty-five (1,625) gallons per day in the aggregate; 3. The applicant shall install and maintain a tamper-proof, flow restriction device limiting water flow to not more than one thousand six hundred twenty-five (1,625) gallons per day. Prior to installation, the model of the flow restriction device shall be subject to approval by the Zoning Administrator in conjunction with the County Engineer; 4. The total building footprint square footage shall not exceed three thousand (3,000) square feet; 5. _ - -_ • _-. --_ _ e _ -__- __ _ - -_ -_ ; The convenience store shall not operate between 12:30 AM and 4:30 AM except the fuel pumps may remain operational; 6. There shall be not more than seven—nine-R-9) pump stations , - •• - _ _ - • _ • - _- _ few six (4 6) pump stations for gasoline (or equivalent fuel), ' - • _ •• _ _ •- • • - 't -- _- : .ne (1) pump station for diesel fuel (or equivalent fuel), one (1) pump station for off-road diesel fuel, and with one (1) pump station for kerosene fuel; 7. If rainwater is collected from roof tops of the pump station canopies or the building, it shall be stored in a lined underground storage tank and utilized for on -site landscaping purposes only; 8. Overnight customer parking on-site shall not be permitted between the hours of 12:30 a.m. and 4:30 a.m. The applicant shall post signs indicating no such overnight parking in such places designated by the Site Plan Agent as a condition of final site plan approval; and; 9. Development of the site shall be in general accord with the SDP2008 - 0154 submitted last revised 2/20/13 approved March 28, 2013.. og • COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road,Room 227 Charlottesville,Virginia 22902-4596 Phone(434)296-5832 Fax(434)972-4126 November 12, 2010 NP Engineering 1850 Browns Gap Turnpike Charlottesville VA 22901 RE: SP200900034 RE-STORE'N STATION Tax Map 55B Parcel 1 Dear NP Engineering: On November 3, 2010,the Albemarle County Board of Supervisors took action on SP#200800056 to allow use of more than 400 gallons of groundwater per site-acre per day for convenience store on Tax Map 55B, Parcel 1 in the White Hall District. This special use permit was approved based on the following conditions: 1. The applicant shall install and maintain a meter on the well head to monitor water consumption. Prior to installation,the model of the meter shall be subject to approval by the Zoning Administrator in conjunction with the County Engineer. Results of daily water consumption shall be made available within forty-eight(48) hours of a request from the Zoning Administrator, 2. Water consumption from all wells on site shall not exceed one thousand six hundred twenty-five (1,625) gallons per day in the aggregate; 3. The applicant shall install and maintain a tamper-proof,flow restriction device limiting water flow to not more than one thousand six hundred twenty-five(1,625)gallons per day. Prior to installation, the model of the flow restriction device shall be subject to approval by the Zoning Administrator in conjunction with the County Engineer; 4. The total building footprint square footage shall not exceed three thousand (3,000)square feet; 5. The hours of business operation shall not exceed sixteen(16) hours per day; 6. There shall be not more than seven (7) pump stations and twelve(12) nozzle dispensers, with not more than eight(8) nozzles for four(4) pump stations for gasoline(or equivalent fuel), with not more than two(2) nozzles for one(1) pump station for diesel fuel(or equivalent fuel), with not more than one (1)nozzle for one(1) pump station for off-road diesel fuel, and with not more than one (1) nozzle for one(1) pump station for kerosene fuel; 7. If rainwater is collected from roof tops of the pump station canopies or the building, it shall be stored in a lined underground storage tank and utilized for on-site landscaping purposes only; 8. Overnight customer parking on-site shall not be permitted between the hours of 12:30 a.m. and 4:30 a.m. The applicant shall post signs indicating no such overnight parking in such places designated by the Site Plan Agent as a condition of final site plan approval; and, 9. Development of the site shall be in general accord with the submitted preliminary site plan dated December 6, 2009. Permitted modifications may include those required by the Architectural Review Board,those necessary to satisfy the conditions of this special use permit, and additional landscaping/screening approved by the Site Plan Agent. Please be advised that although the Albemarle County Board of Supervisors took action on the project noted above, no uses on the property as approved above may lawfully begin until all applicable approvals have been received and conditions have been met. This includes: • compliance with conditions of the SPECIAL USE PERMIT; • approval of and compliance with a SITE PLAN amendment; and • approval of a ZONING COMPLIANCE CLEARANCE. In the event that the use, structure or activity for which this special use permit is issued is not commenced within twenty-four(24) months from the date of Board approval, it shall be deemed abandoned and the permit terminated. The term"commenced"means"construction of any structure necessary to the use of the permit." If you have questions or comments regarding the above-noted action, please do not hesitate to contact Ron Higgins at 296-5832. Sincerely, NAMAPlatkikakiht . tl� Summer Frederick Senior Planner Current Development Division cc: Jeffries II LLC PO BOX 910 • Crozet VA 22932 Email CC: Elise Hackett, GDS Johnathan Newberry,Zoning . SUMMARY OF WATER METER DATA dtd 9/11/17 WATER VOLUME USED OVER THE PAST TWO (2) YEARS SHEET DATES PERIOD GALLONS Peak/Low NO READING WEEKLY NO. WEEKS PER DAY (GPD) GPD 1 OF 4 9.22.15 - 3.15.16 25 WEEKS 174 265/067 2 OF 4 3.22.16 - 9.20.16 27 WEEKS 185 206/144 3 OF 4 9.27.16 - 3.28.17 27 WEEKS 271 372/200 4 OF 4 4.4.17 - 9.4.17 23 WEEKS 266 383/143 224 GPD OVER 102 WEEKS SHEET DATES PERIOD GALLONS PEAK/LOW NO READING DAILY NO. DAYS PER DAY (GPD) GPD 1 OF 2 7.18.17 - 8.13.17 26 DAYS 265 292/188 2 OF 2 8.14.17 - 9.5.17 23 DAYS 235 289/174 250 GPD OVER 49 DAYS The existing store opened in Sept 2014. Zoning staff advised that due to the business start up period that early data could not be relied upon. The water meter readings attached are the most recent two (2) years. Annually, the GPD over the period April - Sept varies from the period Oct - March. Due to weather (such as snow) events, the GPD in Jan/Feb are lower than other months. FAQ: How do you figure out how much water per period has been used? The water meter reading is a measurement in gallons. It is accumulative so you take the previous reading and subtract the new reading. The difference is the quantity in gallons that has passed thru the meter. FAQ: Can the water meter reading be fudged or altered in any way? No,the water meter is tamper proof which is samed model used by ACSA for their customers. Since it is accumulative, there is no way to re-set to a lower reading or alter the reading in any way. FAQ: Why is the meter reading only logged once a week? Standard in the industry for water customers on public systems, a water meter reading is typically collected on a monthly basis for a monthly billing. To determine the usage per day, that reading is divided by 30. As a result, comparative water usage data is only available from locations that are served by public water and the monthly volume must be divided by 30 to determine the GPD. Weekly is equally accurate. FAQ: If the water meter reading is taken daily, will the result be different? In order to show that GPD based upon a weekly reading is equally accurate, daily readings have been loggged for a period of two months. As you can see, the GPD is consistent with the weekly readings. (SUMMARY + 4 SHEETS WEEKLY LOG + 2 SHEETS DAILY LOG) Water Meter Log TY 55 0.1 8099 Roddi9A Geo Twnolic•Crozet VA 22932 WEEKLY READINGS i Date Time Water!deter Reading (gallons) Name Week Day t$ N • `2 I ' 0 • ? . 0 " `'67 ) 1670 238.6 if Lg , O 63 • o If /Ot/6 �L� /' a��or• 0 0 �dl 3// a 7 '•,C) - 1547 221 lr •.. 1 7 P •• O t, 1631 233 ,*, , , 6 '? 7 • 0 rt fd/2?,f tI 4 3 4 0 6 t, 1s19 217 1603 229 l/lid/is f f , 9 �f ' 3 • 0 �' 16731239 i!/u7l t c u / / ._.,/ 2 3 . 0 CI 15 0 230 ,.; /, 1 4o 220 /,iZyj IL/ /t / 2. 2 / • 0 , n 1498 214 JL�r1� (� / � '- r• O ., 0•/ t 1859 265.6 /21 5/( �r / ) , t.i U 1068 152.6 & 3 f • L it 1090 155.7 / "7 . 7 y 71 o I/ 1109 158.4 //W 'l/t(,o t,( / ? • 7 Y-, 2. .'o F r 995 142.1 1 9 . 7 7 Si• Q r( 1033 147.6 2 ' /G c/ ' .mIINI I C • 0 /r 1115 159.3 /� �/b �i L Z 826 118 • 1 $ 1, • o it (snow 72/2/14 // L 2- . A C / .• d 1 667 89.9 468 95.3 x2/f/' ' /. _• 2 3 . ' I0 . O I R/�1�, it _ O . 629 89.9 ,z113�(� IF , , Z 4' • s • p l' 1057 151 ? c S 7 U • p (, 1033 147.6 V! , /16 2 , G 42 o . o 1, 1090 155.7 ,, , 2. ? , 7o ' , o „ if!</lb " • 28' , ? V (o • p i; 1044 149.1 1042 148.9 AVERAGE GPD 174 OVER A 25 WEEK PERIOD 9.22.15 - 3.15.16 SHEET 1/4 Water Meter Log TM 55 8-1 8098 Rockhit,Gap 'ufnOitte C:rezet VA.='2(432 WEEKLY READINGS Date + Water Meter Reading ;gallons Name Week Day t j,/,/ # } r� ' 'r� 4 i 1 4' Y;., t.- i .. 1_`4 1099 157 E3( 3 ,1.c.! 4 27 JISr _' r� •:4, j c� t. • 1 100 157.1 V �, ?� � r ; k . , 1085 155 t�` (' =' ._ { '� .,_ �' 2 ie,; c _,_y_.... - r: t It 1011 144.4 ttl gti4. 1e i . -, 1,, 2 ` , (e, I. oi t, 1205 172.1 ' ‘tic A-1/49 e, fir r .I V " . t c� 1194 170.6 I r # ""'S/ r i ' i :.:1; -' ''i( Ct •jF ,+J�! 1 P 1224 174.9 it-((t) J/( ,,i t 7 r r.. r t•` C' 1 r 1 195 170.7 i` tf/1 (.,ct- f t, .,. �.. -'-' ,,:c r Q, 9 ; 2. .' G 1 t 1233 176.1 ,.t-, ". __ i 6 ►.1,,�i ( , . + ' Pr1248 178.3 S"4"5.1_, _i } t ' ' J . .._.0140. C), 1 1 790 112.9 wL'_ �' ,, `�,.. _�! �' / c . u ` t ( 1385 197.9 _ !_ _ ._ �,._. . r .# 7T 1399 199.9 -•!-,...._. !__ _1•41i.- {., 3` i r G tt 1409 201.3 ' j ` i 1 } fG to; G ft 1411 201.6 / t ' 1401 200.1 7/i L11S, ! it � r c t/ 1431 204.4 .-7/1i511 ; _ �� ' • _ _. /` i. / `� ; .t U H . _.. 1348 192.6 Z / r 4,a r e 7 j r i i 414.4 ° (1 1425 203.6 I , .._. r; -7 c 1? Q t(i, 1419 202.7 r c_ t/ 1444 _ 11c � .�1 t � �,_S. 4�r i�'.-.�'r-- _,_ 206.3 i'�� t r '* c. '_ , _ �' 7 {� ? If 1395 199.3 t3161i t j'; TC-4 1 ' ' '/ ,, �' r 0j 1387 198.1 t / l ' + � T. +� �J � _,r� ' C7 j </ 1444 206.3 4,7 t 4_1_4_ ;' 4+ i...:0 it 1439 205.6 M _.._ti r 2 s " .t f 1421 203 3 , -? I•'. (-' t r 1415 202.1 AVERAGE GPD 185 OVER A 27 WEEK PERIOD 3.22.16 - 9.20.16 SHEET 2/4 Witerlister Log TWIN 61111.1baltiM Geo Turnpike Comet VA22932 WEEKLY READINGS Dem Time Water Meter Reeding ?hilt ) ;, Week Day d t -uo , _ tom. c '_ , , 3 / • o Q4,1 • 1429 204.1 ' t'' r, �a t/ 1434 204.6 a tel/// hi ' • [) 23 • d (1 1478 211.1 'O1/g/i . � 4., • � O.� t <. 1423 203.3 1O 14r 1' ' 7 C,) , R • © if 1419 202.7 //11//4 !� , ,- 7 Z ' 3 7 •, O 0 1493 243.3 i • -7 .3 , '. ,Er c 7 • O 0 1479 211.3 lL '- ,7 's- r 3 2- - • 4 l/ 1466 209.4 ft/224g ' /1 *. 7 47 . - *1 .9 • 6 . </ 1456 208 j /� 11 , It , _ .7 1S r 2 r 7 .• O rt 1478 211.1 PAMo I ' r ► 1 1 • 6, Z 3 0 i( 1366 195.1 1 20114 11 I / • C 1. 2.. . O a 1399 199.9 /t�iI(n 11 • 2. , C,1 / �'9 • 0 !l 1397 199.6 1` 7/ite , 1t , 3 , g C) . a 11 1461 208.7 3/02 . 11 , I7 • 1 2 .S . 4 to 2245 . 320.7 • r 2 • 0 if 2299 328.4 • IiIIi 11 ' _ 9 0 • Er / Z 0 f, 2388 341.1 9 / • C). le 2401 343 'f a! /1 -7 . •, e-'S .'► 7 t ,si .r 6 'e' • 2201 314.4 jh 11 - ,_ 0 1 7 • u r • 0 _ i i 2395 342.1 2114 f 1 7 ,-- ' • 6, o • 0 (1 2200 314.3 l 2183 311.9 ii I ii s_ -,r , G V , < 2.. L •• O 2335 333.6 31 U 1 ) I/ -) . 0 / / . d 2494 356.3 "z1 No) , / C `j • 91 S c` . C " 2445 349.3 3l 2i 1_ 1 . _,, / I .2 • C (c- 6 . c. II 2601 371.6 ei ' , ' (' q• d ii . 2609 372.7 AVERAGE GPD 271 OVER A 27 WEEK PERIOD 9.27.16 - 3.28.17 SHEET 3/4 Water Mesar Log TM 5613-1 BON Rockfish QGp Tumpke Crozet VA 22912 WEEKLY READINGS Dad Time Water Marr o lyi,/? ` / --7:,1 (gallons) Week Day �i L , ii! _"�_,; 1 C.� , -;,..7...„ 2481 354 / / 'II � _ . � �/ yr. ii 1894 270 0Cf IiVri 7 I / i At, / 2 o , ,I . 14 3 g. . I! 1794 256 (/I 7 // ' 1,_ r. 2 , L ,j (+ 3 7 1 � 1799 257 ,< Z7 , l l , / _ 2 ' y•, T 1 • I 1894 270 `i '_ i _2 (o _, i/ 1826 260 .ccrcli // 1_ C g ,( ?-1+ ) • ? . (t 1921 274 Z.3//)) , I( , , l 3 _0 , l ( 1878 268 130(17 ti } j_, • ,-2. .,,, 0 1.! Z I/ 1936 276 W6, // 7 1/ • ? 3ci, q � g • / 1006 143 (Q�1 b ? ii 1 ,_ /4 � A. -7, PI S // 2687 383 16// CII l `tl l' / _ 3 ' •. �7 , g V • i1 1999 285 ! t , , 1 ?, , (o -2 (o • (j 1892 270 2f //-7 , , I1 T y' / ' 1! 1811 259 72111 ‘17 li 4 , ,• 1. y__,3 ,i `-, 1 ,3 y 1926 275 1 _, 3 2 t 1911 273 -7/2717 r _,., -1.- / ! � _ ' , l � ���, Z..2- t� 1898 271 11 / ? ' ,( 1 ' / `� '7 ' / / .9 I' S-15/1 ?li ? , fi j 1897 271 pp , � •, O / ii 1898 271 l- � ' � Y _2 • /1 1725 246 el Z 2 '/n ! ' / s" Y ? /. 1655 236 '. / , 2 ( $ /i 1811 259 9'/ c/i � , / / '. � 7',$ G 310 // 1422 203 ' ,1 1 t •- - I - 'i ,( 1 • 1 1 AVERAGE GPD 266 OVER A 23 WEEK PERIOD 4.4.17 - 9.4.17 SHEET 4/4 Water Meter Log TM 56&1 6099 Rockfish Gap Turn*,Closet.VA ma DAILY READINGS D.1. Time wa yam. Day i g r1 1 7 Q , 1 ` 1/ y f ,1 3 Z Lf , q�-� -. , : 9 i i� , / _ y _ .S , S g9 . 265 -I( 2° j 11 , / (1-<-, ' (0I 272 i 2--( 1 1 7 ,+ 1 U „p , I 7 J 279 )I2LI . � ,11 .0 ,II ) , 266 , - 2 ` ; ; r 1 r / ( ,r • 255 i_ 4_ ,:c2 _ • 285 ��� 2 /.1 � _ r I , '/. / 4, z L 2- • , _'76 %l/,;:4 - ._ i' c/ -' , c/' 7 "? 255 1! 2, 'i 1/ ,, j .. (� -9-- 7 ,� -7 y (0 • 269 Jt 4. ' , / / 2 , 0 7 n • 291 Ti I4 / 1 , ,, l t/ ,2' .,_. ; z • 792 i( 301 i , / 1/ D , (4 d 261 %L Si 1 I--) r /1 `7 g , g Z • 292 -jr i i l 7 , / (/ 9 , i' // y • 237 T Z 1 i . r _i_ y ,9 r ,n . + - _ 276 ? 12 I E /_ (j_q 9 6(, g / • 289 r:‘ )L0 J; -) j , 1 Y 1 ._, =',, c-- O 266 tI S,"--) 1 --) f ' i 0 r, j 9 289 a 1 1 ,' , _, . J _'� 0 ,, O O 261 i-) ( r �7 , / r J , —? cj $ . 298 ,g) / ) " , / / ter, D I _' . 219 e ' (:ii , , . .t_ _ , _,_ 2' •• 269 ,'7 NII I-- , •/ / , (_ 7 f 285 /1 i /-) _ � 188 T./2- /f—) _ r_ / ., g '2 / 222 F././ - , , i L 0 • 239 AVERAGE GPD 265 OVER A 26 DAY PERIOD 7.18.17 - 8.13.17 SHEET 1/2 . Water Meter Log TN 56 8-1 SON Rakish Cap Tampico Crozet.VA 22 DAILY READINGS Dills Time (gallonI Ws. piidiig NamemDay I tr , , 4- • 289 ., i' r / C +r' .' z . 236 n l / l- r r C 229 ' •, . - I i�( ji , so �, -� 249 !, �'� , / ? J J 244• r S'/1-0 i.• 1 , ,' 11 q 219 � ei)1 i J--? , / , / 244 Ell II-% , / Y , 9 234 �1 2111 ,' / `� , " � e— , 258 S� y�'1? 1 , + /* s '/ ? 0.., 3 V • ' 249 �.i 2 r// 7 /7 , / � C--- , 5--/ � r3 • ` 249 ///% , , / r ' 7 �0 • 263 54,25! /! ' 7 , / C r ( _ • 247 F% Z� / - 250 r r ,--•, /•_ ,_) L ' `'I , / l , , 2 295 cb 3611 . / i 42 r / / • 203 V 3i/r) // r / ..S-- r (o / 0 \ 199 9/Il ii , / �i(p r D- Z / 2)1 J • �? 1 // r r 0 7 / } 200 i ;'!3/i 7 _. / S 7 L (--/ < 222 /V/ 1/ , / 7 , Z . /i 213 q/r//7 '' r / ' ''. , '-o 2 C3 • l 1 174 r r r rr . r • . , r AVERAGE GPD 235 OVER A 23 DAY PERIOD 8.14.17 - 9.05.17 SHEET 2/2 Old Dominion Engineering September 15, 2(11^ Albemarle County Community Development Department 401 McIntire Rd Charlottesville. VA 22902 suBJECTL SP2009-00034 Property: TM 55B-1.61 15 ROCKFISH GAP TPKE Crozet, VA 22932 4.06 Acres Based upon my review of the water usage readings from the last two years: 1 . The water meter is tamper proof as used by utility companies for water billing. The readings cannot he altered without destroying the meter. 2. The flow control device installed makes it impossible to withdraw more than the by right amount of 1.624 gpd from the well. Based upon the actual water usage recorded at Restore N Station. the actual water usage was significantly less than the by right amount. 3. If the store hours are extended to 24 hours of operation, it will not cause a significant increase in the overall water usage. Food service and restrooms account for the majority of water usage during the day and night hours will be a very low water usage time. 4. Two additional fuel stations will cause only a slight increase in the overall water usage. This letter serves to confirm that the water usage (and withdrawal) at the Restore N Station has been less than the maximum permitted by right amount of 1,624 gpd. There is no risk of exceeding the by right amount water withdrawal of 1,624 gpd with 24 hour operation and two additional pumps. Sincerely, �► " w AP AP Michael Craun PE: 0 Old Dominion Engineering 2036 Forest Drive • Waynesboro. VA 22980 PHONE. 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Technology with a human touch. *F4114:1(1.% COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road,North Wing Charlottesville, Virginia 22902-4596 Phone(434)296-5832 Fax(434)972-4126 September 4,2015 Mechum's Trestle Bill Mckenclmie 99 Bloomfield Rd Charlottesville Va 22903 RE: SP201500012 Mechum's Trestle Dear Mr.McKenchnie: On August 5,2015 the Board of Supervisors took action on your Special Use Permit application to allow Use of more than 400 gallons of groundwater per site-acre per day for a restaurant under Section 22.22 of Zoning Ordinance on TMP 057000000031A0 in the White Hall District. The Special Use permit was approved by the Board's adoption of the attached resolution and conditions. Please be advised that although the Albemarle County Board of Supervisors took action on the project noted above,no uses on the property as approved above may lawfully begin until all applicable approvals have been received and conditions have been met. This includes: • compliance with conditions of the SPECIAL USE PERMIT; • approval of compliance with SITE PLAN;and • approval of a ZONING COMPLIANCE CLEARANCE. Before beginning uses as allowed by this special use permit or if you have questions regarding the above-noted action,please contact Rebecca Ragsdale at 296-5832. Sincerely, if ' -- David Benish Acting Director of Planning CC: Waterstreet Studio,Llc; Alan Franklin,PE 418 East Main Street Charlottesville Va 22902 RESOLUTION TO APPROVE SP 2015-12 MECHUM'S TRESTLE WHEREAS, Mechum's Trestle LLC (the "Owner") is the owner of Tax Map and Parcel Number 05700-00-00-031A0 (the °Property"); and WHEREAS, the Owner filed an application for a special use permit to use more than 400 gallons of water per day on the property for a restaurant, and the application is identified as Special Use Permit 2015-00012 Mechum's Trestle("SP 2015-12"); and WHEREAS, the proposed use is allowed on the Property by special use permit under Albemarle County Code§ 18-22.2.2; and WHEREAS, on June 16, 2015, after a duly noticed public hearing, the Albemarle County Planning Commission recommended approval of SP 2015-12 with the conditions recommended by staff; and WHEREAS, on August 5, 2015, the Albemarle County Board of Supervisors held a duly noticed public hearing on SP 2015-12. NOW, THEREFORE, BE IT RESOLVED that, upon consideration of the foregoing, the Transmittal Report prepared for SP 2015-12 and all of its attachments,the information presented at the public hearing, and the factors relevant to a special use permit in Albemarle County Code § 18- 33.8, the Albemarle County Board of Supervisors hereby approves SP 2015-12, subject to the conditions attached hereto. ***** I, Ella W. Jordan, do hereby certify that the foregoing writing is a true and correct copy of a Resolution duly adopted by the Board of Supervisors of Albemarle County by a vote of six to zero, as recorded below, at a meeting held on August 5. 2015. :T= , :o_ • of •unty Supervisors Aye Nay Mr. Boyd Y Ms. Dittmar Y Ms. Mallek Y Ms. McKeel Y Ms. Palmer Y Mr. Sheffield Y SP-2015-00015 Mechum's Trestle Conditions 1. The applicant shall install a meter on the well head to monitor water consumption. Results of daily water consumption monitoring will be made available within forty-eight(48) hours of a request from the Zoning Administrator. 2. Water consumption shall be restricted to a maximum of five thousand (5,000)gallons per day. . — ^ (JC4.' - I q`-(c3 p4 139 atitte— Re"4 0 g 'L 1-F°° RECEIVED COMMUNITY DEVELOPMENT GL?-` I COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road,Rrwm227 Charlottesville,Virginia 22902-4596 Phone(434)296.5832 las(434)972-4012 December 19,2008 Lloyd Wood 724 Chapel Hill Road Charlottesville VA 22901 RE: SP2008-00033 Shadwell Market(Sign 8 8.20) Tax Map 79,Parcel 9 Dear Mr.Wood: On December 3,2008,the Albemarle County Board of Supervisors took action on SP#2008- 00033 to allow the use of more than 400 gallons of groundwater per site-acre per day for convenience store on Tax Map 79 Parcel 9 in the Scottsville District Please be advised that although the Albemarle County Board of Supervisors took action on the project noted above.no uses on the property as approved above may lawfully begin until all applicable approvals have been received and conditions have been met. This includes: • compliance with conditions of the SPECIAL USE PERMIT: • approval of and compliance with a SITE PLAN amendment;and • approval of a ZONING COMPLIANCE CLEARANCE. in the event that the use,structure or activity for which this special use permit is issued is not commenced within twenty-four(24)months from the date of Board approval,ft shall be deemed abandoned and the permit terminated. The term'commenced'means'construction of arty structure necessary to the use of the permit If you have questions or comments regarding the above-noted action:please do not hesitate to contact Sherri Proctor at 296-5832. Sincerely. V.Wayne Cllimberg Director of Planning Email Copy: Tex Weaver;Chuck Proctor.Shorn Proctor File ft COI'NTY OF ALBEMARII. Department of Community Development 401 McIntire Rood,North Wiag Cbarlottervtlle,Virginia 2 2902-4 596 Phone(434)296.5832 Fu(434)972-4126 November 21 2008 Lloyd W000 724 Chapel Hill Road Cnarlottesville VA 22901 RE: SP2008-00033 Shedweli Market(Sign 8 820) Tax Map 79,Parcel 0 Dear Mr Wood The Albemarle County Planning Commission,at its meeting on November 11,2008,by a vote of 7:0 recommended approval of the above-notes petition to the Boaro of Supervisors to allow the use of more than 400 gai,ons of groundwate,per aite-acre per day for a convenience store. Please be advised that the A)bemene County Board of Supervisors will review this petition end receive puttlic comment at their meeting on December 3.2008. If you should have any questions or comments regarding the above noted action,please do not hesitate to contact me at(43 4)296-5832 Sincerely. Scott Clark Senior Wanner Planning Division SC/SM r • ose...AI COUNTY of ALBEMARLE ST AFF REPORT SUMMARY Project Name: -7.-Staff: Scott Clark SP 20i)s-O( i33 Shadwell Market Planning Commission Public Hearing: Board of Supervienra Public Hearing: November 1 1.2008 December 3,2008 Owners:Lloyd Wood,Jr. ; Applicant Lloyd Wood,Jr. Acreage: 1.18 acres Special Use Permit for:Groundwater use over 400 gallons per site-acre per day on C-I zoned propert'not served by public water. TMP: Tax Map 79 Parcel 10 }('onditions:No Location:Intersection of Richmond Road SUS 250)and Louisa Road(Route 22). Existing Zoning and By-tight use: C-I 1 Magisterial District. Rivanna Commercial-retail sides and service uses; and residential use by special use permit(15 units/acre);EC Entrance Corridor- Overlay to protect properties of historic; architectural or cultural significance from visual impacts of development along routes of tourist access Requested#of Dwelling Units: N/A tt1 DA RA X rProposal: Use of more than 400 gallons of Comprehensive Plan Designation: L$_ groundwater per site-acre per day for Aural Areax, preserve and protect convenience store. }agricultural,forestal.open space,and natural, histone and scenic irsourcesi density i.')unit/_ acre} Character of Property: This property is a }Use of Surrounding Properties: small,cleared site used for a long-established Surrounding properties include a quarry,a gas station and convenience store j railroad.commercial uses,and the planned site of a church. Factors Favorable: Factors Unfavorable: I The requested level of water use would I. MTBE contamination has been found not affect the water supply of nearby at a nearby site. However. it is not properties expected that the requested water use would lead to contamination on this • site. If it did occur, MTBE can be easily detected and filtered out of the I water. RECOMMENDATION:Staff recommends approval of SP 2008.00033 • f Petition; PROPOSED Use of more than 4(X)gallons of groundwater per site-acre per day for convenience store. ZONING CATEGORY/GENERAL USAGE:C-d Commercial retail sales and service uses;and residential use by special use permit(15 units/acre);EC Entrance('rimdor-Overlay to protect properties of historic,architectural or cultural significance from visual impacts of development along routes of tourist access SECTION:22.2.2.11.Uses permitted by right,not served by public water,involving water consumption exceeding four hundred(40())gallons per site acre per day.Uses permitted by right,not served by public sewer.involving anticipated discharge of sewage other than domestic wastes. COMPREHENSIVE PLAN LAND USE/DENSIT't Rural Areas preserve and protect agricultural, foresta open space,and natural.historic and scenic resources/density t 5 unit/acre in development lots) ENTRANCE CORRIDOR Yes LOCATION:Intersection of US 250 tRichmond Road)and Route 22/231 TAX MAP/PARCEL Tax Map 79 Parcel 9 MAGISTERIAL.DISTRICT.Scottsville Character of the Area; The immediate surroundings include commercial and highway-related uses,a raiirowd.and the Luck Stone quarry.However,to the north(across 1-64)the area is characterized by large rural estates along the Southwest Mountains ,Shifts of the Proposal: +3(1 Section 22.2.2.11 of the Zoning Ordimmce skies uses in the C-1 zoning district that are not served by Cary public water to obtain a special use permit if they sc more than 400 gallons per site-acre per day.As this site is expected to use appro mately 1,000 gall s per day(estimate based on septic-output number. i from the Virginia DepartmeN&Health1,but is ated on a very small site,this requirement must he 1. act. • The water would be used for a gas station and convenience store with food service.This is a by-right use V + in the C-1 district,and the site is currently being redeveliiped with a new store that will replace the long- stranding store on the site. This request is only for the water usage,and not for the store use--the store itself is a by-right use in the ' C-1 zoning district /t r Q Manilla and/Amine i#tstory Q V`7UR # ZMA 20)2-(X$sSi On November 6,2002,the Board of Supervisors approved this rezoning,which jj� only affected the portion of the property located south of US 250.The northern portion had always 1�1 had commercial zoning.but the southern portion was rezoned by the County during the 1950 comprehensive rezoning.This made it impossible to use the southern portion for C-1 related impacts. including the septic field for the store Approval of this rezoning applied C-I coning to the entire property. ' n' SDP 2007-00l55:This final site plan for the redevelopment of the store on this site is still under , _ V review.pending a decision on this special use permit request.The site plan would permit 14"y� • redevelopment of the site and would accommodate planned safety irnprosement to the VA 22/US 250 intersection Chapter 12 Special Use Permits 12-100 Introduction Under Virginia Code§ 15.2-2286(A)(3),a governing body is authorized to grant special exceptions"under suitable regulations and safeguards."Special exceptions are also known as special use permits or conditional use permits (the term special use permit is used in this chapter,except as otherwise noted),though they may not all necessarily serve the same purpose in a particular locality,as discussed in section 12-200. See Virginia Code if 15.2-2201 (definition of special exception). A governing body may delegate the authority to grant special use permits to the BZA. Virginia Code,f 15.2- 2309(6). For example,a BZA could be delegated the authority to consider special use permits for off-site signs.A governing body may also withdraw that authority. Chesterfield Civic Association v. Board of Zoning Appeals,215 Va. 399, 209 S.E.2d 925 (1974) (BZA had no power or authority to consider an application for a special use permit where, after the application was filed but before it was considered by the BZA,the county's zoning regulations were amended to withdraw the authority of the BZA to consider special use permits and to reserve that power in the board of supervisors). Key Principles to Know About Special Use Permits • Whether granted by the governing body or the BZA,special use permits are legislative in nature. • Uses allowed by special use permit are considered to have a potentially greater impact than those allowed as a matter of right. • Special use permits must be evaluated under reasonable standards,based on zoning principles. • Impacts from special uses are addressed through conditions. • Conditions must be reasonably related to the impacts to be addressed,and the extent of the conditions must be roughly proportional to the impacts. • Decisions by a governing body granting or denying special use permits are presumed correct and reviewed under the fairly debatable standard;decisions by a BZA granting or denying special use permits are also presumed correct,but the presumption may be rebutted by showing to the satisfaction of the court that the board of zoning appeals applied erroneous principles of law,or where the discretion of the board of zoning appeals is involved,the decision of the board of zoning appeals was plainly wrong,was in violation of the purpose and intent of the zoning ordinance,and is not fairly debatable. 12-200 The nature of special use permits Zoning district regulations typically delineate a number of uses that are allowed as a matter of right,and a number of uses that are allowed by special use permit. Uses allowed only by special use permit are those considered to have a potentially greater impact upon neighboring properties or the public than those uses permitted in the district as a matter of right. Board of Supervisors of Fairfax County v. Southland Corp.,224 Va. 514,297 S.E.2d 718 (1982). The special use permit procedure,by its very nature,presupposes that a given use may be allowed in one part of a zoning district,but not in another.Bell v. City Council of City of Charlottesville,224 Va. 490,297 S.E.2d 810 (1982) (rejecting claim that city's zoning ordinance violated the uniformity requirement of Virginia Code§ 15.2-2282). Although by definition special exceptions pertain to uses(Virginia Code,� 15.2-2201 (definition of special exception)),it appears that the meaning of use in this context may be broader. In Board of Supervisors of Fairfax County v. Robertson,266 Va. 525,587 S.E.2d 570(2003),the county's zoning ordinance allowed"deviations" from certain setback regulations with conditions,if approved by the board of supervisors.The deviation was an alternative procedure to obtaining a variance from the BZA.The Virginia Supreme Court classified the deviation as a special exception,"analogous"to a special use permit or a conditional use permit,and analyzed it the same way as it would those types of permits. In Town of Occoquan v. Elm Street Development,Inc.,2012 Va. LEXIS 104(2012)(unpublished),the Virginia Supreme Court characterized a special exception to disturb steep slopes as a density-related permit. 12-1 The Albemarle County Land Use Law Handbook Kamptner/June 2017 A special use permit is different from a variance. See chapter 13.A special use permit cannot alter the provisions of a zoning ordinance.Northampton County Board of Zoning v. Eastern Shore Development Co ration 277 671 S.E.2d 160(2009); P visions see alio Board of Supervisors of Washington County v. Booher,232 Va. 478,352 S.E.2d 319 (1987), discussed in the following paragraph;Sinclair a New Cingular Wireless,283 Va. 567, 727 S.E.2d 402012 deciding whether a county's regulations allowing the disturbance of steepslopes was a special exception, the waiver regulations were analogous to a special exception and were legislative in nature).p (p aic er ) (though not A special use permit also cannot be granted by implication. Board of Supervisors of Washington County v. Booher,232 Va. 478,352 S.E.2d 319 (1987). In Booher,the landowner obtained a rezoning of his land in 1975 from A-2 to -� and informed the board of supervisors of his intention to establish an automobile graveyard and junkyard.Neither of those uses was allowed by B `' j right or by special use permit in the B-2 zoning district. In 1981,the county amended its zoning regulations requiring a conditional use permit for those uses,but only in the M-2 zoning district. The board denied Booher's application to rezone his property to M-2 and ordered him to discontinue the use and remove the vehicles from his property. The Virginia Supreme Court concluded that the Booher's use did not have nonconforming status,adding that"[ijt may be that the Board intended . an automobile graveyard was not then and is not now ause to grant Booher a special exception.But special exception in that zone [and] the Board had no power permitted grant an a exception by implication.he B-2 zone. Booher did not apply for a at 481-482,352 S.E.2d at 321. P Booher,2 2 3 Va. Whether granted by the governing body or the BZA,special use permits are legislative in nature. Board of Supervisors of Fairfax County v.McDonald's Corporation,261 Va. 583,544 S.E.2d 334 (2001);Richardson v. Ci o Wolk, 252 Va. 336,477 S.E.2d 512 (1996);Ames v. Town o Painter,239t3' .� .� , BZA);Koehne v. Fairfax County Board ofZoning A fiVa. 343,389 S.E.2d 702(1990) (when granted by a g Appeals,62 Va. Cir. 80 (2003). Although zoning regulations may require that an approved special use begin within a certain period of time, Virginia Code§ 15.2-2209.1(B) extends the period of validity for special use permits outstanding on Janua • 1,2011 until Jul 1,2017 if the special use permit is related to "new residential or commercial development."'This statutory extension pertains only to the date by which the use must be started,and does not apply to any requirement that a special use be terminated or ended by a certain date or within a specified number of years (see discission of that issue in section 12-510). A locality's special use permit regulations may allow the permit to be revoked if the use is found to be in violation with the permit's conditions,at least on activities directly connected to the permit.Alexandria Council v. Mirant Potomac River,LLC,f,273 Va.448,643 S.E.2d 203 (2007); Va. Cir.230 (1989). In Mirant,the Virginia Supreme Court held Jthat thee e city could noss Board of t revoke speciaenrirors of luse permit 18 for purported violations of certain emission control limits in its state-issued stationary source permit to operate because those purported violations were beyond those having a nexus to the purpose of the special use permit. BZA's have express statutory authority to revoke a special use permit under the procedures provide by statute. Virginia Code 15.2-2309(7). 12-300 Limitations on the uses for which special use permits may be required A special use permit may not be required within an agricultural zoning district for any production agriculture or silviculture activity(Virginia Code•�' 15.2-2288) and qualifying small scale biofuels production (Virginia Code, 15.2- 2288.01). In the absence of a substantial impact,a special use permit also may not be required within an agricultural zoning district for usual and customary activities at farm wineries (Virginia Code 5 15.2-2288.3),usual and customary (Viactivities at limited breweries (Virginia Code 15.2-2288.3:1),usual and customary activities at limited distilleries rginia Code f 15.2-2288.3:2),and usual and customary activities at agricultural operations (Virginia Code ff 15.2- 2288.6).Activities as farm wineries,limited breweries,limited distilleries and agricultural operations that are not usual and customary may otherwise be subject only to reasonable restrictions,which may or may not warrant a special use permit. 12-2 The Albemarle County land Use law Handbook Kampmer/June 2017 A special use permit also may not be required for the following uses,provided that statutorily prescribed circumstances exist: (1) cluster developments (Virginia Code 5 15.2-2286.1);(2)manufactured housing in agricultural zoning districts (Virginia Code 15.2-2290(A));(3)group homes of 8 or fewer persons or residential facilities for 8 or fewer aged,infirm or disabled persons,which must be allowed by right in zoning districts where single family residential use is allowed by right (Virginia Code 15.2-229 I);and (4) family day homes of five or fewer persons, which must be allowed by right in zoning districts where single family residential use is allowed by right (Virginia Code 5 15.2-2292). A special use permit also may not be required as a condition of approval of a subdivision plat,site plan or building permit for the development and construction of residential dwellings at the use,height and density permitted by right under a zoning ordinance. Virginia Code 5 15.2-2288.1.These limitations do not prevent a locality from requiring a special use permit for: (1) a cluster or town center as an optional form of residential development at a density greater than that permitted by right,or otherwise permitted by local ordinance; (2) a use in an area designated for steep slope mountain development; (3) a use as a utility facility to serve a residential development;or(4) nonresidential uses including,but not limited to,home businesses,home occupations,day care centers,bed and breakfast inns,lodging houses,private boarding schools,and shelters established for the purpose of providing human services to the occupants thereof. Virginia Code 5 15.2-2288.1. Summary of the Uses for Which a Locality May Not Require a Special Use Permit • Production agriculture,silviculture and small scale biofuels production,and certain activities at farm wineries,limited breweries,limited distilleries,and agricultural operations in an agricultural zoning district. • Cluster developments except where a cluster or town center is allowed as an optional form of residential development at a greater density than that permitted by right(see discussion of Virginia Code§ 15.2-2288.1,below). • Manufactured housing in an agricultural zoning district. • Group homes of 8 or assisted living facilities for 8 or fewer aged,infirm or disabled persons in a zoning district where single family residential use is a by right use. • Family day homes of 5 or fewerpersons in a zoning district where single family residential use is a by right use. • Tents serving as a temporary structure for 3 days of less used for activities such as weddings and estate sales. • As a condition of approval of a subdivision plat,site plan or building permit for a residential development where the dwellings meet the use,height and density requirements allowed by right,with exceptions in Virginia Code§ 15.2-2288.1. • Temporary lamib,health care structures established in compliance with Virginia Code§ 15.2-2292.1. • To address solely aesthetic considerations outside of a historic district established under Virginia Code§15.2-2306. In Town of Occoquan v. Elm Street Development,Inc.,2012 Va.LEXIS 104(2012) (unpublished),the developer was the contract purchaser of a 3.68 acre parcel zoned R-3,which allowed up to 16 multi-family units per acre. Approximately one-half of the parcel had slopes greater than 2O%and the town regulations required a special use permit to disturb or develop on those slopes.Although staff recommended approval of the special use permit with 12 conditions,to which the developer agreed,the town council denied the permit.The developer sued.The town contended that Virginia Code§ 15.2-2288.1 did not apply to the town's steep slopes regulations and that the entire parcel was not developable by right because the by right density could be calculated only in compliance with the steep slopes regulations. The Virginia Supreme Court rejected the town's arguments,concluding that Virginia Code§ 15.2-2288.1 "expressly prohibits a locality from requiring a special use permit as a precondition to development that is otherwise permitted under a zoning ordinance,"and that the town's steep slopes regulations interfere"with residential development that is otherwise permitted within the zoning district."The Court also rejected the town's argument that the developer had no right to disturb the steep slopes in the absence of a special use permit,concluding that the town"cannot permit this development by right and simultaneously require an SUP as a condition of development on the property. . . By requiring an SUP,the Town has politicized what should be a ministerial decision. . . [T]he steep slopes SUP requirement. . . has no bearing on any density calculation in this instance."To reach that conclusion,the Court characterized the special exception as a density-related permit which was therefore prohibited by the statute.Lastly,the Court rejected the town's argument that the Chesapeake Bay Preservation Act gave it the power to require a special use permit. 12-3 The Albemarle County land Use Law Handbook Kamptner/June 2017 • The requirement for a special use permit also may not be based solely on aesthetic considerations.Allstate Development Co. v. City of Chesapeake, 12 Va. Cir. 389 (1988) (finding that requirement for special use permit for modular houses in a district,but not for stick-built houses,arose solely because the neighbors did not like the appearance of modular houses);but see Virginia Code 5 15.2-2306,allowing localities to require architectural compatibility within districts established under that section. 12-400 Procedural requirements prior to and during a hearing on a special use permit application A number of procedural rules apply to the conduct of a hearing on a special use permit application,but the procedures differ depending on whether the special use permit is granted by the governing body or the BZA. 12-410 Special use permits considered by the governing body Special use permits considered by the governing body are subject to "suitable regulations and safeguards" established by the governing body. Virginia Code ff 15.2-2286(3). These suitable regulations and safeguards should include the requirement that the planning commission,if its review and recommendation is required,and the governing body,take timely action. One approach is to impose the same timelines required for zoning map amendments,e.g.,requiring a recommendation from the planning commission within 100 days (Virginia Code f 15.2- 2285(B))and requiring the governing body to act within 12 months. Virginia Code,� 15.2-2286(7). In addition,notice must be provided as required by Virginia Code§ 15.2-2204(C).See chapter 34. 12-420 Special use permits considered by the BZA Special use permits considered by the BZA are subject to the following procedures: • Scheduling the hearing on the special use permit application.The BZA must"fix a reasonable time for the hearing"on a special use permit. Virginia Code 5 15.2-2312. • Notice of the hearing.The BZA must"give public notice thereof as well as due notice to the parties in interest." Virginia Code, 15.2-2312.Notice of the hearing must be provided as required by Virginia Code§ 15.2-2204. Virginia Code 5 15.2-2309(6). • At the hearing;the right to equal time for a part to present its side of the case.The BZA must offer an equal amount of time in a hearing on the case to the applicant and the staff of the local governing body. Virginia Code,� 15.2- 2308(C). • Decision.If the BZA decides to grant a special use permit,it may impose such conditions relating to the use for which a permit is granted as it may deem necessary in the public interest,including limiting the duration of a permit,and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with. Virginia Code 5 15.2-2309(6). See section 12-500 for a discussion of the minimal standards that must guide the decision-making process;see section 12-600 Jar a discussion of conditions. • Time for the decision.The decision must be made within 90 days. Virginia Code 5 15.2-2312.This time period is directory,rather than mandatory,and the BZA does not lose its jurisdiction to act on a variance after the time period has passed.See Tran v. Board of Zoning Appeals of Fairfax County,260 Va.654,536 S.E.2d 913 (2000) (BZA did not lose jurisdiction to decide appeal after 550-day delay). • Required vote.The concurring vote of a majority of the BZA's members present and voting is necessary to grant a special use permit. Virginia Code ff 15.2-2308. • Findings to support the decision.Findings are not required unless they are required by the zoning ordinance.Newberry Station Homeowners Association v. Board of Supervisors of Fairfax County,285 Va. 604,740 S.E.2d 548 (2013). 12-4 The Albemarle County Land Use Law Handbook Kampmer/June 2017 • 12-500 Minimal standards must guide the decision-malting process A use allowed by special use permit is permitted"only after being submitted to governmental scrutiny in each case,in order to insure compliance with standards designed to protect neighboring properties and the public." Board of Supervisors of Fairfax County v. Southland Corp.,224 Va. 514,521,297 S.E.2d 718, 721-722(1982);Daniel v. Zoning Appeals Board of Greene County,30 Va. Cir. 312 (1993). An application for a special use permit must be examined by public officials,and be guided by standards set forth in the zoning ordinance, to determine the impact the proposed use will have if carried out on the property. Southland Corp.,supra. Special use permit regulations adopted pursuant to Virginia Code§ 15.2-2286(A)(3) "need not include standards concerning issuance of special use permits where local governing bodies are to exercise their legislative judgment or discretion."Jennings v. Board of Supervisors of Northumberland County,281 Va. 511,520,708 S.E.2d 841,846 (2011), quoting Bollinger v. Board of Supervisors of Roanoke County,217 Va. 185, 186,227 S.E.2d 682,683 (1976).Thus,in Jennings,the Virginia Supreme Court upheld the county's granting of"special exception permits""subject to such conditions as the governing body deems necessary to carry out the intent of this chapter." In I3oilinser, the Court upheld the county's granting of a conditional use permit for a landfill under a zoning regulation that simply stated:"The location of commercial amusement parks,airports,borrow pits and sanitary fill method garbage and refuse sites shall require a conditional use permit.These permits shall be subject to such conditions as the governing body deems necessary to carry out the intent of this chapter."In affirming the granting of the permit,the Bollinger Court was persuaded by the thorough review conducted by the county,even though the standard for granting the special use permit was broad,stating: "it appears the Board acted only after it had the benefit of thorough studies,numerous tests,and after due deliberation on its part.These studies and tests revealed that the land is suitable for landfill purposes.The terms and conditions imposed by the Board indicate that it was well aware of the uses of surrounding land and the characteristics of the property involved." In Cole v. City Council of City of Waynesboro,218 Va. 827,832,241 S.E.2d 765,769 (1978),the city's zoning regulations allowed the city council to issue special use permits "whenever public necessity and convenience,general welfare or good zoning practice justifies such special exception or use permits which may be granted by the council adopting an ordinance granting the same after considering the recommendations of the city planning and zoning commission."In holding that a special use permit for a 151-unit apartment complex on a 3/4-acre parcel was invalid,the Virginia Supreme Court said that the above-cited standards in the ordinance were"an open invitation for a special exception to be granted without any consideration being given to certain basic principles of law applicable in the zoning field. It permits a lack of adherence by City Council to a fundamental rule that zoning regulates the use of land."Cole,281 Va. at 833,241 S.E.2d at 769.The critical distinction between Jennings/Bollinger and Cole is that the standard in Cole was stated in the disjunctive—the city council could consider"public necessity and convenience, general welfare or good zoning practice." In other words,the city council was not tied to the zoning statutes or good zoning practice when it considered a special use permit,and this rendered the city's regulations invalid. At bottom,all that a zoning ordinance must provide is that the governing body's consideration of a special use permit be taken within the framework of the zoning statutes and the principles that apply to zoning.In granting a special use permit,specific findings are not required unless mandated by the zoning ordinance.Newberry Station Homeowners Association v. Board of Supervisors of Fabfax County,285 Va. 604,740 S.E.2d 548 (2013) ("While a zoning ordinance must set forth standards under which applications for special exceptions are to be considered when local governing bodies delegate that legislative power,the ordinance need not do so when the local governing body has reserved the power unto itself').Typical standards applicable to special use permits include consideration of: (1) the impacts of the special use on the character of the district;(2) the impacts of the special use on the welfare of the landowners and occupants of land inthe district,see Bell v. City Council of City of Charlottesville,224 Va.490,297 S.E.2d 810 (1982);and (3) consistency with the comprehensive plan. National Memorial Park,Inc. v. Board of Zoning Appeals of Fairfax County,232 Va. 89,348 S.E.2d 248 (1986) (upholding denial of special use permit to operate crematory based on the negative impact of the proposed use on neighboring properties and inconsistency with comprehensive plan). Other factors that may be considered include: (1) the character of the property; (2) the general welfare of the public; and (3) the economic development of the community. Bell,supra.These factors are also akin to those delineated in Virginia Code§§ 15.2-2283 and 15.2-2284. See Loon v. Board of Zoning Appeals,91 Va. Cir. 391 (2015) (invaliding the 12-5 The Albemarle County Land Use Law I landbook Kamptner/.June 2017 board of zoning appeals'approval of a special exception pertaining to setbacks where the board failed to make the required findings and,instead,based its decision on the fact that the city's commission of architectural review had approved the project;the zoning ordinance required that"the board shall he satisfied'that,among other things,"the departure from the applicable yard and/or lot coverage requirements is the minimum necessary to accommodate the intended purpose of the dwelling") (italics in original). If specific standards are adopted,deference should be given to the governing body in determining whether the standards were considered when the action was taken. In Shenandoah Mobile Co. v. Frederick County Board of Supervisors, 83 Va. Cir. 113 (2011),the applicant challenged the board's denial of a conditional use permit contending that the board failed to give adequate consideration to the standards in the zoning ordinance.The circuit court rejected this argument,noting that the motion maker"touched on" four of the six standards and that it knew"of no requirement that each individual Board Member express the reasons for voting for or against the motion." Shenandoah,83 Va. Cir. at 116.The court otherwise found substantial evidence in the record to support the board's decision.Another circuit court has held that the governing body is not required to make specific findings with respect to each and every potentially relevant clause in the comprehensive plan,nor each and every clause of the purpose and intent section of the zoning ordinance.Koehne v. Fairfax County Board of Zoning Appeals,62 Va. Cir. 80 (2003) (county's special use permit regulations that the proposed special use be"in harmony with the adopted comprehensive plan"and"in harmony with the general purpose and intent of the applicable zoning district regulations").Part of that analysis will depend on the language of the zoning ordinance. As shown in Bollinger,the courts will look at the decision maker's analysis of the facts and how they are applied to the standards,even if the standards are broad as they were in Bollinger and Jennings. Compare to Mutter v. Washington County Board of Supervisors,29 Va. Cir. 394(1992),where a circuit court concluded that a special use permit issued without consideration to the locality's comprehensive plan and whose justification was devoid of any meaningful studies or analysis was unreasonable. In Mutter,the court concluded that the county's approval of a solid waste convenience station in an environmentally sensitive location with traffic safety issues was unreasonable, arbitrary and capricious.The court noted that the board failed to consider the county's comprehensive plan,conduct any site testing,consult with various environmental and other state agencies,and failed to even consult with the county's landfill manager for his assessment of the suitability of the site. Lastly,a proposed special use permit need not necessarily be granted merely because an applicant adheres to the applicable zoning regulations. County Board of Arlington County v. Bratic,237 Va. 221,377 S.E.2d 368(1989).Rather,a special use is prohibited unless an applicant obtains a permit.Amoco Oil Co. v. Zoning Appeals Board of the Cite of Fairfax,30 Va. Cir. 159 (1993) (upholding the denial of special use permit because a number of the applicable special use permit criteria were not met). 12-600 Impacts from special uses are addressed through conditions If a special use permit is granted,the potential impacts are addressed through reasonable conditions. Byrum v. Board of Supervisors of Orange County,217 Va. 37,225 S.E.2d 369 (1976). Under Virginia law,the conditions imposed must bear a reasonable relationship to the legitimate land use concerns and problems generated by the use of the property. Cupp v. Board of Supervisors of Fairfax County,227 Va. 580,318 S.E.2d 407 (1984).A special use permit may not be denied indirectly by approving the special use permit but imposing unreasonable and impossible conditions on its use. Byrum,supra;see also, Virginia Code 5 15.2-2208.1. See section 10-540 for a discussion of Virginia Code 5 15.2- 2208.1,which applies to both proffers and special use permit conditions. A BZA is authorized to"impose such conditions relating to the use for which a permit is granted as it may deem necessary in the public interest,including limiting the duration of a permit,and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with." Virginia Code 5 15.2- 2309(6). 12-610 Conditions imposed by the governing body are to address impacts and are not voluntary Unlike proffers that accompany a rezoning considered by the locality's governing body,special use permit 12-6 The Albemarle County Land Use Law Handbook Kamptner/June 2017 • conditions are not volunteered by the landowner and need not be developed through negotiation. Conditions may be imposed as the governing body or the BZA determines to be appropriate as"suitable regulations and safeguards" for special use permits. Virginia Code 5 15.2-2286(4(3).As explained by John H.Foote,Planning and Zoning, Handbook of Local Government Law,§ 1-10.03,p. 1-61, (2015),the phrase"suitable regulations and safeguards"is "uniformly understood to mean that the locality may unilaterally impose reasonable conditions on the issuance of such permits or exceptions,in contrast to proffers that must come voluntarily from the applicant."See afro Staples v. Prince George County,81 Va.Cir. 308,320-321 (2010) (condition imposing 14-day limit stay rule on campground was upheld because there is a reasonable basis to distinguish campgrounds from sites with permanent dwellings;a"local governing body is permitted to impose involuntary conditions on the grant of a special exception"). Special use permit conditions also may require administrative approvals by others. Fuentes v. Board of Supervisors of Fairfax County,2000 Va. Cir.LEXIS 130,2000 WL 1210446 (2000) (conditions imposed that required Health Department review and approval of a sewage treatment/disposal system and a groundwater monitoring system were not unlawful delegations of legislative authority;the board was authorized to delegate these administrative functions in a special use permit condition). In connection with residential special use permits,if a landowner proposes affordable housing,any conditions imposed must be consistent with the objective of providing affordable housing;when imposing conditions on residential projects that specify the materials and methods of construction or specific design features,the governing body must consider the impact of the conditions upon the affordability of housing. Virginia Code jr 15.2-2286(A)(3). Special use permit conditions pertaining to uses involving alcoholic beverages have been the subject of both judicial review and additional legislation. In County of Chesterfield v. Windy Hill,Ltd,263 Va. 197,200,559 S.E.2d 627, 628 (2002),the Virginia Supreme Court held that a condition in a special use permit stating"[njo alcoholic beverages shall be permitted"was not preempted by the Alcoholic Beverages Control Act(see Virginia Code§4.1-128) because it was a"valid zoning ordinance. . .regulat[ing] the location of an establishment selling.. . alcoholic beverages,"as permitted by the Act.Similarly,in City of Norfolk v. Tiny House,222 Va.414,281 S.E.2d 836 (1981),the Court held that an ordinance requiring a special use permit for adult uses (such as sellers of alcohol and adult movie theaters)within 1,000 feet of one another did not violate Virginia Code§ 4.1-128.The governing bodies of the cities of Norfolk and Richmond also are enabled under Virginia Code§ 15.2-2286(A)(3) to impose other conditions on retail alcoholic beverage control licensees. Norfolk may impose conditions providing that the special use permit will automatically expire upon a change in the ownership,possession,management or operation of the property. Richmond may impose conditions requiring automatic review of the permit upon a change of ownership or possession of the property,or a transfer of majority control of the business,and may revoke the permit after notice and a public hearing. One recurring issue of interest is whether a governing body may impose limitations on the life of a special use permit.BZAs have express authority to impose limitations on the life of a special use permit (Virginia Code 5 15.2- 2309(6)),local governing bodies do not have such express authority.The governing body of the City of Norfolk is enabled to impose a condition on any special use permit relating to retail alcoholic beverage control licensees which provides that the permit will automatically expire upon the passage of a specific period of time. Virginia Code Jt 15.2- 2286(A)(3).No similar express authority exists for other governing bodies for general purposes,and a number of localities have accordingly concluded that they do not have implied authority to impose such a condition.Some localities conclude otherwise. Under a Dillon Rule analysis,governing bodies are enabled to grant special use permits under"suitable regulations and safeguards." Virginia Code if 15.2-2286(A)(3).The General Assembly has not directed how or what those suitable regulations and safeguards must be.Therefore,if a time limitation (or the authority in the zoning ordinance to impose such a condition) is reasonable,the condition should be considered to be within a governing body's authority.An alternative solution to this question is to obtain the agreement of the applicant for such a condition. See Board of Supervisors of Prince William County v. Sic-Gray Developers, Inc:,230 Va. 24,334 S.E.2d 542 (1985) (subdivider may voluntarily agree to make improvements to existing access roads and will be bound to that agreement,even if the county did not have the authority to otherwise require such improvements as a condition of subdivision approval). 12-7 The Albemarle County Land Use Law Handbook Kamprner/.dune 2017 • 12-620 Conditions must be reasonably and proportionally related to the impacts resulting from the use When a locality seeks the dedication of land or other property(such as fees) as a condition of a land use approval,such as a condition to a special use permit,it must be certain that these conditions of approval: (1) have a nexus that is related to the impact of the proposed development;and (2) are roughly proportional to the extent of the impact.Koontz v. St.Johns River Water Management District,570 U.S._, 133 S.Ct.2586 (2013);Nollan v. California Coastal Commission,483 U.S. 825, 107 S.Ct. 3141 (1987);Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309 (1994); see also Virginia Code 5 15.2-2208.1 (creating monetary remedy for imposition of unconstitutional conditions). If this two-pronged test is not satisfied,the locality has imposed an unconstitutional exaction.This principle applies even when the locality denies the permit because the applicant is unwilling to agree to or accept such a condition.Koontz,supra.See section 6-440 forfurther discussion of exaction.. 12-630 Developing condition language Special use permit conditions typically originate from the locality's staff. Following are some suggestions for writing,reviewing,and revising proposed conditions: • State each condition clearly. Each condition should be a declaratory statement,using clear and concise language as to what must be performed,when it must be performed,when it must be completed,and,if applicable,how it must be performed. • Write each condition with the dignity of a Zoning regulation: A condition becomes part of the zoning regulations applicable to the property.'Therefore,it should be written with the dignity of a zoning regulation,using terminology found in the zoning ordinance. • Select words carefully.The words in a condition must be carefully selected. Use the word"shall"rather than "should"or"may." If a condition requires that the owner cannot proceed until the county engineer approves a plan,the condition needs to state that"the owner shall obtain approval of the plan from the county engineer before. . .,"rather than stating that the owner"shall submit a plan." Never use"etc."in a condition. • Consistently use the same word to refer to the same person,place or thing A person,place or thing always should be described or identified by the same word. • Use complete sentencer. Conditions should be written in complete sentences. • Ensure that each condition is comprehensive:A condition should be written in comprehensive language that addresses the reasonably foreseeable issues that may arise from the condition. • Ensure that each condition imposes standards that are enforceable. Every condition must be reviewed by the zoning administrator's office to ensure that the condition imposes standards that are enforceable. Part of the issue of enforceability pertains to the clarity of the language used,but the other part pertains to whether the language actually imposes a standard that can be enforced. Because the zoning administrator will have the task of enforcing the conditions,be certain that the zoning administrator has the opportunity to provide comments as to not only the language,but the subject matter(e.g.,a condition that restricts a restaurant use to between the hours of 5:00 a.m. and 1:00 a.m.may require a zoning inspector to be in the field between 1:00 a.m. and 5:00 a.m.if the hours of operation become an enforcement issue). • Be careful not to make the condition too specific. In providing clarity,conditions can become too specific so that they become overly restrictive.Examples of being too specific include referring to the applicant by name(because the special use permit runs with the land),providing a specific measurement for height,distance,or something similar in an absolute when you intend to establish a minimum or a maximum. 12-8 The Albemarle County Land Use Law Handbook Kampmer/June 2017 • • Ensure that each condition imposes on/y requirements that address identified impacts:Conditions may only address impacts resulting from the use. Ensure that the conditions do not modify,waive,substitute or relax otherwise applicable zoning regulations. • Use similar language for similar situations.The locality's staff should propose language that is similar to language previously approved for a similar type of condition. • Be certain that the time of pegeormance is clearly stated: Be certain that the language clearly states when the owner must do the promised or required acts. • Ensure that the conditions are well-organized Ensure that the conditions are well-organized by having conditions that are related to one another located next to one another. • Ensure that the conditions do not impose, or would not be perceived to impose, an obligation on the Iocalig, VDOT,or any other public entity. Conditions address impacts from a special use and they should be drafted so as not to impose,or be perceived to impose,an obligation on the locality,VDOT,or any other public entity.This problem often arises in the context of establishing the timing for performance. For example,a condition stating that the"final site plan shall be approved by the site plan agent prior to commencing the use"could be read to mean that the director must approve the site plan.Alternative wording to address this issue would be, for example,"The applicant is required to obtain approval of the final site plan by the site plan agent prior to commencing the use." • Consider requiring that conditions be satisfied before the application,for a needed approval is submitted.When a permittee requires additional approvals in the process,such as a site plan,there may be some conditions where it is best to require that a condition be satisfied before the permittee even applies for the site plan rather than some later point in the process,such as prior to issuance of a certificate of occupancy. • Be certain that referenced documents are properly identified References to plats or plans should identify the tide,last revision,and the entity preparing the plat or plan.References to ordinances should be identified by section number and include language such as"as the section was in effect on [date of special use permit]."References to letters,memos,staff reports,and similar documents should clearly identify the recipient,the author,and the date. 12-640 Ensure that the conditions make sense Once a condition has been put to writing,the locality's staff must make certain that it is understandable, unambiguous,and enforceable: • Review draft conditions with a critical eye:The locality's planner must ignore his or her insider's understanding of the application and put himself in the position of a reader who knows nothing about the project and: (1)ask whether the proposed conditions are clear,concise,and comprehensive in a way that a future reader will easily understand;(2)drop all assumptions and preconceived notions and be critical;(3) identify the ambiguities and eliminate them;(4)identify all superfluous text and eliminate in;and (5) ask whether each condition would make sense to somebody ten years from now. • Have a peer review the condition..The planner should ask others not directly involved with the application to review the conditions. It is important to have someone without an insider's knowledge of the application to see if he or she can understand the conditions and identify ambiguities. • All appropriate departments review the condition...The planner must ensure that all departments and the locality's attorney review and comment on the conditions.Because the zoning administrator will have the task of enforcing the conditions,be certain that the zoning administrator has the opportunity to provide comments as to not only the language,but the subject matter(e.g.,a condition that restricts a restaurant use to between the 12-9 The Albemarle County Land Use Law Handbook Kamptner/June 2017 • hours of 5:00 a.m.and 1:00 a.m.may require a zoning inspector to be in the field between 1:00 a.m. and 5:00 a.m.if the hours of operation become an enforcement issue). • Attach copies of r ferenced regulations.Zoning regulations referenced in a condition should be attached so that there is no question about the identified regulation. 12-700 Consideration of a special use permit application;reasonable and unreasonable grounds on which to base a decision A decision on an application for a special use permit is a legislative act and,as such,the governing body or the BZA has wide latitude in making a decision.The cases discussed below discuss reasonable and unreasonable grounds on which to base a decision. 12-710 Reasonable grounds to deny a special use permit The decision to deny a special use permit is reasonable if the landowner fails to meet all of the requirements of the zoning ordinance for the granting of a permit. County of Lancaster a Cowardin,239 Va. 522,391 S.E.2d 267 (1990), discussed below.Adverse impacts on the character of the neighborhood resulting from a proposed use are a common reason to deny a special use permit. County Board ofArlington County u Bratic,237 Va.221,377 S.E.2d 368(1989), discussed below.Even if the landowner satisfies all of the technical requirements for the issuance of the special use permit,the decision-making body nonetheless retains discretion to approve or deny the permit.Bratic,supra.A special use permit also may be denied because the proposed use is inconsistent with the comprehensive plan. National Memorial Park,Inc. v.Board of ZoningAppeals of Fai6rax County,232 Va. 89,348 S.E.2d 248(1986).The decision-maker also should consider the factors delineated in Virginia Code§ 15.2-2284. In Board of Supervisors of Rockingham County v. Stickley,263 Va. 1,556 S.E.2d 748(2002),the board of supervisors denied a special use permit that would have allowed the applicant to raise and release game birds on his farm.The board was concerned about the risk posed by these birds carrying contagious diseases and transmitting them to poultry.In what boiled down to a battle of conflicting expert witnesses,the Virginia Supreme Court held that the board's denial of the special use permit was proper because its evidence demonstrated a"significant risk"to poultry from the release of pen-raised game birds,and that this evidence was amply sufficient to make that issue fairly debatable. In Board of Supervisors of Faigeax County v. Robertson,266 Va.525,587 S.E.2d 570(2003),the board of supervisors denied a special exception that would have allowed the applicant to construct three houses within a 200-foot setback on his property.The applicant was required to submit a study addressing projected noise levels or projected traffic. The purpose for the study was to identify impacts and how to address them.The applicant's acoustical engineer based his condusions on a noise study performed in 1997,but the study failed to address projected(future) noise levels.As a result,the applicant's proposed conditions failed to include measures to reduce exterior noise on the property.The county's acoustical engineer analyzed future noise levels and concluded that on some parts of the applicant's property,future noise levels would exceed those provided in the comprehensive plan by 2010.Not surprisingly,the Virginia Supreme Court found sufficient evidence of reasonableness to make the board's denial of the special use permit fairly debatable. 7 IA* r • The landowner fails to meet all of the requirements for the granting of the permit;even if all of the requirements satisfied,the decision-maker retains authority to deny the permit if sound zoning principles justify the decision. • The proposed use is inconsistent with the comprehensive plan. • The proposed use would have adverse impacts on the character of the neighborhood. • The proposed use would have adverse impacts on roads or create a hazardous traffic situation. • The proposed use would have an adverse impact on the abutting property. In Cowardin,one of the county's prerequisites to obtaining a special use permit for two boathouses was the 12-10 The Albemarle County Land Use Law Handbook Kamptner/June 2017 f issuance of a certificate of occupancy for the structures. Since the certificates had not been issued,the Virginia Supreme Court concluded that the board had established a reasonable basis to justify its denial of the permit. In Bratic;the landowner claimed that he had satisfied all of the technical requirements for the granting of a special use permit to allow a two-family dwelling on his property and,therefore,the county board could not deny his application.The Virginia Supreme Court rejected this argument,stating that a governing body"is not stripped of all discretion in the issuance of a use permit merely upon a showing that the technical requirements of a zoning ordinance have been met."Bratic,237 Va. at 226,377 S.E.2d at 370 (1989). In reaching that decision,the Court emphasized the legislative nature of special use permits.The Court found that even if the county's technical requirements were satisfied,the board's denial was supported by probative evidence that the area in question in the interior of a neighborhood was predominantly single family,though there was a mix of single family,two-family, triplexes,and even commercial,on the edge.The board's evidence also explained that the area in question was "fragile,"meaning that it was subject to change,because of requests for two-family dwellings. In CAN Holdings LLC v. City Council of the City of Chesapeake,89 Va. Cir. 389 (2014),the trial court upheld the city council's denial of a conditional use permit for a car wash even though the city's planning staff and planning commission recommended approval,and the applicant's noise expert stated that the car wash could comply with the city's noise regulations.The trial court held that the city council based its decision on the conclusion that the proposed use was incompatible with the nearby residential neighborhoods. In Gittins v. Board of Zoning Appeals,55 Va. Cir.495 (2000),a neighbor's testimony that a proposed playground structure was an"eyesore"that detracted from the value of her property,and that a realtor had told her that the existence of the structure would affect the marketability of her home,was sufficient for the circuit court to sustain the BZA's denial of a special use permit.In order to grant the permit,the BZA would have had to find that the structure would have had no detrimental impact on other properties in the immediate vicinity. In In re Hurley,2001 Va. Cir.LEXIS 64,2001 WL 543793 (2001),the circuit court held that the BZA properly denied the applicants'special use permit for a home business on the ground that the proposed use would be disruptive to a low density residential neighborhood.The home business was a commercial label-printing business with six employees that produced between 100,000 and 500,000 mailing labels per day on 30 computers.The court held that the BZA properly determined that the home business did not meet the requirements for a special use permit,including the requirement that the use not"constitute sufficient non-residential activity as might modify or disrupt the predominantly residential character of the area." Adverse impacts on roads resulting from the proposed use also may be a reasonable basis to deny a special use permit. In Free.reland Orchard Co. v. Warren County,61 Va.Cir. 548 (2001),the circuit court upheld the board of supervisors'denial of a special use permit.The circuit court held that the fact that the applicant obtained VDOT approval of its entrances onto a public road did not preclude the board from exercising its legislative judgment in determining that the proposed use of the road would be"hazardous or in conflict with the existing and anticipated traffic in the area,"one of its criteria for evaluating special use permits.The court noted that the board received extensive public input at the public hearings.Similarly,in Heater v. Warren County Board of Supervisors,59 Va. Cir.487 (1995),the circuit court upheld the board of supervisors'denial of a special use permit for a small subdivision in an agricultural zoning district on the ground that the proposed use would be hazardous or in conflict with the existing and anticipated traffic in the area.The fact that the applicant had obtained VDOT approval for the proposed entrances onto a public street because they met the minimum standards for sight distance did not preclude the board from exercising its legislative judgment. 12-720 Unreasonable grounds to deny a special use permit The denial of a special use permit will be reversed if the governing body or BZA ignores its standards and then fails to present any evidence to justify its decision. In Daniel V. Zoning Appeals Board of Greene County,30 Va. Cir. 312 (1993),the circuit court reversed the BZA's denial of a special use permit for a mobile home park where the applicant produced evidence that the county's applicable standards were satisfied and the county presented virtually no evidence and failed to demonstrate that the BZA's decision was consistent with the applicable standards. 12-11 The Albemarle County Iand Use Law f landbook Kamptner/June 2017 Apparently,the only"evidence"to support the BZA's decision was the opposition of the citizens,but the court said that although the opponents"may be justified in their fears,. . . angry complaints and vague concerns cannot, standing alone,be enough.The [BZA] must be able to point to some evidence of its own to confront [the applicant's] uncontroverted presentation." The denial of a special use permit is arbitrary if the decision is not related to any zoning interest,but is instead motivated principally by the heavy opposition of neighbors expressing concerns not related to any zoning interest. See, e.g.,Marks v. City of Chesapeake,883 F.2d 308 (4th Cir. 1989) (where city council denied permit to allow palmistry and fortune telling solely to placate neighborhood opposition,which was based on religious and moral grounds, rather than zoning grounds,its decision was arbitrary). 12-730 The claim of discrimination based on prior approvals If it is shown that the standards are being applied in an inconsistent and discriminatory manner, a court may find that the denial of a special use permit does not have a rational basis. Board of Supervisors of Fairfax Couno v. McDonald'.r Corporation,261 Va. 583,544 S.E.2d 334 (2001). However,the Virginia Supreme Court has rarely found a rational basis to be lacking. Because special use permits are evaluated on a case-by-case basis and the facts in each case are unique,the bar for a party challenging a decision to establish that a decision lacks a rational basis is high.See section 6-300 for a discussion of the equal protection clause. In EMfiC,LLC v. County of Hanover,291 Va. 13,781 S.E.2d 181 (2016),EMAC,the owner of land that would be part of a proposed development,challenged the board of supervisors'denial of the extension of a conditional use permit for a sign along Interstate 95 at the southern end of a proposed outlet mall on its property,but extended the portion of the same conditional use permit for a sign on a separate parcel owned by another developer(Northlake) at the northern end of the proposed outlet mall. EMAC claimed that the denial was discriminatory.The Virginia Supreme Court rejected EMAC's claims because EMAC and Northlake were not similarly situated since: (1) Northlake was an applicant for the conditional use permit but EMAC was not,even though EMAC was a landowner on which one of the signs would be located;(2) the county code required that an application for a conditional use permit include permission from the owner to the county to allow county representatives to enter its land to inspect,which EMAC,not being the applicant, never granted and,as a result,the conditional use permit was void ab ini/io as to the southern sign that was to be on EMAC's property;and (3) unlike Northlake,EMAC did not have an agreement with the outlet mall developer to operate the sign on its property. In McDonald's,the restaurant sought a special use permit to allow a drive-through window;the board had granted special use permits for drive-through windows at other businesses in the area. Nevertheless,the Virginia Supreme Court concluded that there was a rational basis for the board to deny McDonald's permit because: (1) the McDonald's property was much smaller than the other properties;(2) the McDonald's property was a single-use site; the other properties were in shopping centers;(3) the McDonald's property was directly accessed from public roads; the other properties were not;(4) the McDonald's property had a single access;the other properties had multiple access points; (5)the access point on the McDonald's property was much closer to an intersection than the access points on the other properties;and (6) the estimated vehicle trips per day were much higher on the McDonald's property. In County of Lancaster v. Cowardin,239 Va. 522,391 S.E.2d 267 (1990),the board denied special use permits for two boathouses.One of the landowners claimed that the denial of his permit was discriminatory because the board had approved a permit for a boathouse for a neighbor several months earlier.The Virginia Supreme Court rejected this argument,noting that a"claim of discrimination cannot prevail if there is a rational basis for the action alleged to be discriminatory."The Court found a rational basis for the board's decision,stating that the board could properly consider the effect of boathouses on local waters and distinguish the landowner's request from that of his neighbors because the neighbor's boathouse was on a different body of water and that there were no boathouses on the body of water that this landowner sought to establish his boathouse. In County Board of Arlington County v. Brash;237 Va. 221,377 S.E.2d 368(1989),the board denied a special use permit to establish a two-family dwelling.The landowner claimed that the denial of the permit was discriminatory 12-12 The Albemarle Comm land Use Law Handbook Kamptner/June 2017 r y because the governing body had previously granted permits for two-family dwellings in situations"similar"to the landowner's case.The Virginia Supreme Court rejected this argument, first noting that a claim of unlawful discrimination cannot prevail if there is a rational basis for the decision and finding a rational basis in that case in the board's"effort to preserve the single-family character of the interior of the Neighborhood." In Hopkins v. Council of the City of Norfolk,2014 WL 8187041,the petitioner challenged the city council's decision denying his application for a special exception that would have allowed him to re-establish an apartment use for his 8-unit building that had,over the years,become nonconforming. If allowed by special exception,the petitioner's building would be subject to new development standards.Although the city council had recently approved two special exceptions for other nonconforming apartment buildings,the circuit court concluded that the city council's denial of the special exception in this case was fairly debatable and not discriminatory.The key distinction between the petitioner's application and those of the two special exceptions that were approved was that the two special exceptions approved reduced the density otherwise allowed,where the petitioner's application would not have reduced the density. 12-740 Reasonable grounds to approve a special use permit A review of the Virginia case law reveals that very few approved special use permits have been challenged. In Campbell v. Fairfax County Zoning Appeals Board,41 Va. Cir. 155 (1996),one of the requirements at issue for a special use permit to allow a club to establish a swimming pool and increase its size and boat slips was whether the club's membership was"limited to residents of nearby residential areas."Both the objecting neighbors and the county presented evidence of the makeup of the club's membership,and the court concluded that because there was no established definition of"nearby residential areas,"the meaning of the term was fairly debatable and the BZA's approval of the special use permit was upheld. 12-750 Unreasonable grounds to approve a special use permit Of course,a governing body cannot approve a special use permit if the underlying zoning district regulations do not authorize the proposed use. In Northampton County Board of Zoning Appeals v. Eastern Shore Development Corporation,277 Va. 198,671 S.E.2d 160 (2009),the board granted a special use permit for a condominium development and,under the zoning ordinance, "Condominium-type ownership (VA Code)"was allowed by special use permit.The zoning administrator disapproved the site plan because the landowner proposed apartment buildings,a prohibited use in the zoning district.The BZA affirmed.The landowner argued that the special use permit for the"condominium"use referred to multiple unit structures such as apartment buildings.The Court analyzed the district regulations and rejected the landowner's argument,finding that the purpose of the zoning district was to limit residential density and that various prohibited classifications,which included apartment buildings,referred to the physical structure of buildings.By contrast,the special use that allowed"Condominium-type ownership (VA Code)"applied to the legal form of land tenure to be adopted.Thus,the Court concluded that the board of supervisors could not have granted a special use permit that would allow apartment buildings,stating. "Although the board of supervisors might have amended the zoning ordinance after following the proper procedure,it was not at liberty to disregard it.Acts of a local governing body that are in conflict with its own ordinances exceed its statutory authority and are void and of no effect.Thus, the County's granting of a special use permit was not effective to alter the provisions of the zoning ordinance." Northampton,277 Va.at 203,671 S.E.2d at 163. In other words,the county's and the BZA's interpretation of the zoning ordinance was correct—the special use permit granted by the board of supervisors allowed"Condominium- type ownership (VA Code),"not apartment buildings,because the board did not have the authority under its own regulations to grant a special use permit for apartment buildings. In Bennett v.Nelson County Board of Supervisors,75 Va. Cir.474(2004),the board approved a conditional use permit for a vegetative rubbish recycling facility to allow the grinding of stumps by a stump-grinding machine on property in an agricultural zoning district.The staff report noted that the proposed use was contrary to the comprehensive plan and that it was"an industrial use and is not permitted by right or by a conditional/special use permit"in the district. Nonetheless,the board granted the permit. Not surprisingly,the court found that the board's action was 12-13 The Albemarle County Land Use Law Handbook Kamptner/June 2017 i Ir invalid,explaining that not only was the use not allowed by permit,but also that the use would create noise,smoke, particulate matter,and the possibility of spontaneous combustion that was incompatible with the surrounding residential and business properties,and that the proposed industrial use in an agricultural district was surround be single-family residential properties,multi-family residential properties,businesses and a resort.The court concluded by stating that"[r]easonable minds cannot differ that this is inappropriate." In Loon v. Board of Zoning Appeals,91 Va. Cir.391 (2015),the trial court invalidated the BZA's approval of a special exception pertaining to setbacks because the board failed to make the required findings.The zoning ordinance required that"the board shall be satied'that,among other things,"the departure from the applicable yard and/or lot coverage requirements is the minimum necessary to accommodate the intended purpose of the dwelling") (italics in original).Rather than adhere to the standard in the zoning ordinance,the BZA based its decision on the fact that the city's commission of architectural review had approved the project. 12-800 Appeals of decisions to the circuit court Decisions to grant or deny a special use permit may be appealed to the circuit court. 12-810 Timeliness,standing,and compliance with applicable zoning regulations A person aggrieved by a decision of the governing body may appeal the decision to the circuit court within 30 days. Virginia Code 5 15.2-2285(F).A person aggrieved by a decision of the BZA,or any aggrieved taxpayer or any officer,department,board or bureau of the locality,may appeal the BZA's decision to the circuit court by filing a petition for writ of certiorari within 30 days. Virginia Code 5 15.2-2314. Persons challenging a decision as a person aggrieved must allege that they are aggrieved within the meaning of the Virginia Supreme Court's decision in Friends of the Rappahannock v. Caroline County,286 Va. 38,743 S.E.2d 142 (2013). Once timeliness and standing are addressed,the next issue is whether the decision was made in compliance with the applicable zoning regulations.If the decision was made in violation of the zoning regulations (e.g.,there was an express prerequisite for eligibility to obtain the permit,such as having a specific pre-existing underlying zoning designation),the action will be found to be arbitrary and capricious and not fairly debatable,thereby rendering the decision void and of no effect.Newberry Station Homeowners Association v. Board of Supervisors of Faiax County,285 Va. 604,740 S.E.2d 548(2013),quoting Renkey v. County Board of Arlington County,272 Va.369,376,634 S.E.2d 352,356 (2006). 12-820 Evaluating a special use permit decision under the fairly debatable test If it is shown that the decision was made in compliance with the applicable zoning regulations,the decision to grant or deny a special use permit is valid if the decision is reasonable,i.e.,whether there is any evidence in the record sufficiently probative to make a fairly debatable issue of the decision to approve or deny a special use permit. Newberry Station Homeowners Association v. Board of Supervisors of Fairfax County,285 Va. 604,740 S.E.2d 548 (2013) (upholding approval of a special exception for a transit authority bus maintenance facility even though,among other arguments,the applicant failed to submit a list of hazardous or toxic substances as required by the county's application requirements;the zoning regulations did not require the board to consider hazardous or toxic substances when considering a special exception);Board of Supervisors of Rockingham County v. Stickley,263 Va. 1, 556 S.E.2d 748 (2002) (upholding denial of special use permit),followed in Board of Supervisors of Fairfax Coung v. Robertson,266 Va. 525,587 S.E.2d 570(2003) (upholding denial of special exception);CAH Holdings LLC v. City Council of the City of Chesapeake,89 Va. Cir.389 (2014) (upholding denial of conditional use permit for a car wash even though the city's planning staff and planning commission recommended approval,and the applicant's noise expert stated that the car wash could comply with the city's noise regulations,where the city council based its decision on the conclusion that the proposed use was incompatible with the nearby residential neighborhoods).This standard applies even if an applicant has produced evidence that a denial was unreasonable.Robertson,supra. 12-14 The Albemarle County Land Use Law Handbook Kamptner/June 2017 4 As applied to a denied special use permit,the courts will assume that the request for the special use permit is an appropriate use of the property and that the denial of the application is probative evidence of unreasonableness. Board of Supervisors of Fairfax County v. Robertson,266 Va. 525,587 S.E.2d 570(2003);County of Lancaster v. Cowardin,239 Va. 522,391 S.E.2d 267 (1990);County Board of Arlington County v. Bratic,237 Va. 221,377 S.E.2d 368 (1989).At that point,"the dispositive inquiry is whether the [locality] produced sufficient evidence of reasonableness"to make the governing body's denial of the permit fairly debatable. Robertson,266 Va.at 533-534,587 S.E.2d at 576;Cowardin, supra;Bratic,supra. The fairly debatable test should be relatively easy to satisfy since the determination is not whether the applicant or the locality had more evidence supporting its position,but simply whether the locality's decision was based on probative evidence. It is critical,therefore,that the legislative record contain evidence supporting the decision,and that the decision be based on probative evidence rather than opinion, fears,desires,speculation or conjecture. 12-15 The Albemarle County Land Use Law Handbook Kamptner/dune 2017