2015-04-08April 8, 2015 (Regular Night Meeting)
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A regular meeting of the Board of Supervisors of Albemarle County, Virginia, was held on April 8,
2015, at 6:00 p.m., Lane Auditorium, County Office Building, McIntire Road, Charlottesville, Virginia.
PRESENT: Mr. Kenneth C. Boyd, Ms. Jane D. Dittmar, Ms. Ann Mallek, Ms. Diantha H. McKeel
and Ms. Liz A. Palmer.
ABSENT: Mr. Brad L. Sheffield.
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 Chair Jane Dittmar.
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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.
Mr. Boyd moved to adopt the agenda as presented. Ms. McKeel seconded the motion. Roll was
called and the motion passed by the following recorded vote:
AYES: Ms. McKeel, Ms. Palmer, Mr. Sheffield, Mr. Boyd, Ms. Dittmar and Ms. Mallek.
NAYS: None.
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Agenda Item No. 5. Brief Announcements by Board Members.
Ms. Mallek reported that the County’s legislative liaison, David Blount, ha s received the Gordon
Dixon Award, which recognizes a Commissioner or Executive Director who has provided leadership and
made outstanding contributions to promoting the concept of regionalism – reflecting the combined efforts
of the six jurisdictions in the planning district, to make better progress for all of them.
She stated that Shenandoah National Park has a new program called “Find Your Park,” which
can be found online at findyourpark.com, as part of the Natural Park Service’s National Park Week April
18-26.
Ms. Mallek reported that for years the Board had been under the impression that the bridge on
Route 606 – Dickerson Road – would not be back to full weight again, at least without a significant
investment of $10-15 million, but she has received a message from Joel DeNunzio at VDOT that they
have found a way to fix it by replacing the spans in a different way. She noted that it w ill be put into the
work program to be done, which will provide a parallel road much farther north on Route 29.
Ms. Mallek reported that she and Ms. Dittmar had attended a town hall meeting at PVCC earlier
that day, hosted by the Chancellor of the Virginia Community College System, who was interested in
getting feedback on workforce training in the area and discussing the state legislature’s initiative to try to
improve the delivery of certificate training. She said that he has also drawn attention to the rural Virginia
horseshoe initiative, which highlights the dichotomy of opportunity between Central Virginia and the
Northern Crescent and the rest of the state. Ms. Mallek stated that there are more meetings going
forward and some fairly serious changes for workforce training operations, some of which might have a
negative impact.
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Agenda Item No. 6. Proclamations and Recognitions:
a. Resolution Proclaiming April, 2015 as Child Abuse and Neglect Prevention Month in
Albemarle County.
Ms. Palmer read the following resolution recognizing April 2015 as Child Abuse and Neglect
Prevention Month in Albemarle County:
PROCLAMATION
A RESOLUTION PROCLAIMING APRIL, 2015 AS
CHILD ABUSE AND NEGLECT PREVENTION MONTH IN ALBEMARLE COUNTY
WHEREAS, in Federal fiscal year 2014, Albemarle County Department of Social Services received
1444 calls of concern about the care of children, assessing the safety of children in 644 of those calls as
valid cases of child abuse or neglect; and
WHEREAS, child abuse and neglect is a serious problem affecting every segment of our
community, and finding solutions requires input and action from everyone in o ur community; and
WHEREAS, child abuse has been proven to have long-term psychological, emotional, and physical
effects with lifelong consequences for victims of abuse and effective child abuse prevention activities, such
April 8, 2015 (Regular Night Meeting)
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as the County sponsored Family Support and Bright Stars programs, succeed because of the meaningful
connections and partnerships created between child welfare, education, health, community- and faith-
based organizations, businesses and law enforcement agencies; and
WHEREAS, communities must make every effort to promote programs and activities that benefit
children and their families; and
WHEREAS, prevention remains the best defense for our children and families.
NOW, THEREFORE, BE IT RESOLVED by the Albemarle County Board of Supervisors that April,
2015 is hereby proclaimed as CHILD ABUSE AND NEGLECT PREVENTION MONTH in Albemarle County.
In so doing, the Board urges all citizens to recognize this month by being dedicated to the task of improving
the quality of life for all children and families.
Ms. Mallek moved to adopt the resolution as presented. Ms. McKeel seconded the motion.
Mr. Sheffield noted that April 9th is “wear blue” day to support fighting child abuse.
Roll was called and the motion passed by the following recorded vote:
AYES: Ms. McKeel, Ms. Palmer, Mr. Sheffield, Mr. Boyd, Ms. Dittmar and Ms. Mallek.
NAYS: None.
Ms. Dittmar recognized Brad Wentz, Child Protective Services Supervisor for the Department of
Social Services.
Mr. Brad Wentz addressed the Board, thanking the Board for recognizing the importance of child
abuse and neglect prevention services. Mr. Wentz stated that child abuse and neglect lead to lifelong
problems, which are generational problems that can only be broken through prevention efforts. He said
that there are 134 families with children at risk for not being ready for school enrolled in the Bright Stars
program, 171 families that are receiving school-based social services support to help increase enrollment
and prevent child abuse and neglect, and 80 families receiving intensive services so that children c an
remain in their homes while the department provides services to abusive and neglectful caregivers who
need treatment. Mr. Wentz commented that for those doing this work, it is their life’s passion.
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Item No. 6b. Proclamation Proclaiming May 2 as the 50th Anniversary of the Friends of the
Jefferson Madison Regional Library.
Ms. Dittmar read the following proclamation recognizing May 2 as the 50th anniversary of the
Jefferson-Madison Regional Library, and recognized Friends of the Library as the recipient of the
resolution:
PROCLAMATION
Whereas, the Friends of the Jefferson Madison Regional Public Library understand the importance
of the public library as a cornerstone of our community: and
Whereas, the Friends encourages literacy by funding adult and children’s programs, summer reading
programs, staff development and special events throughout the year, furnishings and audio
visual improvements in library facilities. Many improvements and enhancements in our
library have only been possible because of the support provided by our Friends; and
Whereas, the Friends is a highly successful all-volunteer non-profit organization, which has, thr ough
extensive volunteer time and effort, provided nearly $100,000 each year to the public
library to provide free reading materials, access to technology, assistance in research,
access to print and electronic materials; and
Whereas, the work of the Friends of the Library highlights the fact that volunteerism can lead to
positive civic engagement and the betterment of our community. Over the fifty years, there
have been thousands of Friends, with an average of three hundred per year.
Now, Therefore, Be It Resolved, that the Albemarle County Board of Supervisors does hereby proclaim
May 2, 2015 as the 50th Anniversary of the Friends of the Jefferson Madison Regional
Library and invites the entire community to enjoy activities organized in the Central Library
on E. Market Street and outside in Lee Park.
Ms. Mallek moved to approve the resolution as presented. Ms. Palmer seconded the motion.
Roll was called and the motion passed by the following recorded vote:
AYES: Ms. McKeel, Ms. Palmer, Mr. Sheffield, Mr. Boyd, Ms. Dittmar and Ms. Mallek.
NAYS: None.
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April 8, 2015 (Regular Night Meeting)
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Agenda Item No. 7. From the Public: Matters Not Listed for Public Hearing on the Agenda.
Mr. Bob Lorish addressed the Board, stating that he is a resident of Belvedere and thanked them
for appropriating money to complete Belvedere Boulevard. He said they also look forward to having the
tree situation rectified there. Mr. Lorish presented the Code of Development for Belvedere – which the
County and developer had agreed to and homeowners bought into, but much of which has not appeared.
He stated that residents appreciate the work County staff has done and look forward to the Board voting
to support residents in the neighborhood.
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Ms. Pamela Dodd addressed the Board, stating that she is also a resident of Belvedere and
concurs with Mr. Lorish. Ms. Dodd stated that she moved into the neighborhood two years ago from out
of state, attracted to both Charlottesville and the Neighborhood Model concept. She said that since
moving here, she has volunteered to improve communications in Belvedere, set up a website, and tried to
get information out – including through Supervisor Sheffield, to try to get people to understand what it is
like to live in a neighborhood like Belvedere. Ms. Dodd said that they continue to bump up against
promises that have not been made or kept from the developer, and encouraged the Board to support
County staff in what they are proposing regarding the final site plan and two proffers for the greenway and
pedestrian bridge.
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Mr. Kirk Bowers addressed the Board, stating that he represents the Piedmont Group of the
Sierra Club and thanked them for their continued support of Route 29 Solutions and other transportation
improvements. He stated that he is before them on behalf of the pipeline issues committee in his role as
conservation chair, noting that the Atlantic Coast pipeline is coming through a neighboring county, but not
in Albemarle because of the opposition that Dominion will likely encounter. Mr. Bowers said that
thousands of people in neighboring counties have been affected, and it will have an impact on Albemarle
given the fact that people stay here when they are visiting Nelson County, the Blue Ridge Parkway and
the Appalachian Trail. He stated that in the future, he would request that the Board pass a resolution
supporting the neighboring counties in their opposition, and said that Augusta, Nelson and Staunton ha ve
all passed resolutions against the pipeline. Mr. Bowers said that Buckingham has not passed a
resolution, but will be greatly affected in low-income and minority areas of the County as Dominion plans
to put a compressor station in these areas, taking advantage of residents.
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Mr. Jeffrey Monaco of the Rio District addressed the Board, stating that he ha s been trying to
build in Lochlyn Hills for about four months and is waiting for a resolution on the setback requirements for
their corner lot, which has 25-foot setbacks on each side and is not currently buildable without a waiver.
Mr. Monaco stated that they had been anticipating a February decision, but that has been moved to June,
and said that he is pursuing opportunities to move things forward in a more expedient manner.
Ms. Dittmar asked Mr. Monaco to confirm that his lot is in the County.
Mr. Monaco said that he currently lives in Key West, but plans to move into the County part of the
Lochlyn Hills neighborhood.
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Ms. Karen Reifenberger addressed the Board, stating that she lives in the White Hall District and
works for Piedmont Housing Alliance (PHA), and is before them to commemorate Fair Housing Month.
Ms. Reifenberger said that 47 years ago, President Lyndon Johnson signed into law the Civil Rights Law
of 1968, Title 8 of which is known today as the “Federal Fair Housing Act,” prohibiting discrimination in
housing on the basis of race, color, religion, national origin, gender, disability or familial status. She
stated that Piedmont Housing Alliance work s to promote equal housing opportunity and raise awareness
about federal and state housing laws throughout the year – but commemorates Fair Housing Month in
April. Ms. Reifenberger thanked the Board for their support of important fair housing programs and
housing initiatives, and stated that PHA is hosting a fair housing workshop on April 23 specifically for
people with disabilities, to be held at the Independence Resource Center. She stated that on April 29 in
Charlottesville City Council chambers, they will hold a fair housing film screening and discussion, in
partnership with the Charlottesville Office on Human Rights. Ms. Reifenberger said that on May 12, PHA
will host Molly Mason, the state fair housing trainer through the Virginia Fair Housing Office, and she will
offer a continuing education fair housing seminar – co-sponsored by Albemarle County, the City of
Charlottesville, and the Thomas Jefferson Planning District Commission. She added that April is also
Financial Literacy Month, with financial literacy as a program offered through PHA with a number of
financial education workshops around the region, with the two closest events in the region being held at
Cville Coffee and Friendship Court apartments.
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Mr. Steve Janes of the Rivanna District addressed the Board and stated that he would like to
compliment VDOT and Joel DeNunzio, who came out to Forest Lakes to listen to residents’ concerns
regarding some curbing issues – and resolved the issue to everyone’s satisfaction and did a great job.
Ms. Mallek said they will pass the word on to VDOT.
Mr. Sheffield stated that he would like to expedite the issue for Mr. Monaco and perhaps move
that issue to the Board’s May 6 agenda, rather than waiting until June as Mr. Monaco is working to close
on his house to be able to build it.
April 8, 2015 (Regular Night Meeting)
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Mark Graham, Director of Community Development addressed the Board stating that the item
has been scheduled to come to the Board on May 6 as a work session, and noted that the request has
taken quite a bit of time at the Planning Commission because of the complexity of it, and they want to
make sure the Board understands it before taking it to public hearing. He stated that if they want to
bypass the work session, staff will need direction from the Board to advertise the public hearing – and
they are too late for the May 6 public hearing but can still meet the May 13 date. Mr. Graham said that
the normal process will be to have a works session with the Board first, and assuming they will get
through that on May 6, the earliest public hearing date will be the first meeting in June.
Mr. Sheffield asked if all of this is necessary for a 25-foot setback. Mr. Mark Graham, Director of
Community Development, responded that there is more to it than that, and there is a whole Neighborhood
Model setback involved – and the Planning Commission went through this several times before coming
up with a recommendation.
Ms. Dittmar suggested that they consider this under their From the Board items, so they c an ask
questions and understand about the staff concerns and delay.
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Agenda Item No. 8. Consent Agenda.
(Discussion: Regarding Item 8.2, Mr. Sheffield stated that he needs clarification, because he is
not certain that he supports the offering of the right of way purchase for the State Farm Boulevard
sidewalk. He said that he has sent several emails to staff about it, and they have responded, but he is
still not certain he supports it.
Ms. Dittmar suggested pulling this item for discussion after they approve the rest of the Consent
Agenda.
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Ms. Mallek said that she had to pull her minutes of September 3, 2014; Ms. Palmer said she had
to pull her minutes of July 9 and September 10, 2014; and Ms. McKeel said that she needs to pull her
July 2, 2014 minutes.
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Mr. Boyd moved to approve the Consent Agenda, with the exception of Item 8.1, approved as
read, and Item 8.2 pulled for discussion. Ms. Mallek seconded the motion. Roll was called and the
motion passed by the following recorded vote:
AYES: Ms. McKeel, Ms. Palmer, Mr. Sheffield, Mr. Boyd, Ms. Dittmar and Ms. Mallek.
NAYS: None.
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Item No. 8.1. Approval of Minutes: July 2, July 9, September 3 and September 10, 2014.
By the above-recorded vote, all minutes were carried forward to the next meeting.
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Item No. 8.2. South Pantops - State Farm Boulevard Sidewalk (pulled for discussion).
The executive summary states that the Office of Facilities Development is completing the right-of-
way phase for the South Pantops-State Farm Boulevard Sidewalk project. This locally administered
Virginia Department of Transportation (VDOT) Revenue Sharing Project will complete the 475 -foot gap in
the existing South Pantops Drive sidewalk and construct approximately 2600 feet of sidewalk and
drainage improvements along the west side of State Farm Boulevard from South Pantops Drive to Route
250. The acquisitions of public right-of-way and temporary construction easements across Parcel 78-72
(Guaranty Savings & Loan, also known as Union First Market Bank) and temporary construction
easements across Parcel 78-62 (Sandollar Ltd and Upland LLC), and Parcel 78-63 (Virginia High School
League) are necessary to construct this project.
The costs of acquiring the right-of-way and the easements are subject to a state match from
VDOT’s Revenue Sharing Program. As a condition of the Revenue Sharing Program, VDOT required the
County to obtain an independent appraisal to establish the fair market value of the right-of-way and the
easements to be acquired, and to offer just compensation to the property owners. The appraisal
determined the fair market values as provided below. This information was shared with the property
owners as required by the Revenue Sharing Program agreement.
Parcel No. Fair Market Value
TMP 78-62: $ 2,010.50
TMP 78-63: $ 3,054.00
TMP 78-72: $32,188.00
The owners of Parcel 78-62 (Sandollar Ltd and Upland LLC) have signed their deed of easement
(Attachment A) and accept just compensation in the amount of $2,010.50. The owners of Parcel 78-63
(Virginia High School League) and Parcel 78-72 (Guaranty Savings & Loan) have agreed in principle and
are expected to sign their dedication documents by March 28. To keep to VDOT’s milestone schedule,
staff must complete the right-of-way and easement acquisitions and submit a Right-of-way Certification by
April 15 in order to have VDOT authorization to advertise by May 15. Therefore, staff is requesting Board
April 8, 2015 (Regular Night Meeting)
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approval of the Parcel 78-62 acquisition based on the agreed compensation value and of the Parcel 78-
63 and Parcel 78-72 acquisitions in an amount not to exceed just compensation.
Funds in the amount of $959,408 were previously appropriated for project design, right-of-
way and easement acquisitions, and construction. The budgeted right-of-way and easement
acquisition cost is estimated at $49,600 at completion. The combined cost of these acquisitions
based on the just compensation values is within the budget. Staff expects the County to be
reimbursed 50% of this cost from the VDOT Revenue Sharing funds allocated to this project.
Staff recommends that the Board adopt the attached Resolution (Attachment D) authorizing the
Parcel 78-62 acquisition for the agreed just compensation amount and the Parcel 78-63 and Parcel 78-72
acquisitions for an amount not to exceed just compensation, and authorizing the County Executive to
sign, in a form approved by the County Attorney, all documents necessary to complete the acquisitions.
(Note: Pulled for discussion later in the meeting.)
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Item No. 8.3. Resolution to accept road(s) in The Farms at Turkey Run Phase II into the State
Secondary System of Highways.
By the above-recorded vote, the Board adopted the following resolution to accept roads in
The Farms at Turkey Run Phase II into the State Secondary System of Highways:
WHEREAS, the street(s) in The Farms at Turkey Run Subdivision, as described on the attached
Additions Form AM-4.3 dated April 8, 2015, fully incorporated herein by reference, is shown on plats
recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia; and
WHEREAS, the Resident Engineer for the Virginia Department o f Transportation has advised the
Board that the street(s) meet the requirements established by the Subdivision Street Requirements of the
Virginia Department of Transportation.
NOW, THEREFORE, BE IT RESOLVED, that the Albemarle Board of County Supervisors requests
the Virginia Department of Transportation to add the street(s) in The Farms at Turkey Run, as described
on the attached Additions Form AM-4.3 dated April 8, 2015, to the secondary system of state highways,
pursuant to §33.2-705, Code of Virginia, and the Department's Subdivision Street Requirements; and
BE IT FURTHER RESOLVED that the Board guarantees a clear and unrestricted right-of-way, as
described, exclusive of any necessary easements for cuts, fills and drainage as described on the recor ded
plats; and
FURTHER RESOLVED that a certified copy of this resolution be forwarded to the Resident
Engineer for the Virginia Department of Transportation.
*****
The road(s) described on Additions Form AM-4.3 is:
1) Courtenay Glen Way (State Route 1348) from existing end of state maintenance to
extend Route 1348 to cul-de-sac, as shown on plat recorded in the office the Clerk of Circuit
Court of Albemarle County in Deed Book 3463, pages 447-457, for a length of 1.30 miles.
Total Mileage – 1.30
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Item No. 8.4. CPA-2013-01 Comprehensive Plan Update/Amendment, was received for
information.
Over the last eighteen months, the Board has reviewed the Comprehensive Plan Draft that was
recommended by the Planning Commission in August 2013. To date, the Board has: completed its review
of chapters 1-12, including all strategies; directed staff to make changes in each chapter; reviewed all
changes; and set a public hearing for May 13, 2015. The last item needing attention is the priority
strategies in Chapter 13 Implementation. The Planning Commission provided the Board a list of its
recommended top three (3) to six (6) priority strategies per chapter in June of last year which is attached
for your reference (Attachment A).
At the March 10 Board work session, staff noted that the priority strategies will provide guidance
to future initiatives of the County, including the work programs of different departments and the County
Strategic Plan. Staff indicated it would provide the Board a recommendation on how to best prioritize
strategies for the proposed Comprehensive Plan Draft.
During its review of each chapter of the Comprehensive Plan, the Board modified some strategies
and added others. Attachments B through K list all of the strategies resulting f rom the Board’s review by
category, distinguishing on-going programs and initiatives from enhanced and new activities that will
involve additional time and effort of staff and others. Staff has noted the Commission’s recommended
priorities as well as strategies for which the Board showed significant interest during the Comprehensive
Plan work sessions. Staff has also identified where strategies indicate the need for additional staff or
where text under a strategy in the Plan indicates more staff will be needed.
April 8, 2015 (Regular Night Meeting)
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Staff believes the attached list of strategies, including the noted priorities, are consistent with the
Board’s direction provided during their review of the individual chapters of the Comprehensive Plan. Staff
will incorporate Attachments B through K into Chapter 13 of the Plan for the May 13th public hearing.
(Please note that minor edits for grammar and consistency are still taking place for the Board’s review of
the final Comprehensive Plan draft.) As is the case with the content of all chapters of the Comprehensive
Plan, should the Board wish to modify any particular priorities after receiving public input it can do so as
part of its action to adopt the Comprehensive Plan. Once adopted, the priority strategies will provide a
basis for considering some of the future initiatives of the County, including work programs and the
Strategic Plan.
Budget impacts for implementation of priority strategies will be addressed with future work
programs and the Strategic Plan.
This information is provided for information in advance of the May public hearing on the
Comprehensive Plan.
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(At this time, the Board went back to Item 8.2:
Item No. 8.2. South Pantops - State Farm Boulevard Sidewalk.
Mr. Sheffield stated that he was trying to understand the intent of the stretch of the sidewalk for
State Farm Boulevard. He said that he understands the stretch at Pantops Drive that is connecting the
missing link between two sets of sidewalks, but is trying to understand why they are moving forward with
this particular project when there are so many other missing links, including at Pantops. Mr. Sheffield
said that Facilities Development has provided an explanation, and he understands that the project has a
history going almost six years back.
Mr. Jack Kelsey, Transportation Engineer, Department of the Office of Facilities Development,
addressed the Board, and said that Mr. David Benish had sent out some information about the project,
which does have a long history. Mr. Kelsey said the biggest goal of this particular section of sidewalk is
to work to complete the pedestrian network in the Pantops area. He stated that there is foot traffic
evidence that shows how people are using the sidewalk on South Pantops Drive, traversing the area
where there is a gap in the sidewalk and picking up the section of sidewalk as they go up to the
intersection of State Farm Boulevard and South Pantops Drive. Mr. Kelsey said that there are people
who have been requesting the sidewalk in the past that do walk the stretch up to Route 250, and there is
not a beaten path there, but regardless – the Pantops Master Plan made it clear that the section along
State Farm Boulevard is part of the pedestrian linkage that needs to be completed and is worthy of public
investment.
Mr. David Benish, Chief of Planning, stated that it is an important segment of the master plan,
and the idea was to have as much of an interconnected sidewalk system that wrapped around the center
of the Pantops area, with State Farm Boulevard and Route 250 an d South Pantops Drive. He said that
most of the undeveloped properties there are owned by State Farm, and their intent is to maintain those
properties in reserve in case they need them for expansion or other use – so there are only two
intervening properties to wait for development in order to further construct sidewalks. Mr. Benish stated
that the transit service is in the mid-block area on State Farm Boulevard – Abbey Lane and the new road
into Martha Jefferson Hospital – so there is not a sidewalk connecting to those transit stops. He said that
something that is not as apparent that should be emphasized more in master plan comments related to
projects is the fact that the County is designating priority areas that have an emphasis for public
investment, and this road was identified as one of the areas to focus public investment to ensure that the
County was putting public facilities in places where they were encouraging growth. Mr. Benish said that
at the time of establishing the hospital at the Pantops location there were two major employers, so that
area was designated as a priority area and theoretically capital projects should be emphasized to be in
those areas to support the growth being encouraged there. He stated that the plan for the Pantops
sidewalks has been in the CIP since 2010, and there is a three-page list of projects including this one as
a priority, but if the Board has different preferences they need to provide that direction to staff.
Mr. Boyd said that his understanding is this has been identified with VDOT for matching funds,
and asked if it has to be identified in order to get those.
Mr. Sheffield asked what the impact of that will be, and acknowledged that any change will need
to be stipulated by the Board. He commented that five or six years is a long time to plan for a sidewalk,
and this particular project was planned when they were transferring much more money into capital – and
said that there seem s to be other linkages at Pantops that are more critical than this.
Mr. Boyd said that it has been a priority item for the Pantops Advisory Council, mainly because
there is money allocated for it, and he was under the impression that when they discussed the possibility
of dedicating the money to a pedestrian crossing at Rolkin Road, they had to move forward with it or
would lose the matching funds.
Mr. Sheffield asked if they are too far into this to back out now, and whether they c an redirect
money if they make a decision fairly quickly – because if the idea is to build the sidewalk for a transit stop,
they can just move the transit stop.
April 8, 2015 (Regular Night Meeting)
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Ms. Mallek said that this is a parallel road to Route 250 and there are residents who live at the
bottom of the hill and work at the top of the hill at the hospital and at State Farm, and there are no
sidewalks for that whole length – so she is very much in favor of this.
Mr. Sheffield stated that not all of those people living in the apartments are working at Pantops.
Ms. Mallek said that the pictures demonstrate that there is exposed dirt all the way up the hill.
Mr. Sheffield said that is Pantops Drive, not State Farm Boulevard, and asked what would
happen if this money was to be reallocated to another project already identified.
Ms. Mallek responded that the Crozet and Avon Park sidewalks, which are waiting for the State
Farm project to be completed, will have to wait another season – and that has already been underway for
four years.
Mr. Sheffield stated that with the last capital update, staff was already considering pulling this
away from the Crozet sidewalk project because it was not moving fast enough.
Ms. Mallek said that is because VDOT had changed the rules and they had to bundle the
sidewalks together instead of being able to move on them independently.
Ms. McKeel stated that given the Board’s recent conversations about the CIP and plans for a
work session in spring or summer, and said that her concern is the State Farm Boulevard section
because of its length and cost. She asked if it will be possible to do portions that are necessary and split
it up. Mr. Kelsey responded that VDOT is currently looking at the Crozet sidewalk project and State Farm
Boulevard project combined with the South Pantops Drive project to fill in gaps as one project. He said
that they can break it out into two separate projects – Crozet and Pantops – but to break out the South
Pantops Drive piece will be difficult because it is such a low cost compared to the rest of the project. Mr.
Kelsey said that they had wanted to bid them all together from a cost-saving standpoint, but also for some
of the project inspection requirements, as a consultant was hired to do those. He stated that the Crozet
project is ready to go, and they are just trying to wrap up the last few right of way acquisitions.
Mr. Sheffield asked what will happen if they try to redirect the State Farm Boulevard money. Mr.
Kelsey stated that if they terminate the State Farm Boulevard part of the project, one of the precautions is
that the County has already spent $122,000 since beginning work on the project, which preceded when
revenue-sharing funding was approved for the project. He said that thus far they have received VDOT
reimbursements of just over $127,000, and they will have to pay that back to VDOT, along with any
project expenses they may have incurred as part of their administration of this project. Mr. Kelsey stated
that the part that concerns him the most is that when counties apply for revenue-sharing funding, VDOT
has given a score to each municipality to establish a ranking, and uses the score to determine how much
funding is awarded. He said that one of the factors in scoring for a municipality is its ability to complete
projects, and if the County terminates this project it will lower their score and impact future abilit y to get
funding. Mr. Kelsey stated that the County has signed a project administration agreement with VDOT,
and they will need to approve a change to that in order to separate out the remaining projects – and they
would request an explanation as to why the project is no longer a priority, since it was approved for
revenue-sharing money.
Mr. Sheffield said that he would love to have someone sit down with him and explain how this
became a priority over some of the other major sidewalk disconnects in the County. Ms. McKeel agreed.
Ms. Mallek explained that they are working out of the master plan that was adopted, and it is
important for them to understand the background here rather than jumping at this stage. She expressed
concern that their $3 million for the Meadowcreek Parkway will be in jeopardy if the Board retracts on the
sidewalk plans, adding that VDOT could have put this money somewhere else. She said that there ha ve
been lots of planning and design work and right of way effort that has taken a year or more to get to this
point, and she will oppose changing plans at this stage, when they are ready to go to bid within a month.
Mr. Foley said that it is a good question to ask why this project is a priority, and that is one of the
topics they will need to address in their work session on the CIP. He added that there was a set of
criteria used in the past, and the Board has every right to take a look at it and see if it makes sense for
the future – but there is a process in place that brought them to today.
Ms. Dittmar asked if the Board is ready to take a vote on the item, now that it is moved out of the
Consent Agenda.
Mr. Sheffield stated that he does not support it on principle, and wished they could find another
use for the money at Pantops, such as the crosswalk. He said that the decision tonight is whether to buy
right of way, which is now required by state law even if a property owner offers to donate it.
Ms. Mallek noted that it was a constitutional amendment two years ago, which was wildly
supported at the time but now is having consequences.
Ms. Dittmar said that they should add it to the mandate list.
Mr. Boyd said that staff has identified that the County is putting itself at risk for future projects and
matching funds from VDOT if they do not move ahead with this.
April 8, 2015 (Regular Night Meeting)
(Page 8)
Mr. Boyd then moved to approve Item 8.2 by adopting the following Resolution authorizing the
Parcel 78-62 acquisition for the agreed just compensation amount and the Parcel 78-63 and Parcel 78-72
acquisitions for an amount not to exceed just compensation, and authorized the County Executive to sign,
in a form approved by the County Attorney, all documents necessary to complete the acquisitions. Ms.
Mallek seconded the motion.
Ms. Palmer stated that she will vote in favor of the approval, given the information presented by
staff as to the state not funding County projects in the future, but she is very concerned about having five
years with no sidewalk projects because they are not putting money in the CIP and are making changes
in the budget this year.
Ms. Dittmar said there are priorities, but also funding mechanisms – which will be looked at in
their upcoming work session.
Ms. McKeel stated that it is important for them to hold the work session soon, given the fact they
have a fiscally constrained CIP.
Roll was then called, and the motion passed by the following recorded vote:
AYES: Ms. Palmer, Mr. Boyd, Ms. Dittmar and Ms. Mallek.
NAYS: Ms. McKeel and Mr. Sheffield.
RESOLUTION TO AUTHORIZE ACQUISITION OF RIGHT-OF-WAY AND EASEMENTS ON THREE
PROPERTIES LOCATED ON STATE FARM BOULEVARD (Parcels 78-72, 78-62, and 78-63)
WHEREAS, the County’s Office of Facilities Development is completing the right-of-way and
easement acquisition phase for the South Pantops-State Farm Boulevard Sidewalk Project; and
WHEREAS, a right-of-way and temporary construction easement on Parcel 78-72 and temporary
construction easements on Parcels 78-62 and 78-63 are necessary to construct the Project; and
WHEREAS, the Owners of Parcels 78-72, 78-62 and 78-63 have agreed to sell said right-of-way
and easements for just compensation.
NOW, THEREFORE, BE IT RESOLVED that the Albemarle County Board of Supervisors hereby
approves the acquisition of a right-of-way and temporary construction easement on Parcel 78-72 and
temporary construction easements on Parcels 78-63 and 78-72 that are necessary for the South Pantops-
State Farm Boulevard Sidewalk Project for an amount not to exceed just compensation, and further
authorizes the County Executive to execute all documents in a form approved by the County Attorney that
are necessary to complete the acquisitions.
*****
This document was prepared by:
Albemarle County Attorney
County of Albemarle
401 Mcintire Road
Charlottesville, Virginia 22902
Parcel ID Number 07800-00-00-06200
This deed is exempt from taxation under Virginia Code §§ 58.1-811 (A)(3) and from Court Clerk's fees
under Virginia Code §17.1 -266.
THIS TEMPORARY CONSTRUCTION DEED OF EASEMENT made this ___ day of _____ , 20
_____ , by and between SANDOLLAR, LTD., a Virginia Corporation, and UPLAND, LLC, a Virginia limited
liability company, hereinafter collectively the "Grantors", and the COUNTY OF ALBEMARLE, VIRGINIA, a
political subdivision of the Commonwealth of Virginia, hereinafter the "Grantee".
WITNESSETH:
That for and in consideration of the sum of ONE DOLLAR ($1.00), receipt of which is hereby
acknowledged, the Grantors do hereb y GRANT and CONVEY unto the County a temporary construction
easement, related to improvements along State Farm Boulevard, shown and labeled "New Temporary
Construction Easement" on a plat made by Lincoln Surveying dated November 1, 2013, last revised March
4, 2014, and titled "Plat Showing a New Temporary Construction Easement Across Tax Map 78 Parcel 62,
Located on State Farm Boulevard, Rivanna District, Albemarle County, Virginia,'" which plat is attached
hereto and made a part of this deed.
The conveyance of this temporary construction easement and right-of-way includes the right of
ingress and egress for the above-mentioned purpose. This temporary construction easement shall expire
upon completion of construction. The improvements constructed within the public right-of-way shall be the
property of the Grantee.
As evidenced by its acceptance of this deed, the County covenants that it will perform the
construction work in a proper and careful manner. At the conclusion of the construction, the Grantee will
restore the easement property to its prior condition.
April 8, 2015 (Regular Night Meeting)
(Page 9)
The Grantee, acting by and through its County Executive, duly authorized by resolution adopted by
the Board of Supervisors of the County of Albemarle, Virginia, accepts the conveyance of this property
pursuant to Virginia Code §15.2-1803, as evidenced by the County Executive's signature hereto and the
recordation of this Deed.
GRANTOR: SANDOLLAR, LTD.
By: (Signed) Susan B. Morris, President
GRANTOR: UPLAND, LLC
By: (Signed) Susan B. Morris, President
GRANTEE: COUNTY OF ALBEMARLE, VIRGINIA
By: (Signed) Thomas C. Foley, County Executive
_____
This document was prepared by:
Albemarle County Attorney
County of Albemarle
401 McIntire Road, Suite 325
Charlottesville, Virginia 22902
Parcel ID Number 07800-00-00-07200
This deed is exempt from taxation under Virginia Code § 58.1-811(A)(3) and from the Circuit Court Clerk’s
fees under Virginia Code § 17.1-266.
DEED OF DEDICATION
THIS DEED OF DEDICATION is made this ____ day of April, 2015 by and between UNION BACK
& TRUST, f/k/a UNION FIRST MARKET BANK, successor in interest to GUARANTY SAVINGS AND
April 8, 2015 (Regular Night Meeting)
(Page 10)
LOAN, F.A., a Federal Savings Association (hereinafter “Grantor”), and the COUNTY OF ALBEMARLE,
VIRGINIA, a political subdivision of the Commonwealth of Virginia, Grantee.
WITNESSETH:
WHEREAS, the Grantor is the owner in fee simple of the real property located in Albemarle County
that is described below and hereinafter referred to as the “Property;”
WHEREAS, the Grantor offers to grant, convey and dedicate the Property to the County in fee
simple for public use, namely, a public right-of-way and other public purposes; and
WHEREAS, the Grantee is willing to accept the Grantor’s offer of dedication.
NOW, THEREFORE, in consideration of the mutual promises, the Grantor hereby grants, conveys,
and dedicates for public use to the Grantee, its successors and assigns, with GENERAL WARRANTY and
ENGLISH COVENANTS OF TITLE, the following real property, to wit:
All that certain lot or parcel of land situated in the County of Albemarle, Virginia, located on State
Farm Boulevard, containing 0.031 acres, more or less, shown as Parcel “W” on a plat by Lincoln
Surveying, dated June 13, 2012 and last revised April 2, 2015, titled “Subdivision Plat Showing
Parcel ‘W’ --Being a Portion of Tax Map 78 Parcel 72 Property Belonging to Guaranty Savings and
Loan, F.A., Hereby Dedicated to Public Use, Located on State Farm Boulevard, Rivanna District,
Albemarle County, Virginia,” a copy of which is attached hereto and to be recorded with this deed
(the “Plat”). Reference is made to the plat for a more particular description of the location of the
described lands.
This Parcel is a portion of Albemarle County Parcel ID 07800-00-00-07200, containing 2.152 acres,
more or less, conveyed to the Grantor herein by deed from Hurt Investment Company, a Virginia
corporation, by deed dated October 24, 1995, recorded in the Clerk’s Office of the Circuit Court of
the County of Albemarle, Virginia, in Deed Book 1502, page 83.
The Grantor does further GRANT and CONVEY unto the Grantee those certain temporary
construction easements shown and labeled “New Temporary Construction Easement” on the Plat. The
conveyance of these temporary construction easements includes the right of ingress and egress for the
above-mentioned purpose. The temporary construction easements shall expire upon completion of
construction. The improvements constructed shall be the property of the Grantee.
This conveyance is m ade subject to all easements, reservations, restrictions and conditions, if any,
contained in duly recorded deeds, plats and other instruments constituting constructive notice in the chain
of title to the above-described property which have not expired by a time limitation contained therein or
have otherwise not become ineffective.
The Grantee, acting by and through its County Executive, duly authorized by resolution adopted by
the Board of Supervisors of the County of Albemarle, Virginia, accepts the conv eyance of this property
pursuant to Virginia Code § 15.2-1803, as evidenced by the County Executive’s signature hereto and the
recordation of this Deed.
GRANTOR: UNION BANK & TRUST, f/k/a UNION FIRST MARKET
BANK, successor in interest to GUARANTY SAVINGS
AND LOAN, F.A.
By: (Signed) John J. Young, Vice President
GRANTEE: COUNTY OF ALBEMARLE, VIRGINIA
By: (Signed) Thomas C. Foley, County Executive
April 8, 2015 (Regular Night Meeting)
(Page 11)
April 8, 2015 (Regular Night Meeting)
(Page 12)
_____
This document was prepared by:
Albemarle County Attorney
County of Albemarle
401 McIntire Road
Charlottesville, Virginia 22902
Parcel ID Number 07800-00-00-06300
This deed is exempt from taxation under Virginia Code §§ 58.1-811(A)(3) and from Court Clerk’s fees
under Virginia Code § 17.1-266.
DEED OF EASEMENT
THIS DEED OF EASEMENT is made this ___ day of __________, 20______ by and between
VIRGINIA HIGH SCHOOL LEAGUE, INC., Grantor, and the COUNTY OF ALBEMARLE, VIRGINIA, a
political subdivision of the Commonwealth of Virginia, Grantee.
WITNESSETH:
WHEREAS, the Grantor is the owner of that certain real property located in Albemarle County,
Virginia, more particularly described as follows:
That certain real property shown and designated as “New Permanent Drainage Easement 225
S.F.”(hereinafter, the “Drainage Easement Area”) and that certain real property shown and
designated as “New Temporary Construction Easement 3,337 S.F.” (hereinafter, the "Temporary
Construction Easement Area") on the plat of Lincoln Surveying, dated November 1, 2013, last
revised January 22, 2015, and titled “Plat Showing a New Permanent Drainage Easement and
Temporary Construction Easements Across Tax Map 78 Parcel 63 Located on State Farm
April 8, 2015 (Regular Night Meeting)
(Page 13)
Boulevard Rivanna District, Albemarle County, Virginia,” a copy of which plat is attached hereto as
Exhibit A to be recorded with this Deed of Easement (hereinafter, the “Plat”). Reference is made to
the Plat for a more particular description of the easement conveyed herein.
WHEREAS, the Drainage Easement Area and the Temporary Construction Easement Area are
described further as a portion of that certain lot or parcel of land situated in the Rivanna Magisterial District
of the County of Albemarle, Virginia, designated as Lot 3, Pantops, containing 1.9168 acres on a plat by B.
Aubrey Huffman & Associates, LTD., dated September 6, 1979 and recorded in the Clerk's Office of the
Circuit Court of Albemarle County, Virginia in Deed Book 681, Page 331, also being the same property
conveyed to the Grantor herein by deed of E. Grant Cosner and Barbara H. Cosner, husband and wife,
recorded in said Clerk’s Office in Deed Book 906, Page 157 (hereinafter, “Grantor’s Property”); and
WHEREAS, it is the desire and intent of the Grantor to dedicate, grant and convey the Easement
for public use in accordance with this Deed of Easement.
NOW THEREFORE, in consideration of the premises and TEN DOLLARS ($10), cash in hand paid,
and other good and valuable consideration, the receipt of which is hereby acknowledged, the Grantor does
hereby GRANT, CONVEY, and DEDICATE to public use with GENERAL WARRANTY GRANT, CONVEY,
and DEDICATE to public use with GENERAL WARRANTY unto the Grantee, its successors and assigns,
(1) a perpetual exclusive drainage easement over, across, and through the Drainage Easement Area as
shown on the Plat, subject to the terms and conditions herein (hereinafter, the "Drainage Easement"); and
(2) a temporary, non-exclusive construction easement over, across and through the Temporary
Construction Easement Area as shown on the Plat, subject to the terms and conditions herein, which shall
automatically expire upon completion of construction as provided below (hereinafter, the "Temporary
Construction Easement"). The foregoing grant and conveyance is made subject to all matters of record
affecting Grantor's Property.
The Drainage Easement and the Temporary Construction Easement shall be subject to the
following:
1. Right to construct, reconstruct, install, maintain, repair, change, alter and replace the
Improvements. The Grantee shall have the right to construct, reconstruct, install, maintai n, repair, change,
alter, and replace present or future Improvements (hereinafter referred to as “inspecting, maintaining and
operating” or derivations thereof) ditches, pipes and other improvements and appurtenances in accordance
with the Plans (as such term is hereinafter defined) within the Drainage Easement Area (hereinafter
collectively referred to as the "Drainage Improvements,") for the purposes of collecting sub -surface water
from beneath the adjacent street and releasing it onto the Drainage Improvements; to the extent there is
any overflow from the Drainage Improvements across the Grantor's Property, any such overflow will be at
a rate that will not cause flooding and/or erosion of the Grantor's Property.
2. Ownership of the Improvements. All Drainage Improvements shall be and remain the
property of the Grantee.
3. Right of ingress and egress. The Grantee shall have the right and easement of ingress
and egress over the Grantor's Property adjacent to the Drainage Easement Area between any public or
private roads and the Drainage Easement Area, to inspect, maintain and operate the Drainage
Improvements; provided, however, that Grantee and its contractors, subcontractors and agents shall use
reasonable efforts to minimize any interference with Grantor's use and enjoyment of Grantor's Property in
exercising such rights.
4. Right to inspect, maintain and operate the Improvements. The Grantee may enter the
Drainage Easement Area to inspect, maintain and operate the Drainage Improvements. The Grantor shall
have no obligation to inspect, maintain and operate the Drainage Improvements. Upon satisfactory
completion of the Drainage Improvements in accordance with the approved Plans titled State Farm
Boulevard and South Pantops Drive Sidewalk Project UPC-102886 (hereinafter the "Plans"), such Drainage
Improvements shall be transferred to the Virginia Department of Transportation (VDOT) for acceptance into
the state system of secondary highways.
5. Right of Grantee to disturb and maintain the Easement premises. The Grantee shall have
the right width the Drainage Easement Area to trim, cut or remove any trees, brush or shrubbery, remove
fences, structures or other obstructions, and take other similar action reasonably necessary to provide
adequate and fully functioning Drainage Improvements; provided, however, that the Grantee, at its own
expense and within a reasonable amount of time, shall restore as nearly as possible, the Drainage
Easement Area to its original condition. This restoration shall include the backfilling of trenches, the
replacement of fences and shrubbery, the reseeding or resodding of lawns or pasture areas, and the repair
or replacement of structures and other facilities located outside of Drainage Easement Area that were
damaged or destroyed by the Grantee or its contractors, subcontractors or agents. However, the Grantee
shall not be required to repair or replace any structures, trees, or other facilities located within the Drainage
Easement Area, but be required only to repair or replace groundcover within the Drainage Easement Area
that was disturbed, damaged or removed as a result of use of the Drainage Easement. In addition, within a
reasonable amount of time, the Grantee shall remove from the Drainage Easement Area all trash and other
debris resulting from the installation, maintenance or operation of the Drainage Improvements, and shall
restore the surface of the Drainage Easement Area to its original condition as nearly as reasonably possible.
Notwithstanding the foregoing, the Grantee shall not be required to repair or replace anything identified in
this paragraph if to do so would be inconsistent with the proper maintenance or operation of the Drainage
April 8, 2015 (Regular Night Meeting)
(Page 14)
Improvements. In addition, the Grantee shall not be responsible for conducting routine maintenance as
described in paragraph 6 except as expressly provided in this paragraph.
6. Right of Grantor to maintain the Easement areas. The Grantor shall have the right, but not
the obligation, to perform routine maintenance of the Drainage Easement Area and the Temporary
Construction Easement Areas, including, without limitation, the removal of trash and landscaping debris,
mowing and manicuring lawns and groundcovers, and making any other aesthetic improvements desired
by the Grantor that are not inconsistent with the rights herein conveyed, and which do not adversely affect
the proper operation of any Drainage Improvement. The right to maintain the Drainage Easement Area
does not include the right or obligation to maintain the Drainage Improvements.
7. Temporary construction easement. The Grantee shall use the Temporary Construction
Easement Area shown on the Plat for the purpose of constructing and installing a public sidewalk to be
located adjacent to, but not on, the Grantor's Property, which public sidewalk improvements shall be located
entirely within the boundaries of Grantee's (or the Virginia Department of Transportation's, as applicable)
property along State Farm Boulevard (the portion of said sidewalk improvements which is located in front
of Grantor's Property shall hereinafter be referred to as the "Sidewalk Improvements"). Grantee and its
contractors, subcontractors and agents shall use reasonable efforts to minimize interference with Grantor's
use and enjoyment of Grantor's Property when exercising the Temporary Construction Easement rights
granted herein. The Temporary Construction Easement shall automatically expire upon completion of the
Sidewalk Improvements, without the need for further action by either party hereto, and upon such expiration,
Grantee shall have no further rights with respect to the Temporary Construction Easement Area
whatsoever.
8. Grantee’s Obligations with Respect to Temporary Construction Easement . Within a
reasonable amount of time, Grantee shall restore as nearly as possible, the Temporary Construction
Easement Area to its original condition. This restoration shall include the backfilling of trenches, the
replacement of fences and shrubbery, the reseeding or resodding of lawns or pasture areas, and the repair
or replacement of structures and other facilities located outside of Temporary Construction Easement Area
that were damaged or destroyed by use of the Temporary Construction Easement. In addition, within a
reasonable amount of time, the Grantee shall remove from the Temporary Construction Easement Area all
trash and other debris resulting from the installation of the Sidewalk Improvements, and shall restore the
surface of the Temporary Construction Easement Area to its original condition as nearly as reasonably
possible. The parties acknowledge and agree that Grantor's mail box is located within the existing State
Farm Boulevard right-of-way and will require relocation during construction of the Sidewalk Improvements,
to a location approved by the owner and in accordance with VDOT and USPS requirements, all at Grantee's
cost and expense. Grantee shall not interfere with delivery of Grantor's mail by the U.S. Postal Service.
Further, all Sidewalk Improvements, including, without limitation, any grading necessary adjacent to
Grantor's Property within State Farm Boulevard, shall be completed in conformance with the Plans
9. Exclusivity; restrictions; reserved rights. The Drainage Easement conveyed herein is an
exclusive easement. Except as otherwise permitted hereby, neither the Grantor nor any person acting under
the Grantor's express or implied consent shall modify, alter, reconstruct, interfere with, disturb or otherwise
change in any way the land within the Drainage Easement Area or any Drainage Improvement located
within the Drainage Easement Area; neither shall any such person construct or maintain any roadway, or
erect any building, fence, retaining wall or other structure within the Drainage Easement Area. The Grantor
hereby reserves the right to use Grantor's Property for any use not inconsistent with this Deed of Easement.
10. Grantee’s right to assign. The Grantee shall have the right to assign tills Deed of Easement
as its interests may require.
11. Binding effect. This Deed of Easement and the rights and obligations established herein
shall run with the land in perpetuity, and shall be binding upon the Grantor, the Grantee, and their
successors and assigns. All references herein to the "Grantor" and the "Grantee" include their respective
successors and assigns. All references to the "Grantee," when exercising any right or obligation herein,
includes the Grantee's officers, employees and agents .
12. Modification. This Deed of Easement may not be modified except in writing signed by
Grantor and Grantee and recorded in the Clerk's Office for the Circuit Court of Albemarle County, Virginia
The Grantee, acting by and through its County Executive, duly authorized by resolu tion adopted by
the Board of Supervisors of the County of Albemarle, Virginia, accepts the conveyance of this property
pursuant to Virginia Code § 15.2-1803, as evidenced by the County Executive’s signature hereto and the
recordation of this Deed.
GRANTOR: VIRGINIA HIGH SCHOOL LEAGUE, INC.
By: (Signed) Kenneth G. Tilley, Executive Director
GRANTEE: COUNTY OF ALBEMARLE, VIRGINIA
By: (Signed) Thomas C. Foley, County Executive
April 8, 2015 (Regular Night Meeting)
(Page 15)
April 8, 2015 (Regular Night Meeting)
(Page 16)
_______________
.
Agenda Item No. 9. PUBLIC HEARING: To receive comments on Proposed Calendar Year
2015 Tax Rates for Real Property. (Advertised in the Daily Progress on March 8, 2015.)
Mr. Foley said that staff will provide a brief overview. He stated that there have been extensive
public process on the budget, with this being the third public hearing, as well as 13 town hall meetings,
community stakeholder meetings, information on the County’s website for the last 4 -6 weeks, and
handouts for the public with details on the budget. He reported that the propos ed budget totaled $375
million, with about 43% of revenues coming from real estate and personal property taxes. Mr. Foley said
that there is revenue from other local taxes – meals and sales tax, state revenues making up about 22%,
with borrowed proceeds at 7%, use of fund balance, and a minimal amount of federal revenues. On the
expenditure side, he reports, about 54% of the total expenditures go to the school system for operations
capital and debt service, and about 42% go to all other government services, with the total picture
including a payment of about 4% to the City of Charlottesville for the revenue-sharing agreement. Mr.
Foley reported that the budget is an increase of approximately 6.6%, with 4.4% reflecting an increase in
both school and general government operating expenditures; an 18.2% increase in the capital budget;
and is built on a tax rate of 82.4 cents. He said that the budget represents modest revenue growth in
terms of the general fund, primarily made up from a modest increase in real estate values, which
averaged about a 2.6% increase on the average home in the County. Mr. Foley stated that it proposes a
2.5-cent real estate tax increase, with 1 cent dedicated to the fire/rescue services fund and 1.5 cents held
for Board consideration. He added that state and federal revenues ha ve increased about 2.2%.
Mr. Foley stated that the budget represents a number of challenges the County is facing,
including increased funding for meeting mandates and obligations, such as increased funding for water
protection mandates through the state and federal government. He said that this also me ets the
operating impacts of some recent capital improvement projects, attempted to support an adaptable,
efficient organization, by establishing an innovation fund to look for efficiencies in the budget and a local
April 8, 2015 (Regular Night Meeting)
(Page 17)
government and school joint efficiency committee that will bring some recommendations back to the
Board in looking ahead to future budget years. Mr. Foley stated that it attempts to provide quality across
all functions of government, particularly schools and local government – which are targeted to get a salary
increase effective in January of calendar year 2016, and it support s significant capacity needs within the
organization. He said that core services are a particular challenge, but the budget does attempt to
address them with the addition of five new police officers and two new social services workers. Mr. Foley
stated that the budget looks to the future and the challenges faced as they go beyond the proposed
budget, by creating a citizens committee to look at funding the future.
Mr. Foley reported that the budget makes some tough choices and proposes some new
approaches, and establishes the redirection of some funding of CIP programs back to operating needs for
the police officer and social service worker positions. Mr. Foley stated that the County rank s 126 out of
133 law enforcement agencies in Virginia in terms of per-capital staffing, and the Board and staff feels it is
important to address those critical needs in the FY16 budget while trying to figure out how to solve it in
the future. He said that even with the removal of some programs in the CIP considered enhancements,
the budget maintains their commitment to maintenance of current facilities and addresses critical public
safety projects such as 911 system replacement needs. He stated that the budget also establishes a fire
rescue fund and dedicates an increase in the tax rate of one cent exclusively toward fire and rescue
services, to replace lost grants and some other mandated and significant critical needs to maintain
current levels of service. Mr. Foley said that the budget proposes an additional 1.5-cent tax increase
above the penny for fire and rescue to pay for a number of things currently under consideration by the
Board, in areas they are seeking public input on in terms of making improvements to the originally
proposed budget. He stated that the information before them outlines those issues, and these items are
subject to review as recently as the previous evening’s budget work session.
Mr. Foley stated that some items have changed in the information presented, in particular the
decrease in the gap in local school funding from $753,000 to about $500,000 due to changes c oming
forward in some regional projects. He said that the other items include advancing the pay increase to
October from January, additional support for the ACE program, expansion of the Bright Stars program,
and the addition of two traffic safety officer positions. He stated that the Board would like to hear
comments on these items as part of the public hearing, and said that beyond the decision that will be
made this year, they have identified challenges the County is facing in looking five years out. Mr. Foley
referenced a graph presented that depicted a significant gap between expected revenues and the
expenditure needs faced to meet mandates in core service needs. He said that this will be a continuing
discussion by the Board of Supervisors beyond this budget, and this year is an important part of the
conversation – with more discussion ahead, specifically in their process of strategic planning, five-year
planning, and annual budgeting. Mr. Foley said that this budget propose s formation of a special citizen
committee to look at the challenge of closing this gap and meeting critical core service needs in the years
ahead.
Mr. Sheffield disclosed that he serves as Executive Director of JAUNT, with Albemarle County
being a contributor to that organization, and because he receives a salary greater than $5,000 he has a
personal interest and must declare his position. He stated that because the budget public hearing is
general in nature, he feels that he can participate fairly and objectively in the discussion – unless they get
into a JAUNT-specific conversation, at which time he will read a separate disclosure and recuse himself
from the discussion.
The Chair opened the public hearing.
Ms. Mallek and Ms. Palmer read the protocol and rules for public speakers.
Ms. Fran Hooper of the Samuel Miller District addressed the Board and stated that she is the
current President of the JAUNT Board. Ms. Hooper thanked them for all of their support to JAUNT over
the years, and said that many riders have no other way to get to work, school, the grocery store, or the
doctor, and the service is a critical part of the community. She stated that they had a discussion at the
JAUNT board meeting earlier that day about the increase in both urban and r ural ridership in the County,
which has risen more than 14% over the past year. Ms. Hooper said that it is a challenge for JAUNT to
deal with the cost of these additional riders, and stated that one of their board’s critical priorities in putting
together their budget is to make sure that the way they schedule their service is as efficient as possible.
She stated that they need to get as many people on the bus as possible, and need to make the trip length
as short as possible. Their budget for the coming year reflects one additional operations position to make
that service delivery as efficient as possible. Ms. Hooper said that April 9 is National Stand Up for
Transportation Day, and everyone will be talking about how Congress must fund the Highway Trust Fund
– which will dry up on May 31, eliminating additional federal money for highways and transit, affecting
both JAUNT and CAT. She urged the Board to get the message to Congressional representatives that
they need to make a decision about the fund.
Mr. Boyd asked if JAUNT will be asking the Board for additional funding this year. Ms. Hooper
clarified that JAUNT’s request includes an increase of $14,000 for the County’s share of the new position,
which is not reflected in the budget the Board has received. She said that the City has already approved
their share, and there are also federal matching funds for the total cost of the position.
Mr. Kirk Bowers, Rivanna District, resident long term and Sierra Club addressed the Board,
stating his appreciation of their support of the budget, particularly for the Natural Resource Manager and
ACE funding. Mr. Bowers thanked them for support of teacher and staff raises, as it has been a long time
for them not to have raises. He stated that there are a lot of people who walk in the Pantops area,
April 8, 2015 (Regular Night Meeting)
(Page 18)
coming from Fontana and other neighborhoods, and sidewalks are needed there – but the primary need
is a way to get across Route 250, as there is currently no way to do that safely. Mr. Bowers said that it is
important to encourage walking in the area, and perhaps they c an offer a small stipend to the developer
to cut costs – and he suggested using gravel instead of concrete for the sidewalks.
Ms. Jerry McCormick-Ray of the White Hall District addressed the Board, stating her support for
the ACE program and the Natural Resources Manager. Ms. McCormick-Ray stated that it will be helpful
to have the Resources Manager to serve as a liaison between the public and the experts in the field, as
the environment is complicated and difficult to understand. She said that it is important to bring these two
factions together to help people understand the value of the environment, the resources they have, and
the role that natural resources play.
Mr. Carleton Ray addressed the Board and commended the Board for even considering a Natural
Resources Manager position. He stated that he has served on three County committees – two for
mountaintop protection, and one for natural heritage, and it became very apparent to him that the public
needs more awareness and understanding of the importance of natural resources, and he would
encourage the Resources Manager to work with the schools to help make people aware of biodiversity.
Mr. Tom Olivier, Rivanna District, addressed the Board and thanked Mr. Foley, Ms. Allshouse and
other staff for their work, and commended the Board on the thoroughness at looking at all of the budget
issues, particularly the CIP. He stated that open spaces are critical parts of the community, and if they
are lost it will become a much lesser place in which to live. Mr. Olivier said that he wa encouraged to
hear them support ACE at their work session the day before, and hopes they will also support the staff
position in Community Development.
Mr. David Van Roijen of the Samuel Miller District addressed the Board and said that he was
critical of staff’s proposal of budgets over the years that is padded and more than adequate, and the
Board’s proposal to increase taxes after the last increase indicates their inability to do their job in making
hard decisions. Mr. Van Roijen said that people did not vote for Supervisors to grant all of their wishes,
but to instead spend their money wisely. He stated that the economy is improving, and they should hold
the line on taxes and wait for revenues to increase; and if not, they should have a referendum and float a
bond.
Mr. Steve Koleszar of the Scottsville District addressed the Board, stating that in the public
meetings he has attended, one of the themes has been if they have to raise the tax rate, make sure to
provide great value. He cited that some of the benefits he has received as a taxpayer are: having a
policeman stop on the side of the road and save him by calling a tow truck; by having lower fire insurance
rates because the County has good fire coverage; by having sidewalks that he can use to walk to the
Willoughby Shopping Center so he does not have to fight cars; by having his kids get a great education in
County schools; and by transforming children’s lives through having good, effective child protective
services that work hard to keep kids with their families. Mr. Koleszar stated that Albem arle County is a
great place to live, in part because there is an effective, high-quality government. He said that the Board
of Supervisors and staff do a wonderful job, and do not get enough thanks for their work on behalf of
citizens. Mr. Koleszar stated that a lot of people will say they do not have kids in school, but they do have
a safer community because children are in school getting a good education – and are not getting in
trouble or causing crime, or devaluing the neighborhood, or costing jail space. He said that the schools
offer advanced credit programs that save students a semester, or a year or more of tuition by providing
them college classes while in high school, and parents who may not have graduated high school now
seeing their children graduate and be successful. Mr. Koleszar said that they face tremendous
challenges going forward, and cannot run an urban county on a rural budget, and he is fully in favor of a
tax increase – for now and in the future.
Ms. Anne Garrity of the White Hall District addressed the Board, stating that she is a teacher at
Merriweather Lewis Elementary School and is before them to remind them of the emails she has sent in
support of funding for schools and other services. She stated that she feels privileged to work for
Albemarle County Schools, and is surrounded by colleagues who are the best in the country, which is an
energizing environment. Ms. Garrity said that her colleagues ha ve great ideas and poured their hearts
and souls into what they do, and they deserve to be appreciated. She stated that the morale among
teachers is currently quite low, as salary increases have not kept up with inflation, so take-home pay is
less than it was five years ago due to increased retirement withholdings and healthcare costs. Ms.
Garrity said that she is in the fortunate position of having support from her husband and thus is not as
concerned about salary as the vast majority of teachers, who are trying to support families on a teaching
budget. She stated that new people are coming in who have college loans to pay off, and the County will
not be able to continue attracting teachers of this caliber without paying for it. Ms. Garrity emphasized
that Albemarle is an urban county now, and they must provide services to keep up with the growth – and
a 2.5-cent tax increase is not an exorbitant amount of money.
There being no further public comment, the Chair closed the public hearing.
_______________
Agenda Item No. 10. PUBLIC HEARING: ZTA-2015-00001. Wireless Communications – FCC
Mandated Changes. The Board of Supervisors intends to adopt an ordinance to amend Secs.
18-3.1, Definitions, and 18-5.1.40, Personal Wireless Service Facilities, of Chapter 18, Zoning, of
the Albemarle County Code. This ordinance would implement recently published federal
regulations (47 C.F.R. § 1.40001) by amending Secs. 18-3.1 and 18-5.1.40 by adding and
amending definitions and regulations pertaining to the “collocation” of “transmission equipment”
April 8, 2015 (Regular Night Meeting)
(Page 19)
on “eligible support structures,” which must be approved by the County within 60 days unless the
collocation would result in a “substantial change” to the physical dimensions of the eligible
support structure; one such “substantial change” arises if the collocation would defeat the
“concealment elements of the existing support structure,” a term defined in this ordinance that is
not defined in 47 C.F.R. § 1.40001. This ordinance also would amend Sec. 18-5.1.40 by
renaming and reorganizing the section, updating and clarifying terminology, amending the
procedure to review collocations and replacements that would result in a substantial change (Tier
I review with a special exception), and amending the procedures for application review and
action, including the time by which applications shall be acted upon (not more than 60, 90, or 150
days, depending on the application). (Advertised in the Daily Progress on March 25 and March
31, 2015.)
The executive summary forwarded to the Board states that the Federal Communications
Commission has issued new rules that will take effect April 8, 2015. These rules require the County to
approve certain types of collocations and replacements of transmission equipment on existing structures,
including towers, and impose a new “shot clock” under which all wireless applications must be reviewed
and acted upon.
The Planning Commission adopted a resolution of intent for this ordinance on December 2, 2014
and held a public hearing on March 10, 2015. After the public hearing, the Commission una nimously
recommended approval of the ordinance.
The Planning Commission’s staff report included an annotated version of the draft ordinance as
Attachment D, and a non-annotated version as Attachment E. Those versions of the draft ordinance are
not being provided because many of the comments in the annotated version have been supplemented,
typographical errors have been corrected, and minor non-substantive clarifications have been made to
the ordinance text. Attachment A, the revised annotated version, provides a line by line analysis of the
proposed ordinance, legal analysis of certain provisions (e.g., the definition of “concealment elements of
the eligible support structure”), whether a provision is existing or is required by the new FCC rules, and
why an existing provision is being amended and its possible effects. It also includes definitions related to
wireless services that are not proposed to be amended to provide the reader with additional information
and context. Attachment B is the non-annotated version of the ordinance prepared for the Board’s
consideration and adoption.
The Commission’s March 10 recommendation for approval of the ordinance included a
recommendation that the Board consider regulations regarding new setbacks for new facilities from
dwelling units and historic structures, as well as amending the flush-mounting antenna design standard (a
maximum 12 inches from the structure) by changing the point of measurement from the face of the
antenna to the back of the antenna, and increasing the maximum area for each antenna from 1152 to
1400 square inches. After the Commission meeting, staff concluded that these recommended changes
were beyond the scope of the resolution of intent and the advertised public hearing. The recommended
changes to setbacks will require further staff analysis. Ntelos has since filed an applica tion to initiate a
zoning text amendment to amend the two antenna design standards included in the Commission’s
recommendation.
The proposed amendments remove redundant review procedures without reducing notice to
abutting owners or removing Board of Supervisors discretion. This new review process will result in
improved review efficiencies and reduced review costs. Staff is unable to calculate the exact amount of
savings to the County.
After the public hearing, staff recommends that the Board adopt the attached proposed ordinance
(Attachment B).
_____
Mr. Bill Fritz, Chief of Special Projects, addressed the Board and stated that Ms. Sarah Baldwin
and Mr. Greg Kamptner have also worked on the team to bring this item forward. Mr. Fritz said that the
amendments before the Board tonight apply only to collocations and replacement of equipment, not to
new construction or replacement of existing towers – and the rule for those stayed the same. He stated
that the FCC action they are responding to is taken specifically to facilitate and expand deployment of
wireless services, including wireless broadband. Mr. Fritz said that the rule allows new equipment to be
installed by right and with limited review, and there are some limitations on the installation and equipment
that he will address later in his presentation. He stated that most of the changes to the ordinance are due
to reorganization, and with the implementation of the FCC’s rule, they will now have four types of
facilities: exempt collocations; Tier I, which will now be non-exempt colocations; Tier II, which are treetop
towers; and Tier III, which is everything else. He stated that there are no changes in Tier I, II or III other
than carving out the exempt collocations from the Tier I category. Mr. Fritz said that his presentation w ill
cover each of the above items except for reorganization – which is solely done as a way to ease use of
the ordinance by the public, industry and the County; and the procedures for review – which are new
shot-clock provisions for exempt collocation as mandated by the FCC.
Mr. Fritz presented a summary of the FCC’s definition of “substantial change,” and stated that the
Middle Class Tax Relief and Job Creation Act of 2012 mandated that localities shall approve and may not
deny collocations that are not substantial changes – however, the law did not define “substantial change,”
so the County adopted its own definition. Mr. Fritz said that the FCC’s most recent action adopted a
definition of “substantial change,” and the County’s definition is not consistent with that. He stated that
one example is that the existing ordinance stated that a change to a facility within 500 feet of a dwelling is
a substantial change, and that limit is not permitted by the FCC’s definition. Mr. Fritz said that the FCC
did not define what a “concealment element” is, and the County has proposed language defining it to
April 8, 2015 (Regular Night Meeting)
(Page 20)
which the industry has objected – which is the major issue in this amendment. He stated that facilities
that were approved since 2004 had concealment techniques such as height and antenna design, and
they will still have to be met. Mr. Fritz said that some facilities approved in the late 1990s through 2004
had conditions that were concealment techniques, and prior to that time approved facilities did not have to
have those, so they will most likely be able to be increased in height and have larger antenna arrays
installed.
Mr. Fritz reported that staff is proposing to amend the special exceptions and treat them all as
Tier I applications, which will preserve notice to abutting owners, preserve discretion of the Board, and
ensure that they can meet the shot clock. He presented an example of an existin g treetop tower Tier I
facility and said that if new antenna are proposed for it that exceeds the antenna size limit or standoff, it
will not be eligible to be processed as an exempt collocation. Mr. Fritz said that under the current
ordinance, the application will be processed as a Tier II permit, not a Tier I, because a special exception
is proposed – which will require notice to abutting owners and administrative review of the tower by staff,
and review of the special exception by the Board. He stated that staff will always support the tower
portion of the review because the facility is existing and meets all requirements placed on it. If it did not
meet the requirements, it would be in violation and would have to be corrected. Mr. Fritz said that the
Board will hear the special exception for the antenna size and mounting standards and w ill either approve
or deny the request. Staff’s proposal is to eliminate the administrative portion of the tower review and
retain the Tier I with special exception review, which will mean the same amount of discretion and public
involvement. He stated that this is a much more efficient use of County resources, and retains all of
those notice requirements.
Mr. Fritz presented an example of a Tier III facility, which is categorized as such because it is
more than 10 feet taller than nearby trees, and noted that it has concealment elements. He stated that
just as before, antenna are proposed that will require a special exception – but the request is processed
as a Tier III, which requires a special use permit, and the County has only 90 days to review that request,
which requires the Planning Commission and Board meetings to be accelerated. Mr. Fritz explained that
in order for the Commission meeting to be early enough to allow the Board to act within 90 days, the
report for the special exception must be prepared quickly. He said that due to the lead times for report
preparation, the time available for this type of review – which is supposed to be the more complex – is
actually less than with the Tier II example. Mr. Fritz stated that meeting the shot clock requirement for
this type of review is extremely difficult and requires excessive demands on resources. He added that
staff recommends that it be processed as a Tier I with a special exception, just as in the prior example.
Mr. Fritz stated that staff is proposing the changes in processing special exceptions in an effort to
make better use of County resources and focus the review on the critical issue, which is the new antenna
– not the existing tower. He said that it is estimated that the fee collected by the County covers less than
half the cost to review an application, and altering the review process preserves public input and Board
input, and lessen the cost to the County. He said that the County has limited flexibility in addressing
collocations, and the changes recommended in the ordinance implemented required FCC actions, and
this is being done in the most efficient way possible. Mr. Fritz said that no changes are proposed to the
new tower structure, and staff is recommending approval of the zoning text amendment.
Ms. Dittmar said that the new FCC rules had become effective that day. Mr. Fritz said that they
are at least in effect as of midnight that night, and the following da y will definitely be in effect. He stated
that adopting this to give staff the tools to be able to do what they have to do is an important step, and if
the Board is interested in potential future actions, staff will recommend discussing them as a separate
action from this Zoning Text Amendment (ZTA).
Ms. Palmer asked about the statement under 5.14, Subsection E1 that says “Nature of review
and action applies for only two types of review: ministerial review for Tiers I and II; and legislative review
and approval of a special use permit for Tier III.” She asked about Tiers I and II that require a special
exception because it does not seem they comply with E1.
Mr. Greg Kamptner, Deputy County Attorney, addressed the Board, stating that the primary
applications submitted will either be ministerial or through special use permitted legislative acts. He said
that they recognized there are types of applications for which they are seeking modifications outside of
the normal wireless regulations, which requires a special exception and are processed under special
exception rules, and are legislative in nature. Mr. Kamptner stated that because they are not part of the
primary application under the wireless regulations, staff has only addressed the two primary actions – Tier
I and II and exempt collocations, which are ministerial; and the Tier III legislative acts for those
applications. He said that they are not included or excluded, but Subsection E1 is intended just to
address the two primary types of applications – which is not a substantive regulation, but is there to
provide a framework for everything that follows.
Ms. Palmer asked if he does not feel it is something they need to address. Mr. Fritz stated that
E4 got to the point of Tier I with a special exception and preserved the Board of Supervisors’ discretion
for consideration of a special exception with both a Tier I and a Tier II.
Ms. Palmer commented that the actions under E5 also only provide two actions, neither of which
seems to fit a Tier I or II requiring a special exception. Mr. Fritz explained that if applicants are applying
for a special exception, they will not be meeting performance standards, so no approval can be granted
without the exception.
April 8, 2015 (Regular Night Meeting)
(Page 21)
Ms. Palmer said that she has a question that arose because of the Bellair tower, and said that
this pertains to preserving some ability for adjacent neighbors of older towers to protect their property
from the visual impacts of expansion of those towers. She stated that the tower was installed in 2000,
before the County had regulations, and there were some issues that occurred during this time – and she
does not want to repeat those mistakes.
Ms. Mallek asked about staff’s comment on expansion of older towers, as that seem s to be the
place where the County is losing its ability to control things that were originally permitted, with no
expansion possibility, that are now coming b ack and being extended. Mr. Fritz said that for towers
approved prior to the late 1990s, which was before conditions were placed that required concealment
elements on towers, and there was a height restriction – it would be able to be increased in height as long
as it did not violate a setback issue or penetrate the airport overlay district, or a similar problem. Mr. Fritz
said that it would also be able to have new antenna placed on it, and they could be any size and up to 20
feet from the face of the tower. He stated that after the late 1990s, the County introduced conditions that
would be considered to be concealment elements, and the Bellair tower had some conditions that have
carried over, but also had some that have not carried over to the present. Mr. Fritz said that each tower
between that time and 2004 will need to be looked at individually, and those facilities approved since
2004 will be able to have additional arrays on them, but will have to meet performance standards in place
now – antenna size, standoff, etc. He stated that if they are treetop towers, they will not be able to be
increased in height because that is a condition that directly relates to concealment – although the industry
does not agree with that – and that is included in the County’s definition.
Ms. Palmer said that treetop towers can be extended 10 feet above the tallest reference tree.
Ms. Mallek said that it started out as 7 feet above, then went to 10.
Mr. Fritz stated that if an applicant wants to do an additional 20 feet, the application will be turned
down, but they can do additional arrays. He said that if an applicant wants a standoff that exceeds what
was originally approved, they can apply for a Tier I and it will come before the Board. Mr. Fritz
emphasized that what they are talking about is exempt collocations, and an applicant can apply for
anything and it will come before the Board.
Ms. Palmer asked if the Bellair tower is not an exempt collocation. Mr. Fritz responded that staff
will have to see what is proposed and then determine if that proposal is an exempt collocation. He stated
that the Bellair tower is just a facility sitting there, and until someone c omes along and proposes
something, staff cannot determine if it is exempt or non-exempt.
Ms. Mallek said that the neighborhood pushback with Bellair recently was the fact that the
applicant added things and replaced them, and that was completely unregulated – and there was no
process to protect those residents. She asked if there is any way to help neighbors, and if that is
consistent with old towers that are not protected by conditions. Mr. Fritz responded that all towers, all
structures, and transmission facilities are regulated in the County – and there have been things added to
those towers, but always with a building permit.
Ms. Mallek asked why they will not have come to the Board for a special exception. Mr. Fritz
stated that the applications meet the performance standards and limits placed on the tower, and are
within the zoning ordinance – and that was the case yesterday, as it will be tomorrow.
Ms. Palmer said that she has numerous questions about this that they can cover after the public
hearing.
Ms. Mallek asked about the picture he has presented of a tower that has a casing on it. Mr. Fritz
responded that it is an example of a Tier III facility, and if they have proposed antennae that exceeded the
size limit or standoff, it would be processed as a Tier III with a special exception – meaning it will have to
go to the Commission and Board of Supervisors. Mr. Fritz said that there is only 90 days to review that
type of collocation, and the lead time to prepare the staff report is so short, there is very little time to
review the project. He said that staff is proposing getting rid of the Tier III component and making it only
a special exception, which will give them time to focus on the actual application – which is the new
antenna, not the tower already in place – and write a more well-reasoned report to be provided to the
Board. Mr. Fritz emphasized that the Board still has discretion to review and approve it, and the County
will still provide notice to abutting owners, which is a much more efficient use of resources and focuses
the review on what the real issue is, as well as eliminating the step of going to the Planning Commission.
Ms. Palmer asked Mr. Fritz to comment on the notice to abutting property owners for wireless
facilities, including replacements and collocations, because she has heard feedback from residents as to
the value of that step as a matter of courtesy. Mr. Fritz stated that they may want to address that in a
future zoning text amendment, but what staff is proposing is that the notice will be exactly the same as it
is now, which requires notice of abutting property owners for a special exception. He reiterated that this
ZTA is for new equipment being added to existing facilities, not new towers , which always requires notice.
Mr. Boyd said that his understanding is that this ordinance is making the County’s ordinance
conform to FCC regulations, and the reality is that this simply puts them in compliance with those.
Mr. Fritz stated that the timelines and definition of “substantial change” are mandated by the FCC,
and staff is also proposing a change in the special exception process in order to implement the FCC
April 8, 2015 (Regular Night Meeting)
(Page 22)
action, because the way the County handles it now is extremely difficult. He said that the new process
ensures all of the Board’s discretion, and ensures they can meet obligations under the FCC’s action.
Ms. Palmer said that there are a few older towers out there currently that need to be discussed in
terms of protection.
Mr. Boyd suggested that it be a topic for a future work session.
Ms. Palmer stated that she feels they must talk about it now, and can explain it later because they
need to act quickly.
The Chair then opened the public hearing on ZTA-2015-0001.
Mr. Kent Sinclair addressed the Board, stating that he has lived in the Rivanna District for the
past 32 years. He said that he is aware that the majority of staff’s work is to comply with FCC rulings, but
he wants to stress that there is one thing the Board has discretion to deal with, and that is level of notice
provided to a community when an application is being made to expand or replace an existing cell tower.
Mr. Sinclair stated that Mr. Fritz has said that the goals are to preserve notice to adjacent landowners and
keep the same level of public involvement. He said that he has been involved with cell tower applications
in his own community, and notification to directly abutting landowners does not even reach people within
400 feet of the tower location. Mr. Sinclair stated that he d oes not see anything pertaining to posting, and
the Planning Commission minutes indicates that there does not seem there will be ads to alert people of
something happening, so he just wants to ensure that there will be some basis for community input – with
public notice being the thing that makes that possible.
Mr. Dade Van der Werf of the Samuel Miller District addressed the Board, and said that the only
notice he received when a tower was changed in his neighborhood in 2012 was when the antennae
starting going up. Mr. Van der Werf said that neighbors went to meet with Mr. Fritz and other staff, and
were reassured that no further arrays could be added to the tower, because it was clearly limited by the
original special use permit – a wooden pole with no increase in height and no additional antennae. He
stated that they returned from that meeting that day, only to find an additional array going on that tower,
and urged the Board to be very cautious going forward. Mr. Van der Werf said that the history of towers
in the County has been one of attempts to regulate them, and representations that they could be
regulated, that have gradually been undone. He stated that the last changes in 2013 voided the special
use permits that applied to his neighborhood’s towers and others, and obviously there are other towers in
the County that were flawed in their approval and represent a legacy from their predecessors on the
Board that he hopes they can correct. Mr. Van der Werf encouraged the Board to amend the ordinance
before them, to incorporate notice to all abutting landowners and others, who should have the opportunity
to monitor the actions of staff in reviewing applications because the clock now is so short, and just to
share information. He stated that in the case of the 2012 approval of equipment on the tower in his
neighborhood, they have found that both by the original SP and rules in effect, it should have been denied
but was not.
Ms. Jennifer Greeson addressed the Board, stating that the extension of notice for collocations
and replacements is vital, and all of these definitions are in flux – which means that the public needs to be
involved in the process for both equipment additions and replacements, in addition to new towers. Ms.
Greeson stated that when the Board approves this ordinance tonight, they are actively removing
protections in the current ordinance for marginally sited towers like the one in Bell air and like the ones in
residential neighborhoods. She said that it is important for them to initiate an additional ZTA tonight, so
they can start working and instructing staff to try to find ways to close some of these maps and take some
of these legacy towers into account. Ms. Greeson stated that there are places where the County is giving
away its authority although it does not have to, and it is important in the face of these FCC rules that they
conserve whatever authority they c an. She said that on her cul-de-sac in Bellair, there are eight homes
valued at more than $6.5 million total, and when the tower was approved the Board believed it would
always be invisible and would have no impact on the neighborhood, but now six out of the eight homes
can clearly see the tower. Ms. Greeson characterized this as a massive zoning failure.
Ms. Sally Thomas, of the Samuel Miller District addressed the Board, stating that if people are
going to be angry at anyone, it should be the FCC for limiting local governments in this way. Ms. Thoma s
said that this has happened with other industries, such as the billboard industry. She stated that the
Board of Supervisors set up a system of control over what could be gigantic spires of ugliness in
inappropriate places, but instead took advantage of the topography and require brown poles that skim the
top of trees, preferably in front of a hillside of trees. Ms. Thomas said that the County ha s more than 50
poles that are barely visible, and went to the Federal Court of Appeals to defend the ability t o control the
skyline – at least in designated areas. She stated that they should take pride in their system, which is
built because they care about the visual attractiveness of the County. Ms. Thomas said that it is up to
them to defend visual attractiveness, which influences the tourism industry and UVA’s ability to attract the
faculty it wants and the quality of life of everyone who live here – all silent beneficiaries of the Board’s
caring for the County. Ms. Thomas stated that it is crucial for them to require or preserve wooden poles
whenever possible, as it is physically impossible to make them taller or acquire appendages like metal
poles can. She said that they should keep the ARB in the process whenever possible, as they provide
the best chance for neighborhoods and public to see what a tower will impact and provide input, even if
they cannot get an application thrown out. Ms. Thomas stated that the Board should enlarge rather than
shrink public involvement, such as third-party notification with collocation facilities.
April 8, 2015 (Regular Night Meeting)
(Page 23)
Ms. Lori Schweller of LeClair Ryan, representing Verizon Wireless, addressed the Board. Ms.
Schweller stated that the point of the FCC ruling, which seem s to be getting lost here, is to promote the
deployment of broadband network facilities. She said the way that the County is implementing this ruling
completely undermines it. Ms. Schweller stated that Verizon has brought applications to the County
many times with the purpose of bringing new services that they do not have, and the ruling finally
provides an objective standard for “substantial change.” She said the County has defined “concealment
elements” so broadly that there are almost no facilities to which this ruling will apply. Ms. Schweller
stated that the ruling stipulates if you have conditions associated with a special use permit, violation is a
substantial change unless they deal with height and standoff. She said that the County’s definition of
concealment element is any element of a support structure that prevents disclosure or recognition – and
every single siting and design element will be a concealment element. She emphasized that she is not
sure how the ruling will be implemented, and as Mr. Fritz had said, the proposed ordinance w ill have no
impact on facilities approved since 2004. Ms. Schweller presented the tower at Piedmont Virginia
Community College as an example of a Tier III wireless facility, approved with standard conditions in
2012. She stated that the facility is not visible offsite, and they will not be able to increase the height of
the tower under the federal ruling, because of the County’s provisions on concealment elements. Ms.
Schweller said that their goal is to provide services to the citizens.
Mr. Preston Lloyd addressed the Board and stated that he and Valerie Long are attorneys with
Williams Mullen, which represents AT&T and Ntelos Wireless. Mr. Lloyd said that they firmly support the
clarifications and reorganization of the wireless ordinance before them, and over the course of many
months, Mr. Fritz and other staff have communicated with representatives of the wireless industry in
coordinating this effort, and on every issue they agreed with staff’s recommendations – except for one.
He stated that wireless service providers are making significant capital investments by upgrading existing
equipment and expanding coverage to more rural areas of the County. Mr. Lloyd said that taken as a
whole, the amendment will increase the speed and efficiency by which these capital investments can be
deployed, and better service can be realized. He stated that while they support the overall proposal, they
disagree with the concealment elements as previously discussed. Mr. Lloyd said that Albemarle is unique
in the way it approaches wireless facilities, but because FCC rules do not specifically define the term
“concealment element,” the County has concluded that all of its design elements fall under this definition.
He stated this is overly broad, and the conclusion suggested that because the ordinance encourages
treetop towers, such facilities are exempt from the FCC mandate that all applications for collocation or
replacement be approved. Mr. Lloyd stated that the County is interpreting the term “concealment
element” to mean everything from the location of the tower to the width of the antenna, but he disagree s
and feels those are design elements, not concealment elements. He said that concealment elements are
those that are specifically intended to camouflage or disguise, which is discussed obliquely in the
County’s wireless policy. Mr. Lloyd stated that under the Wireless Spectrum Act, Congress has directed
local governments to approve applications to modify an existing wireless tower or base stati on, and the
essential policy objective here is that wireless technology must be upgraded and replaced without undue
delay from local governments, and interpreting all treetop towers to be exempt from this requirement is
over-broad. He encouraged the Board to approve the ZTA, but also encourages them to ask staff to re-
examine this aspect of language in the proposal.
Mr. Boyd stated that it seems that the policy as proposed may be contradicting their objective to
provide high-speed broadband services to rural areas, and it concerns him that they are putting more
pressure on cell towers. He asked if this is moving in a direction where they will provide high-speed
broadband to rural areas, as the technology is changing rapidly.
Mr. Lloyd responded that he cannot speak specifically to the impact of this ordinance on the
deployment of broadband, but the policy intent behind Congress’s act and the FCC rules is to encourage
the replacement and upgrade of facilities in order to keep pace with technological improvements. He said
that the idea is to bring down any barriers that will slow down or prevent the public from being able to
realize those improvements, and some of that is the perception of the FCC that local governments might
be a part of that issue.
Mr. Joseph Nakimbuza addressed the Board on behalf of Verizon Wireless, stating that he is an
engineer for the company. He stated that the industry has advanced greatly from times in the past when
there was just voice communications on cell phones, and those improvements have required more
bandwidth – and hence bigger antennas and more channels to transmit signals. Mr. Nakimbuza said that
he has found Albemarle County’s limitation for treetop towers to only go 10 feet above the tree line to be
very restrictive, which means only one rod center of antennas can be deployed and less service from that
one array. He stated the wireless industry can deploy multiple rod centers, and is able to deploy more
services on each antenna due to the ability of the frequency to transmit and receive on each antenna. He
said that Albemarle also requires them to flush-mount all of their antennae, which has prevented them
from being able to tilt panels and focus more on where users are. Mr. Nakimbuza stated that the industry
has remote electrical tilt capability, but this is not useful in the rural areas as mechanical tilting is required
to expand the footprint of coverage. He said that the rural areas depend on this service tremendously,
and whenever the service is compromised in some way, the areas are not able to get rural broadband
service.
There being no other comments from the public, the Chair closed the public comment period and
put the matter before the Board.
_____
Non-Agenda. The Board recessed at meeting at 8:05 p.m. and reconvened at 8:18 p.m.
_____
April 8, 2015 (Regular Night Meeting)
(Page 24)
Mr. Sheffield asked if the budget staff needs to remain at the meeting, given that they are still
discussing the wireless policy.
Board members agreed to resume the budget discussion at their April 14 meeting instead of
tonight.
_____
Ms. Dittmar asked Board members how they would like to proceed with the wireless discussion.
Ms. Palmer responded that they have two distinct issues: the broader issue of concealment and
the story of the Bellair tower and legacy towers they need to protect. She said that Ms. Mallek wants to
address the concealment issue first.
Ms. Mallek stated that it is an idea of something that can be figured out fairly quickly, and noted
that staff has made some suggestions that she supports.
Ms. Dittmar asked Mr. Fritz to address the comments made by the wireless representatives, who
stated their support for the changes in the ordinance except for the concealment issue. Mr. Fritz
responded that it is a multi-pronged test to determine whether a facility is an exempt collocation.
Increasing the height by more than a predetermined amount means failure of the test, and standoff by
more than a certain amount also means failure. He stated that one of those tests is whether an applicant
defeats a concealment element, so staff went through the existing ordinance and found all of the
performance standards and design elements, and incorporated them into a definition of “concealment
element.” Mr. Fritz said that wireless representatives have indicated that they believe staff is
overreaching the intent of the FCC’s action, and that it is instead limited to concealment elements where
the antennas are located within an enclosure of some kind, or artificial trees. He stated that staff
disagrees with that interpretation and has looked at the FCC’s comments made while developing this rule,
and believes it has a broader definition of concealment – and believes their proposal to be consistent with
the FCC action. Mr. Fritz added that this is a fundamental disagreement.
Mr. Kamptner said that the FCC did not define “concealment elements,” and explained that there
is a fundamental principle that when the federal government is intruding on traditional state functions –
such as zoning – if Congress intends to preempt that local authority, they must clearly state that. He said
that Congress had said nothing about concealment elements, and the FCC left it open. Mr. Kamptner
said the County had come up with their definition based on their interpretation of the language that the
FCC used, and it did not use the word “camouflage,” which is a subset of concealment. He stated that it
used the term “concealment,” and when the rules were announced, the chairman of the FCC realized that
“these rules preserve local government’s authority to adopt and apply the zoning safety and concealment
requirements that are appropriate for their communities.” Mr. Kamptner said that Chairman Wielder was
speaking directly to localities like Albem arle, which for the last 15+ years have reviewed and approved
facilities that preserve a lot of the qualities that the County value s. He stated that this is what staff’s
definition is based upon – not only that intent, but the plain language of the regulations that the FCC
adopted.
Mr. Boyd asked what the legal implications will be for the Board not to adopt the ordinance
tonight, which will make the County out of compliance with federal regulations. Mr. Kamptner said that
the federal mandate still exists, and 99% of what the Board is doing tonight is just plugging in the federal
regulations, with the exception of the definition of “concealment elements.” He stated that not defining it,
as Congress and the FCC have left to them to define, it becomes an argument and a debate with each
application that comes in – and the County will develop a rule that will evolve and develop over time as
applications are submitted.
Mr. Boyd asked if the issue of public notification can be corrected in the new ordinance, so that
they can move forward with it. Mr. Davis responded that they are not in a position to add this to the
ordinance tonight, but it can be addressed in future amendments, which are already under review at this
point in time – that have been initiated by the Planning Commission.
Mr. Boyd stated that it is a very important issue to the community, and one that they need to
address.
Board members agreed.
Mr. Fritz reminded the Board that they had talked about that issue a year ago, and staff is ready
to dust those proposals off and bring them back.
Ms. Mallek said that the most pressing priority is to address the FCC ruling, and they need to
adopt something for their own protection – which they can revise in the future. Mr. Davis stated that the
ordinance put them in the best position to address federal requirements and to defend the County’s
process.
Ms. Palmer asked if the notification can be more than just abutting owners, to include people
within a certain radius. Mr. Fritz responded that they have talked about a variety of parameters –
distances, abutting owners, etc. – and they all have pros and cons.
Mr. Foley asked how soon those items will come back to the Board. Mr. Fritz said that they are
not scheduled.
April 8, 2015 (Regular Night Meeting)
(Page 25)
Mr. Foley asked how soon they might be able to come back to them for consideration. Mr. Fritz
explained that they have a ZTA that has been submitted but not yet scheduled for Planning Commission
review, which is anticipated to take place sometime over the summer.
Ms. Palmer asked if the notification requirement can be addressed at that time. Mr. Fritz stated
he will work with the County Attorney’s office on a resolution and bring it forward as part of that process.
Ms. Palmer commented that she feels the concealment definition proposed by staff is great, and
she appreciates their work to get this done before the FCC policy goes into effect.
Ms. Dittmar asked if the proposed concealment definition is more restrictive than what is currently
in place, because in light of the Board’s work with state and federal representatives to help address
broadband problems, she does not want to have to say the County is part of its own problem. Mr. Fritz
responded that he does not believe this made it more restrictive at all, and they currently have a Tier I
process that allows anyone to apply for anything, and that process remains. He said what they are
talking about – and what the disagreement with wireless companies is about – is what qualifies as an
exempt collocation, which triggered a much quicker 60-day review process. Mr. Fritz emphasized that all
of the other existing procedures are still in place, and companies can do whatever they want to do, with a
mechanism already there. He said that the proposed changes actually ma ke that more precise and more
focused, and ensures that staff meets the timeline.
Ms. Dittmar asked for confirmation that this action will bring them in compliance with the FCC
ruling, and will take what industry representatives feel is too restrictive at this time – but does not make it
more restrictive. Mr. Fritz said that the wireless providers’ opinion is that this proposal makes the County
more restrictive in terms of what they allow as an exempt collocation, but it is not more restrictive than
what is permitted in Albemarle County.
Ms. Dittmar asked Ms. Schweller or Mr. Lloyd to respond to staff’s statement. Ms. Schweller
addressed the Board and said that she agrees with the statement that what is happening with the new
ordinance does not make the current ordinance more restrictive. She said the County’s interpretation of
the federal ruling does not give them the advantage of that ruling.
Ms. Dittmar said that the definition over time will be interpreted with individual applications, as she
understands it, and asked Mr. Kamptner for clarification. Mr. Kamptner explained that the County has a
definition that lists the concealment elements, but there has been an application filed by a wireless
provider – picking up on the recommendation of the Planning Commission – to amend the regulations
that will allow the offset for antennas. He said that currently, the flush mounting requirement is that the
antennas have to be 12 inches from the pole to the face of the antenna, and there is an application to
amend that standard. Related to that, he said, is a request to increase the size of an individual antenna –
from 1152 to 1400 square inches. Mr. Kamptner said that with the technology and services that wireless
providers are required to provide, the antennas are getting bigger and thicker because of the amount of
equipment that has to go inside them. He stated that staff had received the application the week before
last and will be looking at it in light of the new FCC rules as well as the requirements of the 1996
Telecommunications Act, as both sets of regulations need to be satisfied.
Mr. Boyd asked if the ZTA is originated by the Planning Commission. Mr. Fritz responded that it
is originated by an individual applicant.
Mr. Boyd asked if staff needs anything from the Board in order to expand on that and indicate that
they are interested in dealing with this issues. Mr. Davis said that there are two issues, and what Mr.
Kamptner mentioned was initiated by the industry in the ZTA; the Planning Commission, in addressing
the FCC ordinance, had some different issues they wanted to address, so they initiated those. He stated
that staff needs to get a handle on which issues will be in the next ordinance coming forward, so they can
put it all together in one ordinance that will address the industry’s recommendation for their ZTA as well
as the Planning Commission’s ideas, along with thoughts that other Board members ha ve expressed to
staff. Mr. Davis noted that one ordinance can possibly address several different issues that are up in the
air at this point.
Ms. Mallek commented that it is the business model that is dictating that the antennas get bigger
and bigger, because elsewhere in the country people are saying that they are actually getting smaller.
She said she does not want to get sucked in by something that may not be the core issue – as it may be
for the industry’s convenience, or cost savings, etc.
Mr. Boyd said that his understanding is that the small antennas are being used in areas where
they can be attached to tall buildings.
Ms. Mallek responded they do not have to be very high.
Mr. Nakimbuza stated that different antennas work in different environments, and in more rural
areas there are taller antennas – typically about eight feet – and these allow for the signals to extend
much farther, so that coverage can reach rural areas with a wider footprint. He said that in the more
urban areas, they are using smaller antennas that are about six feet, but they are also wider. He stated
that the wider they get, the more focused the beams are, which allows them to get the signal to the user
more precisely. Mr. Nakimbuza said that smaller antennas are usually used on building tops and are
more focused, and are exceptionally useful in a smaller footprint to fill in gaps in coverage where gaps in
coverage cannot reach.
April 8, 2015 (Regular Night Meeting)
(Page 26)
Ms. Palmer said that the Board’s policy in the past in rural and residential areas ha s been to do
multiple, shorter towers – rather than one big one. She said she realizes it is more profitable to fit more
arrays on a big tower, but asked if shorter towers will cover a rural area.
Mr. Nakimbuza responded that the reason why they do more of the shorter towers is because of
the ordinance provision for flush mounting. They can only fit one set of antenna on a tower to be able to
clear the trees. He said that the tree leaves block the signal to the end users, and when the signals are
blocked, they are innovating in a way that they must apply for more towers, so they can meet th e 10-foot
limit above the tree line. Mr. Nakimbuza said that being able to stack up two antennas w ill allow them to
save costs and space. He confirmed for Ms. Palmer that more antennas can accomplish the same thing,
but it is costlier.
Ms. Dittmar asked if there is more discussion on the concealment issue.
Ms. Palmer said that she did not go through the whole history of the Bellair tower, but she would
now. She explained that the tower had been built in 2000, at which time towers were not supposed to
exceed 100 feet.
Mr. Fritz confirmed that is in residential districts.
Ms. Palmer said that the tower application went to the Board of Zoning Appeals to make the
tower 115 feet, then went to the Planning Commission – who provided a waiver because it was 25 feet
from the VDOT right of way, and 78 feet from the property line that the Greesons and Van der Werf now
own. She stated that the Board of Supervisors received all of the minutes from the Commission meeting
and the executive summary, but did not hear about the waiver of 78 feet, because at that point there was
no legal requirement for them to have that.
Mr. Kamptner explained that at that time, the Planning Commission had final authority on those
types of waivers.
Ms. Palmer said that she spoke with Sally Thomas about this, since she was present at the
meeting, and Ms. Thomas indicated that she did not remember the tower being 78 feet from the property
line. She stated that in 2009, the property next door did not have any house on it, and at that point there
was no indication that there was a cell tower on an adjacent property. Ms. Palmer said that this was a
heavily wooded property that wonderfully camouflaged the towers, but when the lot was cleared for
building, the tower closest to them became very visible. She stated that the residents have been trying
for the last several years to make sure the tower is not enlarged at all. Ms. Palmer commented that
County staff have been incredibly helpful, and she had asked if they c an help figure out a way to protect
these residents, and those near other towers like this. She said that the Planning Commission had put a
stipulation that this tower c annot get any higher, but when the Board of Supervisors approved it through a
special use permit, they voided it and put in that it could go up another 10 feet automatically. Ms. Palmer
said that the issue is that it is a wooden pole, and the thought was whether it could be restricted or
subject to review if it went to a metal pole. She stated that Mr. Kamptner had suggested that they do a
zoning text amendment that would require review of replacement of a wooden to a metal pole, when a
tower was in a fall zone, as that will automatically cause a special exception to occur that will have to go
to the Board of Supervisors.
Mr. Kamptner said that the metal poles do not necessarily have the ability to carry more
equipment, and there were other factors that came into play, but there may be some unique impacts of
metal poles – particularly in the fall zone – that should be looked at. He stated that there is a narrow
range of circumstances as to when this might arise, because the facility being replaced had to be within
the fall zone and where there was no easement with adjoining property.
Ms. McKeel asked if the change will affect this particular situation as well as others that might
arise, because changing out the pole will generate review. Mr. Kamptner stated that staff did not know
the extent of those instances, because County regulations ha ve changed since then and it is now a
requirement for a fall zone easement or other document to be obtained from an abutting owner, which
recognizes that the owner of the abutting property is ceding an interest in their property.
Mr. Fritz emphasized that this is treated differently than it was in 2000, as they have learned quite
a bit and changed things since then.
Mr. Kamptner stated that this ordinance will end up applying in limited situations and will pertain
to older facilities from the 1990s and 2000s.
Ms. Palmer said the timing is the other issue that she is concerned with, because there are
questions about how quickly they c an get it in and do not want anything to happen to the tower in the
meantime.
Mr. Kamptner explained that the Board or the Commission will need to adopt a resolution of intent
to initiate a separate process, and the normal process will have to come back to the Board with a staff
report and recommendation for the resolution provided.
Mr. Fritz said that this will have to be brought into the work program in order to focus on it, which
means something else will have to be pushed off, and the quickest they c an bring this back will be
summer.
April 8, 2015 (Regular Night Meeting)
(Page 27)
Ms. Mallek said that with other instances such as zoning amendments and Comp Plan changes,
applicants are told they have to wait for certain processes to be completed before their application is
accepted, and she asked if that can be done in this case.
Mr. Kamptner stated that this particular type of application for this facility, the switch-out will be by
right, so all that is required is a building permit – and that can be anywhere from one to two business
days.
Mr. Fritz said that the maximum will be a few weeks.
Mr. Kamptner stated the building code requires that action be taken on a building permit that
meets the requirements of the code within “a time that is practicable.”
Ms. Mallek said the fact they are working on changes will not protect anybody for the interval. Mr.
Davis confirmed that there is no legal ability to put a moratorium on applications just because the Board
has been reviewing the regulations, and has to process them under the normal course of requirements.
Ms. Palmer asked if this is a time-consuming thing to get together. Mr. Fritz said that he has
heard a lot of proposals from the Board here, and he is not sure if they want to focus only on replacement
of wood poles with metal poles, or if they also want staff to address the public notices and some of the
other issues that have been discussed.
Ms. Palmer stated that her preference would be that they get this particular situation protected as
soon as possible – where the applicants intend to switch out a wood pole with a metal pole, in the fall
zone, in situations where there is no easement. Mr. Fritz said that staff can work with the County
Attorney’s office to bring forward the resolution of intent as quickly as possible, but they w ill have to work
within their limits.
Mr. Davis stated that it may be faster to have the Planning Commission initiate that, rather than
waiting for next month.
Mr. Kamptner said that the Commission’s next meeting is April 21, and either the Board or the
Commission can initiate a zoning text amendment.
Ms. Dittmar asked how many other towers fall into this category.
Ms. Palmer responded that they have asked, but staff does not know how many.
Ms. Mallek said that it would be dozens.
Ms. Dittmar asked if they know how many they had approved prior to the ordinance. Mr. Fritz
responded that they would have to figure out exactly how many were in this situation, and what he heard
from the Board was an intent to limit the replacement of wood towers with metal towers if the tower is
located within the fall zone.
Mr. Kamptner added that it would apply to cases for which there is no fall zone easement.
Mr. Fritz stated that he cannot remember how many wood towers are remaining, and of that how
many are in the setback.
Ms. Mallek said that it does not really matter, and there are several neighborhoods that are
currently in jeopardy, so even if it is only 40 or 50 houses, it will be worth ensuring that they do not have
the kinds of consequences that have been presented.
Ms. Palmer asked if an ordinance more narrowly defined would be less time-consuming for staff.
Mr. Fritz responded that it was not a terribly complex ordinance, it is just taking the place of other things
the Board has directed them to do, and he could not really give an estimate in hours.
Mr. Foley said that the Board has narrowed down the scope of this so that staff can process it as
quickly as possible. He stated that the quickest way to proceed w ill be to have the Planning Commission
deal with it at their next meeting.
Mr. Boyd asked if the Board can just give staff that notice tonight, and asked if there has to be a
public hearing first. Mr. Davis said that a resolution will just need to be prepared and adopted, and that
can happen at the Planning Commission level.
Ms. Mallek said that the Board will be having a meeting next week.
Mr. Foley said that it will then go to the Commission.
Ms. Mallek stated that because it is a Board directive, they will not have to debate it.
Mr. Foley stated that staff will proceed as quickly as possible, whether that means bringing it to
the Board next week, or to the Planning Commission the following week.
April 8, 2015 (Regular Night Meeting)
(Page 28)
Ms. Palmer said that they have been talking about the Bellair tower for such a long time, it will be
nice to get some closure on that situation, and she added her appreciation for the work staff has done to
look at this over the last week.
Mr. Boyd moved to approve ZTA 2015-0001 by adopting the proposed ordinance. Ms. Mallek
seconded the motion. Roll was called and the motion passed by the following recorded vote:
AYES: Ms. McKeel, Ms. Palmer, Mr. Sheffield, Mr. Boyd, Ms. Dittmar and Ms. Mallek.
NAYS: None.
Ms. Dittmar commented that at some point they will have to look at the need for enhanced
broadband in the development areas as well, because people are consuming enormous quantities of
bandwidth there – and it will require a review of all of the County’s policies, on balance with the aesthetics
the area prioritizes. She stated that the Board needs to be educated for the day that happens, and also
educated about potential solutions. Ms. Dittmar said that she has never heard anyone in her district say
that there is an ugly tower causing concern, so it depends on where they are in the County as to what
they are hearing in terms of priorities.
Mr. Boyd said that he has had people comment on both sides of the issue – some opposed to it,
and some in favor of it.
Ms. Palmer stated they all are hearing that, but what they have to do is ensure that when there
are towers close to people’s property lines, the County helps protect them. She said that at the time
many of the older towers were approved, they were placed in areas that may not have been the best
locations. Ms. Mallek said that the last Boards were in favor of putting up numerous, shorter towers, but
there were some issues with that approach.
(The adopted ordinance is set out in full below:)
ORDINANCE NO. 15-18(2)
AN ORDINANCE TO AMEND CHAPTER 18, ZONING, ARTICLE I, GENERAL PROVISIONS, AND
ARTICLE II, BASIC REGULATIONS, OF THE CODE OF THE COUNTY OF ALBEMARLE, VIRGINIA
BE IT ORDAINED By the Board of Supervisors of the County of Albemarle, Virginia, that Chapter 18,
Zoning, Article I, General Provisions, and Article II, Basic Regulations, are hereby amended and
reordained as follows:
By Amending:
Sec. 3.1 Definitions
Sec. 5.1.40 Personal wireless service facilities
Chapter 18. Zoning
Article I. General Provisions
Sec. 3.1 Definitions
. . .
Avoidance area: An area having significant resources where the initial siting of personal wireless service
facilities could result in adverse impacts as follows: (i) any ridge area where a personal wireless service
facility would be skylighted; (ii) a parcel within an agricultural and forestal district; (iii) a parcel within a
historic district; (iv) any location in which the proposed personal wireless service facility and three (3) or
more existing or approved personal wireless service facilities would be within an area comprised of a
circle centered anywhere on the ground having a radius of two hundred (200) feet; or (v) any location
within two hundred (200) feet of any state scenic highway or by-way. (Added 10-13-04)
. . .
Base station. A structure or equipment at a fixed location that enables Federal Communications
Commission-licensed or authorized wireless communications between user equipment and a
communications network.
1. Services to which the term applies. The term includes, but is not limited to, equipment associated
with wireless communications services such as private, broadcast, and public safety services, as
well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
2. Equipment to which the term applies and does not apply. The term includes, but is not limited to,
radio transceivers, antennas, coaxial, or fiber optic cable, regular and backup power supplies,
and comparable equipment, regardless of technological configuration, including distr ibuted
antenna systems and small-cell networks. The term does not include any equipment associated
with a tower.
3. Structures to which the term applies and does not apply . The term includes any structure, other
than a tower, that, at the time the relevant application is filed with the county, supports or houses
equipment described in paragraphs (1) and (2) of this definition that has been reviewed and
approved under section 5.1.40 or the applicable zoning process in effect prior to October 13,
April 8, 2015 (Regular Night Meeting)
(Page 29)
2004. The term does not include: (i) a tower as defined in this section; and (ii) any structure that,
at the time the relevant application is filed with the county under section 5.1,40, does not support
or house equipment described in paragraphs (1) and (2) of this definition.
. . .
Collocation. The mounting or installation of transmission equipment on an eligible support structure for
the purpose of transmitting and/or receiving radio frequency signals for communications purposes.
(Added 5-8-13; Amended 4-8-15)
. . .
Collocation, exempt: A collocation that would not result in a substantial change in the physical dimensions
of an eligible support structure.
. . .
Concealment elements of the eligible support structure. Any condition of approval, including any
applicable requirement of section 5.1.40 in effect at the time of approval, established and imposed on the
personal wireless service facility as a concealment technique and which includes conditions or
regulations pertaining to antenna size, color of the structure and all equipment, antenna mounting
techniques, including the requirement that antennas be flush mounted, maximum tower diameters at the
base and top, limitations on tower height relative to a reference tree, screening by trees including the
restrictions on removing trees that are screening the tower, siting towers so that they are not skylighted,
requirements as to how cables should be located on a tower, and the size, location, design, and
screening for ground based equipment.
. . .
Eligible support structure. Any tower or base station, provided that it is existing at the time the relevant
application is filed with the County.
. . .
Existing structure: As used in section 5.1.40, a structure, other than a flagpole or an existing tower, that
was lawfully constructed or established and complies with the minimum applicable bulk, height, setback,
floor area or other structure requirements of the district in which the structure is located. (Added 5-8-13)
Existing tower or existing base station. As referred to in the definition of “eligible support structure,” a
constructed tower or base station that has been reviewed and approved under the applicable zoning
process, provided that a tower that has not been reviewed and approved because it was not required to
be reviewed when it was built, but was lawfully constructed, is existing for purposes of this definition.
. . .
Replacement: As used in section 5.1.40 and any definitions pertaining to personal wireless service
facilities, the replacement of transmission equipment of the same or lesser size in the same location as
the equipment being replaced on an eligible support structure. (Added 5-8-13)
Replacement, exempt. A replacement that would not result in a substantial change in the physical
dimensions of the eligible support structure.
. . .
Substantial change: A modification to an eligible support structure that meets one or more of the following
criteria:
1. Increase in height. For towers other than towers in the public rights-of-way, the modification
increases the height of the tower by more than ten percent (10%) or by the height of one
additional antenna array with separation from the nearest existing antenna not to exceed twenty
(20) feet, whichever is greater; for other eligible support structures, the modification increases the
height of the structure by more than ten percent (10%) or more than ten (10) feet, whichever is
greater. Changes in height shall be measured from the original support structure in cases where
deployments are or will be separated horizontally, such as on buildings’ rooftops; in othe r
circumstances, changes in height should be measured from the dimensions of the tower or base
station, inclusive of originally approved appurtenances and any modifications that were approved
prior to February 22, 2012.
2. Increase in width. For towers other than towers in the public rights-of-way, the modification
involves adding an appurtenance to the body of the tower that would protrude from the edge of
the tower more than twenty (20) feet, or more than the width of the tower structure at the level of
the appurtenance, whichever is greater; for other eligible support structures, the modification
involves adding an appurtenance to the body of the structure that would protrude from the edge
of the structure by more than six (6) feet.
3. Excessive equipment cabinets. For any eligible support structure, the modification involves
installation of more than the standard number of new equipment cabinets for the technology
involved, but not to exceed four (4) cabinets; or, for towers in the public rights -of-way and base
stations, the modification involves installation of any new equipment cabinets on the ground if
there are no pre-existing ground cabinets associated with the structure, or else involves
installation of ground cabinets that are more than ten percent (10%) larger in height or overall
volume than any other ground cabinets associated with the structure.
April 8, 2015 (Regular Night Meeting)
(Page 30)
4. Expands tower site. The modification entails any excavation or deployment outside the current
site.
5. Defeats concealment elements. The modification would defeat the concealment elements of the
eligible support structure.
6. Does not comply with conditions of approval. The modification does not comply with conditions
associated with the siting approval of the construction or modification of the eligible support
structure or base station equipment; provided that this limitation does not apply to any
modification that is noncompliant only in a manner that would not exceed the thresholds identified
in paragraphs (1) through (4) of this definition.
. . .
Tier I personal wireless service facility or Tier I facility: A personal wireless service facility that: (i) is
located entirely within an existing building but which may include a self -contained ground equipment
shelter not exceeding one hundred fif ty (150) square feet that is not within the building or a whip antenna
that satisfies the requirements of subsection 5.1.40(b)(1)(d); (ii) consists of one or more antennas, other
than a microwave dish, attached to an existing structure, together with assoc iated personal wireless
service equipment; (iii) is located within or camouflaged by an addition to an existing structure determined
by the agent to be in character with the structure and the surrounding district; or (iv) is the replacement of
a wooden monopole with a metal monopole that does not exceed the maximum dimensions permitted
under subsection 5.1.40(b)(9). (Added 10-13-04; Amended 5-8-13)
. . .
Tower: As referred to in the definition of “eligible support structure” and “existing tower or base station,”
any structure built for the sole or primary purpose of supporting any Federal Communications
Commission licensed or authorized antennas and their associated facilities, including structures that are
constructed for wireless communications services including, but not limited to, private, broadcast, and
public safety services, as well as unlicensed wireless services and fixed wireless services such as
microwave backhaul, and the associated tower site.
Tower site: As referred to in the definitions of “substantial change” and “tower” and as used in section
5.1.40, for towers other than towers in the public rights -of-way, the current boundaries of the leased or
owned property surrounding the tower and any access or utility easements currently related to the site,
and, for other eligible support structures, further restricted to that area in proximity to the structure and to
other transmission equipment already deployed on the ground.
. . .
Transmission equipment. As used in section 5.1.40, equipment that facilitates transmission for any
Federal Communications Commission licensed or authorized wireless communication service, including,
but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power
supply. The term includes equipment associated with wireless communications services, including, but
not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and
fixed wireless services such as microwave backhaul.
Article II. Basic Regulations
Sec. 5.1.40 Personal wireless service facilities; collocation, replacement, and removal of
transmission equipment
The purpose of section 5.1.40 is to implement the personal wireless service facilities policy, adopted as part
of the comprehensive plan, in a manner that complies with Section 704 of the Telecommunications Act of
1996 (47 U.S.C. § 332(c)(7)) for new personal wireless service facilities and collocations and replacements
that result in a substantial change in the physical dimensions of an eligible support structure; and to
implement Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (47 U.S.C. § 1455)
and 47 CFR § 1.40001 for collocations and replacements that do not result in a substantial change in the
physical dimensions of an eligible support structure. Each personal wireless service facility and the
transmission equipment of any other wireless service shall be subject to the following, as applicable:
a. Application for approval: An application providing the following information shall be required for
each personal wireless service facility (hereinafter, “facility”) and transmission equipment that will
be collocated or replace existing equipment on an eligible support structure:
Application Requirements
Type of Application
I II III C/R
1. Application form and signatures. A completed application form, signed by the
parcel owner, the parcel owner’s agent or the contract purchaser, and the
proposed facility’s owner. If the owner’s agent signs the application, he shall also
submit written evidence of the existence and scope of the agency. If the contract
purchaser signs the application, he shall also submit the owner’s writt en consent to
the application.
X X X X
2. Plat or survey of the parcel. A recorded plat or recorded boundary survey of the
parcel on which the facility will be located; provided, if neither a recorded plat nor
boundary survey exists, a copy of the legal description of the parcel and the
Albemarle County Circuit Court deed book and page number.
X X X X
April 8, 2015 (Regular Night Meeting)
(Page 31)
Application Requirements
Type of Application
I II III C/R
3. Ownership. The identity of the owner of the parcel and, if the owner is other than a
real person, the complete legal name of the entity, a description of the type of
entity, and written documentation that the person signing on behalf of the entity is
authorized to do so.
X X X X
4. Plans and supporting drawings, calculations, and documentation. Except where the
facility will be located entirely within an eligible support structure or an existing
building, a scaled plan and a scaled elevation view and other supporting drawings,
calculations, and other documentation required by the agent, signed and sealed by
an appropriate licensed professional. The plans and supporting drawings,
calculations, and documentation shall show:
(a) Existing and proposed improvements. The location and dimensions of all
existing and proposed improvements on the parcel including access roads
and structures, the location and dimensions of significant natural features,
and the maximum height above ground of the facility (also identified in height
above sea level).
(b) Elevation and coordinates. The benchmarks and datum used for elevations
shall coincide with the State Plane VA South US Survey Feet based on the
North American Datum of 1983 (NAD 83), and the benchmarks shall be
acceptable to the county engineer.
(c) Design. The design of the facility, including the specific type of support
structure and the design, type, location, size, height, and configuration of all
existing and proposed antennas and other equipment.
(d) Color. Identification of each paint color on the facility, by manufacturer color
name and color number. A paint chip or sample shall be provided for each
color.
(e) Topography. Except where the facility would be attached to an eligible
support structure or an existing building, the topography within two thousand
(2,000) feet of the proposed facility, in contour intervals not to exceed ten
(10) feet for all lands within Albemarle County and, in contour intervals shown
on United States Geological Survey topographic survey maps or the best
topographic data available, for lands not within Albemarle County.
(f) Trees. The caliper and species of all trees where the dripline is located within
fifty (50) feet of the facility. The height, caliper, and species of any tree that
the applicant is relying on to provide screening of the monopole or tower. The
height, caliper and species of the reference tree. The caliper and species of
all trees that will be adversely impacted or removed during installation or
maintenance of the facility shall be noted, regardless of their distances to the
facility.
(g) Setbacks, parking, fencing, and landscaping. All existing and proposed
setbacks, parking, fencing, and landscaping.
(h) Location of accessways. The location of all existing vehicular accessways
and the location and design of all proposed vehicular accessways.
(i) Location of certain structures and district boundaries. Except where the
facility would be attached to an eligible support structure or an existing
building, residential and commercial structures, and residential and rural
areas district boundaries.
(j) Proximity to airports. If the proposed monopole or tower will be taller than
one hundred fifty (150) feet, the proximity of the facility to commercial and
private airports.
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
5. Photographs. Photographs of the location of the proposed monopole or tower shall
be provided that include, for applications for Tier II facilities, the reference tree,
and for applications for Tier III facilities, the area within fifty (50) feet of the
proposed monopole or tower. These photographs shall include reference points to
enable the lease area, the vehicular access, the trees that will remain, and the
trees that will be removed, to be identified. In addition, photographs, where
possible, or perspective drawings of the facility site and all existing facilities within
two hundred (200) feet of the site, if any, and the area surrounding the site.
X X
6. Balloon tests. For any proposed monopole or tower, photographs taken of a
balloon test, which shall be conducted, if requested by the agent, as follows:
(a) Scheduling. The applicant shall contact the agent within ten (10) days after
the date the application was submitted to schedule a date and time when the
balloon test will be conducted. The test shall be conducted within forty (40)
days after the date the application was submitted, and the applicant shall
provide the agent with at least seven (7) days prior notice; provided that this
deadline may be extended due to inclement weather or by the agreement of
the applicant and the agent.
(b) Marking key boundaries and locations. Prior to the balloon test, the locations
of the access road, the lease area, the tower site, the reference tree, and the
tallest tree within twenty five (25) feet of the proposed monopole shall be
surveyed and staked or flagged in the field.
X
X
X
X
X
X
April 8, 2015 (Regular Night Meeting)
(Page 32)
Application Requirements
Type of Application
I II III C/R
(c) Balloon height. The test shall consist of raising one or more balloons from the
facility site to a height equal to the proposed facility.
(d) Balloon color or material. The balloons shall be of a color or material that
provides maximum visibility.
(e) Photographing balloon test. The photographs of the balloon test shall be
taken from the nearest residence and from appropriate locations on abutting
properties, along each publicly used road from which the balloon is visible,
and other properties and locations as deemed appropriate by the agent. The
applicant shall identify the camera type, film size, and focal length of the lens
for each photograph.
X
X
X
X
7. Additions of antennas. If antennas are proposed to be added to an eligible support
structure or an existing building, all existing antennas and other equipment on the
structure, building, or facility, as well as all ground equipment, shall be identified by
owner, type, and size. The method(s) by which the antennas will be attached to the
mounting structure shall be depicted.
X X X X
8. Site under conservation or open space easement. If the proposed facility would be
located on lands subject to a conservation easement or an open space easement,
a copy of the recorded deed of easement and the express written consent of all
easement holders to the proposed facility.
X X
9. Photographic simulations. At the request of the agent, photographic simulations of
the proposed facility.
X X
10. Statement of justification for exempt collocation. If the application is for an exempt
collocation, a statement of the justification for the application qualifying as an
exempt collocation.
X
11. Evidence of prior approval. Approval letters or actions from the County
authorizing the initial construction of the facility and any approval letters or actions
for modifications of the facility after initial construction. If no approvals were
granted by the County for the facility the applicant shall provide evidence that the
facility was constructed lawfully.
X
12. Special exception. If the proposed facility does not comply with any provision of
section 5.1.40, the applicant shall request a special exception in writing as part of
the application. The request shall identify which regulation in section 5.1.40 for
the special exception is requested and a justification for the special exception.
X X X
The following abbreviations are used in this table:
I, II, and III: Refer to Tier I, Tier II, and Tier III facilities, respectively.
C/R: Refers to exempt collocations and exempt replacements of transmission equipment.
X: Refers to a requirement that applies to the corresponding facility or transmission equipment.
b. Development requirements. Each facility or transmission equipment may be established upon
approval as provided in subsection (c) provided that the application satisfies the applicable
requirements of subsection (a) and demonstrates that the facility or transmission equipment will be
installed and operated in compliance with all applicable provisions of this chapter, and the following:
Development Requirements
Type of Application
I II III C/R
1. General design. The facility shall be designed, installed, and maintained as follows:
(a) Guy wires. Guy wires are prohibited.
(b) Outdoor lighting. Outdoor lighting for the facility shall be permitted only during
maintenance periods; regardless of the lumens emitted, each outdoor
luminaire shall be fully shielded as required by section 4.17; provided that
these restrictions shall not apply to any outdoor lighting required by federal
law.
(c) Ground equipment. Any ground equipment shelter not located within an
eligible support structure or an existing building shall be screened from all lot
lines either by terrain, existing structures, existing vegetation, or by added
vegetation approved by the agent.
(d) Whip antenna. A whip antenna less than six (6) inches in diameter may
exceed the height of the facility, the eligible support structure, or the existing
building.
(e) Grounding rod. A grounding rod, whose height shall not exceed two (2) feet
and whose width shall not exceed one (1) inch in diameter at the base and
tapering to a point, may be installed at the top of the facility, the eligible
support structure, or the existing building.
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
2. Antennas and associated equipment. Antennas and associated equipment that are
not entirely within a proposed facility, an eligible support structure, or an existing
building shall be subject to the following:
X
X
X
X
X
X
April 8, 2015 (Regular Night Meeting)
(Page 33)
Development Requirements
Type of Application
I II III C/R
(a) Number of arrays. The total number of arrays of antennas shall not exceed
three (3). All types of antennas and dishes, regardless of their use, shall be
counted toward the limit of three arrays.
(b) Size. Each antenna proposed under the pending application shall not exceed
the size shown on the application, which size shall not exceed one thousand
one hundred fifty two (1152) square inches.
(c) Projection. No antenna shall project from the facility, structure or building
beyond the minimum required by the mounting equipment, and in no case
shall any point on the face of an antenna project more than twelve (12)
inches from the facility, structure or building; and
(d) Color. Each antenna and associated equipment shall be a color that matches
the facility, structure or building.
X
X
X
X
X
X
X
X
X
3. Tree conservation plan; content. Before the building official issues a building permit
for the facility, the applicant shall submit a tree conservation plan prepared by a
certified arborist. The plan shall be submitted to the agent for review and approval
to ensure that all applicable requirements have been satisfied. The plan shall
specify tree protection methods and procedures, identify all existing trees to be
removed on the parcel for the installation, operation and maintenance of the
facility, and identify all dead and dying trees that are recommended to be removed.
In approving the plan, the agent may identify additional trees or lands up to two
hundred (200) feet from the lease area to be included in the plan.
X X X
4. Creation of slopes steeper than 2:1. No slopes associated with the installation of
the facility and its accessory uses shall be created that are steeper than 2:1 unless
retaining walls, revetments, or other stabilization measures acceptable to the
county engineer are employed.
X X
X
5. Ground equipment shelter; fencing. Any ground equipment shelter not located
within an existing building shall be fenced only with the approval of the agent upon
finding that the fence: (i) would protect the facility from trespass in areas of high
volumes of vehicular or pedestrian traffic or, in the rural areas, to protect the facility
from livestock or wildlife; (ii) would not be detrimental to the character of the area;
and (iii) would not be detrimental to the public health, safety or general welfare.
X X X
6. Screening and siting to minimize visibility. The site shall provide adequate
opportunities for screening and the facility shall be sited to minimize its visibility
from adjacent parcels and streets, regardless of their distance from the facility. The
facility also shall be sited to minimize its visibility from any entrance corridor
overlay district, state scenic river, national park or national forest, regardless of
whether the site is adjacent to the district, river, park or forest. If the facility would
be located on lands subject to a conservation easement or an open space
easement, or adjacent to a conservation easement or open space easement, the
facility shall be sited so that it is not visible from any resources specifically
identified for protection in the deed of easement.
X X
7. Open space plan resources. The facility shall not adversely impact resources
identified in the natural resources chapter of the county’s comprehensive plan and
the parks and green systems chapters in any county master plan.
X X
8. Horizontal separation of multiple facilities. The facility shall not be located so that it
and three (3) or more existing or approved personal wireless service facilities
would be within an area comprised of a circle centered anywhere on the ground
having a radius of two hundred (200) feet.
X
9. Diameter of monopole. The maximum base diameter of the monopole shall be
thirty (30) inches and the maximum diameter at the top of the monopole shall be
eighteen (18) inches.
X
10. Height of monopole. The top of the monopole, measured in elevation above mean
sea level, shall not be more than ten (10) feet taller than the tallest tree within
twenty-five (25) feet of the monopole, and shall include any base, foundation or
grading that raises the monopole above the pre-existing natural ground elevation.
X
11. Color of monopole, antennas, and equipment. Each monopole shall be a dark
brown natural or painted wood color that blends into the surrounding trees. The
antennas, supporting brackets, and all other equipment attached to the monopole
shall be a color that closely matches that of the monopole. The ground
equipment, the ground equipment shelter, and the concrete pad shall also be a
color that closely matches that of the monopole, provided that the ground
equipment and the concrete pad need not closely match the color of the
monopole if they are enclosed within a ground equipment shelter or within or
behind an approved structure, façade or fencing that: (i) is a color that closely
matches that of the monopole; (ii) is consistent with the character of the area; and
(iii) makes the ground equipment, ground equipment shelter, and the concrete
pad invisible at any time of year from any other parcel or a public or private str eet.
X X
12. Placement of cables, wiring, and similar attachments. Each wood or concrete
monopole shall be constructed so that all cables, wiring, and similar attachments
that run vertically from the ground equipment to the antennas are placed on the
monopole to face the interior of the site and away from public view, as determined
by the agent. Metal monopoles shall be constructed so that vertical cables, wiring
and similar attachments are contained within the monopole’s structure.
X
13. Special use permit conditions. All conditions of approval of a special use permit. X
14. No substantial change. The collocation or replacement shall not result in a
substantial change to the physical dimensions of an eligible support structure.
X
April 8, 2015 (Regular Night Meeting)
(Page 34)
The following abbreviations are used in this table:
I, II, and III: Refer to Tier I, Tier II, and Tier III facilities, respectively.
C/R: Refers to exempt collocations and exempt replacements of transmission equipment.
X: Refers to a requirement that applies to the corresponding facility or transmission equipment.
c. Applicability of other regulations in this chapter. Except as otherwise provided in this subsection, each facility
or transmission equipment shall be subject to all applicable regulations in this chapter:
Applicability of other Development Requirements
in this Chapter
Type of Application
I II III C/R
1. Building site. Notwithstanding section 4.2.3(a), a facility is not required to be
located within a building site.
X X X X
2. Vehicular access. Vehicular access to the facility site or tower site shall be subject
to the requirements of section 4.2 and shall not be exempt under section 4.2.6(c).
X X X X
3. Setbacks. Notwithstanding section 4.10.3.1(b), the agent may authorize a facility to
be located closer in distance than the height of the tower or other mounting
structure to any lot line if the applicant obtains an easement or other recordable
document showing agreement between the lot owners, acceptable to the county
attorney as to addressing development on the part of the abutting parcel sharing
the common lot line that is within the monopole or tower’s fall zone. If the right -of-
way for a public street is within the fall zone, the Virginia Department of
Transportation shall be included in the staff review, in lieu of recording an
easement or other document.
X X X X
4. Area, bulk, and minimum yards. Notwithstanding the requirements of the district in
which the facility will be located, the area and bulk regulations, and the minimum
yard requirements of the district shall not apply.
X X X X
5. Required yards. Notwithstanding section 4.11, a facility may be located in a required
yard.
X X X X
6. Site plan. Notwithstanding section 32.2, a site plan shall not be required for a
facility, but the facility shall be subject to the requirements of section 32, and the
applicant shall submit all schematics, plans, calculations, drawings and other
information required by the agent to determine whether the facility complies with
section 32. In making this determination, the agent may impose reasonable
conditions authorized by section 32 in order to ensure compliance.
X X X X
The following abbreviations are used in this table:
I, II, and III: Refer to Tier I, Tier II, and Tier III facilities, respectively.
C/R: Refers to exempt collocations and exempt replacements of transmission equipment.
X: Refers to a requirement that applies to the corresponding facility or transmission equipment.
d. Performance standards and requirements for approved applications . In addition to the applicable
development requirements in subsections (b) and (c), the following performance standards and
requirements shall apply to facilities, as applicable:
Performance Standards and Requirements
Type of Application
I II III C/R
1. Building permit application; submitting certification of monopole height and revised
plans. The following shall be submitted with the building permit application: (i)
certification by a registered surveyor stating the height of the reference tree that is
used to determine the permissible height of the monopole; and (ii) a final revised
set of plans for the construction of the facility. The agent shall review the
surveyor’s certificate and the plans to ensure that all applicable requirements have
been satisfied.
X
2. Tree conservation plan; compliance; amendment. The installation, operation, and
maintenance of the facility shall be conducted in accordance with the tree
conservation plan. The applicant shall not remove existing trees within the lease
area or within one hundred (100) feet in all directions surrounding the lease area of
any part of the facility except for those trees identified on the plan to be removed
for the installation, operation, and maintenance of the facility and dead and dying
trees. Before the applicant removes any tree not designated for removal on the
approved plan, the applicant shall submit and obtain approval of an amended plan.
The agent may approve the amended plan if the proposed tree removal will not
adversely affect the visibility of the facility from any location off of the parcel. The
agent may impose reasonable conditions to ensure that the purposes of this
paragraph are achieved.
X X X
3. Completion of installation; submitting certifications of compliance. Within thirty (30)
days after completion of the installation of the facility, the applicant shall provide to
the agent prior to issuance of a certificate of occupancy: (i) certification by a
registered surveyor stating the height of the tower or monopole, measured both in
feet above ground level and in elevation above mean s ea level, using the
benchmarks or reference datum identified in the application; and (ii) certification
stating that the lightning rod’s height does not exceed two (2) feet above the top of
the tower or monopole and its width does not exceed a diameter of one (1) inch.
X X X
4. Discontinuance of use; notice thereof; removal; surety. Within thirty (30) days after
a tower or monopole’s use for personal wireless service or any service facilitated
by transmission equipment is discontinued, the owner of the facility shall notify the
zoning administrator in writing that the facility’s use has discontinued. The facility
and any transmission equipment shall be disassembled and removed from the
facility site within ninety (90) days after the date its use for personal wireless
X X X
April 8, 2015 (Regular Night Meeting)
(Page 35)
Performance Standards and Requirements
Type of Application
I II III C/R
service or any service facilitated by transmission equipment is disco ntinued. If the
agent determines at any time that surety is required to guarantee that the facility
will be removed as required, the agent may require that the parcel owner or the
owner of the facility submit a certified check, a bond with surety, or a let ter of
credit, in an amount sufficient for, and conditioned upon, the removal of the facility.
The type and form of the surety guarantee shall be to the satisfaction of the agent
and the county attorney. In determining whether surety should be required, th e
agent shall consider the following: (i) whether there is a change in technology that
makes it likely that the monopole or tower will be unnecessary in the near future;
(ii) the permittee fails to comply with applicable regulations or conditions; (iii) the
permittee fails to timely remove another monopole or tower within the county; and
(iv) whenever otherwise deemed necessary by the agent.
The following abbreviations are used in this table:
I, II, and III: Refer to Tier I, Tier II, and Tier III facilities, respectively.
C/R: Refers to exempt collocations and exempt replacements of transmission equipment.
X: Refers to a requirement that applies to the corresponding facility or transmission equipment.
e. Application review and action. Each application shall be reviewed and acted on as follows:
Application Review and Action
Type of
Application
I II III C/R
1. Nature of review and action. The nature of the review and action on submitted
applications are as follows:
(a) Ministerial review and approval by the department of community
development to determine compliance with applicable requirements of this
section.
(b) Legislative review and approval of a special use permit by the board of
supervisors, subject to the applicable requirements of this section and of
sections 33.4 and 33.8; to the extent there is any conflict between the time
for action in this subsection and in section 33.4, this section shall prevail.
1Notwithstanding any other provision of this chapter, an application for an exempt
collocation shall not be subject to review by the architectural review board and a
certificate of appropriateness shall not be required therefor.
X
X
X
X1
2. Time for action. The application shall be acted upon within:
(a) 60 days.
(b) 90 days.
(c) 150 days.
2If the application requires a special exception, the time for acting on the special
exception applies to the entire application.
X
S2
X
S2
X
X
3. Calculating the time for action. The time for action on an application shall be
calculated as follows:
(a) Commencement. The time for action on an application shall begin on:
(i) The date the application is received in the department of community
development.
(ii) The submittal date established for this type of application by the director
of planning.
(b) Determination of completeness. Within thirty (30) days after the application is
received, the department of community development shall determine whether
the application includes all of the applicable information required by this
section. If any required information is not provided, the department shall
inform the applicant within the thirty (30) day period of the information must
be submitted in order for the application to be determined to be complete.
(c) Resubmittal. Within ten (10) days after a resubmittal is received, the
department of community development shall determine whether the
application includes all of the applicable information required by the initial
notice of incompleteness. If any required information was not provided, the
department shall inform the applicant within the ten (10) day period of the
information must be submitted in order for the application to be determined to
be complete. Second or subsequent notices that information is missing may
not include information that was not identified in the original notice of
incompleteness.
(d) Tolling. The running of the time for action shall be tolled between the date the
department informs the applicant that its application is incomplete and the
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
April 8, 2015 (Regular Night Meeting)
(Page 36)
Application Review and Action
Type of
Application
I II III C/R
date on which the department receives all of the required information from
the applicant.
(e) Extending time for action. The time by which action must be taken may be
extended upon request by, or with the consent of, the applicant.
4. Notice. Notice to third parties shall be provided as follows:
(a) Notice of the agent’s consideration of an application for a Tier I facility with a
special exception or a Tier II facility shall be sent by the agent to the owner of
each parcel abutting the parcel on which the proposed facility will be located.
The notice shall describe the nature of the facility, its proposed location on
the lot, its proposed height, and the appropriate county office where the
complete application may be viewed. The notice shall be mailed by first class
mail or hand delivered at least ten (10) days before the agent acts on the
application. Mailed notice shall be mailed to the last known address of the
owner, and mailing the notice to the address shown on the current real estate
tax assessment records of the county shall be deemed compliance with this
requirement. The failure of an owner to receive the notice as provided herein
shall not affect the validity of an approved facility and shall not be the basis
for an appeal.
(b) Notice of public hearings shall be provided as required by section 33.4(m).
S
X
X
5. Action. An application shall be acted on as follows:
(a) The application shall be approved if it satisfies all of the applicable
requirements of this section.
(b) The application shall be acted on as provided in sections 33.4 and 33.8.
X
X
X
X
6. Disapproval of application; appeal. If an application is disapproved:
(a) If the agent disapproves an application, he shall identify which requirements
were not satisfied and inform the applicant what needs to be done to satisfy
each requirement. The applicant may appeal the disapproval of an
application to the board of supervisors. An appeal shall be in writing and be
received in the office of the clerk of the board of supervisors within ten (10)
calendar days after the date of the disapproval by the agent. In considering
an appeal, the board may affirm, reverse, or modify in whole or in part, the
decision of the agent, and its decision shall be based upon the applicable
requirements of this section.
(b) In lieu of the appeal provided in subsection (a), the applicant at its sole option
may appeal the disapproval of the application related to an alleged violation
of 47 USC § 332(c)(7) or 47 CFR § 1.40001, as applicable, in any court of
competent jurisdiction.
(c) The applicant may appeal the decision of the board of supervisors as
provided in Virginia Code § 15.2-2285 and section 33.4.
X
X
X
X
X
X
X
7. Effect of failure to act within time for action. The failure to act on an application
within the time for action shall:
(a) Be deemed to be approval of the application; provided that the deemed grant
does not become effective until the applicant notifies the department of
community development in writing after the review period has expired that
the application has been deemed approved.
(b) Create a rebuttable presumption that the failure to timely act was not
reasonable under 47 U.S.C. § 332(c)(7)(B)(ii).
X
X
X
X
The following abbreviations are used in this table:
I, II, and III: Refer to Tier I, Tier II, and Tier III facilities, respectively.
C/R: Refers to exempt collocations and exempt replacements of transmission equipment.
X: Refers to a requirement that applies to the corresponding facility or transmission equipment.
S: Refers to an alternative review period that applies when an application for a special exception
accompanies the application.
f. Collocation or replacement that would result in a substantial change to an eligible support
structure. Any collocation or replacement of transmission equipment that would result in a
substantial change in the physical dimensions of an eligible support structure shall be subject to
the procedures and standards for a Tier I facility. A special exception sha ll be required for any
substantial change that does not satisfy the standards for a Tier I facility. Any collocation or
replacement approved for an eligible support structure by special use permit prior to October 13,
2004 shall not reclassify the eligible support structure as a Tier I, II, or III facility.
g. Removal of transmission equipment on any eligible support structure. Any transmission
equipment on any eligible support structure may be removed as a matter of right and regardless
of any special use permit condition providing otherwise.
April 8, 2015 (Regular Night Meeting)
(Page 37)
h. Agent approval of increase in height of monopole based on increase in height of reference tree.
Upon the written request of the applicant, the agent may authorize the height of an existing Tier II
facility’s monopole to be increased above its originally approved height upon finding that the
reference tree has grown to a height that is relative to the requested increase in height of the
monopole. The application shall include a certified survey of the reference tree’s new height, as
well as the heights of other trees to be considered by the agent. The agent shall not grant such a
request if the increase in height would cause the facility to be skylighted or would increase the
extent to which it is skylighted.
i. Administration of special use permits for facilities approved prior to October 13, 2004; conditions .
If any condition of a special use permit for an eligible support structure approved prior to October
13, 2004 is more restrictive than a corresponding standard in this section, the corresponding
standard in this section shall apply. If any condition of the special use permit is less restrictive
than a corresponding standard in this section and the applicant establishes that vested rights
have attached to the approved facility, the special use permit conditions shall apply.
j. Mobile personal wireless service facilities. Mobile personal wireless service facilities (“MPWSF”)
shall not be subject to any requirements of section 5.1.40, and are otherwise permitted by right in
any zoning district, subject to the following:
1. Zoning clearance required; temporary non-emergency event. The owner shall obtain a
zoning clearance under section 31.5 prior to placing a MPWSF on any site for a
temporary non-emergency event. The MPWSF may be placed on the site for a maximum
of seven (7) consecutive days, and shall not be placed on any site for any temporary non-
emergency event more than twice in a calendar year.
2. Zoning clearance required; declared state of emergency. If a state of emergency is
declared by the President of the United States, the Governor of the Commonwealth of
Virginia, or the board of supervisors, the owner shall obtain a zoning clearance under
section 31.5 within forty-five (45) days after placing a MPWSF on any site. The MPWSF
may be placed on the site for the duration of the state of emergency.
The County of Albemarle, Virginia and the Albemarle County Board of Supervisors reserve any and all
rights that it has under the United States Constitution including, but not limited to, the Commerce Clause
and the Tenth Amendment.
_______________
Agenda Item. No. 11. Belvedere Station Land Trust – Interpretation of Proffers 3.2 and 3.3.
The executive summary forwarded to the Board states that on January 28, 2015, the County
issued a request to Belvedere Station Land Trust (BSLT) (Attachment A) to comply with Proffers 3.2 and
3.3 of the Belvedere rezoning, ZMA 2004-007(Attachment B). Proffer 3 requires: a) the dedication of
property along the Rivanna River for a greenway trail; b) a cash proffer payment of $10,000 for trail
construction; and c) a cash proffer payment of $10,000 for a greenway bridge, all within 30 days of the
County’s request. Proffers 3.2 and 3.3 required that the request be made within seven years after “the
date of the submission of the first final site plan.” Because of a two year period in the proffer in which the
County may use the funds, staff did not make the proffer request until January 28, 2015, when the County
was in a position to accept the greenway and begin construction of improvements, such as the bridge .
On February 10, BSLT sent an email contesting the County’s timeliness of the County’s request based on
BSLT’s disagreement over which “site plan” triggered the start of the running of the seven-year period
(Attachment C). The Zoning Administrator issued a Determination on February 17 (Attachment D) that
the Zoning Ordinance’s definition of “site plan” applied to the proffers, and BSLT appealed the
Determination on February 28 (Attachment E). On appeal, BSLT contends that the Zoning Administrator
did not apply the correct definition of “site plan” which, in turn, resulted in her allegedly erroneous
conclusion that the County’s request was timely.
While most appeals of a Zoning Administrator’s determination are considered by the Board of
Zoning Appeals, an appeal pertaining to the interpretation of a proffer is considered by the Board of
Supervisors, as provided by Virginia Code § 15.2-2301 (Attachment F).
Proffers 3.2 and 3.3 state in relevant part: “If the request is not made within seven (7) years from
the date of submission of the first final site plan for Phase I, this cash proffer shall become null and void.”
(The full text of Proffer 3 is included in Attachment B.) The first final site plan submitted for Belvedere was
SDP 2008-22, submitted to the County on February 7, 2008.
BSLT’s appeal is based on the argument that the term “final site plan” as used in Proffers 3.2 and
3.3 should not be the term as it is defined and used in the Zoning Ordinance, but that it should have some
other meaning, such as the definition that is set forth in Wikipedia (see Attachment C). Wikipedia
provides a generic definition of “site plan.” In a March 20 email (Attachment G), BSLT argues that it had
obtained approvals of “site plans” as that term is used in the Zoning Ordinance as early as 2006 a nd,
therefore, the seven-year period for the County to make a request under Proffers 3.2 and 3.3 had expired.
These earlier approvals were subdivision plats or engineering plans approved under the Water Protection
Ordinance, not site plans. In addition, the proffers use the term “final site plan,” a very specific term
whose plain meaning is found in the Zoning Ordinance, as explained below.
The definition of “site plan” in County Code § 18- 3.1 is:
April 8, 2015 (Regular Night Meeting)
(Page 38)
“A plan satisfying the requirements of section 32 of this chapter that delineates the overall
scheme of development of one or more lots including, but not limited to, grading, engineering
design, construction details and survey data for existing and proposed improvements. The
document identified in this chapter as a site development plan is a site plan.” (Added 10-3-01)
When the Belvedere rezoning was approved and the proffers were accepted, County Code § 18-
8.5.4 provided that, once a planned development such as Belvedere was approved, “all accepted proffers
shall be included as part of the zoning regulations applicable to the planned development.” County Code
§ 18-8.5.4(b). Similar language exists today. Therefore, when Proffers 3.2 and 3.3 use the term “final site
plan,” those proffers are zoning regulations using a term (“site plan”) that is defined in the Zoning
Ordinance (County Code § 18-3.1), and using a modifier (“final” site plan) that has a very specific and
commonly understood meaning in County Code § 18-32. A “final site plan” is a site plan that is submitted
and reviewed under County Code § 18-32.4.3 and must be in a form and include the information required
by County Code § 18-32.6. The term “final” site plan distinguishes that site plan from a “preliminary”, or
now, “initial” site plan, which has different submittal, form, and content requirements.
The term “final site plan” was drafted by the developer and reviewed by County staff with
deliberation and care. Applying the plain and natural meaning of the term “final site plan,” considering its
context in the proffer, as a zoning regulation, and considering the other language used in the County’s
Zoning Ordinance, the Zoning Administrator correctly determined that the “submission of the first final site
plan for Phase I” means the first final site plan meeting the definition of a “site plan” in County Code § 18-
3.1 that was submitted as a final site plan under County Code §18-32. There is no reasonable basis to
conclude that the term “final site plan” means anything other than a final site plan as u sed in the County’s
Zoning Ordinance. BSLT’s argument is also inconsistent with its prior acceptance of the Zoning
Ordinance’s meaning of “final site plan” in Proffer 6.3, which required BSLT to contribute up to $5,000 to
fund the cost of creating two roadside historical markers. Proffer 6.3 required that the County request the
contribution within one year after the date of approval of the first “final site plan” for Phase 1.
Proffers are intended, among other things, to provide mitigation of impacts and public benefits
without increasing the financial burden on the locality and its taxpayers . This proffer is designed to meet
the public purposes of the Places 29 Parks and Green Systems plan, with completion of a portion of the
greenway development along the Rivanna River. It will also provide trail connections from adjacent and
nearby neighborhoods to the greenway network. The satisfaction of this proffer would save the County
the cost of providing such improvements.
Staff recommends that the Board adopt the attached Resolution (Attachment H) Denying the
Belvedere Land Trust’s Appeal and Affirming the Zoning Administrator’s February 17, 2015
Determination.
The owner may file an application for a Zoning Map Amendment to request an amendment of the
proffers.
_____
Ms. Rebecca Ragsdale, Senior Planner, addressed the Board, stating that she works in the
Zoning Department on tracking proffers and coordinating with developers and stakeholders. She said
that as part of that work, her office had sent a request letter that had resulted in the appeal before them
related to proffers that were approved with Belvedere, which had been approved in 2005 with a number of
proffers – including one related to greenways. Ms. Ragsdale said that proffer appeals are different from
other zoning appeals, and come before the Board of Supervisors for review rather than the Board of
Zoning Appeals, which hears appeals on variances and other items. She stated that her office had sent a
request letter in January to the Belvedere developer requesting greenway proffers – dedication of land,
and two cash proffer payments. Ms. Ragsdale said that the cash proffers were supposed to be made
within 30 days of that letter, with the greenway proffer having no timeframe on it. She stated that the
developer has met with staff on the greenway proffer, and the County received correspondence as to
whether the proffer had become null and void – which brings them to matters of dispute between the
zoning determination and the appellant’s interpretation of the proffers. Ms. Ragsdale said that the proffer
stipulates that the requests the County makes must occur within seven years from the date of submission
of the first final site plan of phase one, or the proffer shall become null and void. She noted that the first
final site plan for Belvedere was submitted in February 2008, and staff’s request for the proffer was sent
within the seven-year timeframe.
Ms. Ragsdale stated that there is a very specific term used in the proffers, and site plan is defined
in the zoning ordinance – with that being the only definition that would apply to the proffer interpretation.
She said that the zoning ordinance defines site plan in the definitions section, and then refers to the site
plan section of the ordinance, which lists the content requirements for a final site plan. Ms. Ragsdale said
that proffers, when approved, become part of the zoning ordinance, and staff uses zoning definitions to
define the meaning of terms – so there is not any other definition or more general meaning of the term
that should apply. She stated that the words are carefully reviewed and chosen by staff, and if they want
it to be a broader meaning, they would have written it into the proffers. Ms. Ragsdale noted that the
Board had received the basis for the appeal regarding that term, and Belvedere ha s submitted some
other plans prior to this site plan, but they are plats or other types of engineering plans. She said that for
that reason, staff believes that the Board should affirm the zoning determination regarding the appeal.
Mr. Sheffield said that he is a resident of Belvedere, and he has filed a disclosure statement with
the County Attorney’s office as such, but he feels that he can fairly participate in the discussion.
April 8, 2015 (Regular Night Meeting)
(Page 39)
Ms. Dittmar asked Mr. Davis to explain the appeal process and the determination. Mr. Davis
explained that when there is interpretation of a proffer that is in dispute, the appeal is to the Board of
Supervisors – and there is no requirement for a public hearing, but the general policy recommendation is
to allow the appellant to present his case. At that point in time, he said, it is the Board’s decision and they
can deliberate it and make a decision to grant the appellant’s interpretation, or deny the appeal and affirm
the Zoning Administrator’s interpretation. Mr. Davis noted that Mr. Hauser is present to represent the land
trust that is technically the appellant in this matter.
Mr. Bob Hauser, a trustee with Belvedere Station Land Trust, addressed the Board and stated
that he is interested in making the greenway happen and doing it in a way that satisfies the County. Mr.
Hauser said that he is not here to get out of anything, other than some timing issues, and is not being
critical of staff. He stated that Ms. Ragsdale has been terrific in this process, and explained that the
project was started in 2007, and he was crushed by 2008. Mr. Hauser said that he is proud of Belvedere
and wants to see it through in the way it was originally visioned – which is not the easiest thing. He
stated that they will work on the greenway, and it has to be mutually agreed at 100 feet, not to be
unreasonably withheld. Mr. Hauser said that is the proffer that he will work on, and he looks forward to
trying to get the greenway into a configuration that actually accomplishe s the goals.
Mr. Hauser stated that he does have a difference of opinion with the payments, pertaining to the
definition of site plan. He read the County’s definition of site plan: “Site plan – a plan satisfying the
requirements of Section 32 of this chapter that delineates the overall scheme of development of one or
more lots, including but not limited to grading, engineering design, construction details, and survey data,
for existing and proposed improvements. The document identified in this chapter as a site development
plan is a site plan.” He said that he did not know the definition of site plan until this issue came up, and
there is a characterization within the County process that projects like townhouses require site plans
versus subdivision plats. Mr. Hauser stated that when this matter came up, he went to the zoning
ordinance and referenced the definition. He explained that in 2006 and 2007, Belvedere was developing
phase one of this development – Belvedere Boulevard from Rio to the Village Green, with 116 single-
family lots, a three-acre town center site, a 12-acre multi-family site, and a six-acre commercial site now
owned by the Senior Center. Mr. Hauser said that within seven years of that, the proffer expired, and he
believed it to expire in early 2014 – with his request coming January 28, 2015. He stated that he feels the
interpretation is being convenient to the County, as the site plan they are referencing was a four-lot
subdivision with townhouses, which were under construction in 2007. Mr. Hauser said that the County
Engineer made the determination that because it was a townhouse, it required a site plan f or those four
lots – even though there was already a road in front of it and water and sewer attached to it. He stated
that this is the site plan that staff is targeting for their sunset dates, but he does not agree that those four
lots were what the County had in mind when the proffer was agreed upon in 2005. Mr. Hauser said that
his understanding of the intent was that they had phase one under construction and the County had
seven years to ask for the proffer money but did not ask for it, so the require ment expired.
Ms. Dittmar clarified that his intention is to continue to do the greenway as planned. Mr. Hauser
responded that he plans to do it in a way that is not the bare minimum, and the requirement states that it
should be no less than 100 feet, but he believes it to be well over 100 feet, and his goal is to try to make
Belvedere a great place to live and to fulfill his obligations. He asked that if he c an, he will strike a deal to
build a bridge and pay $10,000 on terms that are more agreeable to him – but he cannot do that without a
rezoning, and does not feel this is a rezoning issue.
Ms. Dittmar asked the Board if they have questions.
Ms. Mallek said that Ms. Ragsdale had used the term “final site plan,” which sound s different to
her than just “site plan.”
Mr. Kamptner stated that “final site plan” was the term used in the proffer and was the trigger for
the process, and had a very specific meaning in the County’s site plan regulations – which are part of the
zoning ordinance. He explained that there were specific application and processing requirements, and in
order to qualify as a submitted final site plan, it needed to meet those requirements. Mr. Kamptner said
that was the document that was submitted on February 5, 2008, as zoning had referred to.
Ms. Amelia McCulley, Zoning Administrator, stated that the plans submitted to the County in 2006
were not site plans – they were subdivision plats, grading plans, and water protection plans – and in no
way did any of them meet the definition of a site plan. She said that they were plans for development but
were not site plans, and hence did not trigger the proffer.
Ms. Dittmar asked Mr. Hauser if his desire is for some form of payment structure because he
needs time to comply with this, rather than the fact he does not want to comply with it. Mr. Hauser
responded that in simple terms that is the case, but he also takes exception to the fact they are ignoring
the definition of “site plan” that was in the ordinance. He stated that the process the County took to
review and approve applications was in conflict with the definition with the zoning ordinance. Mr. Hauser
said that the definition said that the site plan “delineates the overall scheme of development,” a nd his
plans did that. He stated that the plans included a grading plan, engineering, construction details, and
survey data.
Ms. Dittmar asked if he means the ones he submitted in 2006. Mr. Hauser responded that he did.
Ms. Mallek stated that those plans were not the final site plan package, which he submitted in
February 2008. Mr. Hauser said that the plans had been approved in 2006 and were final, and the plans
April 8, 2015 (Regular Night Meeting)
(Page 40)
that zoning is referring to are for a totally different set of plans – for four lots in phase one, which already
had road plans and sewer and water approved as final approvals in 2006.
Ms. Dittmar asked why those plans were not considered site plans. Mr. Kamptner responded that
“site plans” had a very specific meaning in the zoning ordinanc e, and all of the other plans were not
considered site plans or final site plans – and there were a number of different drawings that could show
grading, development, etc. He stated that a final site plan had a very specific meaning, process, and
substantive requirements within the context of the zoning ordinance. Mr. Kamptner said that the other
documents, such as the grading plan, were considered and reviewed in the context of the water
protection ordinance; subdivision plat was reviewed and evaluated in the context of the subdivision
ordinance; and the language for site plan is very specific and spoke to the terms and processes of the
zoning ordinance.
Ms. McCulley stated that it even provided the section number of the site plan ordinance within the
zoning ordinance, just to be absolutely clear what type of development document they are talking about.
She said that the 30 days provided in the letter to submit the proffer money was also in the language of
the proffer, so they are just trying to comply with the proffer.
Mr. Boyd asked if this proffer is phase-specific, as there are different phases of the project. Ms.
Ragsdale explained that it was the final site plan for phase one, and the way that phase developed was
single-family detached lots first – so Mr. Hauser developed uses that did not require a site plan; so when
he got to the townhouse lots, the site plan was required. She noted that townhouses and commercial
required site plans, and with a mixed-use development of multi-family, they may have anticipated a site
plan sooner, the first one was submitted in February 2008. Ms. Ragsdale said that Wickham Pond was
another example of a development in which they developed all of their single-family detached and did not
need a site plan for that, but got to their row of townhouses – with all of the other infrastructure and plans
coming before that – but in order to build those townhouses, the final site plan was needed. She stated
that in reading the definition of “site plan,” it referred back to the ordinance but also mentioned other
elements of development, but the definition of site plan itself was very specific.
Mr. Boyd noted that in Mr. Hauser’s case it is triggered with the townhouses because there was
no requirement for a site plan with just the single-family homes. Ms. McCulley said that once you have
more than two homes on one parcel, you need a site plan or a subdivision plat.
Mr. Sheffield asked why the County chose to use the final site plan as the trigger for the proffer
and not something else. Ms. McCulley responded that she is not a reviewer of the original rezoning, but
using the site plan is a common trigger, although sometimes it can be the subdivision plat.
Ms. Dittmar said that the proffer was written based on the zoning language, and that is what staff
was working from. Mr. Davis clarified that when the proffer was drafted and offered by the applicant at
the time, it was reviewed by staff, and included very technical terms to avoid these types of disputes –
and used zoning ordinance references so there would be no doubt about when proffers must be fulfilled.
He said that in this particular case, the applicant agreed to that trigger and also agreed that he would
provide the two $10,000 cash payments within 30 days of the Count y’s request. Mr. Davis said that the
trigger was seven years, and prior to that seven year date, the request was made, and the applicant –
which was the land trust as represented by Hauser – failed to make the payment, with his excuse being
that they were too late with the trigger.
Ms. Dittmar asked Mr. Hauser what a structured payment might look like, if the Board were to
decide to uphold staff’s decision. Mr. Hauser responded that he did not come prepared for that
discussion, and said that he was relying on the zoning ordinance as fact – with disagreement about the
definition of “site plan.” He stated that he will deal with the decision, if he is in the minority here. He
stated that he had considered coming back with a rezoning and some new terms, but he was daunted by
how long that might take and the process that might be involved in proposing new terms to the Board.
Mr. Sheffield said that the County has never deviated from the terminology of site plan, so if they
did that tonight the Board will be setting a precedent for that definition of site plan to be opened up to
other documents to be considered site plans. Ms. McCulley responded that the only way they will deviate
from the zoning ordinance definition of a term is if the proffer itself provided guidance as to how it would
be interpreted differently, and would suggest that this would be the definition “X” as opposed to the
definition within the zoning regulation.
Mr. Davis suggested that the Board act on the resolution that will deny the appeal and affirm the
Zoning Administrator’s determination, and at that point in time it will be a final decision on behalf of the
County as to interpretation of the proffer – and if the applicant does not make the payment within the
specified time, he will be in violation of the zoning ordinance. He stated that the remedies the County c an
take for violations include civil fines, injunctive relief, or the possibility of withholding permits for the
property. Mr. Davis said that staff can certainly have conversations with Mr. Hauser as to how the County
will go forward with enforcement, but the intent would be to collect the money within a reasonable amount
of time, to have him abate the zoning violation.
Ms. Dittmar said that they do not need to use a hammer at this point, and wonders if there is
something in the language that should say they want to encourage staff to work with the applicant. Mr.
Hauser stated that he trusts staff with this and will work with them to resolve the issue.
April 8, 2015 (Regular Night Meeting)
(Page 41)
Mr. Sheffield moved to adopt the proposed resolution to deny the Belvedere Land Trust appeal
and affirm the Zoning Administrator’s February 17, 2015 determination. Ms. Mallek seconded the
motion. Roll was called and the motion passed by the following recorded vote:
AYES: Ms. McKeel, Ms. Palmer, Mr. Sheffield, Mr. Boyd, Ms. Dittmar and Ms. Mallek.
NAYS: None.
Ms. Mallek said that over the past several years, mention of uncollected proffers has come up –
such as trails at Eagle’s Landing – and she would prefer them to act sooner than later, to avoid this kind
of situation in the future.
Mr. Boyd said that he feels comfortable leaving it to staff to work out the details.
Ms. McCulley noted that Eagle’s Landing was a site plan, not a proffer.
Ms. Mallek said that they still did not get a trail, which is what she wanted to have delivered.
(The adopted resolution is set out below:)
RESOLUTION DENYING BELVEDERE STATION LAND TRUST’S APPEAL
AND AFFIRMING THE ZONING ADMINISTRATOR’S
FEBRUARY 17, 2015 DETERMINATION
WHEREAS, on October 12, 2005, the Albemarle County Board of Supervisors approved ZMA
2004-007 Belvedere with proffers; and
WHEREAS, Proffer 3.2 requires the dedication and conveyance of a greenway easement, as well
as a $10,000 payment toward the cost of constructing the greenway, and Proffer 3.3 requires a $10,000
payment toward the cost of constructing a pedestrian bridge linking the Rivanna River Greenway in
Dunlora to RiverRun; and
WHEREAS, Proffers 3.2 and 3.3 require the payments to be made within thirty days following a
request by the County, and that if the request is not made within seven years from the date of submission
of the first final site plan for Phase I, the cash proffers will become null and void; and
WHEREAS, the first final site plan for Belvedere (SDP 2008-22) was submitted to the County on
February 7, 2008, and the County issued its request for the cash proff ers to BSLT on January 28, 2015,
less than seven years after the submission of the first final site plan for Belvedere; and
WHEREAS, on February 17, 2015, the Zoning Administrator issued a determination to the
trustees of the Belvedere Station Land Trust (“BSLT”) in which she concluded that the term “site plan,” as
used in Proffers 3.2 and 3.3 means a “site plan” as defined in the Albemarle County Zoning Ordinance;
and
WHEREAS, BSLT appealed the Zoning Administrator’s February 17, 2015 determ ination to the
Board as provided by Virginia Code § 15.2-2301, asserting that the term “site plan” as used in Proffers
3.2 and 3.3 should be defined differently than as it is defined in the Albemarle County Zoning Ordinance.
NOW, THEREFORE, BE IT RESOLVED that, upon consideration of the foregoing, the executive
summary prepared for the Appeal of the Zoning Administrator’s Determination and all of its attachments,
and the information presented at the Board of Supervisor’s April 8, 2015 meeting, the Albemar le County
Board of Supervisors hereby denies BSLT’S appeal and affirms the Zoning Administrator’s February 17,
2015 determination that the Albemarle County Zoning Ordinance definition of the term “site plan” applies
to Proffers 3.2 and 3.3 accepted in conjunction with ZMA 2004-007 and that the County made a timely
request for the cash proffers on January 28, 2015.
_______________
Agenda Item. No. 12. From the Board: Committee Reports and Matters Not Listed on the
Agenda.
Mr. Sheffield asked Mr. Mark Graham to explain the details of Mr. Monaco’s situation, as it may
be a bigger issue than he had originally thought.
Mr. Mark Graham, Director of Community Development, explained that this is not specifically for
Lochlyn Hills, it will be for the entire County, which will affect almost every zoning district. He said that
there are also provisions for infill, setbacks with buildings higher than 40 feet, and other changes – which
is a relatively complex set of changes. He said that normally this would come to the Board as a work
session so that they have an opportunity to understand what is included in the ordinance amendment,
and when they are comfortable with that information, it will come to public hearing.
Mr. Sheffield asked if there is no way for this applicant to get around that, because it seem s that
the County is holding up his ability to build a house because of a countywide change. Mr. Kamptner
stated that they had met earlier today to prepare for the work session that will be coming to the Board,
and their particular situation deals with their particular design – because they want to have a detached
garage as close to the property line as possible. He emphasized that a house c ould be built on that lot
April 8, 2015 (Regular Night Meeting)
(Page 42)
that would comply with current regulations, and the zoning text amendment process had started before
staff became aware of this one situation.
Mr. Sheffield asked if there is a way to deal with his issue outside of the broader issue. Mr.
Graham said that they cannot address it until the ordinance is changed. Mr. Kamptner said that a
building permit could not be issued.
Mr. Graham said that they can go ahead and work on the applicant’s building permit application,
on the assumption that the new ordinance will be approved – and as soon as it is, they can issue the
building permit. He added that there is no way they can approve it until the ordinance amendment is
adopted.
Ms. Mallek commented that spot zoning always comes back to bite them, no matter how good it
seems in the beginning.
Mr. Davis noted that this is scheduled for June public hearing.
Mr. Graham confirmed that it should be able to come to the Board in their day meeting.
Mr. Sheffield said that it was originally slated for May, and now it is June.
Ms. Palmer stated that they could build on the parcel now, just not the house they want to build.
Mr. Sheffield commented that the Neighborhood Model is pushing for maximization of square
footage on these parcels, and that is not relevant as much as where things stand with this applicant.
Mr. Graham said that Community Development is willing to do whatever it can to help him obtain
the building permit as quickly as possible.
Mr. Davis noted that the ordinance as recommended will address this applicant’s issue.
Ms. Dittmar stated that she had met with the Mayor of Charlottesville yesterday and he suggested
that they come back together in the summer or early fall, and bring up any new ideas in addition to the
priorities they have already identified.
Mr. Sheffield suggested that at the next Planning and Coordination Council (PACC) meeting, the
University, City and County assess their strategic plans to see where they overlap, because currently
there is no regional strategic plan – just taking the documents and identifying the overlaps, because the
ones that do not overlap indicate a disconnect that needs to be worked on.
Ms. Dittmar said that the referendum from the state requiring localities to buy easements is not
really a mandate, because citizens voted on that.
Ms. Mallek noted that there is not much public information provided to voters on that.
Mr. Sheffield stated that the General Assembly is pushing it.
Ms. Mallek said that it is intended to draw out debates for the election.
Mr. Sheffield stated that it is a burden on localities, because even if there is a donation of the
land, they will still have to be pay for it.
Mr. Davis explained that it is not technically a constitutional amendment that requires this, it is
VDOT regulations and Federal Highway Administration regulations about the money. He noted that the
constitutional amendment deals only with condemnations, and this is a matter of acquisition. He said that
in condemnation actions, you have to offer the fair market value of property, but this is in a stage that is
pre-condemnation, and is a state requirement that property owners be offered the fair market value of the
easements of property – and localities are bound by those requirements when using revenue-sharing
funds from the state. Mr. Davis added that it has been the County’s policy for many years to not pay for
easements and property acquisitions for these types of projects, and they have had to change their policy
as a result of the state regulations.
Mr. Boyd stated that he and Mr. Walker had both received emails from Colonel Kumer at the jail
earlier that day as to why the County has turned down their request, and said that his response is going
to be that there is not enough support given the lateness of the request and the other priorities.
Ms. Mallek said that she would also like to convey that she had serious concerns about the
private company they were considering hiring.
Mr. Boyd said that he would like to keep his message simple.
Ms. Dittmar asked that the Board be copied on the email.
_______________
April 8, 2015 (Regular Night Meeting)
(Page 43)
Agenda Item. No. 13. From the County Executive: Report on Matters Not Listed on the Agenda.
There were none presented.
_______________
Agenda Item. No. 14. Adjourn to April 14, 2015, 3:00 p.m., Lane Auditorium.
At 9:39 p.m., Mr. Sheffield moved that the Board adjourn their meeting to April 14, 2015 at 3:00
p.m. in Lane Auditorium of the County Building. Ms. Palmer seconded the motion. Roll was called and
the motion passed by the following recorded vote:
AYES: Ms. McKeel, Ms. Palmer, Mr. Sheffield, Mr. Boyd, Ms. Dittmar and Ms. Mallek.
NAYS: None.
________________________________________
Chairman
Approved by Board
Date: 10/07/2015
Initials: EWJ