1987-03-04March 4, 1987 (Regular Night Meeting)
(Page 1)
" 49
A regular meeting of the Board of Supervisors of Albemarle County, Virginia, was held on
March 4, 1987, at 7:30 P.M., Room 97, County Office Building, McIntire Road Charlottesville
Virginia. ' '
PRESENT: Mr. F. R. Bowie, Mrs. Patricia H. Cooke, Messrs. Gerald E. Fisher, J. T.
Henley, Jr., C. Timothy Lindstrom, and Peter T. Way (Arrived at 8:30 p.m.).
ABSENT: None.
OFFICERS PRESENT: County Executive, Guy B. Agnor, Jr.; County Attorney, George R.
St. John; Director of Planning and Community Development, John T. P. Horne.
Agenda Item No. 1.
Fisher.
The meeting was called to order at 7:32 p.m. by the Chairman, Mr.
Agenda Item No. 2.
Agenda Item No. 3.
Pledge of Allegiance.
Moment of Silence.
Agenda Item No. 4. Consent Agenda. Motion was offered by Mrs. Cooke, seconded by Mr.
Bowie, to accept the items on the consent agenda as information. Roll was called, and the
motion carried by the following recorded vote:
AYES:
NAYS:
ABSENT:
Mr. Bowie, Mrs. Cooke, Messrs. Fisher, Henley and Lindstrom.
None.
Mr. Way.
Item 4.1. Arbor Crest Apartments Monthly Bond Report for the Month of January, 1987,
was received as information.
Item 4.2. Monthly Building Reports from the Department of Planning & Community Develop-
ment for the months of October, November and December, 1986, were received as information.
Item 4.3. 1986 Year-End Building Summary from the Department of Planning & Community
Development, was received as information.
Item 4.4. Copies of Planning Commission minutes for February 10 and February 17, 1987,
were received as information.
Item 4.5. Letter dated February 18, 1987, from Mr. Ray D. Pethtel, Commissioner,
Department of Transportation, re: Route 29 - Albemarle County - Project 6029-002-119, was
received as follows:
"Mr. Gerald E. Fisher
Albemarle County Board of Supervisors
County Office Building
401McIntire Road
Charlottesville, Virginia 22901
The Honorable Francis L. Buck
Mayor, City of Charlottesville
Post Office Box 911
Charlottesville, Virginia 22902
Dr. Raymond M. Haas
Vice President - Administration
University of Virginia
The Rotunda
Charlottesville, Virginia 22903
Gentlemen:
This is to acknowledge receipt of your February 4 letter concerning our
progress on the Route 29 corridor study plan.
We are currently reviewing the expressway concept and anticipate the
evaluation will be completed within two to three months. We have decided
to make a noise and air quality assessment on the concept as well as look
at geometrics to provide as complete a picture as possible.
As soon as we are in a position to discuss the various proposals, I will be
in touch with you.
Sincerely,
(Signed) Ray D. Pethtel, Commissioner"
Agenda Item No. 5. Presentation of 1987-88 Albemarle County Budget by County Executive.
Mr. Agnor presented the 1987-88 Albemarle County Budget. He showed graphs and summa-
rized significant points. He said that the budget totalled $64.368 million which is an
increase of $5.94 million or 10.16 percent over the current year's operating budget. Mr.
March 4, 1987 (Regular Night Meeting)
(Page 2)
Agnor stated that it provided for the General Government $17.2 million or an increase
slightly less than $1,959,000 or 5.91 percent. It leaves unfunded about $682,000 in
requests. The budget recommends funding for the School Board's requested budget in its
entirety of $43.89 million which is an increase of $4.65 million or 11.83 percent. The
School Board and staff left unfunded about $1.9 million in requests. Mr. Agnor added that it
continues a $1,000,000 allocation to the capital improvement program and provides for the
revenue sharing agreement with the City with a $2.28 million payment which is $335,000 more
than this current year's level, or an increase of 17.27 percent. This budget recommends a
tax rate reduction of the real estate tax rate of five cents, a 6.49 percent decrease from 77
cents to 72 cents. The budget also includes a list of areas of funding levels that could be
considered if an additional four cents reduction is approved on the real estate tax rate as
requested by the Board of Supervisors. That would provide a total tax rate reduction of nine
cents, a 11.69 percent change from last year or from 77 cents to 68 cents per $100 evalua-
tion. Other tax rates, licenses and permit fees are recommended at their current levels, and
this budget utilizes $811,000 in carry-over fund balances to match the estimated revenues
needed to balance it. That is an increase of about 10 percent over the utilization of carry-
over funds from this current year.
Mr. Agnor continued to summarize appropriations which identified various categories of
County Government showing the dollar and percentage change as well as the percentage it
represents of the total budget.
Mr. Agnor then showed a series of categories of General Government administration that
included ten agencies or departments. He said that the largest one is the Finance Depart-
ment, and that the largest dollar change is in the Finance Department with a $43,000
increase. The largest percentage change is the Elections budget and the bottom line change
is 5.69 percent.
Mr. Agnor pointed out that the next group that has the largest increase, other than the
School budget, is Public Safety and the Court System with 21 agencies and departments. He
said the largest dollar amount being spent is in the Police Department with the largest
dollar increase also being in the Police Department. The largest percentage increase is in
Juvenile Detention. There are also small decreases here, with the bottom line increasing
slightly over one-half million dollars or 13.24 percent.
Mr. Agnor then discussed the School Division and Operations and Debt Service. This
includes the regular school fund as well as a number of self-sustaining funds, federally
supported programs that are self-sustaining and the whole school division's operational
accounts. They amount to $41.85 million. The Debt Service is all school debt at this point.
Next, Mr. Agnor pointed out a few non-departmentals with the revenue sharing formula for
the City of Charlottesville showing up there.
Mr. Agnor then looked at revenues, local, State and Federal. He~ee~-~ illustrated
the heavy dependency upon property taxes, 44.58 percent of revenues with 29 percent coming
from real estate taxes and the balance coming from personal property, business machinery and
tools, public service utility corporations, mobile homes, etc.
At the conclusion of showing all of the charts, Mr. Agnor discussed some of the signifi-
cant programs. He stated that. the largest expenditure of any government budget is generally
salaries and benefits and personnel related costs. He talked about the two and one-half step
increase for administrative and classified employees whose performance ratings are satis-
factory. He said there is an additional bonus pool for meritorious performance for the same
employees. He then talked about the proposed teacher career incentive program, which
recognizes competency in performance in addition to qualifications and experience.
Mr. Agnor is also recommending a basic dental program to be added to the Health Insur-
ance Plan. This is an effort to share with employees approximately one-half of the lowered
cost that is now being experienced in the Health Insurance plan by having adopted a preferred
provider plan a year and a half ago. Mr. Agnor stated that the whole Health Insurance Plan
would cost $60 per employee per year for approximately 1500 employees.
Mr. Agnor said there are several changes in the staffing levels. He is recommending
fourteen new positions in General Government reflecting all work load adjustments, but not
reflecting new programs, except for the Rivanna Park. Nine of these are in the police
Department. He stressed the importance of hiring more police officers, and said that even
with these new positions, the County is still behind the State average. He discussed the
statistics showing how calls and crime have gone up in the County.
Mr. Agnor stated that the School Division has a staffing change in teaching employment
of 10.6 positions reflecting enrollment shifts and increasing in elementary and decreasing at
the high school level. Eighteen part-time aides are also planned to be added and four bus
drivers and three aides are recommended to be added in the transportation system.
On the program level Mr. Agnor said there are only two programs that are new in General
Government and none in the School System. In General Government the programs are the opening
of the jointly owned Rivanna Park and the Presidential Primary Election that is being
required by law next year in May.
Mr. Agnor closed his presentation by acknowledging the weeks of intense effort by
boards, commissions, agencies and staffs who have participated in compiling the statistical
volume of information. He said he would be glad to respond to any questions.
Agenda Item No. 6. Receipt of public comments from citizens regarding funding programs
and services for the 1987-88 County Budget. (Advertised in the Daily Progress on February 17
and February 24, 1987.)
March 4, 1987 (Regular Night Meeting)
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2 5,i
Mrs. Juanita O'Brien said she has been asked by the special education drivers of the
Albemarle County School System, to speak to the Board. She has already spoken to the School
Board. She said the morale was so low with the Albemarle County school bus drivers because
they felt that the County is "robbing Peter to pay Paul." She stated that another segment of
the work force is to receive a much larger raise in salary. Just a little over a year ago,
the pay raises were at the same percentage as that of teachers.. Last year when the teachers
got 10 percent, and the bus drivers got three and one-half percent, nobody complained because
they felt that teachers had been poorly paid for a long time in this county and it was
needed. Under the same assumption, the bus drivers needed it, too. They got the same thing
the teachers got, sorry pay raises. Now, the teachers get 16 percent and the bus drivers get
two and one-half percent which definitely makes them the low man on the totem pole. Nobody
feels good about it, and Mrs. O'Brien said she has heard from reliable sources that long term
drivers with excellent records are quitting because they can't afford the pay the County is
offering to them. She said the figures on inflation were not the same as her bUdget. It was
not 1.75 percent. It was a whole lot higher. This is her own family budget, and everyone is
having the same problem. They question the policy of any governing body to take from one
segment of the work force and give it to another. They feel it is a poor policy and causes
hard feelings. They feel that bus drivers need the same career incentive that the teachers
do. They don't want the Board to feel that they can take from them to give to someone else.
They feel that they are vitally important.
Mr. John Teixeira said he is with the Albemarle County Police Department. He said he
had taken his lunch break to come to this meeting and just wanted to say one thing. He said
they, in the Police Department, strongly support Mr. Agnor's request for more police
officers. He said they are extremely short handed on the midnight and evening shifts.
Sometimes they have only three officers to cover 744 square miles. When they are requested
to take someone to Western State Hospital, and they are required to do this, it cuts them
down to two men or three men for at least one to two hours. They go on many calls by
themselves, men with guns, violent cases, etc. He can understand the Board wanting to study
the Police Department's management last year, but as a police officer with five years
experience (two in Albemarle County), they are really proud of the Police Department, but
they are really at the breaking point. They have officers who can't get their time off, who
have been told that they might lose their holidays, and other time off, and they quit
requesting to get time off. Chief Johnstone has assured them that this isn't going to
happen. They certainly hope not. The reason he is there tonight working evening shift is
because one officer had asked for time off several months ago, and it was approved, but they
were so short-handed, he needed someone to work for him. He said he really appreciated Mr.
Agnor asking for the nine officers. They need them. He wouldn't take up the Board's time
unless he felt it was important enough.
Mr. George Delegonta said he lives in Earlysville and doesn't represent any special
interest groups. He is just a taxpayer and concerned citizen. He read in the paper about
the proposal for the tax rate reduction. He said since everyone else is talking about
increasing taxes, it puts this Board in a difficult position because they have to decide if
that is the best way to spend that money. He looked at his situation and found that a
reduction would be about $50 which amounts to about $4.17 a month so it is really an
insignificant amount of money. He talked with some other citizens and found that there is a
critical problem in the County School System; there is a shortage of school buses. This is
two-fold. There is a safety problem, and an education problem. He suggested that when a
student gets off the bus, and must cross the road in front of the bus, the drivershould get
off the bus and walk the student across the street. It would take longer for the bus drivers
to complete their routes, so that would probably require the addition of a couple of routes
or buses.
Mr. Delegonta said he also feels that lack of school buses affects quality of education.
His children go to Broadus Wood Elementary. School starts at 8:30 a.m. and when they arrive
at school they are supposed to go directly to their classrooms. If they have to change a
class during the day time, they must go directly into that next class not speaking to each
other, being quiet in the halls. They have only a half-hour long lunch period during which
they sit in assigned seats whether they bring their lunch or buy it. They sit where they are
assigned, not necessarily near a friend, and again they are not supposed to be speaking to
their friends. The scheduled P.E. period is structured time with an adult supervisor, and
again they are not supposed to speak to each other. At the end of the school day, the stu-
dents get out of class, and goes straight to the bus. What they don't have in that time, is
a recess. He said there are some important things to be learned that aren't inside the
covers of books. In fact, there are things to be learned on a playground. It teaches the
children some initiative and some unstructured opportunities to be creative in the way of
leadership without being directed by an instructor, a teacher or an adult. And that's what
is lacking in our schools. He said he would like for the Board to take a look at increasing
the number of bus drivers and buses where it is necessary to help improve both the safety
requirement and the education requirement so the kids could have at least some time for
recess or break. And he would also like for them to take a serious look at instituting a
policy or recommending that the School Board institute a policy where the bus driver walks
the children across the street when they are getting off the bus. That way we can avoid the
serious problems of hitting a child.
Mr. Pete Craddock, Stone-Robinson P.T.0. and the Albemarle Alliance for Quality Educa-
tion, which is the county-wide P.T.0. group, said he had listened to a very well-prepared and
effective presentation by Dr. Hastings and Dr. English on the teacher career plan. He was
astounded, as some of his colleagues were, to find out that Albemarle's starting salary was
lower than surrounding counties such as Orange and Louisa. The current ranking of 107 out of
134 school divisions is inappropriate in an area with Albemarle's resources. This plan
should not be considered strictly as a raise but also as an incentive to the teachers for
greater success and that mediocrity will not be accepted. He said that they recommend
acceptance of Mr. Agnor's budget with wholehearted support. He said that Mrs. Elizabeth
Reynolds, Red Hill P.T.0., couldn't attend tonight, but she wanted to say that her full
support is behind Mr. Agnor's budget with the career plan included. She also, as they also
would, like to thank the people in Education and the County government for their support of
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March 4, 1987 (Regular Night Meeting)
(Page 4)
Mr. Agnor. Lastly, speaking as a County resident of the Rivanna District with many contacts
in County Government, he asked that the County review their proposals for a general two and
one-half percent step increase for the County employees. With the economy doing well and
predictions that it will continue, it would behoove the County to seek a greater step
increase for their employees or scuttling of the current merit plan with a plan such as the
teacher's career plan that requires the extra effort for the extra money.
(Note: Mr. Way arrived at 8:30 p.m.)
Mrs. Martha Wood, President of the Albemarle Education Association, offered their
support for the recommendations of the County Executive and the budget he has presented. In
particular they are interested in the School Division part of the budget. There is support
among the teachers in the County for the career incentive program which takes up a large part
of the School board budget. They feel the School Board budget continues some very important
initiatives and programs which began in past years to enhance instruction in this County. In
particular, increased library funds, maintaining pupil/teacher ratios at the elementary level
and meeting some of the transportation needs. Those items have been spoken to in other ways
tonight, but the A.E.A. thinks that in addition, the teacher career incentive program is also
important. It is a response to earlier concerns expressed by this Board and other groups for
developing a system to recognize excellence among teachers and among the teacher scale
personnel in Albemarle County. It provides this recognition based on experience, expertise
and credentials which is a happy combination rather than on any one of those three. It also
provides a very important part to the success of a career incentive program and that is an
adequate base salary scale. This must be incorporated for any of these career incentive
type of things to work properly The A.E.A. believes it will make Albemarle County more
competitive in the marketplace when new teachers are recruited and particularly for teachers
in certain subject areas. Competition for teachers has increased in the last few years.
Also, only about six percent of college graduates are graduating with the proper credentials
to get a certificate to teach. A.E.A. believes that one of the things that can attract
young men and women is to make this kind of declaration and this kind of commitment to an
adequate and a professional salary scale. They believe that the budget that has been
presented by Mr. Agnor tonight, in particular the School Division budget, is taking good
measure toward reaching the goal of attracting professionals into the community and for
keeping those already working for the County in the profession. The A.E.A. urges the Board's
support of the recommended budget that has been presented.
Mr. Bob Cook, President of the Woodbrook P.T.O., spoke in favor of the teacher career
incentive program. According to Mr. Overstreet's presentation, the County lost 120 teachers
last year, lost 25 percent of the teacher population at Albemarle High School. At the high
school level, when a new teacher is hired, the quality of the presentation is not as good as
with an experienced teacher because they have to both prepare the lecture and deliver it
whereas a teacher who has already done it once is refining the lectures that they prepared
and adding new material. The second thing to be considered is a problem that will is not
simply go away. He said that basically Virginia is experiencing a shortage of teachers which
is unlikely to abate until well after 1994. Northern Virginia is currently short 1200
teachers. From this he concludes that there will be a difficult time attracting teachers but
the ones that do come to work for Albemarle are highly likely to be attracted away by
Northern Virginia. So, unless the County addresses the situation promptly the situation is
only going to get worse in the future.
Mr. Fisher asked Mr. Cook about the 25 percent turnover rate at the high school level
last year. He said it seems to him that over the past six years, teacher salaries on the
average have gone up more than 60 percent. He wondered if someone checked the statistics six
years ago if it would be found that statistics are different or relatively similar. He said
that a university town there are a lot of spouses of graduating students who are going to be
here for only three or four years "come hell or high water." The County is very likely to
see that kind of trend continue. Mr. Cook responded by saying that it was his suggestion to
call Dr. Cibbarelli to see if the City is experiencing the same rate at the significantly
higher salary that they are paying beginning teachers. Mr. Fisher said he just raised the
question in case Mr. Cook would like to do a little more research.
Mrs. Becky Schmitz, parent of two children and a friend of lots of children, said they
live in an excellent County -- Albemarle. She said we need excellent schools and we, as
adults, owe that to our children. She said that we need excellent teachers to go with them,
not just teachers, but good, excellent teachers. She thinks the career incentive program is
a step towards this excellence and asked the Board to support it.
Mr. Edward Strauss said he lives in the western part of the County. He handed to the
Chairman a newspaper article concerning Officer Teixeira who was involved in an arrest in the
City. He said if Officer Teixerira has no time, how can he freelance. Mr. Strauss said this
County does not have free parks, makes children pay for school books, and yet it is prepared
to equip an army. He said that the citizens obviously want schools~ut have to fight "tooth
and nail" to get them. He then quoted some facts from a study that~lace in Kansas City of
various methods of administering a police force. He said it was proved that throwing money
at crime does not do anything except to spend money. He suggested that the County have a
free park at Crozet and free books for children.
Mr. Keith Rittenhouse, President of the Rose Hill Elementary School P.T.0. and member of
the Albemarle Alliance for Quality Education, said he was present to encourage the Board to
fully fund the School Budget that has been presented. That budget includes provisions for
staffing all of our kindergarten classrooms with teachers' aides as well as the institution
of the beginning of the teacher career path or teacher incentive plan. The teacher incentive
plan may on the surface appear to be just a package of benefits for our teachers and cer-
tainly it would benefit our teachers. But, he encouraged the Board to consider the plan from
a different perspective in their studies during the weeks ahead. He said our School System
opened its classrooms this fall for the first time without all its teaching positions filled.
Our entry level teacher salary ranks 107th among 134 school districts throughout the State.
That places us ahead of Nelson County but behind Buckingham, City of Charlottesville,
March 4, 1987 (Regular Night Meeting)
(Page 5)
2:53
Fluvanna, Louisa and Orange. Our teacher turnover rate has been described as being at an all
time high of 20 percent. It would appear that we are on the verge of losing our ability to
compete for the brightest minds in a dwindling pool of Education school graduates. He said
they feel that we need to compete for those brightest people who come out of college in order
to maintain our commitment for quality education that we have espoused in the past and should
continue to espouse. It would seem that we are also in danger of losing our ability to
retain our quality teachers in the face of higher paying school districts and even higher
paying careers outside of the realm of education. This proposed teacher incentive plan is a
remedy, with its 16 percent salary increase, which is six percent beyond the mandated 10
percent increase thrust on us by the State. This plan, from his perspective, is more than
just a stop-gap measure. It seems to be well thought out, well formulated and will encourage
initiative and performance in the classroom on the part of our teachers. He encourages the
Board to fund it fully and thinks this is a good opportunity to make an investment in our
County's greatest natural resource and hope for the future, the educated minds of our youth.
Mr. Bill Young, taxpayer and parent of children in the Albemarle County School System,
said he would like to be completely positive and applaud the Albemarle County school adminis-
trators for coming up with this creative plan for rewarding their good teachers. He would
like to applaud the Albemarle County School Board for adopting the school budget that has
been proposed. He would like to applaud Mr. Agnor for agreeing with the School Board's
recommended budget, and he looks forward in April to applauding all of the Supervisors for
going along with the recommended budget.
Mr. William A. Woodruff, President of the Henley Middle School Parent/Teacher Support
Organization, said he wanted to add his support to what has already been voiced by the
representatives of other parent/teacher organizations, parents and other citizens of the
county for the proposed School Board budget. He said it's an innovative, farsighted plan
that certainly bodes well for Albemarle County. It may not solve all of our problems, but it
seems to be a plan that we cannot afford not to implement. If we lose this opportunity to
implement, we are only going to be further behind next year and further behind the year after
that. The iron is hot, and we need to strike it now.
Mr. Ralph Smith, Police Officer with the Albemarle County Police Department, said that
for the most part in the past they have never actually taken an active part in County Govern-
ment, except to serve. He said what they would like to do is to express to the Board some of
the problems that they have, manpower being one of them. Mr. Agnor has stated some of the
statistics and his and Chief Johnstone's recommendations to the Board are very important.
They are not only important to the public, but they are important to the internal elements to
their department. They need things that were recommended to maintain quality law enforcement
for the people of Albemarle County. He said he would like to comment on Officer Teixeira's
arrest in the City. It was misquoted in the paper. Officer Teixeira was passing through the
City of Charlottesville when he observed a felony, armed robbery in progress. Their head-
quarters are located here in the County Office Building. They pass through the City on a
regular basis, and have communication through the 911 dispatch center. They advise them as
to what they have observed. At this time, Officer Teixeira reacted and even though he was
out of his jurisdiction, he still has an obligation to the people in the community. This is
only another example of the dedication to his job.
Mr. David Papenfuse said he is a parent of three children and stated that his oldest
daughter, Meghan, participated in the DARE Program this year, which is a drug awareness
program. More than that, it teaches the children self-esteem and teaches them not to turn to
drugs for that. She is in the fifth grade at Meriwether Lewis this year. He commended
Officer Bunch, in the Police Department, for offering such a program and hopes that the
increase in staff will expand this program and continue it in more schools.
Mr. Way apologized for being late and said that he had a call from the President of the
Scottsville Elementary P.T.0. He wanted to state for the record that she also indicated
support for Mr. Agnor's budget, and in particular, the teacher incentive plan.
(At 8:52 p.m. the Chairman called a recess. The Board reconvened at 9:01 p.m.)
Agenda Item No. 7. Appeal: James Wood Final Plat. (Plat showing a division of Lot 8
being Parcel 32G on Sheet 44 of the Albemarle County Tax Maps, dated February 12, 1986, drawn
by B. Aubrey Huffman & Associates, Ltd.)
Mr. Horne gave the staff's report as follows:
"Proposal: To divide 6.04 acres into two lots:
lots will be served by a joint driveway.
2.94 and 3.10 acres.
These
Zoning: RA, Rural Areas
Location: On the cul-de-sac of Pheasant Lane, off the south side of Ivy
Farm Drive approximately 800 feet from Route 658. Ivy Farms (Milkey Tract)
Subdivision. Tax Map 44, Parcel 32G. Jack Jouett Magisterial District.
Summary and Recommendations: This plat was signed by staff on March 12,
1986 as a family division. An adjacent owner, William Edgerton, appealed
the approval to the Board of Supervisors. On August 20, 1986, the Board
vacated the plat, determining that it was a violation of the County's Zoning
and Land Subdivision Ordinances and not a genuine family division.
The applicant has submitted a detailed site plan which verifies a building
site on each lot in accordance with all provisions of Section 4.2 of the
Zoning Ordinance. Gary Rice of the Health Department approved two septic
locations on each lot. This preliminary approval is based on a field check
of soils by the Health Department and on a March, 1984 soils report by E. O.
March 4, 1987 (Regular Night Meeting)
(Page 6)
Gooch. The approved drainfield area for Lot 8A, which was field checked by
the Health Department, shows an approximate 10 ft. by 60 ft. infringement on
slopes of 20 to 24 percent. Mr. Rice has stated that additional area
approved by the soils report could replace this area of infringement. There
is a minor discrepancy in the stream location shown on different sources.
This does not appear to compromise approved septic area. Based on the
detailed site plan for building sites, the County Engineer recommends
approval. The Highway Department approval for entrance location was
received prior to staff signature of the family division plat.
This subdivision plat will meet the requirements of the Subdivision Ordi-
nance, and staff recommends approval subject to the following:
Recommended Conditions of Approval:
The final plat will not be signed until the following conditions have
been met:
Issuance of an erosion control permit;
County Attorney approval of joint driveway maintenance agreement;
County Engineer approval of stream location shown on plat.
Mr. Horne said that the Planning Commission, at its meeting on January 20, 1987,
approved this plat by a four/three vote which came about after three motions. The approval
carried the three conditions set out in the staff's report, and the following note was added:
"The applicant and surveyor are hereby put on notice that the County will not continue review
and grant any approvals until it is verified that the 50 foot easement shown as existing is
presently of record."
Mr. Horne noted that this appeal had been scheduled from the following letter:
"January 21, 1987
Mr. John T. P. Horne
Director of Planning
County of Albemarle
401 McIntire Road
Charlottesville, VA
22901-4596
Re: Appeal of James Wood final subdivision plat
Dear John:
Pursuant to Section 18-4 of the County subdivision ordinance, and in behalf
of our client, William A. Edgerton, we hereby appeal to the Board of Super-
visors the Planning Commission approval of the above described plat. As you
know, this subdivision plat was approved in a complicated series of motions
and votes on January 20, 1987.
Keeping in mind that Section 18-4 does not require that reasons for the
appeal be listed in this written notice and reserving the right to raise all
pertinent questions and points when we appear before the Board of Supervi-
sors, whether previously listed or not, we give the following reasons for
this appeal:
1. The existing six-acre parcel (sometime referred to as 'Lot 8') was
first approved and recorded as part of the thirteen-lot Milkey Tract Subdi-
vision in 1981. It carries no extra development right and as such, pursuant
to Chapter 10 of the zoning ordinance, may not be re-subdivided into two (2)
lots without a special use permit.
2. The final plat, contrary to the express requirements of section
18-55 (o) of the subdivision ordinance, fails to carry a designation showing
the 'location, area, and dimensions of a lawful building site on each
(proposed lot." There is a small building site shown and a drainfield area
shown but they are not contiguous and are not, as depicted, 30,000 square
feet.
3. Lot 8B as proposed does not have a lawful building site on it that
meets the fixed unambiguous requirements of Chapter 4 of the zoning ordi-
nance, particularly those requiring a building site consisting of a contigu-
ous area of at least 30,000 square feet having a five to one ratio and
containing sufficient area for two septic drainfields. We suspect the
foregoing is true even if one allows side yard and rear yard setback areas
to be part of the 'lawful building site'.
4. The zoning ordinance does not contemplate 'building sites' being
made up, in whole or in part, of side or rear yard setback areas and it does
require that septic drainfields be part of a building site.
5. The cul-de-sac shown, if it is a temporary one, does not comply
with Section 18-55 (k) of the subdivision ordinance. If it is a permanent
cul-de-sac, the plat should be amended to make clear that the County has no
idea of endorsing a through-way leading from Pheasant Lane to 100 acres of
undeveloped land.
March 4, 1987 (Regular Night Meeting)
(Page 7)
255
6. The plat fails to show deed book references for the fifty (50)
foot easement shown on the proposed plat leading from Pheasant Lane to
certain undeveloped land.
7. We adopt by reference all of the arguments and questions raised in
Mr. Edgerton's written submittal to the planning commission dated
January 20, 1987.
Please call me if there are questions or if additional steps need be taken
by us in order to perfect this appeal.
Sincerely yours,
(Signed) W. Clyde Gouldman, II
Buck, Hogshire & Gouldman, Ltd."
Mr. Horne said he had addressed a memorandum to the County Executive on January 28,
1987, in reference to Mr. Gouldman's letter, following:
"This Department does not have an additional staff report concerning the
above-referenced appeal. I have reviewed the letter of January 21, 1987 by
Mr. Gouldman. I would note that all the points addressed in that letter
were discussed in detail at the Planning Commission meeting. The various
references by Mr. Gouldman to interpretations of the Ordinance were directly
addressed by the Assistant County Attorney at that meeting and the Assistant
County Attorney stated that he did not agree with Mr. Gouldman's interpreta-
tion of the ordinance and did agree with the staff's interpretation of the
ordinance. This interpretation effectively addressed points three and four
of Mr. Gouldman's letter. I would suggest that the Board direct any ques-
tions about these interpretations to Mr. St. John at the meeting.
In reference to point number one in Mr. Gouldman's letter, I would suggest
that the Board again address this matter to the County Attorney in that we
have been advised by that office that this matter has been resolved in
previous litigation. In reference to points five and six, it was pointed
out to the Planning Commission that the staff has no intention of signing
this plat until it can be demonstrated that the easement shown on the plat
is in fact an existing easement. If it is not an existing easement it will
be removed from the plat. At any rate, it was stated by the staff and the
Planning Commission and the Assistant County Attorney that the existence of
such an easement in no way obligates or indicates any endorsement by the
Planning Commission or this staff of the use of such easement for the
development of any adjacent property. Such a discussion would take place
when and if there is any actual subdivision proposal on the adjacent
property."
Mr. Horne then explained the location of the property in question, and pointed to a
detailed site plan which had been submitted by the applicant, and stamped by a civil engineer
and a surveyor. He said the applicant is attempting to show by this representation that
there are approved septic areas, and approved 30,000 square foot building areas on each of
the lots. Mr. Horne said his staff and the staff of the County Engineer have reviewed the
applicant's analysis and are of the opinion that there is an acceptable building area on each
tract. Mr. Horne said that during review of the plat, the staff's interpretation of ordi-
nance sections was discussed with the County Attorney's staff. He understands that the
applicant may not agree with staff interpretation of various provisions.
Mr. Lindstrom asked Mr. Horne to address the right of way question. Mr. Horne said the
plat carries a note that there is an existing 50 foot access easement (shown going from the
end of Pheasant Lane across Lot 8A to other property outside of this subdivision). There was
concern expressed by people in the neighborhood as to the use of that easement. Since the
Planning Commission meeting, the staff has received verification that this is actually an
existing easement. The concern expressed was that by merely having the note on the plat the
County is somehow endorsing its future use. Mr. Lindstrom asked if there is a note to the
effect that the easement cannot be used for development of adjoining parcels without further
County approval. Mr. Horne said no. Mr. Fisher asked the nature of the easement; is it a
limited easement for the personal use of the property owner, or is it much broader in its
terms. Mr. Horne said it is essentially for access and for potential construction of a
roadway.
Mr. Bowie said it is nice to put in a statement that it can't be used in the future, but
how would anybody looking at the plat know that? Mr. Horne said he has the easement docu-
ment, and it is for "a right of way that can be improved at the option of the grantee, Evie
Echols and Carolyn C. Musselman, with a roadway and drainage structures which meet VDH&T
local roadway requirements, so that any roadway placed on the easement could be incorporated
into the state or local system of highways and maintained as a public road." Mr. Lindstrom
said that wording clearly contemplates construction of a state standard road across that
easement as a use. Mr. Horne said it appears that when the easement was granted, it was in a
location contemplated to be available for construction, should it ever be proposed. Mr.
Fisher said it should be entered into the record that this is a private agreement between two
parties, and it has nothing to do with the County.
At this point, Mr. Fisher opened the floor for comments. Mr. Clyde Gouldman, represent-
ing Mr. Bill Edgerton, said Mr. Edgerton would present facts to the Board concerning the
plat, and he would then address questions on the ordinance.
March 4, 1987 (Regular Night Meeting)
(Page 8)
Mr. Fisher said before the discussion begins, a copy of a plat appeared on the Board
table tonight, and he asked where it had come from. Mr. Gouldman said it was not Mr.
Edgerton's. Mr. Ron Wiley rose to say that he represents the Woods at this meeting. This is
a copy of work provided by an independent surveyor employed to verify certain technical
aspects.
Mr. Edgerton said he would like to review stream locations and their effect on finding a
building site. The first plat submitted on September 15, 1980, showed no streams on the
property. The second plat submitted showed one stream cutting across a portion of the pro-
perty. There is a 100 foot setback from this stream, or any stream in the watershed,
required by the ordinance. This stream location was certified by the then County Engineer.
Last February, when the application for the family subdivision was received, an entirely
different stream location was shown, with the stream going into a pipe. Mr. Fisher asked if
the pipe exists. Mr. Edgerton said it does. It was put in during development of the pro-
perty and construction of the driveway. Mr. Edgerton said the drawings that he has show that
the stream has been moved away from the developable area of the property.
Mr. Edgerton then reviewed some overlays he had drawn concerning the stream and setback
requirements. He noted that he had shown two possible building sites, but he questions
whether they are legitimate or not. The Zoning Ordinance requires a 30,000 square foot
building area, but on Lot 8B, he does not think they can meet the 5:1 ratio configuration
required. Mr. Fisher asked if that was maximum length to width. Mr. Edgerton said that is
correct. He believes this was included in the ordinance in order to prevent developers from
finding long, narrow, skinny sections, and accomplishing the 30,000 square feet. Last
summer, the current County Engineer, agreed with him. He has been told in a subsequent memo
that Mr. Armm changed his position because Mr. Agnor and staff have indicated to him that
setback areas have been included in the 30,000 square foot building area. Mr. Edgerton said
the best he could do was to find 28,982 square feet, and although that is "splitting hairs",
he feels this whole development proposal is "splitting hairs".
Mr. Edgerton said that on the plat approved on January 14, 1981, there is a notation to
the effect: "There is a 20 foot wide utility and/or drainage easement along the rear and
outside the right of way margin of road and centered along the sides of all lots." He has
talked with a number of professional surveyors in the community about whether it is
legitimate to put septic sites in drainage or utility easements. They all feel it is not
"cricket".
Mr. Edgerton said that part of the area shown in Lot 8B is actually a part of his front
yard and he has filed a suit on this. This is a property line dispute which is not something
in which the Board can become involved, but he contends that there is not a 30,000 square
foot building area on Site 8B which complies with the Zoning Ordinance ratio of 5:1, even if
building setback areas are included for the building site.
Mr. Edgerton said he has two other points. In the newspaper on Sunday, there was a
notation that on February 23 a building permit was issued to Mr. James L. Wood for a new
residence on the Milkey Tract; a $175,000 house. Presently_, there are stakes on that lot
staking off the house site. Mr. Edgerton said he called the Inspections Department and
talked to Mr. Jesse Hurt, who indicated that a permit had been applied for, but was being
held up in Zoning. Mr. Gouldman checked and found that it has been approved by everybody,
except the County Engineer's Office because of some concerns about soil erosion. Mr.
Edgerton said he is confused as to how a permit could be applied for and have gotten this far
through tke approval process, when this matter is being appealed. Mr. Edgerton said his
other point is about the 50 foot access easement. In the minutes of the January 20 meeting
of the Planning Commission, Mr. Wiley responded to the Commission by stating that it is
extraordinarily unlikely that it will ever be used since the person also has access to Fox
Run lane which has much less difficult topography. Mr. Edwards (the surveyor) stated "True
on an approved subdivision plat, it was not shown on that. After that subdivision was done,
this lot was still owned by Dr. Hurt and he has a very good friend who owns the property that
joins this, Mr. Timothy Eckols. Mr. Eckols likes to go out and visit his property and walk
up and down it. He has a fee simple strip that he owns from the end of Fox Lane to this
property. This particular strip, he just wanted another means to go out there and park and
walk to that end of his property. This thing could never be turned into a dedicated public
right of way without the owner of the lot that it,s on agreeing to it. He just has the right
to, more or less,~walk up and down it. I suppose he could try to construct a driveway, but
he doesn't have the wherewithall to cause it to be dedicated to become a street. So there
really shouldn't be any concern on the part of the people." Mr. Edgerton said he feels that
was a little bit of an unfair representation.
Mr. Gouldman said Mr. Wood purchased this lot in February of 1986 from Dr. Hurt. At
that time, the restrictive covenants prevented a subdivision of this lot into two lots
without the express approval of the seller. In addition, there was the note on the 1981 plat
that there could be no further subdivision without county approval. Mr. Wood, therefore,
took title with no written assurances that he would be able to sell the lot.
Mr. Gouldman said that in January, the Planning Commission had one of the most unusual
votes he has every heard. There was a motion on the floor, and a second, and a favorable
vote not to approve the plat. The Deputy County Attorney spoke up and opined that the motion
was not in proper form, that it really wasn't a denial, and so they should reword the motion
and vote again. Furthermore, it didn't have any reasons set forth in it, so they should come
up with some reasons. In the process of reconsidering their motion, one of the members
changed his mind. There was a second vote and a flip-flop. Mr. Gouldman said he was
pointing this out to say that it was close, and the Commission struggled with it, because he
feels they knew that back in 1981 the big argument was not whether there should be two lots
or one, but whether the lot was buildable at all because it is so steep.
Mr. Gouldman said he would state for the record that the suit filed today involves a
small piece of land, some 1900 square feet that is allegedly a-part of Lot 8B. This is not a
large piece of land, but when trying to find 30,000 square feet for a contiguous building
area, it can be crucial. (Mr. Gouldman handed to the Chairman a copy of the suit for the
record.)
March 4, 1987 (Regular Night Meeting)
(Page 9)
Mr. Gouldman said they appealed the decision of the Planning Commission feeling that the
plat violates both the Zoning Ordinance and the Subdivision Ordinance. Their reasoning is
that the slope in this particular area is defined as critical slope in the Comprehensive Plan
and the Zoning Ordinance. Mr. Gouldman said he would like to give the~Board four reasons to
support reversing the Planning Commission's approval of this plat. First: Section 18-55(o)
of the Subdivision Ordinance requires that any final plat submitted must meet the scale
designated on it, and shall show a 30,000 square foot building area. This section is not
discretionary, and the site is not shown on this plat. At the Planning Commission meeting,
staff said they do not usually require the designation of the 30,000 square feet on the final
plat.
His second point concerns the merits of the request. The Zoning Ordinance, on page 25,
deals with critical slopes. It requires that there be a building site of 30,000 square feet
with a 5:1 ratio. This requirement is unambiguous, it does not allow for averaging.
Third, Section 18-55(1) deals with temporary cul-de-sacs, and although it is not clear
what it means, it seems to say that if someone is going to submit a plat showing a temporary
cul-de-sac, they should call it that and designate which portions of the cul-de-sac will
accrue to the adjoining property owners when and if the public road every goes through. The
cul-de-sac on this plat does not do that, and engineers have told him that because it is
strangely shaped (not perfectly round), and has a pipe on the side, that is to warn that it
is temporary. The neighbors want a permanent cul-de-sac, and never want to see the adjoining
acreage developed using Pheasant Lane. Mr. Gouldman said now is the time to clear the
problem. Is the cul-de-sac temporary or permanent? It it's temporary, make the applicant
comply with the ordinance.
He would like to state his fourth and final reason for the record. It deals with the
suit that happened five years ago, but it deals with the County Ordinance as set forth now in
Section 10, concerning development rights. Mr. St. John recently said to him that if a plat
of a parcel of land was in existence before December 10, 1980, then it has development
rights. If it wasn't in existence at that time, it had no development rights. This par-
ticular plat was not in existence. At least, it wasn't recorded. It was not recorded until
1981.
Mr. Gouldman said there was a lawsuit at that time, and they lost. However, he went to
the Clerk's Office this morning to read over the lawsuit to see if his memory was correct.
It was their contention that the Milkey Tract should be limited to six lots, but Judge Berry
disagreed. He said the plat was submitted before December 10, and it was around for sixty
days. Judge Berry said the Board was correct when it approved the thirteen lots on the
Milkey Tract, period. Nobody was litigating anything about development rights at that time,
so he feels that question has not been decided. If you look at the ordinance requirements
and know that the plat was not recorded, in order for it to have further development rights
of any kind, a special use permit is required. Mr. Gouldman said that his is point, and he
would refer the Board to Chapter 10 of the Zoning Ordinance.
Mr. Gouldman said in conclusion, he would request that the Board deny this plat. The
land involved is far'too steep. He submitted that if this plat is approved on this parti-
cular critical slope, it will encourage other such requests. It sets a bad precedent.
Mr. Ron Wiley, representing the Woods, was next to speak. He said the issue of the
existing easement is a legitimate concern of the neighbors. However, the Subdivision Ordi-
nance does require that the easement be shown on the plat. He does concur with Mr. Horne
that approval of the plat will not in any way endorse the subsequent use of that easement for
the development of the property behind. If it would help those concerns, he would offer that
a notation be put on the final plat to the effect that approval of the plan in no way
endorses the use of that easement or the development of that back acreage.
As to the point about the stream location, Mr. Horne and Mr. Armm have said the issue is
really irrelevant in this case. The controlling factor is the building site issue. Mr.
Wiley said he feels that Mr. Edgerton has mislead the BOard a little in the variation in the
location of that stream. He said that the various depictions are within the normal range of
variation due to the methodology of surveying.
Third, there is a lawful building site on each lot within the meaning of the County
Zoning Ordinance. Mr. Edgerton would have the county exclude from the 30,000 square feet
things that the county ordinance does not say must be excluded. Mr. Wiley said in an effort
to clear up any question there might have been about that issue after the Planning Commission
meeting, they employed Mr. Gary Whelan, an independent surveyor, to verify both the 30,000
square foot building site and the stream location. The plat which he placed before the Board
tonight, is a result of that work.
Mr. Gary Whelan, a surveyor employed by the applicant, said at the completion of his
work he shows on Lot 8A, 53,625 square feet of area in slopes of less than 25 percent. On
Lot 8B, there is 43,725 square feet of area in slopes of less than 25 percent. Each of these
lots has a 30,000 square foot building site in less than 25 percent slopes that meets the
5:1 dimension criteria. In response to a question from Mr. Fisher, Mr. Whelan pointed out
the areas where the building sites lie. Mr. Lindstrom said that is assuming that the setback
and utility easement shown are not a restriction on building. Mr. Whelan said that is
correct. Mr. Fisher asked what would happen if the 1900 square feet which is contended were
no longer a part of this parcel. Mr. Whelan said he had located 43,725 square feet, so did
not feel there would be a problem.
Mr. Wiley said they did not show a precise building site on the plat presented to the
Board tonight. What is shown is the area that could be included within a building site on
both lots Mr. Fisher asked Mr. Whelan if the site were limited to slopes of less than 20
percent, how much land would be included. Mr. Whelan said he believes it would be less than
half of the amount given. Mr. Wiley said the twenty percent slope area is only of concern
with respect to the location of the septic system, and not to the 30,000 square foot building
site.
March 4, 1987 (Regular Night Meeting)
(Page 10)
Mr. Wiley said it has been mentioned that in 1980 and 1981 when the Board first approved
the Milkey Tract division into 13 lots, there was only one site found on Lot 8. That is not
a correct statement. A careful review of the historical files indicates that the two lots
were combined, but the files do not indicate this was required because of some deficiency.
Actually, the recombining was done in an effort to expedite approval, and in an attempt to
satisfy Mr. Edgerton.
Mr. Wiley said another issue is that of designating a building site. It was mentioned
at the Planning Commission meeting that it is not the practice to show the 30,000 square foot
building site on the plat that will go to record, since it is not a requirement of where the
house or improvement will ultimately be built. Also, if it were put on the plat that goes to
record, it would be confusing.
Mr. Wiley said he will not comment on the issue of the temporary cul-de-sac. It seems
to be interrelated to the existence of the 50 foot access easement. Mr. Wiley said he
expects the~public will address that issue further. As to approval of this plat setting a
bad precedent, the precedent has already been set. He reviewed some historical subdivision
files this afternoon, and he found two or three others in the Ivy Farms area with similar
large lots which have been divided into two lots. Where it is appropriate and the require-
ments in the ordinances can be met, this is a proper precedent.
Mr. Lindstrom asked Mr. Whelan about the note on the plat about the 20 foot utility
easement along the property lines. He asked if it is advisable to avoid locating a septic
field in a way that would overlap utility easements such as the one designated on the origi-
nal plat. Mr. Whelan~be would not recommend~i~~o~>.
At this point, Mr. Fisher opened the floor to public comments. First to speak was Ms.
Tamara Vance, from the Piedmont Environmental Council. She said her remarks have nothing to
do with the specifics of this issue, but she would like to ask the Board to look at this
subdivision as an example of what is inevitably happening elsewhere in the Rural Areas. This
example can point to ways to improve the Zoning Ordinance and its implementation so that it
better meets the goals of the Comprehensive Plan, and the purposes and intent of the Zoning
Ordinance. These both call for protection of critical slopes, streams, and the watershed of
the drinking water impoundment. These efforts are undermined when implementation policies
allow development of lots which are too steep. Implementation of road accessibility require-
ments to make lots more marketable or developable also undermine efforts to concentrate
residential development in growth areas. Locating septic fields in buffer zones may also
impact an adjacent landowners ability to site a well on his property. Ms. Vance said that
during the current review of the Comprehensive Plan she hopes the County will be mindful of
this example as it reviews strategies for residential growth management in the rural area.
Mr. Tom Jorgensen said he was representing a group of the homeowners along Pheasant
Lane. He presented to the Board a copy of a petition which he said was originally presented
at the Planning Commission meeting, but was not acknowledged. He mentioned the following
points: 1) The homeowners were under the impression that Pheasant Lane, a dead-end
cul-de-sac, could not and would not be extended; 2) That the lots on Pheasant Lane could
not and would not be further subdivided; 3) Approval would set an irreversible precedent,
and all lots remaining in Ivy Farms which contain greater than four acres in size could be,
and probably would be, subdivided; 4)-Increased traffic would further exasperate the non-
tolerable condition of Route 658; 5) If septic fields are placed on Lot 8, should these
sites fail it would adversely affect the reservoir; 6) The steep slopes would make it
extremely difficult, if not impossible, to provide the 30,000 square feet of buildable area.
Mr. Jorgensen concluded by saying that the owners on Pheasant Lane do not want the appeal of
their neighborhood to decrease in any way, and would like to see the idea of this proposal
denied.
Mr. Mike Davis said he was present tonight for Mr. Edgerton. Mr. Davis said he was a
member of the Planning Commission in 1980 when this plat was first presented to the County.
At that time, the Planning Commission did not see how two 30,000 square foot building sites
could be found on this tract. He is present to reiterate his memories of the Milkey Tract
because it came up numerous times during 1980 and 1981. Since there were concerns at that
time as to whether there could possibly be a 30,000 square foot building site on six acres,
he does not know how there are easily two 30,000 square foot building sites on the divided
acreage.
Mr. Dave McLaughlin said he is a resident of Pheasant Lane and President of the Ivy
Farms Homeowners Association. He asked for other persons who were present concerning this
matter to raise their hands (there were six or eight people who did so). The residents of
Ivy Farms are concerned about the precedent of splitting lots. These homeowners are con-
cerned that Ivy Farms is not what they bought into, and it will become overbuilt. Also, the
residents of Pheasant Lane thought it was a blind cul-de-sac and not an extendable one. He
urged the Board to reject this proposal for all of the reasons mentioned, and all of the
reasons mentioned six years ago. He feels it is clear that if development of this property
is marginal, then the decision should be made on the side of the community. If the intention
tonight is that the easement is not meant for future development of the one hundred acres
behind Ivy farms, state that the cul-de-sac is not to be extended for purposes of development.
Mr. Wiley said he would like to point out that the resulting lots, 8A and 8B, would be
the second and third largest lots on Pheasant Lane. As to the issue of a special use permit,
he hopes that Mr. St. John will verify for the Board that no special use permit is required
in this case. Lastly, Mr. Wiley said he wants to make it clear just one last time that there
was no denial of this division previously, the request was withdrawn. He feels it was an
appropriate request at that time, and is appropriate now. He asked that the Board approve
this plan.
Mr. Lindstrom said when something goes to the Planning Commission and issues are raised,
and the Planning Commission puts a note on a plat, it certainly represents to the public, the
Planning Commission, and the neighbors that the issue has been resolved. When the plat is
then withdrawn, and then it comes back later as if it weren't an issue, he has a hard time,
and in his mind feels that a few folks have been mislead.
March 4, 1987 (Regular Night Meeting)
(Page 11)
259
Mr. Gouldman said he would like to leave the Board with the same thought he meeting
started with. The Board has the tools to turn this plat down. Section 18-55(o) requires
that the building site be shown on the plat, and it is not there. He asks that' the plat be
turned down for that reason alone. Second, the 30,000 contiguous square feet, with the
septic fields inside, and with the 5:1 ratio, has not been shown. Mr. Edgerton, in his
calculations, assumed that the setbacks were useable, but did not go so far as to assume that
the utility easements were useable, so he erred in favor of the applicant. He still came up
short.
At this time, the public hearing was closed.
Mr. Lindstrom asked Mr. St. John to respond to the contention that the plat not having
been recorded prior to the adoption of the new zoning ordinance, this division now requires a
special use permit. Mr. St. John said the Judge's Order in the 1981 case is what really
counts. The division of this particular lot was not at issue before the court at that time.
It was the division of the other lots, and the court ruled that the 1980 plat was entitled to
approval under the Zoning Ordinance as it was in effect before December, 1980. The County is
bound by that ruling in deciding on this issue. Mr. St. John said he is not speaking about
any issue between private parties. They were led to believe that this parcel would not be
divided, and he is not talking about that. Mr. St. John said that Judge Berry's order states
that the plat was reviewed by the Commission for a period in excess of sixty days (the
Statute allows the Planning Commission sixty days in which to act), and that the Zoning
Ordinance was substantively amended in ways which would adversely have affected the review of
this question during the time the plat was pending. The order goes on to say that "the
rights of the applicant had fully matured prior to the said amendment to the Albemarle County
Zoning Ordinance." Mr. Fisher asked if that meant that the applicant at least has the right
to divide the property under the Zoning Ordinance, but the question then becomes one of
whether or not it meets the requirements of the Subdivision Ordinance. Mr. St. John said
that is correct.
Mr. Lindstrom said the comment that this is marginal is probably the best description
that he can think of. Obviously, there has been a long history of causing problems to the
people who approve subdivision plats. He thinks the technical details have been gone over
enough. In his mind, the argument has been fairly well made that it's not clear. His
concern is that this is such a marginal proposition to begin with that nothing has been
cleared up in any way decisively in favor of the applicant. To "nail the coffin" is the
twenty foot utility easement. Mr. Lindstrom said he has been on the tract, and it is a very
steep lot on the back. There is one relatively level part on the lot. The problem is
fitting a working drainfield, plus area for another drainfield, into an area where tradition-
ally it is known that the soils have difficulty in absorbing effluent. He also does not
think they will be able to build a house of the statu~eof the existing houses on adjacent
lots.
Mr. Lindstrom said he has felt for a long time that not having a setback for a septic
field is a severe problem for adjoining property owners because apparently the only setback
which applies is the state requirement for five feet. Because there must be one hundred feet
between a well and a septic field, a neighbor is really restricted should his well run dry.
Working within present ordinance provisions, he feels it is too marginal to justify approval,
and he offered motion that the plat be denied. There was no second to the motion. Mr.
Fisher said he was caught by surprise with such a quick motion. He had not had a chanqe to
say anything. Mr. Lindstrom apologized and withdrew the motion.
Mr. Fisher asked about the Subdivision Ordinance requirement that the building site be
delineated. He asked why it is not being done if it~a requirement. Mr. Horne said the staff
normally has the delineation shown on a plat other than the one which is to be put to record.
It does appear that the ordinance requires that this be shown, but it would cause consider-
able confusion if drawn on all plats because in most cases it is not as critical as it is
here. Also, the 30,000 square feet designated might not be the area on which actually built.
Mr. Fisher said the question here is whether or not there is any place to put the house
and the septic field. Mr. Horne said the staff verified it, but he would not object to
requiring that it be shown on this plat. Otherwise, he would recommend approval by the
Board.
Mr. Fisher asked how many different plats are usually submitted on one application. He
had thought there was only one. Mr. Horne said virtually every plat goes through a series of
amendments during the review process. Mr. St. John said most cases are not like this one.
You would not want to require that all of the slopes, contour intervals, and the building
be shown on the plat which goes to record. The plat put to record is primarily to show
boundary lines.
Mr. Fisher asked how someone would be able to find the right plat in the files. Mr. St.
John said all of this is kept in a file in the Planning Department. You do not want to put
all of that in the registry of deeds which is a permanent record in the Circuit Court Clerk's
Office. That is not the appropriate place to have all of this. Mr. Fisher said he just does
not see how anyone ever knows whether the requirements have been fully satisfied.
Mr. Lindstrom asked if there is such a plat in this case, whether it is to be recorded
or put back in the files someplace for security. Mr. Horne said the plat that the staff used
to verify the building sites is the one drawn by B. Aubrey Huffman and Mr. Edwards. It
carries their stamps and professional seals. Mr. Lindstrom asked if it shows the 30,000
square foot area. Mr. Horne said no plat exists which shows it in that format. The staff
verifies that the slopes are correctly shown, that the drainfield locations are correctly
shown, and then it verified that there is the 30,000 square foot area on the parcel, but
there is no dotted line around a specific area that says "30,000 square feet right here."
March 4, 1987 (Regular Night Meeting)
(Page 12)
Mr. Fisher said this case is really marginal. He knows the County Attorney will tell
him that where there is a disagreement, it must be ruled in favor of the property owner. Mr.
St. John said he does not think that's exactly applicable in this case because that has to do
with an ambiguity or unclearness in the ordinance. Here, it is a question of facts. Does
30,000 square feet exist or not, and whose statements and testimony does the Board believe?
One thing to keep in mind is that everybody who spoke tonight is on one side or another and
spoke in behalf of one side or another. Members of the public don't have an interest, but
they spoke in behalf of, or in opposition. The staff is theoretically the only objective
people present, and they are experts. Mr. St. John said he feels that their reported find-
ings of fact are entitled to a whole lot of weight. The Board should have some particular
reason for finding that the facts are different from those reported by the staff.
Mr. Lindstrom asked the purpose of the 30,000 square foot buildable area. Mr. Horne
said in his opinion the purpose is to provide an area in which to place a home, and the
needed accessory improvements off of slopes that would require excessive grading. Mr.
Lindstrom asked if it is obvious that grading will be entailed in construction of a septic
field. Mr. Horne said yes. Mr. Lindstrom said he has a concern about the twenty foot
utility easement which has not been specifically addressed tonight. It is not often that
there is an overlap of a septic field with a utility easement. He asked how the staff would
respond to that concern. Mr. Horne said it is not advisable to put a drainfield in a utility
easement. The staff seldom gets a plat that is this close where it is dealing with these
critical margins of error. Mr. Lindstrom asked if the twenty foot easement that's called for
on the plat is removed from consideration, is there is still a 30,000 square foot site. Mr.
Horne said he hates to confuse the matter further, but the critical issue here is the shape
of the building site as it applies to Lot 8B. If the twenty foot easement is not included,
the area would be much narrower. Consistent with application of the ordinance in the past,
the staff has not averaged the shape of an area reading the 5:1 requirement strictly, it
would not meet the 5:1.
Mr. Michael Armm, County Engineer, said he had reverified on this new plat the area, and
it appears that there would be 30,000 square feet as required by the ordinance, not counting
the twenty foot easement that wraps all the way around the property. Mr. Horne mentioned a
more important point, and that is how to measure the 5:1 ratio. Mr. Lindstrom asked if staff
can determine whether or not it gives a reasonable configuration for a house and the required
drainfields. Mr. Armm said yes. Strictly reading the ordinance, taking 5:1 as the narrowest
of the two dimensions, it will not meet 5:1 in that measure. Averaging, it will. Mr. Armm
said he thinks it still leaves available two drainfield areas and a home site. Mr. Agnor
said he would like to make one point of clarification. Averaging is the process that is
always used, is not always utilized, but is utilized by the staff. It is not being used
tonight to make it come within the 5:1 ratio. It's not an exact rectangle. Shapes of areas
are odd, so they are averaged; it is a necessity.
Mr. Lindstrom said he believes that engineers can do about anything, but it pressures
the imagination a little bit. He wonders what it will look like. Mr. Armm explained the
configuration using the plat on the wall. Mr. Lindstrom asked if sewage will have to be
pumped. Mr. Armm said it appears that it will work on gravity flow.
Mr. Fisher said he has seen some marginal applications, but this is a contender for the
top ranking. He said he understands the Planning Commission approved this plat with con-
ditions by a four to three vote. Those conditions don't specifically speak to the easement;
don't take into consideration this boundary dispute. If this Board does not take action to
change the approval of the Planning Commission, their action-stands.
Mr. St. John said he can speak to the issues of the easement and boundary line dispute.
the County Government does can either diminish or enlarge the rights that already
exist under this private easement. He would not recommend that the Board put any language on
the plat addressing that. The law does, however, require that this kind of easement be shown
a plat. There was mention made that the owner of the tract that the easement services
some day dedicate it to public use. He can't do that. At that time, the county would
to accept it either by resolution or by approval of a plat showing it. Also, the owner
whose land the easement goes is the one who would have to dedicate it. Mr. St. John
the county cannot withhold approval or effect its judgment of this subdivision on the
of that easement. Mr. St. John said it has been the practice in the past that a
dispute of this kind is not considered one way or another in an application for
approval, and as to the boundary line dispute, he does not believe the Board
hold up a decision on this matter because of that issue.
Mr. Lindstrom said although this is a portion of the rural areas that is more heavily
ped than most, it is in the rural areas district. It is in the Rivanna watershed. It
very close to a tributary stream to Ivy Creek and the reservoir itself. The property is
steep. There is no margin here for error, and it is not in his opinion, an area
development should be allowed without some latitude for error. It is not a case where
bought the property thinking they had an opportunity to build a house on a pre-
~xisting lot. It's not a case where someone will be put to a financial hardship. It's
~omebody who is going to be able to gain substantially in a very speculative manner by having
)rought about a division which is not something which could have been expected. Mr.
hindstrom said he has trouble with the County being put in a position of having to approve
~omething with all of the problems that it has.
Mr. Way said he agrees with what Mr. Lindstrom has said. He also has a lot of sympathy
~or the property owners who obviously believed when they bought here that this kind of thing
not going to happen. Mr. Way said his question is, does the Board have the right to deny
applicant his right to do this? He agrees that everybody is straining to find a way to
)revent them from doing it, but the County's Ordinance says they can do it, and that seems to
)e the controlling factor.
Mr. Lindstrom said the ordinance is predicated upon a finding of certain facts. He does
lot believe the facts prove clearly that this request complies with the ordinance. Only if
limensions are averaged can it be argued that there is a developable lot. Mr. Lindstrom said
March 4, 1987 (Regular Night Meeting)
(Page 13)
£61
he feels the Board has the right to determine the facts when they are in dispute and as
closely honed as these. Mr. Lindstrom then offered motion that the request be denied. At
this point, Mr. Fisher handed the gavel to the Vice-Chairman, Mr. Way, and then gave second
to the motion.
Mr. Bowie said when this matter was before the Board last year, he supported the motion
to deny. At that time he thought the evidence weighed toward there being a building lot, and
the County staff has so testified twice, but it was under the family division and there
seemed to be some question as to their intent to use the property for a family subdivision.
The staff and the Planning Commission both say there is a building lot there. Mr. Bowie said
he sympathizes with the homeowners who thought this would always be a six-acre lot, but even
divided, it is bigger than the other lots. Mr. Bowie said he does not necessarily see the
hardship, so does not intend to support the motion.
Mr. Lindstrom said if the staff was left to make all the decisions, there would be no
need for the Board. The Board is vested with a certain amount of discretion even in an
administrative decision like this one. The request clearly cuts against the spirit of the
ordinance, and with the technicalities involved, he thinks it is within the prerogative of
the Board to deny this one. Mr. Bowie said the last time he agreed with Mr. Lindstrom, but
this time he does not.
Mr. St. John said before the Board votes, he would like to remind them that the ordi-
nance requires that when a plat is denied, the Board must state the reasons for the denial.
The statute used to require the Board to advise the applicant what he must do to get the plat
approved, but it no longer carries that stipulation. Mr. Lindstrom said he thinks the
comments of the person making the motion, and the person making the second, are sufficient.
Mr. St. John said he does not know if it is good enough just to say it is not felt that the
request complies with the ordinance. Mr. Lindstrom said he has no problem standing on his
comments. He thinks they .are fairly representative.
Mr. Way asked if there were further comments. Mr. Henley said he is not going to vote
to deny. He voted to deny last time because he thought it was a shame they were trying to
get it through as a family division. He said at that meeting that if it met subdivision
requirements, he would have voted in favor. Nobody has convinced him that it does not meet
those requirements.
Mr. Lindstrom said he will restate that he does not think it complies with the require-
ments of the dimensions of a 30,000 square foot building area, among other things.
Mrs. Cooke said it seems to be left to her to make the last remark. She feels that if
the Planning Commission has properly reviewed this plat, and the staff has properly reviewed
this plat, she has got to support their position since they are the Board's technical
advisors.
At this time, Mr. Way requested that the roll be called.
the following recorded vote:
The motion to deny failed by
AYES:
NAYS:
Mr. Fisher and Mr. Lindstrom.
Mr. Bowie, Mrs. Cooke, Mr. Henley and Mr. Way.
Mr. Lindstrom said he is going to make another motion despite Mr. St. John's comment.
He thinks it should state what he thinks is the law, and he cannot imagine that by stating
the law there will be trouble. That is, there shall be no use of that easement for further
subdivision to the property that has accesses without prior Planning Commission approval.
Mr. Way asked if that was a motion. Mr. Lindstrom said yes, this should be added as a fourth
note on the plat.
Mr. Way handed the gavel back to Mr. Fisher. Mr. Fisher said the motion is to approve
this plat with the conditions of the Planning Commission and this fourth condition. Mr.
Lindstrom said it should say, the easement shall not be used as a public road for access to
any further subdivision beyond the end of the easement without Planning Commission approval.
Mr. Bowie asked if this is legal. Mr. St. John said yes. Mrs. Cooke then seconded the
motion.
Mr. Bowie asked if Mr. Lindstrom would include this as an entry on the plat, or some
notation on the plat. Mr. Lindstrom said he would like to say for the record in order to
make it clear that he is doing this because he thinks it is better than having the plat go
forward without that condition on it, although he still does not support the plat.
At this time, Mr. Fisher asked for the roll to be called. The motion to approve with
the following conditions, passed by the following recorded vote:
AYES: Mr. Bowie, Mrs. Cooks, Messrs. Fisher, Henley, Lindstrom and Way.
NAYS: None.
Mr. Fisher noted that he had received several documents tonight. One is a plat which
was received from the applicant, signed by Mr. Whelen, which Mr. Fisher has noted as being
received this date and initialed. Two documents were received from Mr. Gouldman about the
filings today, and the filings they made in court. Mr. Fisher said he has also initialed and
dated those papers. He also received the petition from the property owners which will be
made a part of this record.
March 4, 1987 (Regular Night Meeting)
(Page 14)
(The conditions of approval are as follows:)
1. The final plat will not be signed until the following conditions have
been met:
a. Issuance of an erosion control permit;
b. County Attorney approval of joint driveway maintenance agreement;
c. County Engineer approval of stream location shown on plat;
d. The "existing 50 foot access easement" shown on the plat shall
not be used as a public road for access to any further subdivi-
sion beyond the end of the easement without Planning Commission
approval.
Agenda Item No. 8. Approval of Minutes: May 8, 1985, and December 3 (Night), 1986.
Mr. Lindstrom had read Pages 1 - 4 of December 3, 1986 (Night Meeting). On Page 3, in
the paragraph at the bottom of the page, third line, he requested that the sentence be
changed to read as follows. "However, ~-~s-a~-aeeesse~y-~se-~-~he-e~e-~s~e~? as
proposed by the amendment, it would become an accessory use to the entire CO district, a
chan~e he stated he could not support." He then offered motion to approve these minutes as
amended. The motion was seconded by Mr. Way. Roll was called and the motion carried by the
following recorded vote:
AYES:
NAYS:
Mr. Bowie, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Way.
None.
Agenda Item No. 9. Other Matters Not Listed on the Agenda from the Board and Public.
Mr. Way asked the County Engineer about the recent fire at the Keene Landfill. Mr. Armm
said that it was 80 percent out yesterday. There are no~% tires or plastic in the area which
".~c' is burning. It is stumps, timbers, some of the items which are usually burned on the
site.
Mr. Bowie said that House Bill 1073 passed the General Assembly which is known as the
55/30 retirement bill and which allows for early retirement. He said that local government
has the option to go under this clause. He asked how this would effect the County's
voluntary early retirement policy. Mr. Agnor said the Director of Personnel is preparing a
report on this subject now.
Mr. Bowie said a question has arisen concerning disposition of the note on McIntire
School. He thinks it should go to the Building Committee for a report back to the Board on
March 18. He then offered motion to refer the letter from Allied Concrete addressed to
Ray B. Jones to the Building Committee. The motion was seconded by Mr. Way and carried by
the following recorded vote:
AYES: Mr. Bowie, Mrs. Cooke, Messrs. Fisher, Henley and Way.
NAYS: None.
ABSTAIN: Mr. Lindstrom.
Mr. Lindstrom requested that the staff draft an ordinance amendment for the Board's
review relative to his statements concerning a setback from the property line for location of
septic fields. He would suggest that the setback be 50 feet.
Agenda Item No. 10. Adjournment. With no further business to come before the Board, at
11:07 P.M., motion was offered by Mrs. Cooke, seconded by Mr. Bowie, to adjourn this meeting
until 1:00 P.M. on March 9, 1987. Roll was called, and the motion carried by the following
recorded vote:
AYES:
NAYS:
Mr. Bowie, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Way.
None.