2013-03-13NMarch 13, 2013 (Regular Night Meeting)
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A regular meeting of the Board of Supervisors of Albemarle County, Virginia, was held on March
13, 2013, at 6:00 p.m., Lane Auditorium, County Office Building, McIntire Road, Charlottesville, Virginia.
PRESENT: Mr. Kenneth C. Boyd, Mr. Christopher J. Dumler, Ms. Ann Mallek, Mr. Dennis S.
Rooker, Mr. Duane E. Snow and Mr. Rodney S. Thomas.
ABSENT: None.
OFFICERS PRESENT: County Executive, Thomas C. Foley, County Attorney, Larry W. Davis,
Clerk, Ella W. Jordan, and Senior Deputy Clerk, Travis O. Morris.
Agenda Item No. 1. The meeting was called to order at 6:01 p.m., by the Chair, Ms. Mallek.
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Agenda Item No. 2. Pledge of Allegiance.
Agenda Item No. 3. Moment of Silence.
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Agenda Item No. 4. Adoption of Final Agenda.
Ms. Mallek said that based on the Board’s action during the earlier special meeting, Item #12 is
being removed from the agenda.
The Board accepted the final agenda.
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Agenda Item No. 5. Brief Announcements by Board Members.
Ms. Mallek distributed some information on native plants. She stated that a very successful native
plant symposium sponsored by the County – Community Development and the Inspections Department,
along with the Natural Heritage Committee was held. The purpose of the symposium was to try to expose
more people involved in environmental engineering, planting, and green infrastructure businesses about
using native plants. She said there were more than 130 attendees and she was very impressed with
staff’s efforts.
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Ms. Mallek reported that “Defying Gravity,” the robotics team comprised of Albemarle middle and
high school students, won the state championship – all ten of the competitions. This is the first time that
any team has won every challenge. The team is on its way to the first world championship in St. Louis in
April 2013. She has other information available should anyone be interested. The team is involved in
fundraising efforts to pay for this trip.
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Agenda Item No. 6a. Recognition: Proclamation recognizing March 20 through March 24, 2013
as the 19th Annual Virginia Festival of the Book.
Ms. Mallek read and presented the following proclamation to Ms. Susan Coleman, Director of the
Virginia Center For The Book:
VIRGINIA FESTIVAL OF THE BOOK
WHEREAS, Albemarle County is committed to promoting reading, writing, and storytelling within and
outside its borders; and
WHEREAS, our devotion to literacy and our support of literature has attracted over 1,000 writers and
tens of thousands of readers to our VIRGINIA FESTIVAL OF THE BOOK; and
WHEREAS, the VIRGINIA FESTIVAL OF THE BOOK celebrates the power of books and publishing;
and
WHEREAS, businesses, cultural and civic organizations, and individuals have contributed to the
ongoing success of the VIRGINIA FESTIVAL OF THE BOOK; and
WHEREAS, the citizens of the County of Albemarle and Virginia, and the world, have made the
VIRGINIA FESTIVAL OF THE BOOK the best book festival in the country;
NOW, THEREFORE, BE IT RESOLVED, THAT, I, Ann H. Mallek, Chair, on behalf of the Albemarle
Board of County Supervisors, do hereby proclaim
Wednesday, March 20, 2013 through Sunday, March 24, 2013
as the
Nineteenth Annual
VIRGINIA FESTIVAL OF THE BOOK
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and encourage community members to participate fully in the wide range of available events and
activities.
Ms. Coleman stated that almost every public and private school in the City and County is
participating in the Book Festival. Thanks to the County, they also have over 80 partners. She said that
they are one of the very few book festivals in the nation that has events throughout the community. She
again expressed thanks for the support of the Board and other partners, and encouraged people to visit
their website at www.vabook.org.
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Agenda Item No. 7. From the Public: Matters Not Listed for Public Hearing on the Agenda.
Ms. Mallek stated that her responsibility as Chair of the Board is to ensure the smooth running of
this meeting in order to effectively conduct the items on the agenda. She said that while she understands
and respects citizen concern associated with any issue, the Board’s rules do not allow disruptive, verbal
demonstrations during the meeting. They will show respect for everyone involved – both citizens and
Board members. In order to effectively conduct Board business and to create accurate recordings and
podcasts of the meetings, she asked the public to respect their procedures, or she will ask the individual
to leave the meeting.
Ms. Jamie Morgan said that she is before the Board to speak about community self-
determination. You must admit that you have hurt someone, that you have compromised their dignity and
self-worth, and that you used power over someone in the worst of ways. This is what it will take to start
overcoming abusive tendencies. Ms. Morgan said that to know that you have wronged someone and deny
it is to further perpetuate your actions. It will take honesty, self-investigation and compassion to start to
overcome your abusive tendencies. Taking responsibility for your harmful actions is an integral part of the
healing process. You will need to respond to the wishes of the survivor and the community, not just for
their healing but yours as well. Ms. Morgan said that you need to show the survivor and the community
that you are acting in good faith and that you are ready to deal with your problems of abuse. She added
that you need to show the survivor and the community that you respect their autonomy, which means that
the survivor of abuse “calls the shots” concerning how abusive behavior is dealt with. This means she
calls the shots and you live with her decisions. Only then, the ability of the survivor and the ability to make
decisions that meet their needs and desires for safety, healing and ending oppression can be met. If you
want to live in a world free of abuse, rape and oppression, you will support survivor autonomy and
community self-determination. Do not engage in the silencing behavior of attacking the demands and
process of the survivor or the community. This is what abusers and their supporters typically do to create
a smokescreen of issues to take the heat off of themselves. You must resign your position and respect
survivor autonomy. (Audience members applauded.)
Ms. Mallek stated that the Board does not permit applause during the meeting, as it takes more
time and interferes with others having their turn.
Mr. Snow added that they are united as a Board for that type of action.
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Mr. Jordan McNeish said he is present to speak about the Christopher Dumler rape scandal. Mr.
McNeish said that he is not a fan of the criminal justice system, but in this instance Mr. Dumler’s only
chance to clear his name would have been to go to trial – and now all the evidence against him has been
sealed. Mr. McNeish stated that Mr. Dumler needs to understand the public outrage and why he needs to
resign. The victim and victim’s sister were heard on the radio and should be taken at their word because
without a trial that is what the public has to go on. He said that he does not understand how Mr. Dumler
can think the public still wants him around after hearing the nature of what he did. He said that he finds it
sad that it took a fiasco to get the entire Board to call for his resignation and not the offense itself.
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Ms. Carrol Kastanza said that she is a resident of the Scottsville District and, though she does not
know Mr. Dumler personally, she finds that this “heinous crime against women” to be unforgivable,
especially for an elected official. She said that when you rape someone, regardless of what you plead it
down to, you become unqualified to make choices for others anymore. The plea bargain has ensured that
two victims will not be heard from. This is not a political statement. It is not about Democrat or
Republican; it is about rape. She reiterated that she is a resident of the Scottsville District, and she
strongly does not want him representing her. She said that she cannot bear looking at his smirking face at
one more meeting. She said that she has signed the petition, and has encouraged everyone in her district
to do the same.
Ms. Kastanza thanked Mr. Rooker and Ms. Mallek for publicly asking for Mr. Dumler’s resignation,
and approves of the Board’s action to strip Mr. Dumler of his duties as a Board member and from the
committees and commissions to which he has been assigned. She said that this means all other
Supervisors will have to take over his assignments and split those duties, which is an untenable situation
as it increases the workload of the other Supervisors and will no doubt lessen the effectiveness they have
for their district.
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Ms. Nancy Carpenter, a resident of the Scottsville District, said that one of the “Albemarle nine,”
who she will call “T,” passed away Sunday night. She said that “T” was one of the most critically
vulnerable homeless individuals approved for supportive housing at The Crossings. Each day that he
remained on the street increased his vulnerability and chances of dying on the street. Ms. Carpenter said
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that for the last seven months, “T” had a place. He had four walls, he had a place to keep his belongings,
he had a roof, he had a place to eat a meal, and he had a door to lock when he needed. “T” took a lot of
joy in having this apartment – his apartment. It made a difference. “T” did not have to spend another
winter sleeping in a tent in the woods or on some cold concrete steps. “T” had a huge window in his
apartment where he could watch the weather and be dry and safe. She stated that the Board assisted
with that happiness. Last summer each Board member looked beyond the boundary and challenged
themselves to do what was right, and gave unanimous approval to temporarily fund those nine desperately
needed housing vouchers. Ms. Carpenter said that Mr. Thomas commented to her that “it was the right
thing to do,” and it was the right thing to do last summer – and is still the right thing to do. She thanked
each Board member for the difference they made in T’s life, and are continuing to make in others.
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Ms. Dayna Bruzille addressed the Board, thanking them for unanimously calling for Mr. Dumler’s
resignation. Ms. Bruzille urged the Board not to limit public comment time at meetings, as “two women
were already silenced by Mr. Dumler’s actions.” She stated that the first step in County business needs to
be the removal of Mr. Dumler from the Board, and perhaps if they had collectively come together the
meetings would not be consumed by this distraction. Ms. Bruzille said that she resents the accusation
that her motive is politically driven and is personally insulted by that. If being ideologically opposed to him
means that she holds her elected officials to a higher standard, including upholding the law, then yes –
she is ideologically opposed. Ms. Bruzille stated this also holds true if it means that when pleading guilty
to a crime you do not get to proclaim your innocence, or your private life cannot be separated from your
public life. She added that she is a resident of the Charlottesville, but asked all residents of the Scottsville
District present who are calling for his resignation to stand.
Mr. Snow announced that the Board decided earlier in the day to leave the comment period alone,
and have not changed it. Earlier today in a closed meeting, Mr. Dumler resigned from all committees and
commissions, and replacements have been made.
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Ms. Anna Freshwater, a County resident, said she has two college-aged daughters. She said that
she is before the Board to express concern that there is a Board member that has abused women yet
refuses to resign, even though he pleaded guilty to a sexual misdemeanor. Ms. Freshwater said that he
does not seem embarrassed at what he has done, and even as he goes back and forth to Jail, he just
smiles like everything is okay. In addition, he had to be asked by the Judge to apologize. She also stated
that she asked her daughter why he would have had sex with the woman “in the rear end,” and her
daughter explained that it is so she won’t get pregnant. Not only did he not use a rubber, but he did this
on purpose, to satisfy only himself.
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Mr. Charles Winkler, a resident of Mosby Drive, addressed the Board, stating that a County
custodian starts at about $20,000 per year – a few bucks more than a Supervisor. He said that according
to the County’s personnel policies, that custodian can be fired immediately for unacceptable conduct such
as acts of physical violence and criminal convictions for acts of conduct occurring on or off the job which
are plainly related to job performance or, when continuing the employee in the assigned position, could
constitute negligence in regard to the County’s duty to the public or its employees. He asked when is a
Supervisor “on the job” versus “off the job,” and what is the County’s duty to the public with regard to the
conduct of Supervisors – and where does negligence begin in the County’s duty to the public. Mr. Winkler
said that the manual forbids sexual harassment on the part of that custodian, and forbids him from
creating an intimidating, hostile, abusive or offensive work environment with unwelcomed conduct of a
sexual nature. He said that the custodian may be fired when there is a finding of sexual battery, which
may include unwanted kissing, grabbing, pressing against, or fondling of the intimate parts of another
body or rape – or forcing another to touch the intimate parts of one’s body.
Mr. Winkler said that Section 2 of the Personnel Manual lists “salaried Board members” under
definitions of employees along with regular employees, and the IRS considers County Supervisors
employees for tax withholding purposes, and Supervisors receive a County salary from the General Fund,
so it sure sounds like somebody is employing them. He asked if it is really the will of the people and just
that the employee mopping the floors outside Lane Auditorium is held to higher standards of conduct and
more severe punishments than those on the dais inside Lane Auditorium.
Mr. Snow said that attendees were welcome to stand to show their support, but asked again that
they hold their applause.
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Mr. Kevin Morris addressed the Board, stating that it’s disappointing” to find the need to speak
here again, but Mr. Dumler continues to demonstrate a complete disregard for the effect his ongoing
presence on the Board is having. Mr. Morris said that not only has the Board and every political entity in
the area asked Mr. Dumler to resign, but his own party has declared a lack of faith in supporting him. He
stated that the vast majority of people in this community have called loudly, clearly and repeatedly for his
resignation or removal. At this point Mr. Dumler seems much more invested in giving the appearance of
being in control and of staying in a position of power than in actually serving the residents of his district.
Mr. Morris said that by refusing to step down, Mr. Dumler is clearly saying that he does not care what the
people want, nor what disruption his presence causes – and he is not even serving his potential future
political interests at this point. Mr. Morris stated that this defiance will make Mr. Dumler politically and
professionally radioactive in any future political endeavors. Mr. Morris said that Mr. Boyd asked recently
what Mr. Dumler was holding out for and suggesting it was arrogance. A psychiatrist friend opined that it
goes well beyond arrogance and into the realm of sociopathy. He stated that the narcissism Mr. Dumler
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exhibits in his over-inflated estimation of his own self-worth is stunning, and his glib dismissal and
disregard of the harm and chaos he has called, his failure to accept responsibility for his actions, his lack
of his remorse, and his glaring lack of empathy for those he has hurt speak volumes about him. A man
who can describe sexual assault as being discourteous is much more than arrogant. He urged Board
members to compromise or this will drag on forever.
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Dr. Charles Battig, a County resident, addressed the Board, stating that there is a book by William
Voegeli entitled Never Enough: America’s Limitless Welfare State that purports that there is never enough
money for everything. He said that the EPA announced earlier this year that 43 communities would be on
the dole to get money from them to “put into place the EPA’s dreams of control,” and Lynchburg is one of
those localities. Dr. Battig explained that EPA staff and national experts will conduct one or two-day
workshops that focus on a specific sustainability goal, and each community chose their initial application.
He said that the Supervisors in December voted unanimously to support the application for the Thomas
Jefferson Planning District Commission for a regional ground fuel assessment and planning grant. Dr.
Battig stated that the first evidence he’s seen that the area is “world class” was the presence of Mr.
Dumler’s story in the UK media.
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Ms. Lena Marie said that one in three women will be the victim of violence in their lifetime – and
sexual violence is “a different class of violence.” She said that sitting here is someone who has been
criminally convicted and has admitted guilt to sexual violence. They need to think about what is going on
here, why Mr. Dumler is still here.
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Mr. Steve Peters stated that he is from the Scottsville District, and asked those who condone Mr.
Dumler’s activities and want to be represented by him to stand up. Mr. Dumler has one supporter. Mr.
Dumler has done more for this community on bringing them together than anybody else in history - the
Socialist Party, the Democratic Party, the Republican Party, and the Jefferson Area Tea Party. These
people want Mr. Dumler to leave. Mr. Dumler does not represent much of anybody anymore. They had to
put him in a private cell with a glass front with the lights on 24/7 so that they could keep an eye on him.
He said that Mr. Dumler has been arrested, convicted, jailed, shunned by this Board of Supervisors, and
rejected by the voters. He needs to step down so the community’s reputation can be regained. They
have spent a lot of time and money to building up that reputation and when someone goes on the net and
looks at Mr. Dumler as being a convicted sex offender on this Board of Supervisors, he does not think
they want to bring their children here into the County’s world class schools.
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Mr. Tim Dodson addressed the Board, stating that he is a sophomore at Western Albemarle High
School. He said that he was present to say there is tainted leadership on this Board. As a youth in the
community he is concerned about the example being set by the present situation of sexual battery. Mr.
Dodson said that a whole generation is being sent a message that it is Okay to commit heinous acts and
that you can get away with them as long as consequences do not have to be faced. He stated that he
serves in an elected position in his school student government, and if he were to commit such a shameful
act he would resign out of respect to his peers and to himself. Mr. Dodson said that there is an assertion
that this situation only applies to people in the Scottsville District, and that would be so if only the vote of
the member in question did not affect the entire County – including its families, schools, businesses,
parks, et cetera. To suggest that a leader doesn’t have to be held to a common set of standards is simply
arrogant. He said that he cannot trust someone if they cannot display trust for someone else. He said
that the community needs someone who apologizes and shows it. According to the National Crime
Victimization Survey, around 232,000 women in the U.S. were raped or sexually assaulted in 2006 – which
is more than 600 women every day. It is disheartening that Albemarle’s local government has officials
who stand for these statistics and not against them. He then asked Mr. Dumler to resign from the Board.
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Mr. Joe Draego addressed the Board, stating that he had come to address the issue of traffic
cameras increasing accidents not decreasing them – but the business of the County has come to a
grinding halt until the issue of Mr. Dumler is resolved one way or the other. Mr. Draego said that he has
three daughters and he stands here on their behalf. Mr. Dumler has violated a precept of society that
cannot go unanswered. He stated that Mr. Dumler only has one path to remedy this and regain his honor
as a man. That is to resign and apologize to the three women he has assaulted, and go on with his life.
There is no other path for him. Mr. Draego asked Mr. Dumler to resign from this unpleasant situation. He
added that he would return on another day to address the issue of the traffic cameras. Mr. Draego also
asked what moral authority Ms. Mallek has to tell people that they cannot clap, as there must be a balance
between free people being able to express themselves and the protocol of this assembly being able to
move forward efficiently.
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Mr. Randolph Byrd said that the petition of signatures is going to be delivered to the court. A part
of the case on which Mr. Dumler’s removal hinges is the fact that there would be “material adverse effects
in him doing his job,” and tonight is an example of one of those effects and another is when Mr. Dumler
resigned from the commissions, boards and committees on which he serves as a member of the Board.
That has to do with his ability to do his job, and that is a material adverse effect. He said that Mr. Dumler’s
week of leave from going to any public events following his arrest is also an adverse material effect that
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compromises his job. There will be more and more protestors at Board meetings as long as Mr. Dumler
remains on the Board. This will materially affect the entire Board and its ability to do its job.
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Mr. Tom Olivier said that he is representing himself. He has high regard for Mr. Dumler’s ability
and would be delighted if Mr. Dumler was his representative, but he no longer lives in the Scottsville
District. Mr. Olivier asked if the fact that one Supervisor is unavailable for weekends for several months
makes that individual unable to meet his requirements to serve on the Board. Former Supervisor, David
Wyant, was an NFL official – and they have 16 games per year on weekends. He also pointed out that the
previous speaker suggested that some who have been unhappy with Mr. Dumler’s service would continue
to appear over and over to the point that it disrupts the functioning of the Board. Mr. Olivier likened this
approach to a hacker situation in which individuals attack a computer with one request after another for a
request for a response. It is against federal law to mount a denial of service attack and you can go to jail
for doing it – and the blame is not for the target of the attacks, but the attackers. He said that he is also
aware that members of this Board have been mounting a very public harassment campaign against Mr.
Dumler, hoping to force him to resign, and that is an attempt to override the judgments of the electorate of
the legal system. It is way out of bounds, and it should stop.
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Mr. Michael Basile, a resident of the Samuel Miller District, said that he is present to discuss the
proposed tax increases and revenue increases for the School Board. He stated that the schools’ success
rate in working with parents and the public is worth them getting additional income this year for a multitude
of reasons. Mr. Basile said that they brought people together in town hall meetings and asked how they
could make the school system better and more responsive, and his question was what problems the
schools have now – but he was told that they would deal with the problems later, “we are just looking
forward now.” He stated that there are teachers that need to be removed, there are schedule problems
for some of the parents in the community, and other problems that need to be addressed – so their logic in
trying to make the system does not warrant additional money. The School system needs to come back
and address the problems that they have. Mr. Basile stated that there is a trust problem with the Board
because of one member, and for that reason financial issues before the Board are now suspect.
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Ms. Carole Thorpe, a resident of 1318 Oak Tree Lane, and the parent of a son who attends
Albemarle High School said that she was “one of the infamous 13” who spoke at the last meeting
regarding Mr. Dumler’s possible resignation, and was also one of the smaller group who showed up at the
very first morning meeting to do that. Ms. Thorpe said that the issue has united everyone in the
community. It is not about ideology, it’s about propriety; it’s not about politics, it’s about decency; and that
is why she has come to every meeting – to speak as a mother, a woman, and a member of the County.
She thanked the Board for its vote to remove Mr. Dumler from boards and community appointments,
because to have him go forth as a representative of the County would be very difficult.
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Ms. Kali Cichon addressed the Board, stating that a lot of people say that this is an act that society
in general agrees is wrong and frowns upon. That would be really nice if that was true, but they actually
have a society that’s very permissive of sexual assault and violence against women. She said that even
men who are sexually assaulted are usually portrayed as effeminate or weak in some way, because in
order to abuse someone you have to see them as less than a person who is worthy of your respect. Ms.
Cichon stated that it is not up to a board of elected officials to say that rape is wrong, or a group of
troublemakers in a meeting. That should not have to be said. She said that the Board’s job is speaking
out against oppression, and it is everyone’s job to say that. After all of this is over, keep saying that –
everybody.
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Mr. Richard Lloyd said that the courts and Mr. Dumler have adjudicated the charges, and now it is
time for the people. He stated that the people have the right to choose their representatives, and people
are calling for a referendum to decide this. Mr. Lloyd said that they all ought to work for signing that
petition and for that referendum. It has nothing to do with the courts.
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Ms. Clara Belle Wheeler addressed the Board, stating that she is a surgeon and resident of the
County. Ms. Wheeler said that she has cared for many women who have sustained sexual battery,
abuse, rape and violence – and it’s not about sex, it’s about violence, it’s about imposing your will on
someone else when they have said “no.” Ms. Wheeler said that a representative of this community should
never be in a position when they feel it is appropriate to say “my will will survive, and your will will not.”
She stated that a representative is there to represent, not to override or force his or her will on someone
else. Ms. Wheeler said that the victims in this case are not just the women who are being abused, but
the rest of the community. They are not being represented, and they cannot have the business of the
County go forth as long as Christopher Dumler is sitting on this Board. She stated that he needs to be
removed either by court order or resignation, and then let the due process of a special election for a new
person to fill out his term. The County has been subjugated to this problem and she hopes that they can
make a change and get on with County business.
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Mr. Lewis Recler, a resident of the Scottsville District, said he is here not only as a husband to a
wife, a father to a daughter, a brother to a sister, and an uncle to nine nieces – but also as a father to two
sons and a grandfather to a grandson. Mr. Recler said that he is here as a man who is far more
distressed about Mr. Dumler’s employment on the Board of Supervisors, adding that to say he is serving
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the people of the Scottsville District is simply not true. He stated that every minute this saga continues is a
minute that women have to live with the uncertainty of “an acceptable disclosure.” Mr. Recler said that he
stands with all who have come out and insisted that Mr. Dumler resign.
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Agenda Item No. 8. Public Hearing: To consider granting a water line easement to the Albemarle
County Service Authority across property owned by the County located on Berkmar Drive adjacent to
Agnor-Hurt Elementary School (Parcel 04500-00-00-09400). This easement is necessary for the
replacement of a water line along Berkmar Drive that provides water service to Greenfields Trailer Park.
(Advertised in the Daily Progress on March 4, 2013.)
Mr. Foley summarized the following executive summary which had been forwarded to Board
members:
In preparation of the start-up of the new Rivanna Water and Sewer Authority’s Stillhouse Pump
Station, the Albemarle County Service Authority (“ACSA”) has identified a 4-inch diameter water main in
need of replacement. The existing water main is comprised of thin-walled plastic pipe and currently
serves the Greenfields Trailer Park. With the increased water pressure from the new pump station, this
water main has been identified by ACSA as vulnerable and should be replaced. The ACSA has identified
an alternative water main route along Berkmar Drive that will provide water service to Greenfields Trailer
Park at a lower pressure. ACSA’s proposed alternate route would include the southern tip of Parcel 45-
94, a 5.9-acre County-owned property on Berkmar Drive just to the south of Agnor-Hurt Elementary
School. A copy of the proposed Plat showing the location of the easement is included as Attachment A.
The proposed water line easement would allow ACSA to proceed with its water line replacem ent
project. County staff, in consultation with the Schools’ Director of Building Services, has determined that
the requested easement would not unreasonably restrict the future use or value of the property. Virginia
Code § 15.2-1800 requires that the Board hold a public hearing prior to conveyance of any interest in
County-owned real property.
There is no budget impact.
Staff recommends that, after receiving public comment, the Board approve the proposed
easement and authorize the County Executive to sign a deed of easement on behalf of the County after
the deed has been approved by the County Attorney with any necessary changes.
_____
The Chair opened the public hearing. Since no one came forward to speak, the public hearing
was closed.
Motion was then offered by Mr. Rooker to approve the proposed easement and to authorize the
County Executive to sign a deed of easement on behalf of the County after the deed has been approved
by the County Attorney with any necessary changes. Mr. Snow seconded the motion. Roll was called
and the motion carried by the following recorded vote:
AYES: Ms. Mallek, Mr. Rooker, Mr. Snow, Mr. Thomas, Mr. Boyd and Mr. Dumler.
NAYS: None.
TM 45 Parcel 94
PREPARED BY: St. John, Bowling, Lawrence & Quagliana, LLP
This deed of easement is exempt from taxation pursuant to Va. Code §58.1-811 (A) (3) and §17.1-266
This DEED OF EASEMENT, made this 18th day of January, 2013 by and between BOARD OF
SUPERVISORS OF ALBEMARLE COUNTY, VIRGINIA, (“Grantor”), and the ALBEMARLE COUNTY
SERVICE AUTHORITY (the “ACSA”), (“Grantee”), whose address is 168 Spotnap Road, Charlottesville,
Virginia 22911.
WITNESSETH:
That for and in consideration of the sum of ONE DOLLAR ($1.00), receipt of all of which is hereby
acknowledged, the Grantor does hereby GRANT and CONVEY with SPECIAL WARRANTY of TITLE unto the
Albemarle County Service Authority a perpetual right of way and easement to construct, install, maintain,
repair, replace and extend one or more water lines consisting of pipes and appurtenances thereto, over, under
and across the real property of the Grantor located in Albemarle County, Virginia, the location of the easement
granted and the boundaries of the property being more particularly described on the following plat:
A (625 sq. ft.) variable width water line easement, shown and described as “New A.C.S.A. Waterline
Easement” on that certain plat of Roudabush, Gale & Associates, Inc., titled “Plat Showing New
Variable Width Waterline Easement Dedicated to the Albemarle County Service Authority to be Added
to Existing Easement, Parcel 94 of Tax Map 45, Located on Berkmar Drive, Albemarle County,
Virginia,” dated January 23, 2013, a copy of which is attached hereto as Exhibit A (the “Plat”), as it
crosses property of the Grantor shown and described on the Plat and acquired by the Grantor by the
instrument recorded in the Office of the Clerk of the Circuit Court of Albemarle County, Virginia, in
Deed Book 467, Page 623.
March 13, 2013 (Regular Night Meeting)
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Reference is made to the Plat, a copy of which is attached hereto to be recorded herewith, for the
exact location and dimension of the permanent easement hereby granted and the property over which the
same crosses.
As part of the easement the ACSA shall have the right to enter upon the above described property
within the easement for the purpose of installing, constructing, maintaining, repairing, replacing and extending
a water line and appurtenances thereto, within such easement and the right of ingress and egress thereto as
reasonably necessary to construct, install, maintain, repair, replace and extend such water line. If the ACSA is
unable to reasonably exercise the right of ingress and egress over the right-of-way, the ACSA shall have the
right of ingress and egress over the property of Grantor adjacent to the right-of-way.
Whenever it is necessary to excavate earth within such easement, the ACSA agrees to backfill such
excavation in a proper and workmanlike manner so as to restore surface conditions to the same condition as
prior to excavation, including restoration of such paved surfaces as may be damaged or disturbed as part of
such excavation.
Grantor, its respective successors or assigns, agree that no new trees, shrubs, fences, buildings,
overhangs or other improvements or obstructions shall be placed within the easement conveyed herein
without the agreement of the ACSA, its successors or assigns.
The easement provided for herein shall include the right of the ACSA, to cut any trees, brush and
shrubbery, remove obstructions and take other similar action reasonably necessary to provide economical and
safe water and/or sewer line installation, operation and maintenance. The ACSA shall have no responsibility
to the Grantor, its successors or assigns, to replace or reimburse the cost of said trees, brush, shrubbery and
obstructions that are removed or otherwise damaged.
The facilities constructed by ACSA within the permanent easement shall be the property of the ACSA
which shall have the right to inspect, rebuild, remove, repair, improve and make such changes, alterations and
connections to or extensions of its facilities within the boundaries of the permanent easement as are
consistent with the purposes expressed herein.
The County, acting by and through its County Executive, duly authorized by action of the Albemarle
County Board of Supervisors on March 13, 2013, does hereby convey the interest in real estate made by this
deed.
WITNESS the following signature and seal:
GRANTOR: BOARD OF SUPERVISORS OF
ALBEMARLE COUNTY, VIRGINIA
BY: ___________________________________
Thomas C. Foley, County Executive
_______________
Agenda Item No. 9. Public Hearing: SP-2012-00029. 5th Street Station (Sign #120).
PROPOSED: Special Use Permit - fill in the flood plain on approximately 87.0+/- acres. No
dwellings proposed.
SECTIONS: 30.3.05.2.1(2), 30.3.05.2.2(1), 30.3.05.2.2(3), which allows fill of land in floodways.
ZONING: PD-SC Planned Development Shopping Center – which allows shopping centers, retail
sales and service uses; residential by special use permit (15 units/acre).
ENTRANCE CORRIDOR: Yes.
COMPREHENSIVE PLAN: Community Service/Mixed Use-community-scale retail wholesale,
business and medical offices, mixed use core communities and/or employment services, and
residential (6.01-34 units/acre) Neighborhoods 4 & 5.
LOCATION: Northeast intersection of Interstate 64 and Fifth Street Extended (Rt 631), bounded
on the east by Avon Street Extended. Access is Bent Creek Road.
TAX MAP/PARCEL: TMP076M10000002A0, 076M10000002B0, 076M10000004A0, and
0770000000011E0.
MAGISTERIAL DISTRICT: Scottsville.
(Advertised in the Daily Progress on February 18 and February 25, 2013.)
Mr. Glen Brooks, County Engineer, addressed the Board, presenting the conditions that were part
of the approval of the ZMA and noted that the second condition applies to the floodplain. He said that the
Planning Commission (PC) action had nine suggested conditions, and they had unanimously voted to
recommend approval of the plan – which was slightly different than the plan that was with the rezoning.
Mr. Brooks said that the conditions were then modified based on the Commission’s wish and on new
information supplied by the applicant, and that resulted in the memo sent by Mark Graham to the Board
which had six conditions which replaced the Planning Commission’s conditions.
Mr. Brooks presented the plan that was approved with the rezoning and he super-imposed the
FEMA floodplain map over it, noting where it encroaches into the ZMA plan. He said that he would
highlight the sections where the ZMA plan necessitates fill in the floodplain, which was expected when the
approval came for rezoning. Mr. Brooks said he would then take away the rezoning plan and replace it
with the plan shown to the Commission as part of the special use permit, stating that the plan had evolved
and become more specific with the area to be developed being shaded. He noted the addition of the
floodplain that the applicant showed to the Planning Commission, which is slightly different than what’s on
the FEMA map and shows a more exact floodplain according to their models. He also noted the areas
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proposed to be filled and said those were shown to the Commission, noting that areas 2 and 3 became
part of the PC discussion because those weren’t part of the rezoning idea and were added. Mr. Brooks
clarified that the applicants had pulled back the areas shown in red and were just proposing now the areas
in blue, so they’ve essentially scaled back their proposal.
Mr. Snow asked if the areas in blue were the proposed fill areas. Mr. Brooks confirmed that they
were, and presented information that showed the entire area as it fits into the community concerns. He
reported that the area is not just what is considered with the ordinance requirements for a special use
permit in this particular site, but what happens cumulatively over the years that tend to affect the creek
more. Mr. Brooks said that he uses the County’s GIS database which includes old aerial surveys, and
highlighted one from 1996 that showed the warehouse and some development on 5th Street and I-64. He
stated that the 2007 aerial is the first good topography they have on their system, and he would use that to
get a baseline of where the floodplain might have been historically. Mr. Brooks said that he tried to identify
all of the natural, sloping topography that bounds the creek, both Biscuit Run and Moores Creek, and has
tried to pinpoint all of the natural features that might limit the floodplain. He stated that they can draw a
general red line as to where the floodplain might have been before any development occurred by going
back to 1980 with a USGS topographic survey but, even then, there was some development in the City
and also the warehouse on this site.
From the 2007 aerial, Mr. Brooks said that I-64 and 5th Street were filled in as well as the
floodplains of Biscuit Run and Moores Creek and, in the recent past, 5th Street was improved to add an
entrance for what was a power company and is now a school. He stated that the City filled in a small
section in phases to add to the areas below Hardee’s and, on aerials, there appears to be some fill in a
small section where a road was cut in as well as a large portion filled in for the rest of the shopping center
next to Food Lion on the City side next to 5th Street and opposite of the road there. Mr. Brooks said that,
on the County side, there was a large landfill on the Avon Street side and he’s not sure about the extent of
those but the embankment is all part of the landfill, so that was probably all filled directly next to the creek.
He stated that there are also some areas that contain old bridges across Biscuit Run and Moores Creek,
and the video sent by the Willoughby neighbor shows one of the bridges in that area. Mr. Brooks said that
one bridge was proposed to be a walking bridge, and that might have already been approved as part of a
County development.
Mr. Brooks stated there has been fill on the particular site they are considering now for the
warehouse and for the road itself along the edge of the property and the bridge. Mr. Brooks added that
there was also fill for the Holiday Inn parking lot, and the Board approved a larger amount of fill for the site
next to the hotel – the “Moores Creek Yacht Club” application – which comes in at the confluence of
Biscuit Run and Moores Creek.
Mr. Rooker asked if that fill had already been done. Mr. Brooks responded that the fill had begun
and was a waste area application currently, so there are some stockpiles there, but it’s not nearly
complete. He said that the applicant got a conditional letter of map revision or amendment from FEMA
and, when they finish the fill and verify it by survey, they will get an official map change.
Mr. Snow asked Mr. Brooks to point out the location of the landfill. Mr. Brooks noted its location
on the map, stating that they are currently proposing some improvements.
Mr. Dumler asked if Area 3 was associated with the proposed pedestrian connection to
Willoughby, or whether it was fill generally required for the completion of Bent Creek. Mr. Brooks
responded that the applicant should probably answer that, as Area 3 is debatable as to whether it’s
necessary for the road or transitioned from a proposed walking trail area.
Ms. Mallek asked what latitude the County would have for pulling back the banks and making
them less vertical and less apt to be blasted away by water velocity, if this work were done. Mr. Brooks
replied that it wouldn’t apply specifically to this fill and, along the area where the bridge approaches, they
would certainly have to armor the bank – probably close to vertical because it’s right on the creek – and
that would include a concrete wall or large stone right at the bridge to funnel the water through without
erosion. He said that the City development has created a steep bank already, and there is some armoring
near the creek on the County side but the applicant wouldn’t have the ability to do that unless the property
owner volunteered. Mr. Brooks emphasized that the bridge itself constricts the flow and causes that
potential scour, and this may not create much more than what’s occurring there now since that
constriction is already in place. He said that they would follow as much as possible the VDOT standards
for scouring and bridge abutments.
Mr. Dumler asked if the enhanced erosion and sediment control proffers that were associated with
the application and rezoning were associated closely with the proposed fill areas, or whether they were
related to the low-interest DEQ loan. Mr. Brooks responded that it applies mainly to the transition into the
landfill area, but wouldn’t apply to the other side of the project to his knowledge.
Mr. Rooker commented that the conditions require a stable, non-erodible surface for fill materials;
approval of an erosion and sediment control plan and a land disturbance permit; obtaining all necessary
federal and state approvals; and approval from the County’s program authority for a mitigation plan. He
said that the applicants seem to have reduced the disturbance between the Planning Commission action
and the County’s consideration, and asked if – given what they’re proposing to disturb and the proposed
conditions imposed here – the County is comfortable that there will not be negative impacts to the stream
generally from the fill that’s occurring here. Mr. Brooks responded, within the parameters staff is
supposed to be following with the zoning ordinance, that would be true. He added that this incremental
increase in fill – or reduction in the floodplain area – will not have a significant impact on the creek.
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At this time, the Chair opened the public hearing.
Ms. Valerie Long addressed the Board, stating that she is representing the applicant and
introduced Daniel Hines with Bohler Engineering, the project’s civil engineer; and Dan Tucker, with SJ
Collins Enterprises, one of the co-developers of the project.
Referencing a slide that Mr. Brooks had presented, Ms. Long said that the areas proposed for fill
are only those shown in purple, and the pink areas underneath are the worst case scenario, and is what
was originally thought to be the maximum fill amount areas.
Ms. Long stated that there have been concerns expressed about the health of the creek and
surrounding areas, and the applicants have spent some tim e with the neighbors and have tried to keep
lines of communication open with them. She said that they wanted to remind the Board of some of the
provisions of the rezoning approval that are designed to stop the damage that’s been occurring to the
stream over many years but also fix some of those problems. Ms. Long added that, on the whole, it’s
clear that the project will actually improve the conditions on Moores Creek. She said there are a number
of things that the project will do that will minimize any impacts and actually remedy impacts that have
existed for a long time. She said that there is a proffer that specifically requires implementation of stream
bank and buffer projects, adding that the County did a study of this exact area in 2004 that generated a
map which is proffered with this project, and the applicant has agreed to implement those plans.
Ms. Long stated that the second improvement is for the landfill, which has been in place for many
years, with the applicants stepping up to fix those problems. She said that they’ve received DEQ approval
for the landfill work plan and, among other things, it will cover the exposed waste located on a steep bank
along the creek with a natural material and minimize further erosion and scouring of the stream bank. Ms.
Long stated that there’s also a provision in the proffers and on the application plan to build a water quality
clean-up station in part of Area 4, which will capture and clean the water that runs off from the interstate –
which is currently flowing unimpeded from the interstate. She said there’s also a proffer mandating that
they implement enhanced erosion and sediment control provisions as part of the site plan, so they have to
exceed the basic County standards to limit the amount of erosion and sediment control. Ms. Long stated
that there’s a proffer regarding rainfall harvesting measures that is also to be part of the site plan design.
Mr. Snow asked what was meant by ‘rainfall harvesting area.’ Ms. Long responded that the
proffer states the applicants must incorporate rainfall harvesting measures into the site plan, so it could be
roof cisterns, additional planting areas in the parking lot, bio-filters, so the site plan would be reviewed for
conformance with that proffer.
Mr. Dumler asked if the BMP proposed to put down in Area 4 has been engineered, and asked
whether it was going to be a concrete BMP or a bio-swale. Mr. Long replied that Mr. Hines would be able
to provide information on that.
Mr. Hines explained that they are currently working on that design and, with Mr. Brooks’ help,
they’ve explored a number of options in that area. He stated that there were some challenges with
obtaining a permit from DEQ to disturb that stream significantly and try to build some pools along the side
of the stream, but the direction they’re leaning toward now is to have a structure that allows the stream
water base flow to continue. Mr. Hines explained that, as the water level rises, it would actually pick up
the additional water and pull it off into a side basin that has landscaping and perhaps a constructed
wetland type scenario where it would be treated and then returned back into the stream.
Mr. Dumler asked whether the fill in Area 3 was necessary for Bent Creek or for Willoughby’s
proposed bridge. Mr. Hines responded that there are several reasons for that, as there are retaining walls
that are running there and they’ve provided a gap in the retaining walls to allow for access down to the trail
that’s proffered to run along the creek and, should another pedestrian bridge ever be constructed across
Moores Creek for the Willoughby community, that would be a great spot. He said that it is also where a
water line is coming into the site, and they’re trying to minimize the water line from having to come
underneath a wall and come up. Mr. Hines stated that if they were to install just the one wall, which is
required for the roadway improvements, it would be just a narrow sliver extended across. He added that it
would be multi-purpose.
Mr. Dumler stated that he has heard from several homeowners in the area that interconnectivity
might be something they are opposed to and if, at some point, there’s information from a lot of them
indicating they might not want that connection, he wouldn’t want them to fill in an area for a bridge that the
Board later decides to abandon.
Ms. Mallek asked if the wider area in Area 3 would be done for the future bridge, and might not be
done right now and potentially could wait. Mr. Hines responded that they are proposing that it now be
constructed for the waterline and for the ability to put the bridge in, because the road is going to be one of
the first things to get constructed on this site and the wall would need to be installed for the road
construction. He explained that it would be best to install it in its final location.
Ms. Mallek asked if the wall was on the side of the blue closest to the road, or on the other side.
Mr. Hines explained that the wall is actually on both sides, and that’s where the two-tiered wall would be.
He confirmed that the water pipe would go between the two walls built and would be buried, with the path
going over it down to the water.
Ms. Long asked if the Board had any further questions.
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Mr. Snow said that, in their first presentation, they had a system for covering the landfill slopes
that were being eroded and sloughing off, and asked if she could share that with the Board again. Ms.
Long responded that she would distribute it again when she could.
Mr. Rooker said that was an important element in stabilizing the bank.
Mr. Thomas said it would make a world of difference.
Ms. Mallek commented that it was hard to watch the kayak film that showed 100 years worth of
abuse on that stream. She added that the brown water is not all coming from this site, and the engineered
improvements could make a substantial improvement if done well.
Mr. Michael Meintzschel addressed the Board, stating that the only thing he would add to Mr.
Brooks’ presentation is that there are a lot of subdivisions that have gone up since 2000 and, since
Brookwood went up right next to the creek, that’s really when he started seeing a lot of the erosion
happen. He said he has lived in Willoughby for 20 years and hikes the trail almost every day, and he
wouldn’t be before the Board if he hadn’t noticed an erosion problem. He said he disagrees with Ms. Long
that what’s proffered will make it better. He pointed out that the data used for the proffer, for the erosion
and the buffer projects is data that’s 10 years old and a lot of the erosion problems have happened within
the last six or seven years. He said that the areas proposed are really across Area One and Area Two on
the City side and the GIS maps that show the area of concern stop at the Willoughby subdivision. Mr.
Meintzschel emphasized that the kayak cam was shot going down Area Two and Area Three, yet none of
that has been shown on the GIS map to have any erosion problems. He said that, while he appreciates
how the landfill is being stabilized, he doesn’t understand how they will harden one whole side and then
not have anything happen on the Willoughby property.
Mr. Meintzschel said he is asking the Board to really, really pay attention to the proffer as this
project goes forward. He said it is not adequate, and does not address anything on the Willoughby side.
It is his intention – and the only thing the neighborhood can really do – is to photograph, measure, take
some snapshots of exactly where the creek is now, and measure where it’s going to be and how it’s
impacted by the 5th Street Station mall.
Ms. Mallek asked him to point out the Brookwood neighborhood in relation to the map. Mr.
Meintzschel responded that Brookwood is off the map, and has another tributary called Lodge and Rock
Creek, and is shown in the very beginning of the video, further downstream, and east of Willoughby.
Mr. Boyd asked who owned the Willoughby side of the creek. Mr. Meintzschel responded that it’s
owned by the homeowners association and contains 57 acres of trail, which is private to the neighborhood
but used by many other neighborhoods, i.e. the UVA Running Club, etc. He said that the City is interested
in purchasing the land to incorporate it into the Rivanna Trail System, and have already made an offer to
buy it.
Ms. Mallek asked if there had been any historic improvement in the corner. Mr. Meintzschel
responded that there has been some improvement where the landfill is, which is on the opposite side, and
the water is cutting into the landfill but, once you stop that, it has to go someplace else, and has to go to
the opposite side of the creek. He said that is why the landfill is eroding to begin with; it’s because the
creek takes a 90-degree turn and has nowhere else to go.
Ms. Joan Albiston addressed the Board, stating that she lives in Willoughby and her property is
directly across the creek from the project. She said that she is a landscape architect and a Willoughby
Board member, but today she is speaking as a homeowner. Ms. Albiston said that she has lived
overlooking Moores Creek for nearly 18 years, first in Frye Springs and now in Willoughby, and she
frequently walks along the banks and appreciates the creek’s beauty. She stated that she appreciates the
work that development staff has done to minimize disturbance to the site, to reduce proposed fill in the
floodplain, and to communicate with the Willoughby neighborhood and looks forward to continuing to work
with them. Ms. Albiston emphasized that she is concerned about the well-being of Moores Creek and its
native riparian buffer. She said she understood that the health of the creek is “poor,” and both the City
and County have stated a desire to improve its water quality. She said that the Virginia Department of
Environmental Quality has introduced a watershed improvement plan for Moores Creek as one of four
degraded streams in this area and, in particular, would like to reduce its sediment load.
Ms. Albiston said that she is sure the developer will use measures to reduce the sediment load
through stormwater management and establishing improved grades along the creek, but is concerned that
filling in the floodplain may cause further erosion downstream as the flow of Moores Creek is
concentrated. She stated that she asked Mr. Brooks about that possibility, and he told her that possibility
is not considered in the zoning ordinance special use permit criteria. Ms. Albiston said that she is asking
the Board to consider whether the fill is absolutely necessary at the risk of erosion downstream,
particularly along the Willoughby common area. She also asked if the County has any leeway in its
development standard, such as reducing required parking, to aid in protecting Moores Creek and ensuring
that its water quality is improved.
Mr. Logan McKinley addressed the Board, stating that he lives in Willoughby and is on the
neighborhood association board, but is speaking as a neighbor today. He thanked the developers, stating
that they’ve done a lot to engage us and have done a good job answering our questions. Mr. McKinley
said that he didn’t have a background in stormwater management, but he likes to think he has a logical
perspective in looking at this project. He stated that it seems the developers are trying to reduce the fill
and are doing a lot to harden and armor their side of the bank, but his concern is what that’s going to do to
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his side of the bank. Mr. McKinley said he walks the trail a few times a week, and those who do are really
having a big problem with it being undercut – they’ve actually had to move it more than once already, and
have seen that accelerate. He stated that his concern is that this is a relatively small development, but
this one and others stack up and must be considered altogether, especially their impacts downstream.
Mr. McKinley asked if there was something that could be done on the Willoughby side of the creek, and if
the developer would be willing to help them address erosion concerns that they have.
Ms. Mallek asked if the areas are mostly between Area 3 and 4, or somewhere else. Mr.
McKinley responded that most of them are probably in between those areas, but there are erosion
problems on the majority of the bank but it’s gotten a lot worse between 3 and 4, and they are losing
significant land to the creek.
Ms. Mallek commented that there has certainly been a change in storms in the last several years,
and those produce a much higher velocity.
Mr. Bill Faust addressed the Board, stating that he is a Willoughby resident and that what they’ve
heard thus far is the shopping center will not be causing any impact, but everybody knows that runoff from
a parking lot is one of the major problems in polluting. He said that, just because there has been fill in all
the rest of the area, it doesn’t mean that they should allow fill in this situation. Mr. Faust said he thinks of
the County’s critical slopes program as a ‘slippery slopes’ program because one thing leads to another.
He stated that Willoughby has a trail that goes all around the subdivision, and the water’s going to have to
go somewhere so he is concerned about potential erosion to the trail. Mr. Faust suggested that, instead
of filling in the floodplain, that they move the road down into the middle area, as it looks to him as though
the shopping center had been designed somewhere else and the developers didn’t look at the property
they’re putting it on. He said that they need to change it a little bit and plan differently and, if they did that,
they wouldn’t have to fill at all. Mr. Faust stated that Area 3 is being proposed as an area which may have
a pedestrian bridge over to Willoughby, but that hasn’t been decided one way or the other and neighbors
have also expressed concern about that possibility. Mr. Faust stated that if they fill that area, they’re going
to lose a bunch of trees and more erosion would be caused because they’re building a wall to divert all the
water. He said that, if there’s no bridge built, all those trees and all that stuff has been destroyed for
nothing.
Mr. Patrick Healy addressed the Board, stating that he lives in Willoughby and indicated that he
has worked over the last few years with the design team for the Old Lynchburg Road project which was
very complex and went through many changes. Mr. Healy said that what impressed him with the design
team was their ability to listen and adjust to the various stakeholders, and the City found that they ended
up with a better project that cost less money by accommodating what seemed like trifling desires. He
stated that he hopes everyone could make the Willoughby project the best project possible, and clarified
that the City is interested in purchasing an easement of the trail and not buying it outright.
Mr. Jeff Maurer addressed the Board, stating that he lives in Willoughby and is not traditionally a
big pro-development guy, but it seems that this development – if done correctly – could improve the health
of Moores Creek and make the trail system a more attractive option for community recreation. He stated
that he is concerned that shoring up the bank on the development side of the creek could result in
worsening erosion on the community side of the creek, and he is hopeful that the Board, the County, the
neighborhood and the developer could come up with a solution to minimize the erosion on the community
side of the creek.
Ms. Long re-addressed the Board, stating that there were a few references to hardening of the
streambank on the project side of the creek, but that’s not necessarily what’s going to be taking place as
the design for the stream bank restoration has not yet been done. She stated that they would be hiring
consultants to help assess the situation in a site-specific fashion and design remedies for each of the
areas that are appropriate and would comply with the guidelines and standards that are referenced in the
proffers. Ms. Long said that, in some instances, rip-rap and hardening are not recommended, but it could
be plantings, grasses, and other things besides hard armoring but that has not been determined yet. She
stated that the design of those restoration plans would be subject to all state, federal and local regulations,
and the design would be reviewed as part of the site plan approval. She said the County will have an
opportunity to ensure that whatever measures we’re using are appropriate and comply with the standards
referred to in the proffers.
Mr. Rooker asked if it would be possible to design a plan that perhaps includes some mitigation
for the community side of the stream. Mr. Brooks replied yes and identified on a map the location of
Willoughby, noting that it comes off of the Fifth Street exit and occupies the entire bluff above the creek.
Mr. Rooker asked Mr. Brooks to confirm that it would be possible to design a mitigation plan that
would include some mitigation on the other side of the stream , if the property owner there is agreeable.
Mr. Brooks responded that anyone who has done these types of stream restoration projects would never
armor just one side of a channel and, with a large flood plain like this, there is the main channel itself –
which carries the low flow and is where one can canoe - the overbanks – which carry the flood waters, and
the slopes to either side of the landforms coming into the flood bank. He stated that most of this fill area is
up above on the overbank and those fill slopes way off the main channel, and most of the erosion
observed is in the main channel itself – which isn’t really the subject of this fill area except for the landfill.
Mr. Brooks said that they would be shoring up the landfill on one side, and could possibly do something on
the other side to balance that. He stated that the other areas are far enough off the channel that it’s not a
major concern but, as part of the stream restoration project itself, they would look at work in the channel
and try to get that so the channel doesn’t continue to erode.
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Mr. Boyd said that, during Ms. Long’s presentation, she mentioned a plan that was developed by
the City and the County some years ago, and said he assumed that that plan would have included both
sides of the creek.
Ms. Long responded that it is in some areas, and the proffers state that “a plan has to be in
general conformity with the Virginia Stream Restoration and Stabilization Best Management Practices
Guide, which is published by the State Department of Conservation and Recreation.” She said that there’s
reference to document the riparian buffers modification and mitigation guidance manual, prepared by the
Chesapeake Bay local assistance department. Ms. Long said that those manuals talk about the methods
for designing a stream bank restoration project, and the last thing the development team wants to do is
cause any adverse impacts on the Willoughby side of the creek. She stated that it may be that, during the
assessment that is part of the design of the restoration plan, it would be determined appropriate that, to
avoid adverse impacts, work on the opposite side of the creek would be necessary as well. Ms. Long
noted that it’s difficult for them to say exactly what they can do when they haven’t yet reached the point of
engaging consultants and doing onsite assessments with those consultants to figure out what the plan
says.
Ms. Long said the developers proffered exactly what the County asked them to do, which was
staff giving them a map and indicating, ‘this is what our County study says need to be done, we want you
to proffer that you will implement this plan.’ And the developers said they would. Ms. Long emphasized
that this application went through numerous rounds of review with the County staff, and even through
rounds with the City planning staff and was revised based on some of those comments. She said that
they are simply hesitant to say exactly what they’re going to do until they know what their consultants
recommend based on the standards and guidelines in the handbooks which they are obligated to do.
Mr. Snow asked if the water coming off I-64 now was currently coming off untreated, and asked
how they would be capturing that and letting it loose. Ms. Long confirmed that they would be retaining the
water long enough to slow it down and then releasing it back into the stream at lesser velocity, and without
the pollutants that are part of it. She said that they would capture and detain the water, which enables the
water to be filtered with sediments removed.
Mr. Snow asked about the direction of the water that is flowing off of the property that is to be
developed now. Ms. Mallek said that it crowns in the center at the moment, so it goes to all three sides.
Mr. Hines responded that it does crown in the middle, and there is water to the eastern side that drains
east into Moores Creek, with the water on the west draining west into Moores Creek, and coming around
to the site as well.
Mr. Snow asked how it would flow after the property is developed, and how the force of water
coming off the parking lot would be controlled. Mr. Hines explained that they are planning to construct
three separate facilities to control the water within the site, within the parking lot and the buildings, and
there are two separate facilities that then handle the water for I-64 and also for the landfill but, on the site
itself, one drains to the west and will be released at a rate at or below the current rate of water going to the
west. He said that there’s one that will drain to the northeast toward the top of the bell, and that would
discharge into the creek also, at a slower release rate than would normally occur.
Ms. Mallek asked if they had 100% capture rules for this area. Mr. Brooks responded, we do not
have 100%, however, we have as much as they can do, practically.
Mr. Hines said they are required to release it at a lesser rate than what it’s going to at the pre-
development flow rate.
Mr. Snow stated that the mitigation measures should slow the volume of the runoff down and
reduce the amount of water flowing into the creek.
Mr. Hines said the mitigation measures would slow the water down from what is coming from the
development site.
Ms. Mallek stated that, if they do a constructive wetland project, the plants will actually absorb a lot
of the pollutants.
Mr. Thomas asked if they were having a retention pipe and then a smaller release pipe to let it
out. Mr. Hines responded that they are proposing to filter all of the water on the site through two systems,
first going through a sand filter and then going into a detention system underground that also allows
infiltration into the ground, and reduces it at a slower rate. He said they are planning to treat the water
twice prior to it then leaving the underground detention to get to the creek.
Mr. Hines stated that, for the rainwater harvesting requirement, they are planning to do a cistern to
capture some of the rooftop water for a number of the retail areas, and then using that water to irrigate the
landscape islands.
Mr. Dumler asked Mr. Brooks what is meant in the proffers by “enhanced E&S,” and how they go
above and beyond what’s normally required. Mr. Brooks responded that it’s different for every site, and
the things he typically looks for are those beyond “standard stabilization,” which is temporary or permanent
seeding and stone on the roadways. He explained that “enhanced” requirements would be things such as
more matting, additives used in basins or seeding mixtures, and products like Filtrex for diversions and
traps. Mr. Brooks said that he often looks for redundancy in the system, which is not required by the state,
so if there’s a failure in a silt fence or a failure in a sediment basin in a large storm, that typically results in
March 13, 2013 (Regular Night Meeting)
(Page 13)
a large plume that travels downstream. Mr. Brooks stated if there are two systems in series, they hope to
catch those kinds of failures. He stated that, in some downstream waterways, they’ve required turbidity
curtains, such as in places on the reservoir and in Forest Lakes, and recently with Estes Park.
Mr. Dumler asked, if the plan goes forward and there’s an E&S approval process and the
hydrology alters the Willoughby side of the creek substantially, how would that be mitigated in case that
happens to an extreme degree? He asked if there is regulatory protection there, or would it need to be
something beyond just the stream channel requirements associated with Zone 4? Mr. Brooks explained
that the County would hold two bonds – an erosion and sediment control bond, and a mitigation plan that
would include the stream restoration proposal. He stated what it would not cover is a catastrophic event
such as a large flood.
Mr. Dumler asked to what extent this could change administratively after this meeting. Mr. Brooks
responded that they would try to follow the plans approved by the Planning Commission and the Board as
closely as possible.
Mr. Brooks explained that the concept the applicant worked out with staff is to take the creek that
comes off of I-64 and capture it in a large basin in front of the road, and then a large basin in the back of
the road that would capture the remaining runoff from the road itself. Mr. Brooks said that the initial plan
was to capture that creek, treat it, and then release it, but what they’ve ended up with is something a lot
different – and that is the road crossing, with the applicant proposing a stream diversion to send water into
a stormwater treatment system or device beside the stream. He said we are no longer capturing the
whole stream because it wasn’t feasible and the Army Corps wouldn’t let us do anything in the stream. So
we have to think of something else and it does get very difficult because, trying to shunt some of water
from the stream into a system is a lot different than capturing the whole stream.
Mr. Brooks said the Board had mentioned enhanced erosion and sediment control, but that might
be difficult unless the project is phased in some way, because they are at the boundaries of the hillside
and, if they want to provide large basins at the perimeter of the project, they must do it in the floodplain
and then try to remove it later. He pointed out that those kinds of things might be difficult from a practical
level to accomplish as much as we’d like, but we do the best we can, given the plan.
Mr. Rooker stated that staff has heard a desire by everyone here to make certain when the
mitigation plan is designed – assuming that the Willoughby neighborhood agrees – that efforts will be
made a part of that plan in order to stabilize that side of the creek.
Ms. Mallek asked that a notation to be added to the memo of the six most recent conditions as a
reminder to ensure that is remembered going forward.
Mr. Boyd said that he keeps coming back to the fact that they’ve agreed to do the plan that the
County and City put together, and that’s the ‘hook’ in his mind.
Mr. Rooker said there’s flexibility for the applicant to approve a plan that meets those
requirements, but all the ones they’re going to have to meet with a mitigation plan are not in the manuals
they’re referring to. He stated that, as a part of designing the mitigation plan, they can design the
mitigation plan that is all on one side of the stream or includes both sides – and it can’t be required without
the other property owner agreeing to it, and it has been made clear tonight that they are in agreement. Mr.
Rooker said that the neighborhood residents have said they are not opposed to it, as it brings some good
things to the area, but they want to make certain that their side of the stream is reasonably protected.
Mr. Boyd stated that he doesn’t want to put too much specificity in this to where the applicant
would have to come back and seek a variance from the Board.
Ms. Mallek said her intent is to ensure that they don’t fall into the familiar trap where the Board has
thought it would be taken care of at the site plan but, because it wasn’t written into a condition anywhere,
the staff was not able to bring it about. She said what she is asking for is a general reminder to staff and
County as much as to applicants to say this needs to be remembered.
Mr. Snow stated that he doesn’t want the developers to proffer something that’s going to end up
costing them another two or three million dollars.
Mr. Rooker said that’s not what’s being talked about here, as there are standards that must be
met with respect to a mitigation plan and that could happen with work on one side of the stream or both
and it doesn’t necessarily cost more money.
Mr. Snow said he would like to see it more defined.
Ms. Mallek said that’s Mr. Brooks’ role as the project goes forward.
Mr. Rooker stated that it’s defined by what’s required in the ordinance combined with the program
authority working with the applicant to come up with a plan that is best for the site, and one that will meet
those requirements. He noted that Condition #5 is not specific, it is general.
Ms. Mallek reiterated that she just doesn’t want it to be forgotten as they move forward.
Mr. Davis suggested adding to Condition #5 the following sentence: “Stream bank mitigation of
the Willoughby subdivision property shall be included in the mitigation plan if deemed necessary by the
March 13, 2013 (Regular Night Meeting)
(Page 14)
program authority, and the property owner consents to the improvements in the mitigation plan being
constructed on its property.”
Ms. Long said that they could live with that, but would like “if deemed necessary by the program
authority” to relate back to the proffers, and their original intent and goal of the proffers – which was to
implement the County’s stream bank restoration plan. She stated that the work on the opposite side of
the creek could undermine the goals of the proffer, and they don’t want to have the box where they’re
obligated to do one thing and end up in a situation where they can’t achieve the goals of the proffers and
the project gets held up unless they invest a lot of money. Ms. Long said that, once consultants carry out
their analysis and design a restoration plan, it may be that the mitigation plan guidelines would ultimately
require that almost by definition. She said the developers would rather see that play out that way so we
know that we’re being judged by the rules and standards of the proffers, and not by new obligations that
were not anticipated and ones where we were not made aware of.
Ms. Mallek suggested adding that language.
Mr. Davis said the wording “consistent with the proffers” could be added.
Ms. Long said that would be helpful.
Mr. Davis suggested adding a third sentence that states: “Such mitigation plan shall be consistent
with the intent of the proffers.”
Mr. Dumler then offered motion to approve SP-2012-00029 subject to the six conditions as
outlined in the staff report and Condition #5 modified to state: “Stream bank mitigation of the Willoughby
subdivision property shall be included in the mitigation plan if deemed necessary by the program authority,
and the property owner consents to the improvements in the mitigation plan being constructed on its
property. Such mitigation plan shall be consistent with the intent of the proffers.” Mr. Rooker seconded
the motion. Roll was called and the motion carried by the following recorded vote:
AYES: Ms. Mallek, Mr. Rooker, Mr. Snow, Mr. Thomas, Mr. Boyd and Mr. Dumler.
NAYS: None.
Mr. Hines thanked Mr. Brooks and said he has been a tremendous help in working through this
process as well as through the site plan.
(Note: The Conditions of approval are set out in full below:)
1. Disturbance of the floodplain shall be limited to that part of the attached exhibit which is labeled as
“Proposed fill areas as of 27 Feb 2013”. This area may be increased if determined necessary to
accomplish the grading associated with an approved variation to plan. The County Engineer shall
have the sole authority in making the determination if this modification to the disturbed area is
necessary.
2. Final plans and construction shall provide a stable, non-erodible surface for fill materials, subject
to County Engineer approval.
3. The applicant shall obtain Program Authority approval for an erosion and sediment control plan,
and obtain a land disturbance permit according to the Water Protection Ordinance requirements
prior to the start of construction.
4. The applicant shall obtain all necessary federal and state agency approvals (Army Corps of
Engineers, Department of Environmental Quality, etc.) prior to commencing construction in the
floodplain
5. The applicant shall obtain Program Authority approval of a mitigation plan, and provide mitigation
according to the Water Protection Ordinance prior to commencing construction in the County
regulated stream buffer. Stream bank mitigation on the Willoughby subdivision property shall be
included in the mitigation plan if deemed necessary by the Program Authority and the property
owner consents to the improvements in the mitigation plan being constructed on its property. Such
mitigation plans shall be consistent with the intent of the proffers.
6. The applicant shall obtain approval from FEMA for changes to the floodplain prior to commencing
construction in the floodplain and shall submit all documentation needed by FEMA to accurately
reflect the as- built construction for a map revision following construction, Community
Development shall not release erosion and sediment control bonds for this area until FEMA has
all information needed to update the maps to reflect this change.
_______________
(Note: The Board recessed at 8:17 p.m. and reconvened at 8:29 p.m.)
_______________
(Note: The next two items were held concurrently.)
Agenda Item No. 10. Public Hearing: ZTA-2010-00004. Industrial Uses. Amend Secs. 3.1,
Definitions, 4.14.5, Certified engineer’s report, 5.1.10, Junk yards, 5.1.15, Sawmill, temporary or
permanent, 5.1.20, Sale and/or storage of petroleum products including kerosene, gasoline, and
heating oil, 5.1.21, Dwellings in commercial and industrial districts, 5.1.31, Body shop, 8.5.5.2,
Review of site plans and subdivision plats, 26.1, Intent, where permitted, 26.3, Permitted and
accessory uses and structures, 26.6, Height regulations, 26.10, Minimum yards requirements,
27.1, Intent, where permitted, 27.2, Permitted uses, 27.4, Additional requirement, 28.1, Intent,
March 13, 2013 (Regular Night Meeting)
(Page 15)
where permitted, 28.2, Permitted uses, 28.4, Additional requirements, 29.1, Intent, where
permitted, 29.2, Permitted uses, 29.5, Additional requirements; by adding Secs. 26.3
(renumbering current 26.3), Independent office and general commercial uses; additional factors
when considering special use perm its; 5.1.49, Dry cleaning plants, 5.1.50, Foundries, 5.1.51,
Outdoor activities, 5.1.52, Outdoor storage, 5.1.53, Rendering facilities, 5.1.54, Slaughterhouses,
5.1.55, Tire recycling yards, 26.6, Site development and use; and by repealing Secs. 26.2,
Application, 26.4, Standard ratios, 26.5, Off-street parking and loading requirements, 26.7,
Performance standards, 26.8, Sign regulations, 26.9, Minimum landscaped area, 26.11, Utility
requirements, 26.12, Site planning – external relationships, 26.12.1, Vehicular access, 26.13,
Building separation, 27.2.1, By right, 27.2.2, By special use permit, 27.3, Minimum area required
for establishment of district, 28.2.1, By right, 28.2.2, By special use permit, 28.3, Minimum area
required for establishment of district, 29.2.1, By right – Category I, 29.2.2, By special use permit –
Category I , 29.2.3, By right – Category II, 29.2.4, By special use permit – Category II, 29.3,
Minimum area required for creation of district, 29.4, Number of permitted uses; of Chapter 18,
Zoning, of the Albemarle County Code. This ordinance would amend the regulations pertaining to
industrial uses by adding definitions pertaining to certain industrial and common use
classifications (3.1); amend the requirements for the certified engineer’s report (4.14.5); amend
and add supplemental regulations applicable to several uses that are industrial in character
(5.1.10, 5.1.15, 5.1.20, 5.1.21, 5.1.31; 5.1.49, 5.1.50, 5.1.51, 5.1.52, 5.1.53, 5.1.54, 5.1.55);
amend the regulations for the review of site plans and subdivision plats within the PD-IP zoning
district (8.5.5.2); and amend the industrial zoning district regulations by revising each district’s
stated intent, the uses allowed by right and by special use permit, the area of certain uses allowed
by right and by special exception, the accessory uses allowed and prohibited, and other uses
prohibited, by renumbering and reorganizing those district regulations, and by repealing certain
regulations (26.1 through 29.4).
(Advertised in the Daily Progress on February 25 and March 4, 2013.)
________
Agenda Item No. 11. Public Hearing: ZTA-2012-00013. Industrial Uses in Commercial
Districts. Amend Secs. 3.1, Definitions, 20.3.1, By right, 20.3.2, By special use permit, 20A.6,
Permitted uses, 20B.2, Permitted uses, 22.2.1, By right, 22.2.2, By special use permit, 23.2.1, By
right, 23.2.2, By special use permit, 24.2.1, By right, 24.2.2, By special use permit, 25.2.1, By
right, 25.2.2, By special use permit, 25A.2.1, By right, 25A.2.2, By special use permit; of Chapter
18, Zoning, of the Albemarle County Code. This ordinance would amend the regulations by
updating terminology for several use classifications in all of the above-referenced sections;
deleting the “medical center” use classification in the Downtown Crozet (20B.2) and Commercial
(22.2.1) districts with the use to be absorbed into the “office” or “hospital” classifications; adding
Laboratories/Research and Development/Experimental Testing and Manufacturing/Processing/
Assembly/Fabrication and Recycling as by right uses up to 4000 sq. ft. and requiring a special
exception to exceed 4000 sq. ft. (22.2.1) and adding Storage/Warehousing/Distribution/
Transportation as a special use (22.2.2) in the Commercial district; adding Laboratories/Research
and Development/Experimental Testing as a by right use up to 4000 sq. ft. and requiring a special
exception to exceed 4000 sq. ft. (23.2.1) and adding Manufacturing/Processing/Assembly/
Fabrication and Recycling and Storage/Warehousing/Distribution/ Transportation as special uses
(23.2.2) in the Commercial Office district; and adding Laboratories/Research and Development/
Experimental Testing, Manufacturing/Processing/Assembly/Fabrication and Recycling and
Storage/Warehousing/Distribution/Transportation as by right uses up to 4000 sq. ft. and requiring
a special exception to exceed 4000 sq. ft. (24.2.1) in the Highway Commercial district. These
uses would also be allowed in those planned districts (20A.6, 25.2.1, 25A.2.1 and 25A.2.2) that
cross-reference uses allowed in the commercial districts.
(Advertised in the Daily Progress on February 25 and March 4, 2013.)
The following executive summary was forwarded to Board members:
On December 5, 2012, the Board of Supervisors held a work session on this proposed zoning text
amendment intended to modernize regulations to provide greater flexibility for today’s industrial uses while
preserving the integrity of the industrial districts and accommodating target industries. In summary, the
draft zoning text amendment reviewed at that work session provided the following:
Definitions of several of the new uses proposed in the industrial districts to facilitate their
understanding and implementation (Sec. 3.1).
Further clarification of the information required in a certified engineer’s report based on
the proposed uses (Sec. 4.14.5).
Clarification and addition of supplemental regulations pertinent to certain proposed uses
to address their potential impacts on surrounding areas (Sec. 5.1).
Authorization of the proposed uses within the planned development industrial park zoning
district (Sec. 8.5.5.2).
Clarification of the statement of intent for industrial districts (Sec. 26.1).
Delineation of permitted and prohibited uses and structures, including a table of industrial
and non-industrial uses allowed by-right, by special use permit and by special exception
(Sec. 26.2).
Further clarification of structure height, setback (Sec. 26.3) and minimum yard (Sec. 26.4)
standards to be consistent with the terminology used elsewhere in the Zoning Ordinance.
March 13, 2013 (Regular Night Meeting)
(Page 16)
After staff’s presentation, the Board agreed to proceed to public hearing, but requested that staff
first address the following:
Remove multi-family dwellings as a use permitted in industrial districts. Board
members who spoke at the work session stated that such residential uses were not
appropriate in areas of industrial use and could compete with industrial uses for available
land.
More tightly define what constitutes supporting commercial and supporting office
uses. Board members who spoke at the work session stated that the ordinance did not
clearly describe what type of businesses would be “supporting.”
Further address allowances for independent offices and general commercial uses.
Board members who spoke raised concerns that the retention of independent offices and
the introduction of general commercial uses (i.e., uses allowed by-right or by special use
permit in the commercial districts) were not consistent with the Economic Vitality Action
Plan’s intent to pursue “strategies to stop the conversion of properties zoned light industry
(LI) to commercial, office and other uses that are not “core” industrial uses.” There was
general acceptance by the Board to maintain an allowance for independent offices in
existing buildings, but not in building expansions and new buildings, except by special use
permit. There also was Board willingness to consider allowing general commercial uses
in existing buildings only (not in building expansions and new buildings), but only by
special use permit. There was an interest in establishing limitations to the location and
extent of allowed space for independent offices and general commercial uses when
permitted.
The revised ordinance (Attachment A), which addresses input provided by Board members at the
December 5, 2012 work session, includes the following:
Multi-family dwellings have been removed as a proposed permitted use in the industrial
districts.
“Supporting office” has been removed as a separate new use category and has been
merged with the “supporting commercial” use category. The definition of “supporting
commercial” has been further clarified to identify use types that would be within the
definition (see Section 3.1 Definitions).
The regulation of “independent office” use has been clarified to allow the use by-right
within structures existing or vested on the date of adoption of this ordinance; by special
use permit within structures not established or not vested until after the date of adoption
of this ordinance; and by special use permit within the expanded portion of structures
where expansion is not established or not vested until after the adoption date of this
ordinance (see Offices in Table under Section 26.2 a. Primary uses and structures). In
addition, planned development industrial parks are explicitly grandfathered for uses (such
as independent office) permitted at the time of their rezoning (see Section 26.2 b. Planned
industrial parks approved on or before March 13, 2013)
The regulation of general commercial uses would be allowed by special use permit in the
industrial districts only within structures existing or vested on the date of adoption of this
ordinance. They would not be permitted in building expansions and new buildings (see
Commercial Uses in Table under Section 26.2 a. Primary uses and structures).
Special use permits for independent offices and general commercial uses would be
evaluated for consistency with specific factors, including: (1) the use should not be
located on the lowest floor having exterior access (to reserve this floor for industrial use);
(2) the gross floor area of each establishment should not exceed 3,000 square feet (to
limit the size of each non-industrial establishment); (3) the aggregate floor area of uses
should not exceed 24,000 square feet and should not exceed 25% of the total floor area
(to limit aggregate area of non-industrial uses); and, (4) whether the structure is
constructed to building code standards for industrial structures (to provide availability of
appropriate building space for industrial use). (See Section 26.3 Independent offices and
general commercial uses; additional factors when considering special use permits).
A comparison of current ordinance provisions to those proposed in both this ZTA and
ZTA201200013 Industrial Uses in Commercial Districts, which is concurrently before the Board of
Supervisors, is provided in Attachment C. Several sample use approval scenarios comparing current
requirements to provisions under the proposed ordinances are provided in Attachment D. In summary, as
Attachments C and D indicate, these ordinances provide greater opportunities for industrial uses to locate
by-right on industrially zoned land. On-site subordinate retail sales of an industrial use’s products and on-
site commercial uses that directly support the industrial uses are also more permissive (up to 25% of
gross floor area by-right; over 25% by special exception). Office uses directly affiliated with industries
remain by-right, but independent offices are more restricted unless they are located in existing or vested
structures or are within a previously approved planned development industrial park under current or prior
zoning regulations. General commercial uses will be allowed when appropriate, but only in existing or
vested structures with an approved special use permit.
Paired with ZTA201200013 Industrial Uses in Commercial Districts, the amendments in this
ordinance collectively remove certain barriers and provide industrial uses, including the County’s target
industries and smaller scale “Mom and Pop” enterprises, greater location opportunities. Of particular note,
small scale enterprises and “start-ups” are typically less capable of absorbing higher costs for market-
constricted available space and/or development review fees/carrying costs associated with permit
processing. The provisions in the proposed ordinance which allow a broader range of by-right industrial
March 13, 2013 (Regular Night Meeting)
(Page 17)
uses help small scale enterprises by opening up spaces where such uses are currently either not allowed
or required to have a special use permit. This proposed ordinance also builds on prior
zoning text amendments that liberalized allowances for Home Occupations in the Rural Areas, giving
those that are “cottage industries” more location alternatives for growth and expansion.
Categorized by-right industrial uses and greater definition of uses subject to special use
permit and special exception should reduce the staff time necessary to make determinations and
administer the Zoning Ordinance. The County’s tax base can also benefit from the expanded location
opportunities for business and industry the proposed ordinance provides.
Staff recommends approval of ZTA201000004 Phase III Industrial Uses as presented in
Attachment A.
_____
Mr. Cilimberg reported that last month they had discussed the prior work that has gone into this
amendment and some other amendments regarding industrial uses. He said that the last work session on
this was in December, and staff has tried to address some of those com ments in these amendments. Mr.
Cilimberg said that the objective is to modernize the regulations for flexibility, be reflective of what
industrial uses are like today, preserve the integrity of the districts and accommodate the target industries
in particular that have been identified for the County.
Mr. Cilimberg stated that the new ordinance language in its general form moves to a broad
category of by-right industrial uses, and specifically lists the uses that are not by-right in those categories –
but otherwise industries that fit those categories would be considered by-right. He said that it provides for
target industries and broadens some of the other by-right uses and expands some opportunities for
blending industrial and commercial uses. Mr. Cilim berg stated that there is some limited provision for
introduction of commercial and industrial, as well as the introduction of industrial uses in commercial
districts. He said that the changes cover both of the zoning text amendments.
Based on the work session in December, Mr. Cilimberg said, there are several things staff has
done to address Board comments. He explained that multi-family dwellings have been removed now as a
use, as they were a potential use by special use permit. He stated that supporting office is now
considered to be part of the supporting commercial category, which has existed in the ordinance for some
time but has been further defined with example use types so they can now better identify what supporting
commercial uses might be. He stated that independent office now is indicated only by-right within
structures existing today or those vested on this date, which they assume to be the adoption date of the
ordinance. Mr. Cilimberg said that, otherwise, independent offices would be provided through special use
permit. He noted that general commercial uses would only be allowed by special use permit within
structures that exist today or are vested today through some prior action of the County that is considered a
significant action. Mr. Cilimberg said staff has introduced the factors that these special use permits for
either independent office or general commercial would be evaluated to include considerations in review of
an SP – the lowest floor of a building would have exterior access reserved for the industrial uses; the size
of the non-industrial establishments would be limited to 3,000 square feet; the aggregate area of non-
industrial uses would be limited to up to 24,000 square feet or eight of the non-industrial establishments;
and building space would be constructed for an industrial use ultimately – which can include factory-type
industrial construction but also construction that is considered mercantile. He said that the amendment
also grandfathers planned development industrial zoning so that those approvals would retain the rights
that they have currently under existing zoning.
Mr. Cilimberg reported that the three categories are manufacturing, processing, assembling,
fabrication and recycling; storage, warehousing, distribution and transportation; and laboratories, research
and development, and experimental testing. He said those are the three basic categories of industrial
use, all of which would have a by-right allowance in the various districts. Mr. Cilimberg said there had
been questions raised previously regarding some of the changes, particularly regarding office uses, and
the industrial office type of use – which is basically the office associated with an industry – has been by-
right under the ordinance, and would continue to be. Independent offices, he said, such as doctors’
offices, have been by-right in the LI District, and it would be by-right in existing and vested structures
under the proposal.
Ms. Mallek asked if any current structure used as an office would fall into that category.
Mr. Cilimberg explained that any current industrial building would be considered as having that
possibility and would retain that possibility for office use. He said it could flip back and forth between office
and industrial activity in the future. He stated that new buildings and building expansions of independent
offices are by-right today, and they would, under this proposal, only be allowed by special use permit and
would be subject to the factors he mentioned earlier in review of the special use permit. For commercial
uses in industrial districts, he said subordinate retail sales are currently allowed by-right in the LI District at
less than or equal to 15% of gross floor area and by special use permit above 15%. He added that, under
this proposal, those uses would be by-right at or below 25% of gross floor area and by special exception
over that limit. He stated that supporting commercial activities are currently allowed at less than or equal
to 5% of gross floor area by special use permit and, as proposed, they would be allowed in the same way
as subordinate retail sales.
Mr. Rooker asked him to explain the difference between special use permit and special exception.
Mr. Greg Kamptner explained that the special exception device was created after the Sinclair
case, and they’re using the special exception to provide the process for what they used to call “waivers
March 13, 2013 (Regular Night Meeting)
(Page 18)
and modifications” and, by definition in the zoning ordinance now, the special exception process is used to
increase the area whereas a special use permit is defined to allow a use that is not otherwise allowed. He
clarified that a special use permit deals with use, and a special exception in this case deals with area and,
process-wise, they’re both legislative acts and are both acted on by the Board of Supervisors as the final
decision-making body.
Mr. Davis noted that a special use permit would require a public hearing by the Planning
Commission and the Board; a special exception is not subject to a public hearing requirement.
Mr. Cilimberg added that they don’t advertise special exceptions.
Mr. Davis confirmed that they may attach conditions to the special exceptions.
Mr. Cilimberg stated that one allowance being proposed would be for the general commercial
uses noting that, for subordinate retail sales, they could now be available in all the districts under the
proposal. He said that, while independent offices have only been allowed by-right in the LI District, they
now could be by-right in the existing and vested structures in both the LI and HI districts – which is part of
generalizing the allowances in the ordinance.
Mr. Cilimberg said that, on the general commercial side, most of what would be considered
general commercial uses are not permitted today and they’ve had a few that have come through zoning
asking for the possibility of locating in industrial areas that have some characteristics that might even be
considered industrial – such as a dog kennel. Mr. Cilimberg stated that they have made allowance based
on the Board’s comments in December for existing and vested structures to have general commercial
uses through a special use permit, so that is the big change occurring regarding general commercial uses
in this ordinance.
Mr. Cilimberg reported that the residential uses in industrial districts are not changing other than
being further clarified, but basically they are being considered “individual units or sleeping quarters for an
owner or an employee at the site of the industry.”
Mr. Cilimberg stated that, in the second ZTA, they are addressing the allowance of industrial uses
in commercial districts, which generally don’t occur today but, under this proposal, there would be a much
greater opportunity for industrial uses, particularly start-up types, to locate in commercial space. In
Highway Commercial Districts, he said, the most allowance there – because it is the most intense of the
commercial districts – would be the possibility either through by-right allowance, special exception, or
special use permit, for industrial uses of different categories to locate in the commercial districts. He said
that this is new and is intended, based on comments they heard, to broaden opportunities for industrial-
type uses in commercial areas.
Mr. Cilimberg said that there are other uses, but they are not really changing from what’s currently
allowed, and there is a list of prohibited uses. He stated that the desired outcomes are providing flexibility,
providing options that are attractive and affordable for the target industries, protecting what has been
considered a limited supply of industrial land from encroaching uses, and encouraging the opportunity for
research and development and start-up companies.
Mr. Cilimberg noted a few corrections that are provided to the Board: an incorrect reference to
the farmer’s markets date, and a sentence being removed for the planned development industrial parks
item as it would have inadvertently not grandfathered independent offices.
Mr. Cilimberg stated that staff recommends approval of ZTA 2010-0004 in Attachment A for the
zoning text amendment regarding industrial uses and other uses in industrial districts, and also
recommends approval of ZTA 2012-00013 as Attachment C.
Mr. Snow asked if the ordinance was being changed to the point that people who have invested in
property would not be able to use the land for which they intended to use it for when they purchased it. He
further asked if we have possibly reduced the value of someone’s property by what we’ve done.
(Note: At 8:45 p.m., due to a fire alarm in the building, the Board recessed and then reconvened
at 9:13 p.m.)
Mr. Cilimberg responded to Mr. Snow’s question prior to the fire alarm. He said that he couldn’t
speak to the value. He said, depending on the status of the property’s zoning, we have added some
allowances and we have removed some of what can be done under current zoning. He said that, if a
property was zoned but not vested with its development rights and did not have a building on the property,
then the general office category is no longer available to them by-right; it’s now by special use permit if
they are a light industrial property. He said, if they’re a heavy industrial property, they’ve actually gained
the possibility of getting a special use permit that they didn’t have any right to do before. Mr. Cilimberg
said it would depend on what uses someone might want to have on that particular piece of land. He
added that the planned development industrial park zonings have not changed at all, as they are
grandfathered and retain the previous zoning rights.
Ms. McCulley stated that in terms of available uses, she counted 63 uses that have expanded
permissions in the draft ordinance over what is currently allowed. She said that staff has talked a lot about
office, but there is a whole host of other uses that are now more readily available by-right that were not
allowed or are allowed by special use permit.
March 13, 2013 (Regular Night Meeting)
(Page 19)
Ms. Mallek stated that was the goal. To deal with the bleeding out of light industrial, heavy
industrial properties to all these other uses that have other places to go, and protect the light industrial
space that we have.
Mr. Boyd said that this might have created a situation where people had bought a piece of
property with the intent of doing something to it and no longer can do that without having to get some
additional zoning or special use permit for it. He said this would be the case of a light industrial property
where you can no longer build an office on it without a special use permit.
Ms. Mallek stated that the whole point of what the County has been trying to do for the last two
years is to stop that slide of industrial property, because everybody complained for years that we didn’t
have enough.
Mr. Boyd said that the problem is that people have invested in property for a certain use and now
they can no longer use it in the way they had intended.
Ms. Mallek said that if they have started the process, they are grandfathered.
Ms. McCulley explained that planned development industrial park is specifically grandfathered, so
the independent office use change does not affect them, and with LI or HI, if the property has a structure
that exists as of the date of the adoption of the ordinance or is vested with the right to build a structure,
then they are entitled to the independent office use throughout that structure.
Ms. Mallek noted that the property owner would need to have an approved site plan for that new
structure if it were not constructed yet.
Ms. McCulley responded that that is one way to vest, but there are also ways to vest through
rezoning – which is a multi-prong test that gets into some legalities, but both of those things can vest
property.
Ms. Mallek commented that if it is just raw land then there has not been enough carry-forward on
a plan to make it qualify for being grandfathered, which makes sense.
Mr. Cilimberg stated that the raw land has gained some greater allowances for the sale of
products that are made by the industry, supporting commercial activity, and even the opportunity to
potentially accommodate a commercial use for a special use permit in the building that might be built or
was vested.
Ms. Mallek said that this seems to be looking forward and trying to be more flexible to have
combinations of light industrial, commercial, walls being able to move, and companies being able to
change all within the same structure without a lot of legislative work to be done.
Mr. Cilimberg stated that from what staff has heard that sometimes it is the commercial space that
those types of industrial users can’t get into right now – which this opens up.
Ms. McCulley said that these spaces are prime incubator or start-up spaces for the small biotech
company that’s getting on its feet.
Ms. Mallek stated that it is also something big. She said that when she toured NGIC it was a lot of
combinations of labs and experimental prototype rooms and some small offices. She said that it is not
just a whole building full of cubicles, it is a sort of a testing place more than anything. So it seems that it
would fit in by-right in the light industrial category.
Ms. McCulley stated that in commercial districts staff is introducing for the first time some by-right
industrial use.
Mr. Boyd said that his concern is that someone might have paid a premium price for a property
based on the assumption that under the old ordinance they could build an office complex there – but now
the County is saying that they can’t do that – which greatly reduces the value of the property, at least in
terms of what might be developed on the property.
Ms. Mallek said that light industrial is an exploded list of possibilities now so it isn’t just a
construction yard.
Mr. Boyd said that there is no pent up demand for light industrial property.
Mr. Rooker commented that this whole undertaking of the ordinance was premised upon the fact
that the County did not have enough industrial property. He said that staff has now proposed that you can
have LI uses in commercial areas, and you could convert an industrial site to a commercial site with
special use permit, which you couldn’t do before. He stated that there are 63 additional uses that are
allowed in industrial and commercial areas.
Mr. Boyd said that that was one of the arguments from the very beginning is that the County
doesn’t define light industrial the way modern day light industrial’s needs are.
Mr. Rooker said that we do now.
March 13, 2013 (Regular Night Meeting)
(Page 20)
Ms. Mallek added that after this is adopted the County certainly would because of the whole
different framework.
Mr. Boyd said that that may be true but it also took away other availabilities. He stated that in
addition to adding the 63 additional uses, office use was taken away.
Mr. Rooker said that one of the problems that led to this point was that industrial property was
being converted to retail either by rezonings or to office.
Mr. Boyd commented that Mr. Rooker meant “to residential.” He said that the Board was moving
some LI to retail and residential.
Mr. Rooker said that part of the idea was to try to preserve our existing industrial property for
industrial uses, and the only way he can see that getting accomplished is to at least have some control
over the conversion of the use. He said that the special use permit provides that control, but there are
also a whole lot of other additional uses that were not previously allowed. Mr. Rooker said that there may
be changes in value both up and down, but there is probably no example of changes in zoning where
people feel it hasn’t helped them.
Mr. Cilimberg stated that the way staff has structured this most specifically as it regards to
independent office is to hold harmless the existing uses, through a building or a vested use, or
grandfathering the PDIP. He said that staff did not propose grandfathering in the proffered zonings that
have occurred, which the Board could certainly consider.
Ms. Mallek asked for an example of that.
Mr. Cilimberg explained that Mr. Hurt has property out on 29 North that’s proffered, that could be
grandfathered through the same provision that the PDIPs are grandfathered – just as an example.
Mr. Rooker asked Mr. Cilimberg to clarify the difference between “proffered zoning” and all
existing industrial zonings.
Mr. Cilimberg responded that the proffered zoning are properties that have gone through a
rezoning and have offered proffers, but there is a lot of conventional LI/HI without proffers. He presented
a table of acreage in various districts – with HI and LI without proffers totaling about 1,000 acres; proffered
land held by a total of 11 property owners totals a little over 100 acres. Mr. Cilimberg said that some of
those proffers restrict office use, and that would not be something they would change through
grandfathering if the proffer already restricts office use. He added that there are eight property owners
with 78 acres total that have proffers allowing office use.
Mr. Rooker asked if the proffers specifically mention office use. Mr. Cilimberg clarified that
Barnes Lumber only allows one use in its proffer – and it’s not office – and there are several other owners
that cannot have office uses today.
Mr. Rooker asked if the proffers for the 78 acres of property specifically mention office. Ms.
McCulley said that some are written in the prohibitive, and some are written in the affirmative. She said
that if the Board is inclined to grandfather LI and HI proffered property, that it be limited to properties with
use proffers, because those that don’t specify the use are opened up much more – and there clearly was
not an intent to allow for office use.
Mr. Rooker asked if the 78 acres is in the category that is being mentioned. Ms. McCulley
responded that it is. Mr. Cilimberg replied yes – the eight property owners of 78 acres.
Mr. Rooker commented that if the Board heard from people on that issue then it might be
reasonable to consider grandfathering the category.
Mr. Cilimberg said that would be a way to address some of the concerns about people who had
expectations from zoning – that they either received or had assumed they would have based on buying
their property.
Mr. Rooker stated that if you bought a property and you made proffers that were basically given
with the concept in mind that they were potential office, it would certainly be reasonable to grandfather
those.
Ms. McCulley noted that it is possible that some of those properties would qualify for vested
rezoning. Staff would just have to do a case assessment.
Mr. Cilimberg noted that property owners would not have to qualify any longer.
Ms. McCulley added that they wouldn’t have to be vested.
Mr. Thomas asked if Mr. Hurt’s property was the only example that could be given. Ms. McCulley
responded that there are seven other property owners.
Ms. Mallek pointed out that there are 1,000 acres of scattered sites zoned LI and HI in the Comp
Plan, and others that are not zoned yet.
March 13, 2013 (Regular Night Meeting)
(Page 21)
Mr. Cilimberg said that that’s the next step, and when this amendment is in place he is to contact
property owners who don’t have the zoning to ask them if they’d like to be a part of County-initiated land to
HI or LI.
Ms. Mallek stated that this is a far cry from the 125 available acres that Board members was told
were available for LI, and she’s glad to see there is more. She said that there was a lot of hysteria about
rezoning and changing everything because the County didn’t have any, and now it looks like there is a lot.
She added that it may not be well organized yet.
Mr. Thomas commented that it is not in the right place. Ms. Mallek replied that that’s not our
problem.
Mr. Boyd said that it is our problem if we’re going to start zoning property for LI uses and are going
to start telling them what they can and can’t do with their property. He said that it is a government problem
because the County is forcing them into what they can do with their land…it’s purely a government
problem.
Ms. Mallek stated that the basis of zoning is having the uses developed, and this is an expansion
of uses with the exception of one or two in particular.
Mr. Boyd emphasized that modern day manufacturing is very similar to office space.
Ms. Mallek responded that is what staff has achieved – that combination of manufacturing, retail
and office.
Mr. Boyd said that it’s not, because what they’ve done is taken LI property and said you can no
longer put more than 3,000 square foot of office on it.
Mr. Cilimberg stated that that’s a different category of office – general office, such as doctors’
offices – and any offices that are part of a research and development activity, part of a manufacturing
activity, are all by-right. He said that if there involved in something that qualifies under one of the three
categories as an office use – in support of those activities and those categories, then they’re by-right.
Mr. Boyd asked how the Department of Intelligence use would fit into this. Ms. McCulley said that
it’s very likely that they would fit under the third category – laboratories, R&D, experimental testing –
because within the definition it actually includes defense security research, and they wanted to include that
kind of use.
Mr. Boyd asked if NGIC and DIA could expand in LI-zoned property without any kind of special
use permit. Mr. Rooker responded that so could a private contractor who was in that line of business.
Mr. Cilimberg pointed out that the 1,665 acres are the zoned properties that may have buildings
on them, so it is not open acreage; the 120+ acres refers to acreage that’s vacant.
Mr. Rooker said that the 120+ acres clearly does not include the UVA Research Park and
Fontaine, as the research park itself includes over 500 acres, and you can do any kind of light industrial
there, office, etc.
Mr. Boyd said that you couldn’t build today under the new guidelines unless you could somehow
tie it to laboratories.
Ms. Mallek responded that all of the buildings would qualify for the categories Ms. McCulley just
read.
Mr. Cilimberg pointed out that the zoning is being grandfathered, but a new research-park type
zoning request is before Board and is a rezoning to decide what uses are appropriate. He added that he
does not think that has changed at all with this.
Mr. Rooker said that wasn’t done as a matter of right, that was a rezoning process with proffers,
and it was zoned as a PDIP. He explained that the applicant came in and presented what they wanted to
do, and the Board always has the authority to rezone properties with whatever proffers might be offered.
Mr. Rooker said that there is a concept in the proposal under the definition of industrial offices that
says “offices affiliated or in a parent/subsidiary business relationship with the laboratory’s research and
development.” So if there is an industrial operation you can have an office located somewhere else that
becomes an industrial office, if there’s a combination of ownership going on. He stated that that whole
concept makes no sense to him.
Ms. Mallek asked Mr. Rooker if he meant on a separate property – they’d have a standalone office
building. Mr. Rooker responded yes.
Ms. Mallek said that that defeats the effort. Mr. Rooker agreed and said that makes no sense to
him at all.
Mr. Rooker asked what would happen if they closed down the industrial operation but were left
with the office. Is that a nonconforming use at that point? Ms. McCulley responded that if it is in a
March 13, 2013 (Regular Night Meeting)
(Page 22)
structure that’s vested because it exists on the date of adoption of this ordinance, then the use becomes
independent office, which is a permitted use.
Mr. Rooker said that he wasn’t talking about a vested situation. He said that we’re speaking
prospectively, why even allow this, why do this?
Ms. McCulley explained that if the structure they’re in exists on the date of the adoption of the
ordinance, then it would convert from industrial office to independent office.
Ms. Mallek asked what happens if it is built next year and the Board adopted the ordinance today.
Mr. Rooker stated that he was not concerned about the vested situations because they have a right
anyway. He said that what he is referring to is providing someone with a different treatment because there
is common ownership – somebody’s got an industrial building and they are in Crozet and want to go
somewhere else and put up an office building. Why would that make a difference?
Ms. Susan Stimart gave the example of Relay Foods, which has their corporate headquarters on
Ivy Road, but uses the old Cadmus space in the City for their distribution and warehousing, so they have a
divided operation.
Mr. Rooker said that the Ivy Road area is zoned for office.
Ms. Stimart stated that their operations can be a little bit blended, and sometimes they may need
to have assembly and distribution out of the Ivy location. She said that another example would be Nitek,
and when they were at the height of their expansion they were divided between four different spaces in the
County just to accommodate their growth.
Mr. Rooker said that he still did not understand and used the example of “if he’s a developer and
just wants to build and lease an industrial site to somebody.” He stated that under this provision he could
completely skirt the ordinance and go somewhere else and build an office building and say that it is under
common ownership. He said that he could build offices anywhere because he owns an industrial site.
Mr. Cilimberg said that that was not the intent. He said that it was not intended to allow for the
same owner to be able to put an office on one site and an industry on another that have no relationship.
The idea was that there was going to be a relationship between the office operation and the industrial
operation, even if they were on separate sites.
Mr. Rooker said that is not what the provision does. He said that the provision basically says that
if they’re under common ownership, then the limitation doesn’t apply. He stated that it is an exception that
swallows the rule. Mr. Cilimberg responded that that was not the intent.
Ms. Mallek said that taking out the last phrase would probably solve the problem.
Mr. Rooker said that if you eliminate the exception then you don’t even need the definition
because you can have an office at the site. He also said that in 26.1, which is Attachment A, it seems that
in describing the intent there should be a category that says “preserving existing zoned industrial property
for industrial use.”
Ms. Mallek commented that the whole point is to try to make it more possible to have sites ready,
so when someone appears with the intent of needing a large space, there would already be something
ready to go “rather than having to create something from scratch.
Mr. Rooker said that it would be helpful to have staff explain under “commercial uses” the terms
“supporting retail sales” and “subordinate retail sales,” and how those would be interpreted.
Ms. McCulley responded that subordinate retail sales is the product that the industrial use
produces, so if there is a fire extinguisher factory with a showroom you can walk in and buy fire
extinguishers. She said that supporting commercial is different, because the idea is to have things that
support the employees who are there working in the industrial uses – such as a restaurant in the industrial
park, newsstands, beauty salons, daycare centers, dry cleaners.
Mr. Rooker asked if that was something she thought she could actually apply as the zoning
administrator. Ms. McCulley responded that it only gets tricky when they serve the outside public.
Ms. Mallek said that an example of that would be the Innovation Café, which was supposed to
serve the workers of the industrial park but draws outsiders too.
Mr. Cilimberg stated that one thing to help the zoning administrator is a list of example-type uses
that could be supporting under the definition, so staff has tried to be more identifying of those things that
could qualify – but in any case, it would be about the level of intensity of employment in a particular
location.
Mr. Rooker said that he is fine with the concepts as long as the zoning administrator can interpret
it.
Ms. McCulley commented that the scale needs to be appropriate to serve the employees within
that industrial center.
March 13, 2013 (Regular Night Meeting)
(Page 23)
At this time, the Chair opened the public hearing.
Mr. Wendell Wood addressed the Board, stating that when NGIC and DIA arrived and he asked
for additional space, he was told that he had to zone the land industrial – so that’s what he did – and if the
County considers the building he leases to DIA, NGIC and SIC industrial, he doesn’t see that. Mr. Wood
explained that there is nothing but office space, computers and cubicles. He said that they don’t make or
produce anything they watch their computer – it is office space. Mr. Wood asked how companies like
General Dynamics would react if they wanted to come here and locate right next to them and the land next
to them would be zoned differently. He said that the County “thinks they’ve done a great thing” by adding
60 different industries that can go on that land, but in all reality those are industries that would not locate in
light industrial.
Mr. Wood asked Board members to ask the University of Virginia if they would open up 50 acres
of their land to light industrial – where they could have a tow truck yard; a storage facility; a foundry; and
meat packing. He said those are types of industries and are not conducive to industries that the
community associates with “a first-class research park.”
Mr. Rooker said that all of the target industries would be allowed in there, and said that Mr. Wood
is just naming the things that would not be desirable to a high-end industrial site, but the things that are
high-end light industrial are allowed as a matter of right.
Mr. Wood said that they are restricted to the amount of office space that they can have with that.
Mr. Snow responded not with this.
Mr. Wood said that his point is how a facility like that is going to want to locate to “undesirable”
industries that could potentially be next to that.
Mr. Wood also asked about someone buying 30 acres for industrial property, and then finding out
they would be located next to an outdoor display or lumber yard or brick manufacturing plant, which is
allowed next to his operation.
Mr. Rooker responded that Mr. Wood could do any of those things on his property today.
Mr. Cilimberg commented that they are allowed today.
Mr. Rooker said that that’s not a change. If you’ve got an industrial-zoned property, you could put
a brick manufacturing plant on your property.
Mr. Wood responded that he can do it. He said that he is talking about reality. Mr. Wood posed
that question do you think that’s really going to happen…you’re adding, but you forget what you’ve taken
away. You’ve taken away the high-end facility, expecting to be an office building there, that can’t be done.
Mr. Wood said that in the real world a company like Booz Allen is not going to put an office building next to
an LI business like that. He stated that he has industrial land on Airport Road that adjoins the UVA
Research Park, but he cannot go in there and put a building with a larger base of office space.
Ms. Mallek said that he could have any of the combined uses with the target industries, and he
could use 100% of the facility.
Mr. Wood asked how that encourages business when he’s spent millions of dollars on getting
water and sewer in, and a buyer can’t get what they want – and may end up next to a light industrial
facility. He stated that the real world is not happening that way. He suggested that the Board ask UVA to
take 50 acres of their land and open it up to LI, and see what kind of comments they get back from them.
Ms. Mallek said that as a landowner there is no obligation for you to put a contractor’s yard in the
middle of your property with research labs.
Mr. Wood said that that is not the issue. He said that the issue is he cannot add another facility
that is comparable to what’s there, in an LI zone.
Mr. Snow asked Mr. Wood to give him an example of what he would like to do. Mr. Wood
responded that he would like to continue with what he’s already doing.
Mr. Snow asked Mr. Wood what that was. Mr. Wood responded that it is basically office space –
general office space.
Mr. Snow asked if it was general office space for research or just general office space. Mr. Wood
said that it is just general office space.
Mr. Snow asked if it was something like NGIC or DIA or any type of research office, all of those
things are allowed. Mr. Wood said that they are not allowed in LI.
Mr. Snow replied not yet, but they will be.
Mr. Cilimberg stated that this was intentionally designed to allow that. He said that staff talked
about it in the workshop. He said that they were categorizing uses that would capture those Mr. Wood is
describing.
March 13, 2013 (Regular Night Meeting)
(Page 24)
Mr. Wood said that Booz Allen is a government contractor, and they don’t have a laboratory – they
are an office building, not a manufacturing company.
Mr. Cilimberg replied that they are also a target industry covered by laboratories, research and
development, experimental testing.
Mr. Wood asked about New York Life – if they were to relocate their headquarters here. Mr.
Cilimberg responded no – not under industrial without a special use permit.
Mr. Rooker said that Mr. Wood got his property out there now through rezoning.
Mr. Rooker emphasized that part of the idea of the ordinance is to preserve existing light industrial
and industrial property for light industrial and industrial uses, and not have all of them convert to general
office.
Mr. Wood said that is why the Board needs to look at the County’s land use plan, as it should not
be having that type of light industrial next to a shopping center or housing, or a contractor’s yard next to
multi-family. He said that he is not here against light industrial, but the Board needs it in locations that
don’t have to compete with the University of Virginia or DIA. He stated that it has evolved to office space
and has not evolved to being a contractor’s yard.
Mr. Rooker said that the Board does want to make available space in the County for things like
contractor’s yards, and the owner determines which uses he wants to put his property to.
Mr. Wood said that the owner does not determine that, the marketplace determines that.
Mr. Rooker said that a landowner can say “no” if someone wants to come in and lease that kind of
business there, but there are many other high-end businesses that can locate there too.
Mr. Wood said that the reason he would have to say no is because of the requirements. He
stated that he had to build public water, sewer and streets and the County assesses it a $150 – 200
thousand dollars an acre and the tenant can pay $65 – $75 thousand dollars an acre. It does not work.
Mr. Wood said that the County needs contractor’s yard space, but the question is where they need
it – and they don’t need it next to the UVA Research Park. He stated that you don’t need it to where
someone has invested money and relied on having a tenant that was not going to be one of the 60
elements that is added to the program. Mr. Wood said that those 60 elements don’t pay. He said that
they cannot pay the price of what has evolved around the marketplace and what Albemarle County taxes
you add.
Mr. Rooker said that what Mr. Wood is suggesting that someone who has light industrial property
that’s beside his property shouldn’t be allowed to put a contractor’s yard in there, because you want to
have a higher-end area.
Mr. Snow said that it’s some of his land that’s zoned LI.
Mr. Wood stated that the market tells you where to go, and the government would not have
invested all this money here if they didn’t reasonably expect to have some protection around them. He
said that that’s what zoning is about – markets change, conditions change and they have changed.
Mr. Rooker said that under light industrial zoning today, you can have many, many things – some
of which are not high end – and the market determines whether or not the user can afford that particular
piece of property.
Mr. Wood said that the surroundings justify it, and “things have happened,” so if NGIC and DIA
hadn’t been built, that may have been a great place for a contractor’s yard.
Mr. Rooker said that there are many, many uses.
Mr. Wood said that there are many uses, all at lower standard.
Mr. Rooker replied no they are not. Mr. Wood responded they are.
Mr. Rooker asked Mr. Wood if he is calling all of the items lower-standard uses. Mr. Wood said
that the buyer isn’t going to know what’s going next to it.
Mr. Rooker stated that you cannot control that. Those properties that are zoned industrial today
have all those potential uses – you don’t control them.
Mr. Wood said they have potential uses, but they are all detrimental to what somebody who’s
gone in and invested millions of dollars.
Mr. Blake Hurt addressed the Board, stating that he is the owner of light industrial property on
Route 29 North, on Northside Drive, which would be affected by the proposed changes to industrial zoning
regulations being considered. Mr. Hurt said that while there are several positives, including the
liberalization of where industrial start-ups might locate, they are very much against the removal of
independent offices that are currently allowed in light industrial district.
March 13, 2013 (Regular Night Meeting)
(Page 25)
Mr. Hurt said that their arguments are both specific and general, and can be summarized in three
parts: the provision is short-sighted in its effect, counterproductive in its result, and unfair to those with LI
zoning. He explained that it is short-sighted because the intent of the provision is to make industrial
property “more available” to possible industrial users, but removing by regulation other possible users for
LI property – like offices – in order to lower the price for a manufacturer makes as much sense as trying to
feed the poor by telling a grocery store they can’t sell to anybody but poor people. He said that removing
the possibility of independent offices will decrease the desirability of LI zoning, and those who have it and
will be down zoned will pay the cost of reduced values for the benefit of unspecified ‘industrial users. Mr.
Hurt said that their properties will become a “cautionary tale” for everyone considering future LI zoning.
He stated that he also has industrial property in the City, and current and past users there are seeking
inexpensive, flexible space – such as soil scientists, architects who make models, temporary lighting
providers, a professional photographer, a copier company – and none would be allowed under the
proposed change in the County’s ordinance. Mr. Hurt said that he is willing to accommodate industrial
users, but there aren’t enough of them where the price makes sense, and zoning is one of several factors
that determines price – along with access, public water, sewer, topology, ARB approval, and the cost of
development. He stated that the property on Northside Drive had not had ready access to public sewer
until recent installation of the sewer pumping station, and even without it there are complications with
getting County approvals.
Mr. Hurt said that last year, Virginia Power wanted to lease part of their industrial property for a
temporary construction yard, and needed it for 12 months; to their surprise, getting a permit from the
County would take two to six months. In Greene County he said, they would get approval in 10 days. He
also stated that barring independent offices in LI zoning would also be counterproductive in creating more
industrial space, and with his property they’d been planning to build two-story buildings with walk-in access
on each level, with the lower floor targeted for industrial flex space and the other targeted for independent
offices. To make the financing work, he said, it is helpful to have higher priced office space to offset the
cheaper price on the flex space. Mr. Hurt stated that prohibition on office space or the restrictive
requirement that it must be related to what’s below, would inhibit the rental and would make financing
more difficult – making the project less likely. He said that the inevitable result would be less industrial
space, and one response from County staff is that independent offices could be held by special use
permit, but this argument didn’t hold.
Mr. Hurt said that if the Board wanted to increase the industrial land, it would be more effective to
increase the amount of industrial property designated in the Comp Plan, adding that it seems far more
equitable to just add some industrial color to the Comp Plan than to take the long green from the owner’s
pocket.
Mr. Hurt stated that the third reason not to remove independent offices in the LI zone is that it’s
unfair. He said that he has been working on the development of his property for a generation. He said
they have negotiated with the County for LI zoning on this property, and made proffers that restricted its
use. He stated that they went through the process of planning the property and filed a site plan in order to
grade it. Mr. Hurt said they have paid for grading, have invested heavily, and have waited patiently for
investments in infrastructure like the sewer. He said they have submitted several preliminary building
plans to the staff during the last 10 years, illustrating their ideas, and have explained them thoroughly. Mr.
Hurt added that they have made additional concessions and proffers to the County for a road easement in
order to bring the side setback in compliance with current County regulation.
Mr. Rooker asked if this would be a vested situation.
Ms. Mallek said that it sounded like Mr. Hurt would be able to do everything he wanted to do if the
ordinance was to pass.
Ms. McCulley said that it’s possible that the site plan has been vested, but staff has not done a full
analysis at this time.
Mr. Rooker said that the 78 acres that have already been zoned with proffers, which would include
this, would be grandfathered.
Mr. Hurt said that that would address the fairness part of his argument, but it has not been
passed.
Ms. Mallek said that it sounds like Mr. Hurt is speaking against it, when she thinks it would really
help him.
Mr. Hurt stated that he is all for waiving that particular provision. He said that he has done a lot a
work on his LI property to make it accommodate offices, and it would be unfair having done all of that work
to have the rug pulled out from under them. He added that the general provisions of the idea is good, and
his goal is not in one of those categories – as they are designing 2,400 spaces that are 1,200-3,600
square foot spaces, similar to the small businesses found in the City. Mr. Hurts said that independent
offices in light industrial provide greater flexibility and allow lower costs for industrial users. He stated that
the more small users that you can bring in, the better.
Ms. Mallek asked if the small offices would be considered supporting commercial for other things
around it.
Mr. Cilimberg replied that they would more than likely be general commercial or office.
March 13, 2013 (Regular Night Meeting)
(Page 26)
Mr. Snow noted that he also has some LI property, and it is definitely cheaper than commercial.
Ms. Mallek asked if that was current day and it would be addressed in the ordinance.
Mr. Snow replied “no” and said that Ms. McCulley had met with a lady earlier in the week who
already has a business that is open. He explained that she wants to add a dog massage parlor to her
business but she cannot. Ms. McCulley clarified that she cannot do it now. She said that the proposed
ordinance would establish for the first time an opportunity to apply for a special use permit for that
instance.
Mr. Snow agreed and explained that the lady’s response was “the reason I’m doing this because
I’m trying use the space without spending any more money” and to get a special use permit “she said that
she can’t afford to do that”.
Mr. Rooker said that that’s a use that is considered a commercial use and not an office use –
that’s beyond what being discussed.
Mr. Snow said that he was just using that as an analogy – that a lot of people are looking for
inexpensive space to either start or augment a business. He added that it looks like cheaper LI use land
would be a perfect use for it, because it’s hard to find commercial property at an affordable rate.
Mr. Rooker said that the question is whether commercial light industrial property could be used for
what’s typically seen in a small shopping center. He stated that you can’t do that now, and you can’t do
that under the ordinance. He explained that the light industrial property that you say is less expensive –
pretty soon it wouldn’t be, because the market would say let’s buy that and put a shopping center there.
Ms. McCulley said that the hope is a group would come in together for more than one commercial
use in a space, through special use permit.
Mr. Boyd asked what made staff decide to eliminate office space in LI, except for the target
industry list, because it seems that large manufacturing is not going to happen anymore. Mr. Rooker
responded that this arose because they were worried about creating more industrial property.
Mr. Boyd said that there is a need for contractor’s yards and that type of thing.
Mr. Rooker responded that it is just what Mr. Wood said shouldn’t be allowed to go in.
Mr. Boyd said he was not agreeing with that, and his question is why office space was taken away
to this degree.
Mr. Cilimberg said that staff understood that it was stated back in the Economic Vitality Action
Plan that there was a desire to create more industrial space and not have that space used for other types
of uses such as office.
Mr. Dumler said that it specifically stated, “Continue pursuing strategies to stop the conversion of
properties zoned light industrial to commercial, office and other uses that are not core industrial uses.”
Ms. Mallek said that they should probably finish the public hearing before any more Board
discussion.
Mr. Morgan Butler with the Southern Environmental Law Center addressed the Board, thanking
them for putting in such a long day. He also thanked staff for all the work they’ve put into the light
industrial amendment, because the two goals they are trying to achieve are “inherently in conflict.” Mr.
Butler explained the first goal – to conserve industrial zoning for true industrial uses, or preserving the
integrity of industrial districts – arose years ago. He said that the concerns began years ago, stemming
from smaller scale industrial users not being able to find an affordable place and a lawnmower repair shop
came before the Board. Mr. Butler stated that they could not afford LI property because the price had
been inflated by offices allowed there, and as a result of that there was pressure to look to the rural areas
to create more industrial land, and pressure to expand uses under the rural zoning category. So it was as
much a rural preservation issue as it was about protecting the ability of small-scale, true industrial users to
locate on industrial land. He said that the second goal is to provide more flexibility in what they allow in
industrial districts, and the list is now an exclusionary list rather than an inclusionary one, with greater
flexibility to allow subordinate retail – jumping the cap from 15% up to 25%.
Mr. Butler said that the SELC has concerns about opening up these industrial districts to unrelated
retail, and he believes this proposal goes too far because it allows for secondary retail to jump from 5% to
25% - and the definition of secondary retail is “not particularly tight.” He also recommended having it as a
special use permit instead of a special exception, and added that he didn’t sense any clear resolution
about the industrial office definition issue and the term “affiliated with.” Mr. Butler stated that it makes
sense to allow industrial zoning that has proffers for office uses to be vested, and it should be included,
but he thinks there should be clarification as to other manifestations “vested” could have. He also said
that Mr. Wood expressed concern that by switching to an exclusionary list from an inclusionary list,
because there may be things allowed in LI now that may not be appropriate – and he tends to agree that
things like “tire recycling centers” may not be ideal. There may be some uses in there that we require be a
special use permit in certain zoning categories.
March 13, 2013 (Regular Night Meeting)
(Page 27)
Ms. Mallek noted that the tire recycling would only be permitted if it were in a large enclosed
building, not mountains of tires lying around on the hillside.
Ms. McCulley said that the County has added brand new supplementary regulations such as
“outdoor activity and outdoor storage associated with an industrial use,” to address the impacts of those
uses.
Ms. Valerie Long addressed the Board, expressing support for the ordinance proposals and
stating that she shares concerns about conversion and the potential impact on property owner’s values.
She said that there seems to be consensus that the Board will at least grandfather in the land that has
already been zoned, with proffers, and those landowners should get the benefit of the rights they agreed to
in exchange for making those proffers. Ms. Long stated that the ordinance will be very helpful to the local
economy, within the confines of the language in the Economic Vitality Action Plan which included the goal
of limiting office uses in LI. She said that the amendments offer “flexibility and discretion” because you
never know what users might come along, adding that the criteria under 26.3 is “pretty stringent” and she
doesn’t want them to underestimate the significance of a potential employer having to come to the County
and go through the special use permit process. Ms. Long said that it’s $2,000, just for the application fee,
and there must also be a concept plan – which requires hiring an engineer, architect, or surveyor at the
least. She added that she’s never had a project get through on the first round, and she doesn’t want that
to be discounted. Ms. Long stated that whether a property is “vested” or not is subject to the provisions of
the Virginia code, which is quite lengthy – and it’s very subjective in the way it’s written. She said that she
liked the increase in supporting commercial uses, as that provided more flexibility.
At this time, the Chair closed the public hearing.
Ms. Mallek asked if there was an appeal process for the vesting issue. Ms. McCulley responded
that there was, and it is a decision made with the zoning administrator in consultation with the County
Attorney’s office, and the appeal is to the Board of Zoning Appeals. She said that a few uses that have
been mentioned as “by-right” in LI are actually not – such as a foundry, which is expressly prohibited, and
tire recycling, which would require a special permit.
Mr. Snow suggested that the Board come back and finish this up at a later date.
Mr. Rooker agreed.
Mr. Boyd asked about New York Life, as he thought that was a target industry. Mr. Cilimberg
responded that it’s not a target industry under the present list.
Ms. Mallek said that regardless, the County would work to ensure that they could find space here
to locate.
Mr. Boyd said that he agrees with Mr. Snow that they should come back and revisit this for a
decision.
Mr. Davis pointed out that if any of the changes make the zoning more intensive, then the Board
may need to advertise an additional public hearing, so staff would need some direction as to what
changes they are proposing to the ordinance.
Mr. Cilimberg said it would be helpful to have a basic set of things they wanted to have before
them for their action, as that would inform whether they needed to re-advertise or just modify language –
such as the grandfathering language, which is already written.
Mr. Boyd said that he does not think it’s a good idea to limit putting any kind of office space in LI,
and he would like to see that put back in.
Mr. Snow agreed.
Mr. Thomas agreed.
Mr. Snow said that he felt that office space was a target industry.
Ms. Mallek pointed out that general office space would not.
Mr. Snow said something like an insurance company would be a target industry, and if there is a
piece of land that fits that, through this action someone like Mr. Wood could no longer use his land for that
type of business.
Mr. Rooker said that that’s fine if there is no concern with preserving light industrial property for
light industrial uses, because that was one of the whole premises of starting the process.
Mr. Snow said that he cares about it, but does not want to take away someone’s rights if he has
planned to use that property for that type of use.
Mr. Rooker said that you cannot discriminate between Mr. Wood and someone else who owns
light industrial property.
March 13, 2013 (Regular Night Meeting)
(Page 28)
Mr. Boyd said that he is not, but his concern is that the County would be shutting down a lot of
opportunities if they do this – and his issue was not sacrificing LI to retail and residential. He stated that
he would like to see office space put back in as a by-right ability of LI, because if not they’re creating
unintended consequences.
Mr. Rooker stated that if you allow general office throughout light industrial property, you eliminate
one of the goals this amendment was seeking to achieve. He also asked if there is anything that prevents
a bank from going into light industrial under the current zoning. Ms. McCulley said that it is not currently
allowed in LI.
Mr. Rooker said that if all offices were allowed by-right in LI, a bank could locate with four floors –
with offices upstairs and retail downstairs – and banks could take up the industrial property. Ms. McCulley
said it would matter whether it was mostly a corporate office versus a retail banking function, then it might
qualify as an office.
Mr. Boyd said that if they leave the office provision the way it is now currently, with all the other
changes that would also solve the grandfathering problem. Mr. Davis responded that that would be a
significant change, as the ordinance is built on the premise that there would be limits on offices, and it
would require a bunch of changes to the ordinance.
Mr. Rooker said that it is kind of an all or nothing situation – you either allow all office uses, or do
what has been done here and allow all different kinds of uses in LI, but not 100% office use. He said that
BNB built their office on Pantops on highway commercial property, and if you allow light industrial to be
used for those purposes, LI will quickly get gobbled up for those uses.
Mr. Boyd said the County has been telling people for years that if they want to build office
buildings, they need to zone it LI instead of highway commercial for an office complex.
Mr. Rooker stated that people have not been told that.
Ms. McCulley said that if someone comes in and wants to do commercial office, staff would not
steer them towards an LI designation unless the Comp Plan calls for an industrial service for that property.
Mr. Cilimberg said that as it was noted tonight, the question was for these uses what zoning would
be needed, and to be consistent with the Comp Plan, it would need to be industrial zoning – which would
allow for office uses – because the plan called for industry in that part of Piney Mountain. He added that it
was Comp Plan-driven.
Ms. Mallek said it was that particular property.
Mr. Boyd said that he would like to see the ability to build office complexes in LI put back into the
ordinance.
Ms. Mallek said she would support it as a special use permit.
Mr. Snow said he would like to leave it by-right.
Mr. Dumler said that he’d like it to be special use permit.
Mr. Thomas said that he’d like to remove the SP requirement.
Mr. Rooker said the whole thing was based on limitation, and if they don’t do that he doesn’t even
know why they’re bothering to do this. He said that the Board has expanded a lot of uses, but he does not
know that any of that ultimately helps preserve light industrial, if that is a goal of this.
Ms. Mallek stated that this is a complete change in the philosophy of what has been done so far.
Mr. Davis said that existing LI allows general offices without restrictions, so adding that back in
does not make this a more intensive ordinance and thus would not legally require another public hearing.
He said that if the only change is to go back and make offices a by-right use, staff could do that and not
have another public hearing.
Mr. Cilimberg said that the fallback would be the additional grandfathering provision, which would
capture office uses vested with proffers.
Ms. Mallek commented that she thought the Board had already agreed to do that.
Mr. Davis said that Mr. Cilimberg was referring to the eight properties.
Mr. Cilimberg confirmed the 78 acres, eight properties.
Ms. Mallek said that those are the people who have made an effort to do it as oppose to the
people who have dreamed about doing it and have not made an effort in the process to do something.
Mr. Snow said that if you have people who have brought electricity, water and sewer into their
properties in order to develop their land, they should be allowed to use it as intended.
March 13, 2013 (Regular Night Meeting)
(Page 29)
Ms. Mallek said that those would be vested.
Mr. Snow said that it would not necessarily be the case.
Mr. Foley said that since either of the offices would be less intensive, they could just delay the
conversation.
Mr. Davis said that zoning staff would want to know whether the Board wants to move in that
direction, because an alternative ordinance is not a simple drafting – as they have to go back through the
entire ordinance, and make a bunch or revision because the whole ordinance is based on limitations to
office use. He said that to undo that would not be like a single line in the ordinance it would be multiple
changes and will require a little bit of work to get that done.
Mr. Rooker responded that it did not appear there was a decision to do that.
Mr. Davis said that there may not be a decision to adopt an ordinance at all.
Mr. Rooker suggested that the Board come back and discuss it with a fresh eye.
Ms. Mallek said that staff asked questions about specific concerns, such as the limiting of
property with proffers, and taking out the industrial office definition.
Board members said that they had agreed with that in general.
Mr. Cilimberg said that he could pass out the changes staff had put together that would actually
take care of the 78 acres on the screen.
Mr. Davis clarified that if they wanted to grandfather those properties, there is language to cover
that, but based on the motion to defer there is nothing expected of staff at this point.
Mr. Rooker said that he would not even bother to address Ms. Mallek’s questions if this is coming
back.
_______________
Agenda Item No. 12. To give notice of an intent to amend the Board’s Rules of Procedure to
provide time limit for the initial “Matters from the Public” and to add another opportunity for “Matters from
the Public” at the end of the agenda. Removed from agenda.
_______________
Agenda Item No. 13. From the Board: Committee Reports and Matters Not Listed on the Agenda.
Mr. Dumler then offered motion to authorize the County Attorney to settle the Bishop lawsuit. Ms.
Mallek seconded the motion. Roll was called and the motion carried by the following recorded vote:
AYES: Ms. Mallek, Mr. Rooker, Mr. Snow, Mr. Thomas, Mr. Boyd and Mr. Dumler.
NAYS: None.
_______________
Agenda Item No. 14. From the County Executive: Report on Matters Not Listed on the Agenda.
There were none.
_______________
Agenda Item No. 15. Adjourn to March 27, 2013, 6:00 p.m., Auditorium.
At 10:50 p.m., motion was offered by Mr. Dumler, seconded by Ms. Mallek to adjourn until March
27, 2013. Roll was called and the motion carried by the following recorded vote:
AYES: Ms. Mallek, Mr. Rooker, Mr. Snow, Mr. Thomas, Mr. Boyd and Mr. Dumler.
NAYS: None.
________________________________________
Chairman
Approved by Board
Date: 08/14/2013
Initials: EWJ