1983-10-12October 12, 1983 (Regular Day Meeting)
399
A regular meeting of the Board of Supervisors of Albemarle County, Virginia, was
held on October 12, 1983, at 9:00 A.M., Meeting Room 7, County Office Building, 401
McIntire Road, Charlottesville, Virginia.
Present: Mr. James R. Butler, Mrs. Patricia H. Cooke, Messrs. Gerald E. Fisher, J. ~.
Henley, Jr., C. Timothy Lindstrom and Miss Ellen V. Nash.
Absent: None.
Officers Present:
George R. St. John.
Agenda Item No. 1.
Mr. Fisher.
Acting County Executive, Ray B. Jones, and County Attorney,
The meeting was called to order at 9:08 A.M. by the Chairman,
Agenda Item No. 2. Consent Agenda. Motion was offered by Miss Nash, seconded by
Mrs. Cooke, to approve the consent agenda with the items as presented. Roll was called
and same carried by the following recorded vote:
AYES:
NAYS:
Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
None.
Item No. 2.1. Statement of expenses for the Director of Finance, Sheriff, Common-
wealth's Attorney and Regional Jail for the month of September, 1983, were presented.
Item No. 2.2. Letter dated October 4, 1983 from Robert W. Tucker, Jr., Director of
Planning, regarding the Urban Area Transit Needs Summary. The summary was compiled by
JHK Associates, with whom the City had contracted, to study transit needs in the urbanized
areas of Charlottesville and Albemarle County. Mr. Tucker said the staff presented the
report to the Planning Commission last evening-and he plans to review same for the Board
at a future date.
Item No. 2.3. Report of the County Executive for the month of August, 1983, was
presented in accordance with Virginia Code Section 15.1-602.
Claims against the County which had been examined, allowed and certified for payment
by the Director of Finance, and charged to the following funds for the month of August,
1983, were also presented as information:
General County Fund
Federal Revenue Sharing Fund
Grant Projects Fund
Metro Planning Grant
Community Development Block Grant
County School Fund
TIPS
Secondary Advocates for Gifted Students
Cafeteria Fund
Joint Security Complex Fund
Mental Health Fund
Textbook Rental Fund
McIntire Trust Fund
Capital Improvement Fund
4,517,302.39
~04,620.46
1,053,358.68
1,854.19
.00
1,545,317.37
1,297.70
.00
.00
143,362.34
.oo
1,737.o7
.00
4~126~645.72
$11,795,495.92
Item No. 2.4. Report of the Department of Social Services for the month of August,
1983, was presented in accordance with Section 63.1-52 of the Code of Virginia.
Item No. 2,5. Superintendent's Memorandum #19, dated October 5, 1983, from S. John
Davis, Superintendent of Public Instruction, and M. E. Cale, Associate Superintendent for
Financial and Administrative Services, (both from the State Department of Education),
regarding reduction in 1983-84 State Aid to Education, was received.
Item No. 2.6. Notices of State Corporation Commission Hearings.
a) Notice dated September 30, 1983, from David A. Kelley, District Staff Manager
for C & P Telephone, regarding application to amend its tariffs in order to allow customers
or contractors to install inside telephone wiring on the customers' premises, was received.
b) Notice dated September 9, 1983, from David A. Kelley, District Staff Manager
for C & P Telephone, regarding application to increase and restructure its schedules of
rates and charges for intrastate telecommunications services, was received with public
hearing scheduled for November 9 through November 10, 1983.
c) Notice dated October 6, 1983, from David A. Kelley, District Staff Manager for
C & P Telephone, regarding application to investigate issues involving the provisions of
intrastate toll service, was received. Public hearing before the State Corporation
Commission is scheduled for November 15, 1983.
400
October 12, 1983 (Regular Day Meeting)
Agenda Item No. 3. Approval of Minutes: July 13 and July 20, 1983.
Mr. Henley had read the minutes of July 13, 1983, and noted no corrections.
Miss Nash had read the minutes of July 20, 1983, and noted no corrections.
Motion was offered by Mr. Lindstrom, seconded by Mr. Butler, to approve the minutes
of July 13 and July 20, 1983, as presented. Roll was called and the motion carried by
the following recorded vote:
AYES:
NAYS:
Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
None.
Agenda Item No. 4a. Highway Matters:
from September 14, 1983).
Vacation of Ashmere Subdivision (Deferred
Mr. George R. St. John, County Attorney, was present and requested that this ordinance
be deferred to November 9, 1983, since the matter is still before the bankruptcy court.
Mr. Lindstrom offered motion to defer action on adoption of an ordinance to vacate a
portion of Ashmere Subdivision to November 9, 1983. Miss Nash seconded the motion and
same carried by the following recorded vote:
AYES:
NAYS:
Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
None.
Agenda Item No. 4b. Notice of Highway Meetings.
Mr. Fisher said notice dated September 26, 1983, had been received from Mr. A. S.
Brown, Secondary Roads Engineer, Virginia Department of Highways and Transportation, and
Mr. George R. Long, Executive Director, Virginia Association of Counties, regarding a
schedule of local informational meetings to discuss matters of mutual interest between
County and Highway officials. Mr. Fisher said the meeting for the Culpeper District is
scheduled for October 27, 1983, and he has been asked to represent the counties in the
Culpeper District. The meeting concerns secondary roads and if the Board has any suggestions
he will present them at that meeting.
Agenda Item No. 4c. Presentation of Design for McIntire Road.
Mr. Tucker said an intern, Mrs. Kelly Carr, was hired~this summer to review the
design of the Meadow Creek Parkway which is the extension of McIntire Road. The design
was reviewed in order to develop criteria and prepare preliminary alignment for the route
which will follow established parkway design objectives. Mr. Tucker said this presentation
is for informational purposes only, but he requests that action be taken to ask the
Highway Department to consider utilizing this information and the suggestions of Mrs.
Carr in their final design drawings of the parkway. Mr. Tucker noted that Mr. Harry
Porter, Chairman of the University's School of Landscape Architecture, served as Mrs.
Cart's adviser on this matter and Mr. Porter is also pre~ent this date.
Mrs. Carr said the report is the result of an eight-week internship, and much of the
report is still preliminary in review. She said the original purpose of the review was
to develop ideas for the landscape treatment of the parkway. After beginning work, it
became apparent that road alignment was a primary issue and some basic information was
needed to clarify parkway design principles and requirements. Mrs. Cart noted the parkway
design principles such a~ design speed, alignment, visual factors, median, grading and
planting. Mrs. Carr said all of these relate directly to safety, economy and minimum
impact on the land. She then referred to two photographs displayed, the first being an
example of visually disjointed arcs and tangents which would be uncomfortable to the
driver. The second is an example of a parkway using the principles and having smooth
continuous curvatures which Mrs. Carr said is the intent of this review.
Mrs. Carr explained how she applied the principles involved and in particular,
topography and elevation involved in design of this proposed road. She noted that steeper
slopes are harder to build on so the desire is to build a road which fits the land and
involves property with the least resistance. Mrs. Carr further explained that her major ~ ~i
concept was to retain natural conditions and existing characteristics of the land.
Mrs. Cart then presented a slide presentation of parkways in Virginia, in particular,
the George Washington Memorial Parkway. The purpose of the slides was to provide ideas
of the curvatures, turn offs, medians and plantings of the medians.
Mr. Fisher extended appreciation for the presentation. He felt the examination of
this preliminary work is very important. He also felt that it was the original intent of
this Board that this roadway be constructed as a parkway. He then asked Mr. Porter if he
cared to make any comments. Mr. Porter felt the presentation of Mrs. Cart emphasizes
that it is possible to have a roadway of this character and the alignment is not that
difficult to achieve regardless of whether it is straight or curved. Therefore, he felt
the option is a viable one to pursue. Mr. Fisher thanked Mr. Porter for his interest.
Mr. Lindstrom asked if it were likely that the Highway Department would achieve some ·
of the objectives provided by Mrs. Carr, if and when the funds are available for this
construction. Mr. Dan RoOsevelt' Resident Highway Engineer, was present. He said representat
of the urban division of the Highway Department met with persons from the City several
months ago and environmental considerations were recognized to be a very strong factor in
this project. He also felt any comments or suggestions made early in the design of the
project have a good chance of being incorporated. Mr. Roosevelt noted that the Highway
Department is considering an outside consultant for the environmental impact statement
which should result in'strong considerations of these beautification factors.
,yes
October 12, 1983 (Regular Day Meeting)
40'1
A brief discussion followed on funding of this project, both as to the City and the
County. Mr. Roosevelt said the County is accumulating funds in the six-year plan for
preliminary work on this roadway which is currently scheduled for construction in 1990.
Mr. Lindstrom asked the current cost estimate for the project. Mr. Roosevelt said the
latest figure he has is three years old and that estimate was seven million dollars, for
work from the McIntire Road/Preston Avenue intersection in the City, across open country
to the Vocational Technical Center on Rio Road.
Mr. Fisher said he would entertain a motion to submit this information to the Highway
Department and request that same be considered in the preliminary design of the Meadow
Creek Parkway. Motion to that effect was offered by Mrs. Cooke, seconded by Mr. Lindstrom,
and carried by the following recorded vote:
AYES: Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
NAYS: None.
Agenda Item No. 4d. Other Highway Matters.
Mr. Lindstrom asked the status of right-of-way acquisition on Georgetown Road for
the walkway. Mr. Tom Muncaster from the Engineering Department was present. He said Mr.
James Bowling, Deputy County Attorney, is reviewing right-of-way forms and hopefully all
of this will be resolved in order that construction can be concluded by the end of this
month. Mr. Lindstrom expressed delight that this project is near completion and further,
that if he does not accomplish anything else while serving on this Board, at least this
is one project that he has worked diligently on and the walkway is being used by many
people.
Mr. Fisher commented on the nice appearance of the Park Street bridge (Route 631)
since completion of same.
Miss Nash asked if any complaints have been received about the design of Route 20
South since the recent tragic accident and comments which appeared in the newspaper about
the improper design of same. Mr. Roosevelt said he has received only three phone calls
concerning the road and all three have indicated that they feel the speed limit is proper.
The Highway Department is reviewing accident data and speed studies will be conducted.
However, unless something unusual appears in those, reports, he did not feel any improvements
will be made on that route.
Agenda Item No. 5. Discussion: McIntire School Property.
Mr. Fisher said as a result of the Board's public hearing to receive comments on
various uses for the McIntire School property, the neighbors in and around the school
have organized into the Colonial Heights Neighborhood Association. He met with a group
of those persons yesterday and a petition has been submitted requesting that whatever use
is made of the property, that the character of the neighborhood not be changed, and that
they be included in discussions. (Copy of this petition is on file in the Clerk's Office).
Mr. Fisher said he assured these persons that any discussion about the use of this property
will be in public.
Mr. Ray B. Jones, Acting County Executive, said the following memorandum dated
October 12, 1983 has been distributed to the Board from Mr. Russell B. Otis, Executive
Assistant, regarding general information about the McIntire School property:
"Attached for your information is a schematic outline of the McIntire School
Building showing approximate dimensions. The purpose of the drawings is to
give some general familiarity with the overall size of the building and
the spaces within.
Currently the YMCA is utilizing the cafeteria and those classrooms on the
back wing in addition to some occasional use of the gymnasium.
As you already know, all other tenants of the building are scheduled to
relocate as soon as Phase II of the County Office Building is complete. This
will leave the County and the YMCA to share the annual utility costs of
approximately $37,219.
Since the building consists of approximately 38,500 square feet a simple
computation yields a per square foot utility cost of $0.96.
Though no recent appraisal has been made, the estimated value of the
building is at approximately $600,000 exclusive of the 12.4
acres (value established for insurance purposes).
Staff respectfully recommends and requests authorization to hire a professional
appraiser to establish the value of this property in order to assist the Board
in its decision regarding disposition of same. It is further recommended
that the Board advertise and invite proposals from parties
interested in use of the property. These proposals need not be limited to offers
to purchase the property but could include any alternative proposals as may
exist. An invitation period of ninety days should enable interested parties
to prepare any proposals they may have."
402
October 12, 1983 (Regular Day Meeting)
Mr. Jones recommended that $1,000 be appropriated for the appraisal and advertisement
of the McIntire School property as stated in the foregoing letter. Mr. Fisher asked if
the County will reserve the right to refuse any proposals not desired. Mr. Jones said
yes, but noted that the intent of the advertisement will be only to obtain ideas on what
persons in the private sector and various organizations feels is an appropriate use of
the property; not for sale of the property. Mr. Fisher supported the recommendation but
felt any proposals for purchase should specify the intent of the use and a sketch be
provided if possible. He felt the Board has a responsibility to the neighbors and therefore
intentions should be submitted. Mr. Lindstrom supported the request and agreed with Mr.
Fisher. He did feel the Board should decide as soon as possible whether the property
will be retained by the County or sold.~ He then offered ~motion to accept the recommendation
of Mr. Jones by authorizing that $1,000 be transferred in the Board of Supervisors budget
from Code 1-1000-11010-309907 - Reserve~Co~i~g~n~y~m~ds;~t~Code~ 1-1000-11010-300215 -
Appraisal Fees. Mrs. Cooke seconded the motion and same carried by the following recorded
vote:
AYES:
NAYS:
Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
None.
Agenda Item No. 6. Discussion: Historic Preservation Ordinance.
Mr. Robert W. Tucker, Jr., Director of Planning and Community Development, was
present and noted that a memorandum and a packet of information was submitted to the
Board regarding an Historic Preservation Ordinance. Mr. Tucker then summarized the
memorandum dated October 3, 1983:
"Staff was requested earlier this year to seek comments from the Virginia
Historic Landmarks Commission concerning any experience the Commission
has had with other counties regarding historic preservation. We requested
a list of other counties that have adopted such zoning and any copies of
adopted historic preservation ordinances the Landmarks Commission might
have on file.
I have received comments from Mr. H. Bryan Mitchell, Executive Director
of the Virginia Historic Landmarks Commission, along with a copy of the
Loudoun County ordinance. Mr. Mitchell indicated that to his knowledge
only Fairfax and Loudoun Counties had adopted historic preservation
ordinances. Dinwiddie County recently rejected a proposal to provide
historic preservation in its area. Both the Loudoun County and Dinwiddie
County ordinances are very similar to our proposals.
In closing, it appears that other counties have followed a comparable process
and encountered many of the same problems as we have over the past several
years. Some have adopted preservation regulations; others have not. I do
not believe there is an easy solution to this process, or at least no insights
were given by the Virginia Historic Landmarks Commission."
Mr. Tucker said although this is primarily for the Board's information he is seeking
some guidance on whether another public hearing on an ordinance is desired, or that a
committee be constituted to study this issue further, or whether the matter should be
terminated entirely.
Mr. Fisher said he has not had an opportunity to study the entire packet of information
distributed but was interested in knowing what process would be involved if the owner of
a building designated an historic site desired a change for the use of same from residential
to commercial office. Mr. Tucker said if the property is under some type of umbrella
ordinance for preservation, only a rezoning would be required. However, if a change in
the character of the historic structure itself is desired, an architectural review board
becomes involved.
Mr. Fisher related a situation in Alexandria where an owner could not find tenants
to occupy the building, the use of the building could not be changed, the building could
not be demolished because of its historic designation, therefore, rendering the building
of no value to the owner. He said the ordinance at that point is so restrictive as to be
counterproductive. He asked if the ordinance presented to the Board prohibits the razing
of a building. Mr. Tucker said there are provisions in the ordinance which spell out how
a building can be razed.
Miss Nash said many sites in the County are being placed on the State Historic
Landmarks and/or the National Historic Register. She asked if these sites have to abide
by rules to keep the site as an historic site. Mr. Tucker thought those designations are
made in order to qualify for funding. He said it was discovered during this review that
once a site is placed on the State register, it cannot be withdraw. Miss Nash asked the
disadvantages of such a provision. Mr. Tucker said it may discourage people from requesting
designation from the State; many people are concerned that if the ordinance does not work
as anticipated, they cannot withdraw their property.
Mr. Lindstrom asked if the ordinance furnished the Board gives any leverage to the
County. Mr. Tucker said this ordinance does not; although an earlier ordinance contained
a provision where affected properties within one mile of the historic site had to meet
certain requirements. Mr. Lindstrom felt an ordinance should be considered since Albemarle
County has so many historic sites. He suggested that a work session be scheduled in the
near future to receive staff comments and recommendations on an ordinance to preserve
some of the historic values of the County, but that such an ordinance avoid being so
rigid and being an imposition on adjacent propertiez. Mr. Fisher supported that suggestion.
October 12, 1983 (Regular Day Meeting')
40'3
Miss Nash felt any such work session should be advertised in order that interested
persons could'attend. Mr. Lindstrom preferred that the Board discuss this without taking
public Comments in the beginning. He did feel comments should be solicited from persons
at the University of Virginia architectural school. Mr. Lindstrom then offered motion to
request that the planning staff seek comments from persons at the University of Virginia
architectural school regarding an historic preservation ordinance with same being scheduled
for a work session later in the year. Mrs. Cooke seconded the motion. Mr. Fisher said
he was not in favor an ordinance that was so rigid that people could do nothing with
their property. Roll was then called on the motion and same carried by the following
recorded vote:
AYES: Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
NAYS: None.
Agenda Item No. 7. Request from Mr. & Mrs. Peter Caruso re: Claim for Injury at
County Summer Recreational Program.
The following claim which was addressed to the Albemarle County Parks and Recreation
Department was presented for the Board's review:
"On August 2, 1983, our son Tony, received a broken leg during a game played
indoors at the summer recreation camp (Broadus Wood).
He had to wear a toe to hip cast for seven weeks. The medical expense incurred
totaled $120.00 for the casts and x-rays. My husband works with Manpower in
Charlottesville and I work with Piedmont Airlines. Neither of us qualifies
for medical insurance coverage but we did receive a reduced rate for medical
care coverage and service. Even with this help the total bill came to $120.00.
We are unable to pay this cost and feel that this financial burden was
brought on to us by a game and activity that was unsuitable indoor exercise
for young children. Tony's doctor, as well as ourselves, were shocked that
such drastic breakage of bone could incur indoors, supervised. The game that
they were playing is a contact sport and not appropriate for indoors with such
a force of tackle. Tony is a healthy child, certainly never prone to illness
or any bone breakage.
We are asking the county to absorb this medical cost. Tony was taken out of
his cast September 21 and his leg has healed very well. He is advised to stay
away from soccer and basketball for a while to give the leg bone a while longer
to knit.
I was told at the time of his accident that the county is not responsible for
any injuries, but due to the nature of the game and the circumstances causing
his leg to break during an indoor game and us not having insurance or financial
means to pay the bill we ask the county to help us assume the financial cost of
the cast and x rays. Believe us, we live on an income of less than $11,000
a year and if we had been able to have a spare $120.00 for summer we would have
gone to a beach instead of having to spend the money at the University of
Virginia Medical Center.
Thank you,
(SIGNED BY)
Jean Caruso"
Mr. St. John said he had reviewed the claim and in his opinion, to pay this claim
would violate the sovereign immunity of the County, and therefore, would be unlawful.
Mr. St. John did not feel payment of the claim was within the legitimate power of the
Board and recommended denial. Mr. Fisher asked if a motion should be offered to that
effect. Mr. St. John said yes. Motion was then offered by Mr. Lindstrom, seconded by
Miss Nash, to accept the County Attorney's recommendation to deny the claim set out in
the foregoing letter. Roll was called and the motion carried by the following recorded
vote:
AYES:
NAYS:
Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
None.
Agenda Item No. 8. Request from Southside Health Center, Inc.
Mr. Jones said a letter dated September 26, 1983, was received from Ms. Perri Rush,
Vice President of the Southside Health Center, Inc., and he summarized same:
"Dear Mr. Fisher:
In 1977 Albemarle County made application to the Department of Housing and
Urban Development for the Southside Health Center in the amount of $66,000.00.
We would like to know if we have utilized the amount allocated.
The Health Center has been operating for one and a half years without local,
state or federal funds. Our revenue thus far consists of donations and fund-
raising events.
October 12, 1983 (Regular Day Meeting)
Presently we are receiving some patient fees and third party reimbursement;
namely Medicaid. These revenue sources do not remotely cover expenses. Our
staff consists of two physicians, a physicians assistant, a nurse practitioner
and a janitor volunteering four hours weekly and an office manager volunteering
approximately twenty hours weekly.
We have applied on two occasions for federal funds which were denied. Our
first grant was denied because the present administration only allocated funds
for existing facilities, not new starts. The second application was denied
because our region could not meet medically underserved criteria.
After struggling for eighteen months we feel the need to request funds from
our local government in the amount of $50,000.00. We will seek funds from other
sources as well as continue our fund raising projects in an effort to become
self-sustaining."
Mr. Jones said the $66,000 was expended several years ago, and he would recommend
the request for $50,000 be referred to the Social Program Budget Review Committee for
consideration in the Fiscal Year 1984-85 budget.
Miss Nash said she is familiar with the Center, and said the operation has been
handled with volunteers working one day at a time. When this is referred to the Budget
Committee, she hopes the Center will be given some priority and not be considered as a
totally new function and therefore rejected. Mr. Tucker said this request is submitted
far enough in advance of work on the budget, so there should be no problem; projects are
rated on a point scale.
Miss Nash then offered motion to refer the request from the Southside Health Center
for funding to the Human Development Budget Review Committee (formerly called the Social
Programs Budget Review Committee) for consideration of funding in Fiscal Year 1984-85
budget. Mr. Butler seconded the motion.
Mr. Fisher said he feels the Center could be coordinated somehow with the Social
Services Department, or at least be controlled by the rules that apply to clients of that
department. He is not very enthusiastic about free health services. However, if the
Center were administered through the Social Services Department, he might feel differently.
Miss Nash said there are many people who do not qualify for assistance through Social
Services, but who live on very limited incomes and need the service this Center provides.
Miss Nash concluded by stating that she did not want the Committee placing any requirement
on the Center that only clients of the Albemarle County Social Services Department could
be served because that is not the purpose of the Center. Mr. Fisher said he would sign
a letter to the Center informing them of the Board's action on their request. Roll was
called on the motion and same carried by the following recorded vote:
AYES:
NAYS:
Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
None.
Agenda Item No. 9. Discussion: Section regarding Farm Wineries in Zoning Ordinance.
The following letter dated September 26, 1983 was received from Mr. Francis Buck,
attorney, addressed to M~. Robert Vaughn, Zoning Administrator, regarding the inconsistency
of~the.~..s~ction~--On farm wineries in the County Zoning Ordinance and those provisions in
the Code of Virginia.
"This letter is a follow-up to our meeting with Mike Bowles of Montdomaine
Vineyards on September 15th.
It is the opinion of Mr. Bowles and other viticulturalists in Albemarle County
that the zoning ordinance pertaining to farm wineries does not accurately
reflect the motion that was passed on December 16, 1981 nor the intent of
the Board of Supervisors. Furthermore, we believe that portions of the
ordinance violate the statutory prohibition against local ordinances regulating
alcoholic beverages.
Subparagraph C of 5.1.25, as originally proposed by the staff, prohibited
tasting and tours as well as on-premise consumption by the general public and
festivals. Tim Lindstrom made a motion to amend that provision to eliminate
tasting and tours from the list of prohibited activities. The intent of his
motion was to allow those activities as can be observed from listening to a tape
of the hearing. The vineyard owners who were present at the hearing understood
the intention of the Board to allow tasting and tours at the wineries. The
newspaper article contained in The Daily Progress on December 17, 1981, indicates
that the reporter also understood the Board to allow tours and wine tasting without
requiring a special permit. I am enclosing a copy of that newspaper article.
Although tasting, and tours were eliminated from the proscribed activities,
because they were not added to any of the sections stating what was permissible,
it appears from a reading of the ordinance that such activities are not permitted
because the ordinance does prohibit 'on-premise consumption' which would also
include tasting and furthermore prohibits 'festivals and the like open to the
public' which could be construed to include tours of the vineyards and wineries.
October 12, 1983 (Regular Day Meeting)
I believe that it is fair to say that after you had listened to the tape that
you were in agreement with us that the intention of the Board of Supervisors
was to permit tours and wine tasting.
More importantly, the ordinance appears to violate statutory law irrespective
of the intent of the Board's motion. The County ordinance prohibits on-premise
consumption by the general public at farm wineries. Virginia Code Section 4-25.1A
specifically provides that at farm wineries 'wine may be sold at these business
places for consumption on the premises and in closed packages for consumption off
the premises. .' The County ordinance prohibits on-site consumption even
though it is s~ecifically
Virginia Code
authorized by the
Such action by the Board is clearly in violation of virginia Code Section
4-96 which states in pertinent part 'that no county, city or town shall, . . .
pass or adopt any ordinance or resolution regulating or prohibiting the
manufacture, bottling, possession, sale, distribution, handling, transportation,
drinking, use, advertising or dispensing of alcoholic beverages in Virginia.'
The Ordinance as written attempts to regulate the drinking of alcoholic
beverages, a power that the General Assembly has specifically denied local
governments.
In the case of City of Norfolk vs. Tiny House, Inc. 222 Virginia 414 (1981),
the Supreme Court recognized the right of local governments to regulate
the location of alcohol licensed establishments. However, the County
ordinance in prohibiting on-site consumption is dealing not with the issue
of location, but of regulation of alcoholic beverage activities. I am enclosing
a copy of an Attorney General's opinion dated May 4, 1982, which I believe
accurately analyzes and describes the limits of local government's authority
in this area. I want to point out that my client recognizes that the county
can regulate the location and size of the premises where alcohol will be consumed
through the provisions of the Wayside Stand section. We think that it is proper
for the county to regulate the size of the premises where wine can be sold for
off-site consumption as well as on-site consumption.
The Wayside Stand provisions control the size of the premises, its location
and proximity to the public road, and require approval of a site development
plan which must provide for safe and convenient access to the public road
and adequacy of parking -- all of which are matters that are within the local
government's control of land use. However, the consumption of wine on premises
are not matters of land use regulation. The concerns expressed by some of the
Board members about excessive drinking and danger to the public are already
regulated by the Alcohol Beverage Commission.
One additional matter that has no particular significance as far as my clients
are concerned but which should be corrected is the el±mination of subsection e.'l.
of the ordinance which permits the establishment of a winery prior to establish-
ment of the vineyard by special use permit. The Farm Winery Act requires the
existence of a vineyard before a farm winery can be established. The ordinance
should be consistent with the statute.
In keeping with the foregoing suggestions, I suggest that the Farm Winery
Ordinance be amended to read as shown on Exhibit i (Set out below).
Mike Bowles and I appreciate the time that you took to meet with us.
that this letter will be of use to you in your review.
I hope
Thank you for your consideration.
Very truly yours,
(SIGNED BY)
Francis L. Buck"
(Additions to existing ordinance language are underscored and the language
suggested to be deleted is crossed out, all changes as suggested by Mr. Buck.)
"5.1.25 FARM WINERY
a. Facilities for fermenting and/or bottling of wine shall not be
established until the vineyard, orchard or other growing area has been
established and is in production;
b. On-premise sale of wine and wine consumption may be established
in accordance with Section 5.1.19 WAYSIDE STAND:
DePm~%~e~, Tours shall be permitted. FestiVals and the like open
to the public shall not be permitted;
d. Wine shall be produced from fresh fruits or other agricultural
products predominantly grown or produced on such farm;
e. The foregoing notwithstanding, the Board of Supervisors, in
accordance with Section ~1.2.4 may authorize through issuance of a
special use permit any or all of the following:
'406
October 12, 1983 (Regular Day Meeting)
~e-ee~&~A&eA~e~-e¢-A-~&~e~e~8~-e~eA~8-e~-e~Ae~-~ewA~-~e~¢
1 ~. A floor area for on-premise sale of wine greater than
permitted under Section 5.1.19 WAYSIDE STAND;
2 ~. e~-p~em&ee-ee~e~mp~&e~-e¢-w~e-~-~e-~e~e~a~-~&&e~
Festivals and the like which are open to the general public;
~. Production of wine from fresh fruits or other agricultural products
predominantly grown or produced elsewhere than on such farm.
Mr. St. John said he has reviewed the correspondence from Mr. Buck and the statutes
regarding farm wineries. He feels that there are two separate issues involved. One is
the issue of on-site tasting and consumption, and the second is the matter of the County's
ordinance allowing the winery before the vineyard is established. Mr. St. John said he
does not agree with Mr. Buck that the County does not have the power to exclude on-site
consumption because he feels that the County does have that power. That is to say if a
lot of traffic was generated by people visiting these wineries to consume wine, that
would be the same as for any other property and would be a legitimate consideration.
However if the concern is the intoxication of people consuming the wine, that is under
the Alcoholic Beverage Control Board's authority. Mr. St. John noted the wording mentioned
by Mr. Buck "wine may be sold . . for consumption on the premises" does not state
"shall" but rather "may". If that is a mandatory statement, then the County is not
invading the powers of the ABC Board because the ABC Board does not have the power to
prevent consumption. Mr. Buck is stating that the statute takes away the power to prohibit
on-site consumption once a winery is established from the ABC Board, the Board of Supervisors
and all others. Mr. St. John said he takes issue with Mr. Buck on that point because he
feels it is within the Board's authority to say whether or not the Board intended to
allow~site consumption. Therefore, the question today is the Board's intent at the
time of adopting these provisions, and same can only be answered by the Board.
Mr. Fisher said when the amendment regarding farm wineries was originally discussed,
he had studied the Virginia Code and had talked several times with Mr. St. John about
same. He did not favor some things permitted by the State such as the importation of
grapes from other areas or outside of the State to process for on-site sales because that
appeared to make this a highway commercial activity. At that time, Mr. St. John informed
him that the Board's definition of a farm winery could be different from that of the
State. Assuming that to be correct, he had supported the provisions for farm wineries.
Mr. St. John said that is still true. Mr. Fisher asked about the definition for a farm
winery in the County's Zoning Ordinance. Mr. Tucker read the definition from Section 3.0
of the Zoning Ordinance. Mr. Fisher said to him that seems to be the same as the State's
definition. Mr. Henley said he originally understood that as long as the farm itself
contained a vineyard, there was no problem with grapes being brought in from other
producers who could not afford to establish their own winery. Mr. Fisher said that
someone with only one-quarter of an acre of grapes might find it lucrative to buy grapes
from others, thus having ninety-nine percent of the grapes transported in. He personally
felt that could create problems. Mr. Tucker said the last provision in Section 5.1.25
requires issuance of a special use permit if grapes are grown predominately elsewhere.
Mr. Lindstrom said the question today is whether or not the Board intended to eliminate
prohibitions on wine consumption when the prohibition for on-site tasting was deleted.
As he reads this section, there can be on-site consumption under wayside stand provisions
and anything other than that has to be by special use permit; in particular, Section
5.1.25(b) is asked to be clarified. Mr. St. John said the request is for clarification
of that section and if the clarification permits on-site consumption by right, the vineyard
owners will be satisfied. However, if the Board does not feel that is permitted by
right, an amendment of the ordinance is requested.
Mr. Lindstrom then asked the requirements for a wayside stand. Mr. Tucker said the
floor area is limited to six hundred square feet, a site plan has to be submitted, an
entrance permit approved by the Highway Department, and the site plan itself has to be
approved by the Director of Planning.
Mr. Fisher said he had attended a wine tasting tour on a farm winery in California
and asked if there is anyway to distinguish between tasting and on-premise consumption.
Mr. St. John did not know. Mrs. Cooke said she felt~the Board's action was in relation
to wine tasting and in no way addressed .an open invitation for the public to come and
drink wine.
Mr. Mike Bowles was present. He said there are several farm wineries operating in
the County at this time and all are looking forward to the opportunity to use the state
license in a good way and be permitted on-premise sale of packaged goods and consumption
of same. Mr. Bowles said in his operation, he envisioned a flat fee to be paid for entry
into the tasting room which would cover the cost and hopefully induce people to buy
packaged goods to take home. He personally did-not feel wine tasting is a special use at
a winery and that is the reason the special use permit provision is opposed. The wayside
stand requirements.insure proper setback from the road, with a commercial entrance approved
by the Highway Department, and a limitation of six hundred square feet (a 30 x 20 room),
which is not a big operation. Mr. Bowles said the state law controls the amount of
grapes that can.come from other areas by the provision that at least fifty-one percent of
the grapes come from the farm itself. Also, there is a provision that seventy-five
percent of the grapes must come from within the~State. Therefore, most of the grape
production will be from the farm itself, but due to weather and variable growing conditions,
there has to be some flexibility and encouragement to other growers who cannot afford to
process the grapes because a farm winery costs between one-quarter to one-half million dollar~
October 12, 1983 (Regular Day Meeting)
7 -
Mr. Bowles further noted that a basic permit has to be obtained from the Federal
government and if the Board could see ~the requirements involved in obtaining that permit,
the Board would not be as concerned. However, the problem before the Board today is
interpretation of~site consumption. He said limitations under the wayside stand requiremen
guarantee that the operation will be small. As for what local governments can and cannot
do under State Law as to regulating consumption of alcoholic beverages, there have been
cases in State courts where it was decided that the ABC Commission has exclusive authority
except for density and location. Mr. St. John asked why Mr. Bowles could not operate
under a special use permit. Mr. Bowles said he did not feel that was necessary since a
farm winery has been approved. Mr. Fisher said it appears the request is for the definition
to be the same in the County as that of the State and he would not support such a request
because he feels that definition is too broad in permitting a store on the site and then
another store just a reasonable distance away, all of this by right·
Mr. Lindstrom did not feel the Board made any mistake when the ordinance was adopted
and he felt the motion clearly separated tasting from wine consumption. The question now
is whether or not tasting can be permitted by right without opening the door to full-
fledged consumption of wine.
Mr. Francis Buck, attorney for Mr. Bowles, was present. The reason for the concern
of the vineyard owners is because they understood that tasting was allowed and then it
was discovered that was not the case. Mr. Buck said that rather than defining tasting
and prohibiting consumption, the suggestion is to delete the prohibition against consumption
and allow existing State regulations for consumption which in effect governs tasting. He
could understand the Board's concern about safety on the highways and the impact a winery
may have on adjacent neighbors. However, there are regulations dealing with alcoholic
beverages being provided without a restaurant facility and there are regulations for a
winery with wayside stand provisions.
Mr. Lindstrom said he questions if the wayside stand provisions are sufficient to
restrict the consumption aspect. He felt drinking is under the regulation of the ABC
Board and the Board's concern is with the impact on the land, roads and surrounding
property owners. He asked Mr. Tucker if he felt wayside stand requirements are sufficient
to preclude establishing a bar or some other commercial use. Mr. Tucker felt the require-
ments are restrictive enough.
Mr. Fisher asked if the farm operation is entitled to only one wayside stand per
parcel. Mr. Tucker said there is no provision in the ordinance to that regard. Mr. Buck
felt the vineyard owners would agree to a provision limiting wayside stands to only one
per farm winery. Mr. Lindstrom felt distinguishing between tasting and consumption would
be difficult and he was not concerned about people consuming more than they should, but
he does not feel a commercial operation should be created by right in the Rural Areas
district. He asked about the words concerning tours being permitted. Mr. Buck said that
is being requested as an addition to the ordinance. Mr. Lindstrom said he had no problem
with the proposed wording and the addition of the words regarding no more than one
wayside stand per farm winery. Mr. Buck saidthe provision for permitting tours was
added since there is a provision prohibiting festivals. They wanted to avoid definitional
problems of tour and festival. Mr. St. John said the Zoning Administrator will need that
language in the ordinance.
A brief discussion followed regarding the proposed suggestion to delete section~
5.1.25(e)(1) regarding the establishment of a winery before a vineyard. Mr. St. John
agreed with the proposed suggestion because at some time in the future, it may be good to
have a winery before a vineyard. Mr. Buck said he did not object if the wording is not
deleted. No suggestions were received to change the wording suggested by Mr. Buck and
set out above.
Motion was then offered by Mr. Lindstrom, seconded by Miss Nash, to adopt the
following resolution of intent to amend Section 5.1.25 in the Albemarle County Zoning
Ordinance regarding farm wineries. Roll was called and the motion carried by the following
recorded vote:
AYES:
NAYS:
Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
None.
BE IT RESOLVED that the Board of County Supervisors of Albemarle
County, Virginia, intends to amend the Albemarle County Zoning Ordinance
in Section 5.1.25, Supplementary Regulations regarding Farm Wineries to
(see Exhibit I attached); and
FURTHER REQUESTS the Albemarle County Planning Commission to hold
public hearing on said proposal to amend the County Zoning Ordinance and
make a report back to this Board at the earliest possible date.
(Exhibit I)
5.1.25 FARM WINERY
Facilities for fermenting and/or bottling of wine shall not be
estab.lished until the vineyard, orchard or other growing area
has been established and is in production;
be
On-premise sale of wine and wine consumption may be established
in accordance with section 5.1.19 WAYSIDE STAND; no more than one
wayside stand shall be permitted by right for each farm winery.
October 12, 1983 (Regular Day Meeting)
~-~e~&ee-ee~e~&e~-~y-~he-~e~ePa~-~&e-eAa~-~e~-~e-~e~m&~e4~
Tours shall be permitted. Festivals and the like open to the public
shall not be permitted.
Wine shall be produced from fresh fruits or other agricultural
products predominantly grown or produced on such farm;
The foregoing notwithstanding, the board of supervisors, in accordance
with section 31.2.4 may authorize through issuance of a special use
permit any or all of the following:
~e-e~a~&ehme~-e¢-a-v~e~a~-e~eha~-e~-e~he~-~ew&~-a~ea~
A floor area for on-premise sale of wine greater than permitted
under section 5.1.19 WAYSIDE STAND;
28.
e~-~em&ee-ee~e~m~$&e~-e~-w~e-~-~e-~e~e~a~-~&&e~ Festivals
and the like which are open to the general public;
Production of wine from fresh fruits or other agricultural
products predominantly grown or produced elsewhere than on
such farm.
Agenda Item No. 10.
a Special Projects Fund.
Request from Region Ten Community Services Board re:
Establish
Mr. Ray B. Jones, Director of Finance, was present and summarized the following
letter dated September 27, 1983 from Mr. James R. Peterson, Executive Director of the
Region Ten Community Services Board, regarding a special projects fund:
"Last March we requested permission from the six governing bodies in
Region Ten to convey title of a parceI located at 503 16th Street,
Charlottesville, owned by the Region Ten Community Services Board to the
Region Ten Community Services Board Charitable Trust· One of the
participating localities declined our request and therefore the
transfer was not completed.
Given that the Trust will not hold real property, we have been advised
by counsel that the Trust as a separate entity be abandoned and that the
assets of the trust ($8,886.65 as of June 30, 1983) be maintained within
the accounting structure of the Region Ten Board as a Special Projects Fund.
The advantages of this would be to place the assets of the Fund under the
direct control of the Region Ten Board rather than indirectly through a
separate trust; and to eliminate the requirement for-separate reporting and
qualifying of the trust to the Internal Revenue Service since the Board is
a direct agency of local government.
The Region Ten Board and the trustees of the Region Ten Charitable Trust
have approved the abandonment of the Trust and the establishment of a Special
Projects Fund subject to the approval of the six local governing bodies. Enclosed
is a resolution prepared by counsel for your consideration (Copy of this
resolution is on file in the Clerk's Office.) (However, information
explaining the purpose of the special projects fund was not sent to the Board
this date and confusion resulted from not receiving same.)"
The Board briefly discussed their lack of knowledge about the use of the funds since
no back-up information was received explaining the request in detail.
Mr. Peterson was present. He said the questions raised are all answered in the
first paragraph of a resolution which was accidentally not included with the letter to
the Board. He further noted that a few years ago a county appointee to the Region Ten
Board desired to contribute funds so Region Ten could have a permanent facility. Under
State accounting procedures, any contributions received in a fiscal year must be spent
during that fiscal year or returned to the state and participating localities. Therefore,
he contacted the State about the desire of this person and was told that the easiest
procedure would be to establish a trust and this was done. Mr. Peterson said over the
years, funds were provided by the primary benefactor and the building on 16th Street was
purchased, with one-third of that purchase being incurred by that individual. Mr. Peterson
said the resolution which addresses the use of the funds notes that only private funds
are involved and not public funds.
Mr. Fisher said the resolution which sets out the use of the funds needs to be
reviewed by the Board before any action is taken. Therefore, he suggested that Mr. Jones
and Mr. St. John review same and make a .recommendation on October 19, 1983.
Mr. Jones did not favor this type of fund and would suggest that if this request is
approved, the word "property" be changed to "fund" and theproceeds and investments go
through the budgetary process for review by the localities supporting Region Ten. He
also noted that the State does not allow any type of "set-aside" fund such as that proposed.
He stated that the County is the fiscal agent for Region Ten'and has the responsibility
of determining the usage of any funds. Mr. Lindstrom asked what will happen to the funds
if this request is not approved. Mr. Jones said the funds can be added to Region Ten's
budget for next year which in effect will reduce allocations by that amount.
~ 12~ 1 8 Re ular Da~ Meetin__q~
409
Mr. ?eterson noted that Mrs. Esther Freix, a county appointee to the Region Ten
Board, is near completion of her term and does not desire to be reappointed due to other
responsibilities. He felt any communication from the Board of Supervisors to her would
be appreciated since she has made an intensive contribution to the Region Ten Community
Services Board.
Agenda Item No. 10a. Request from Virginia Association of CoUnties.
Mr. Fisher noted letter dated September 27, 1983 from Mr. George R. Long, Executive
Director of the Virginia Association of Counties, regarding the 350th Anniversary of
County Government in the United States; this is also to be the theme of the National
Association of Counties annual meeting in the summer of 1984. As stated in the letter,
VACo requests a contribution from each locality of approximately $1,000 since the budget
for this event is approximately $100,000. Mr. Fisher further noted that these counties
being recognized by the National Association are all counties in Virginia. He favored a
small contribution being made to this commemoration.
Mrs. Cooke agreed that a small contribution would be in order. She gathered from
the letter that the Association desired a small celebration in individual localities to
commemorate the anniversary. She said the landscaping project in front of the County
Office Building is a possible celebration. Mrs. Cooke offered motion to approve a $500.00
contribution to the Virginia AssoCiation of Counties Sesquitricentennial Anniversary.
Mr. Lindstrom seconded the motion. Roll was called on the motion and same carried by the
following recorded vote:
AYES: Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
NAYS: None.
Mr. Fisher suggested that Mrs. Cooke compile a list of ideas for activities that
could take place at the celebration she had mentioned and present same at the November 9,
1983 meeting. Mrs. Cooke accepted the task.
Agenda Item No. 11. Appointments.
There were no nominations received for any appointments.
Mr. Fisher suggested that Mr. Jones recommend two staff members to serve on the
Resource Recovery Study Commission and the Board members suggest two citizens for same.
Agenda Item No. 12. Other Matters Not Listed on the Agenda.
Mr. Fisher noted letter received from Delegate Mitchell Van Yahres requesting suggestion;
for legislation to be considered in the 1984 General Assembly session.
Mr. Jones said the following resolution is being presented to acknowledge the exterior
beautification of the County Office Building project. Motion was offered by Mr. Lindstrom,
seconded by Miss Nash, to adopt the following resolution to express the Board's appreciation
to the anonymous donor for the gift to the County. Roll was called and the motion carried
by the following recorded vote:
AYES: Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
NAYS' None.
WHEREAS, during the Spring of 1983 an anonymous donor graciously offered
to make a gift to Albemarle County in the form of exterior beautification of
the Albemarle County Office Building at 401 McIntire Road; and
WHEREAS, the donor engaged the firm of Van Yahres Associates, ASLA,,to
develop landscaping plans for this beautification, which plans were reviewed
by the Board of Supervisors on or about June 1, 1983;'and
WHEREAS, the said donor then engaged the firm of Martin-Horn, Inc. to
undertake construction of this project according to the approved plans; and
WHEREAS, on or about October 1, 1983, the work commenced with a Proposed
completion date on or about December 31, 1983, all at the expense of the said
donor and at no expense to the taxpayers of Albemarle County;
NOW, THEREFORE, BE IT RESOLVED that the Board of Supervisors of Albemarle
County, Virginia, does hereby express its appreciation to the said donor (who
has asked to remain anonymous) for this gift to the citizens of the entire
community, and hereby calls the attention of the public to this act of
generosity as the work proceeds.
Mr. St. John requested the Board's authority to file responsive pleadings on behalf
of the County in the suit filed against the County by George L. and Jacqueline M. Starks.
Motion was offered by Mr. Lindstrom, seconded by Miss Nash, to that effect. Roll was
called and the motion carried by the following recorded vote:
AYES: Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
NAYS' None.
410
October~ular Da Mee~
Mr. Fisher said the Clerk has advised him that there are no zoning matters for the
November 2, 1983, meeting and has suggested that meeting be cancelled. Motion was offered
by Mr. Lindstrom, seconded by Miss Nash, to cancel the November 2, 1983, meeting. Roll
was called and the motion carried by the following recorded vote:
AYES:
NAYS:
Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
None.
Mr. Fisher said since elections are held the day before the November 9, 1983, all
day meeting, he would suggest that meeting be rescheduled to begin at 11:00 A.M. Motion
to that effect was offered by Mr. Butler, seconded by Miss Nash, and carried by the
following recorded vote:
AYES:
NAYS:
Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
None.
Mr. St. John recommended action by the Board to officially approve the landscaping
plans in the County's Department of Staff Services for the exterior of the County Office
Building in order that same can be made public information. Motion to that effect was
offered by Mr. Lindstrom, seconded by Miss Nash, and carried by the following recorded
vote:
AYES:
NAYS:
Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
None.
Mr. Jones noted that a public hearing will be held at 7:30 P.M., on October 25,
1983, in the auditorium of the County Office Building by the Rivanna Water and Sewer
Authority on the Buck Mountain Reservoir project.
Agenda Item No. 13. Executive Session.
At 11:42 A.M., Mr. Fisher requested an executive session for personnel and legal
matters. Mr. Lindstrom offered motion to adjourn into executive session for personnel
matters and two legal matters; the Western Albemarle Shopping Center Site Plan, and the
recent waiver by the Board of Zoning Appeals of setback requirements for the AMVEST
office building on Route 250 West. Miss Nash seconded the motion and same carried by the
following recorded vote:
AYES:
NAYS:
Mr. Butler, Mrs. Cooke, Messrs. Fisher, Henley, Lindstrom and Miss Nash.
None.
The Board reconvened into open session at 2:20 P.M.
Agenda Item No. 14.
was adjourned.
With no further business to come before the Board, the' meeting