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1979-03-21AMarch 15, 1979 (~djourned from March 14, 1979) Not Docketed: Mr. Roudabush said he had read of the minutes of the January 17 (night) meeting and found no errors. Motion was offered by Dr. Iachetta, seconded by Mr. Roudabush, to approve these minutes as presented. The motion carried by the following recorded vote: AYES: NAYS: ABSENT: Messrs. Dorrier, Fisher, Iachetta, Lindstrom and Roudabush. None. Mr. Henley. Agenda Item No. 4. At 10:13 P.M., motion was offered by Dr. Iachetta, seconded by Mr. Lindstrom, to adjourn this meeting until March 21, 1979, at 1:30 P.M. The motion carried by the following recorded vote: AYES: Messrs. Dorrier, Fisher, Iachetta, Lindstrom and Roudabush. NAYS: None. ABSENT: Mr. Henley. March 21, 1979 (Afternoon Meeting-AdJoumn~df~m~m~2M~rlch 15, 1979) An adjourned meeting of the Board of Supervisors of Albemarle County, Virginia, was held on March 21, 1979, beginning at 1:30 P.M., in the Board Room of the County Office Building, Charlottesville, Virginia; said meeting being adjourned from March 15, 1979. Present: Messrs. Lindsay G. Dottier, Jr. (arriving at 1:43 P.M.), Gerald E. Fisher, J. T. Henley, Jr., F. Anthony Iachetta, C. Timothy Lindstrom and W. S. Roudabush. Absent: None. Officers present: County Executive, Guy B. Agnor, Jr.; County Attorney, George R. St. John; and County Planner, Robert W. Tucker, Jr. (arriving at 3:00 P.M.). Agenda Item No. 1. a moment of silence. The meeting was called to order at 1:35 P.M. by the Chairman, with Agenda Item No. 2. Request from Electoral Board. request a change in certain polling places as follows: Mr. Richard Florence was present to In the Earlysville Precinct, the polling place to be moved from the Parish Hall to Broadus Wood Elementary School. This change is necessary because the Parish Hall has no toilet facilities and there is no heat in the building. In the Scottsville Precinct, the polling place to be moved from the Fire House to the Scottsville School on Page Street. This change is necessary because the Fire House is too col, In Porter's Precinct, the polling place to be moved from the library at Yancey Elementary School to the cafeteria at Yancey Elementary SChool. In Jack Jouett Precinct, the entrance to the polling place at Jack Jouett School be moved from the main entrance at the front of the school to the cafeteria entrance on the si~de of the building. This entrance is more accessible by the citizens. Mr. Florence said that whenever possible, the Electoral Board has been moving polling places'to schools for the convenience of the citizens. The School Board has been agreeable to this idea. These changes are requested at this time because they must be approved by the Justice Department and no changes can be made'in polling places closer than 60 days to an election. Mr. Lindstrom asked about moving the entrance to the Jack Jouett Precinct. Mrs. Mary Lou Matthews, Registrar, said there were complaints from citizens about the long walk from the front of the building to the cafeteria. This change is being requested to accomodate citizen complaintS, but the main entrance to the building can still be used since it will be open. However, the official entrance will be at the cafeteria door. Mr. Dorrier arrived at this time and after being briefed on the Board's discussion, he said the change in the Scottsville polling place should have been changed long ago. The School offers parking and there is better access to the building. Mr. Roudabush asked if. the Scottsvitle School is in the Town of Scottsville. Mrs. Matthews said yes. Mr. Dorrier thought it was outside of the Town limits. Mrs. Matthews said even if it is not in the Town limits, it can be arranged so that elections can be held at the School. She gave as an example the fact that the Free Bridge Precinct had voted in the City Limits of Charlottesville for several years. Dr. Iachetta then offered motion to adopt the following resolution: March 2Z~ 1979 (Afternoon Meeting - Adjourned from March 15, 1979) BE IT RESOLVED that the Board of Supervisors of Albemarle County, Virginia, does hereby concur in request of the Albemarle County Electoral Board to make the following changes ~n voting places: 1) Jack Jouett Magisterial District: Entrance to voting place to be moved from the main entrance of Jack Jouett School to the Cafetorium entrance at Jack Jouett School. 2) Rivanna Magisterial District: Earlysville Precinct. Voting place to be moved from the Parish Hall to Broadus Wood School. 3) Scottsville Magisterial District: Scottsville Precinct. Voting place to be moved from the Fire House to the old Scottsville School on Page Street. 4) Scottsville Magisterial District: Porter's Precinct. Voting place to be moved from the Library in Yancey School to the Cafeteria in Yancey School. BE IT FURTHER RESOLVED that the change for ~he Scottsville Precinct is approved only if the new voting place can be used for all elections. The foregoing motion was seconded by Mr. Roudabush and carried by the following recorded vote: AYES: Messrs. Dorrier, Fisher, Henley, Iachetta, Lindstrom and Roudabush. NAYS: None. Not Docketed: At this time, Mr. Fisher introduced Mr. Bob Brickhouse of the Daily Progress. Mr. Brickhouse replaced Mr. Peter Bacque. Agenda Item No. 3. Discussion: Industrial Development Policy. (Deferred from March 14, 19~92~7 Mr. Fisher noted that Mr. Charles Smith, President of the Chamber of Commerce, w~as present and asked if Mr Smith would like to make a statement. Mr. Smith said on behalf of the Chamber he would like to commend the Board for taking steps to develop a policy statement on economic development. The Chamber hopes that the Board will acknowledge that some of the land presently zoned for industrial uses is unsuitable for Such use because of excessive slopes. The Chamber hopes the Board will consider trading some of that land for other lands, which although not presently zoned for industrial uses, have better terrain. Mr. Smith said that in 1977, Albemarle County had 1440 households with a spendable income after taxes of less than $3,000. There were 1130 households with an income between $3000 and $5000, and 1745 households with an income between $5000 and $8000. In all of these households, more than one family member ~as working He mentioned these figures becaus~'~he Chamber feels that the draft policy has conflicting goals as presently written. The policy calls for industries that will employ the currently unemployed people in Albemarle, but at the same time calls for active solicitation of industries that meet the high quality of Albemarle County. Since the labor force of Albemarle County is cbmposed mainly of unskilled labor, the Chamber feels it would be better to work toward upgrading the level of the worker. This would help find a job for the person who does not have a job and at the same time find a better job for the person who is trying to find a better lifestyle. It is very important that the policy be drafted to cover those persons "underemployed", and to provide jobs for those persons graduating from the University and local high schools who want to stay in the area. Mr. Smith mentioned that this year there will be 432 graduating seniors at Albemarle High School; 246 from Western Albemarle High School; and 365 from Charlottesville High School. There will be ~!arge number of graduates from the University and Piedmont Community College presently has 2773 in attendance. Some of these persons will have to be absorbed into the economy of the area. The Chamber hopes that from this statement of policy there will come a stimulus for the County to actively seek the types of employment opportunities that best suit Albemarle County, rather than sitting back and accepting or rejecting what is offered. Mr. Smith then offered several suggestions for changes in wording of the draft policy: Numbered Paragraph (1). Add to the end of the sentence the following words: "... and to consider those industries which will develop jobs giving an upward thrust in both skills and opportunities to those who are underemployed, encouraging the retention of our emerging youth as well as established and older citizens and the disadvantaged." Paragraph Numbered (3). Mr. Smith said rather than hamper future possibilities, delete the words "...without affecting existing zoning..." and add at the end of the sentence the following words: "... to identify and recommend zoning of sites as best suited for industrial use which by topography, access and availability of utilities will minimize the need to disturb the land, will conserve transportation fuels and will maximize the proximity of water, sewer, production fuels and power." Paragraph Numbered (4). Strike the word "only". Mr. Smith felt this phrase referred to the Economic Development Commission and he did not think the Commission should be held to an "only" situation. He felt the Commission will work to the best of its ability with the sites that have been identffied. Paragraph Numbered (5). Mr. Smith said the basic idea on speculative zoning" is probably all right, but he suggested wording for (6) to take care of this idea. Paragraph Numbered (6). Add at the end of the paragraph the followin~ s~t~- March 21, 1979 (Afternoon Meeting - Adjourned from March 15, 1979) Add a paragraph numbered (7) to read: "To cooperate in community with the City. of Charlottesville where such cooperation appears to fulfill the basic economic objectives for both." Mr. Fisher thanked Mr. Smith for his presentation and requested a written copy of his comments. The Board then began their work session on the policy. Mr. Fisher said one point Mr. Smith had made was about "underemployment" It might be well for the Board to consider the concept of "underemployment" and "unemployment". Dr. Iachetta felt the Board should address the problem of how to upgrade the skills of persons who never find employment with the kinds of industry the County would like to may encourage because of a lack of skills. Mr. Lindstrom said an upwardly mobile economy can be created, but this sometimes creates a spiral. If this spiral is created and draws people in from outside of the County, there may be lay-offs if the local economy is based on the National economy rather than on the fundamental types of Jobs that are now a part of Albemarle's economy. The trick is to identify the Job needs of the area residents. In last Sunday's issue of the Daily Progress, Mr. John Fitzwater said the number of persons presently unemployec in the County are statistically considered to be hardcore unemployed. Mr. Dorrier felt the policy should encourage industries to hire high school graduates and underemployed persons. He said there are a lot of people in the community who hold masters degrees and doctorates who have taken lower skilled jobs and he feels that these people are underemployed. Dr. Iachetta felt this situation has come about because of the transient nature of the work force. He personally is more concerned with the part of the population that does not have even minimal skills. Mr. Roudabush said the first objective of the policy does not say how the statistics on employment will be used. He suggested that these statistica~night be made available to the educational institutions in the County so they .~a~doul~~train persons for the types of available employment, and the statistics also be made available to industries wanting to locate in the County. Dr. Iachetta said Piedmont College and the Vo-Tech School have been trying to respond to this need through specialized educational programs. Mr. Lindstrom said the purpose of paragraph numbered (1) is to give the Board and those people who will be meeting with prospective industries, an idea of what is needed to fill the employment needs of the County rather than seeking an industry which cannot meet the needs of the County. Mr. Lindstrom suggested changing (1) to read: "The Board shall direct its appointees, agents and employees to determine the actual levels of unemployment and underemployment among County residents and to identify the types of employment and/or training that would meet the needs of those unemployed or underemployed." Mr. Lindstrom suggested adding a second paragraph giving the task of establishing criteria ~nd formal procedures, to whatever body it is determi~ ~d will do this job. Mr. Dorrier felt the Board should direct the County members of the Economic Development Commission to keep this data and make periodic reports to the Board. Mr. Lindstro~ said he had purposedY left this point vague because he has reservations about continuing the Economic Development Commission. Mr. Henley said Albemarle does not have a lot of employment problems. His son graduated from the University of Virginia with a degree in music and Latin, but he works on the farm. Mr. Lindstrom said he feels people choose the lifestyle they want. The question of underemployment is a different question. This paragraph ~No. i) i~ really a directive to assess the situation. Mr. Henley said that is fine, but he did not think the County should spend a lot of money studying the Situation. Mr. Fisher said there are a number of people in the County who do not meet the definition of "underemployed'" because of the seasonal nature of some jobs, but he would like to have whoever is appointed to carry out this policy match the unemployed and underemployed to new job opportunities. In Planning District 10, Albemarle County has the lowest unemployment rate and has had the lowest for a few years. Mr. Smith's ~commen~ about the large number of people below certain income figures is probabl ~ ~ ~ ~ ~ y ~~y t~e ~a~$ student population living on the grounds at the University who are included in Albemarle's census figures. State figures show that the median income of Albemarle County is below that of Charlottesville, but Charlottesville says that the large number of University students depress the median income. It is possible the median income is low, and yet there are not people available to work. Also, in working with CharlottesVille, .if the County actively promotes industrial or commercia] development in the County, it may hurt Charlottesville's economy because the two localities would be in competition for the same tax base. Dr. Iachetta said, speakin~ strictly in terms of industrial development, the City does not have the land areas required for industrial development. Retail and commercial operations are a different story. Mr. Roudab~sh felt the City would benefit from retail sales and "spin-off" service operations supporting a large industry. Mr. Lindstrom said Mr. Smith took exception to the words "existing zoning" in paragraph (3) and suggested some specific language about the type of land that should be considered for resorting. Mr. Lindstrom said he feels the reference made in that paragraph to the criteria of the Comprehensive Plan is sufficient. Although Mr. Smith stated that there is a lot of land zoned industrial that is not appropriate for that use, Mr. Lindstrom assumes the revised zoning map, in conjunction with the revised zoning ordin.ance, will take those mistakes into consideration. He is concerned that if the Board rezones land without being shown a specific need, the Board ?-ioses its ability to mee~ the goals of this policy and the phasing called for in the Comprehensive Plan. Mr. Roudabush asked how the policy could be worded to give the Board some flexibility in location of sites. (2) the words "provision of flexibility for site location". Mr. Lindstrom suggested adding to ~ paragraph Dr. Iachetta said the Comprehensive Plan gives details on the meaning of "potential industrial sites", but this policy should also set this out so a person does not have to know the Plan in order to find this information. Mr. Fisher said he received a copy of a report yesterday (Industrial Site Development Considerations for Rural Communities), conducted by V.P.I. Included in the V.P.I. report are the results of a 1973 survey conducted by the Department of Commerce of 700 businesses who were planning to expand their operations. AmonE the most important considerations for locational selection were: 1) transportation, 2) highways, 3) rail service, and 4) trained '~ *~ *~ ~v~v listed zonin~ as a critical March 21, 1979 (Afternoon Meeting - (Adjourned from March 15, 1979) Mr. Lindstrom asked if there was anyway, without actually rezoning land, that the Board can protect sites that have been identified as s~itable industrial sites from inconsistent uses. He was worried that someone might buy land and build a subdivision on one of the sites so identified. Dr. Iachetta said if an area is identified and shown in the Comprehensive Plan as a potential industrial site, there is then on record a public document that puts any potential buyer on notice that an industrial use might locate on that site at some future time. Mr. Roudabush felt this would encourage anyone whose land is identified for such use to try and have the land rezoned. Mr. Henley suggested the Board might develop some incentive like the land use tax. Mr. Dorrier said the Board had not discussed the last paragraph of the policy, which essentially says the Board will take a "hands off" attitude toward encouraging or discouraging industry. He felt this might be a mistake What happens will depend on the activity of the Economic Development Commission. There should be better communications between the Commission and the Board. Mr. Roudabush asked if Mr. Dorrier was suggesting that the Board cooperate with potential industries until they have picked a site. Mr. Dorrier said some wording needed to be added that does not commit the Board to anything, but shows that the Board will be courteous. Mr. Lindstrom said courtesy is different from becoming directly involved in negotiating and discussing specific applicants and specific industries. If there is no application before the Board, he did not think the Board should become involved in such discussions. If the Board adopts this as a public policy, Mr. Lindstrom felt it would be inappropriate for the Board to meet with individual industrial prospects. Because the time for discussion of this policy had elapsed, Mr. Roudabush offered motion to defer this agenda item to April 4, 1979, at 3:30 P.M. in the Board Room and requeste, that the Board be furnished a written copy of Mr. Smith's comments prior to that meeting. The motion was seconded by Mr. Lindstrom and carried by the following recorded vote: AYES: Messrs. Dorrier, Fisher, Henley, Iachetta, Lindstrom and Roudabush. NAYS: None. The Board recessed at 2:57 P.M. and reconvened at 3:09 P.M. Agenda Item No. 4. Tom Clausen Final Subdivision Plat Appeal. (Plat showing Tax Map 81, Parcel 18B, The Tom Clausen Property, Rivanna District, Albemarle County, drawn by Robert L. Lum, dated May 12, 1978; revised January 7, 1979.) Mr. Tucker gave the staff's report: Tom Clausen Final Plat (formerly Donald Waldron) Location: West of State Route 799 near Fluvanna County line. Zoning: A-1 Agricultural Acreage: 2.5+ acres History: A plat of this property was recorded sometime in 1974. It was later ' ' determined that the recordation was illegal and was subject to t,he Albemarle County Subdivision Ordinance and Planning Commission approval. The Building Inspections Department is holding up a building permit until approval is granted. Proposal: The applicant is requesting approval of a 2_.5+ acre subdivision for residential purposes. Staff Comment: The southeast side of this parcel coincides with the Fluvanna County line. The status of "Ridge Road" is in question as to whether it is a private road or an old County public road. This proposed division meets the requirements of the Land Subdivision and Development Ordinance and the staff recommends approval of this division with the following conditions: 1) Written Health Department approval. 2) Legal proof of the existence of an easement to this property to the satisfaction of the County Attorney. 3) Compliance with private road requirements. 4) County Engineer approval of access road from Route 799. 5) Virginia Department of Highways and Transportation approval of entrance location on Route 799. 6) Adjacent owners must include the owner of Parcel 18 on Tax Map 81. 7) Owner's notarized signature. Mr. Tucker said the Planning Commission, at its meeting on February 6, 1979, approved the plat subject to the staff's recommended conditions, but dropped No. 3. Mr. Fisher noted the following appeal had been filed: "February 9, 1979 In behalf of my clients, Nick and MarJorie Theodose and D. Cary Jackson, I want to appeal the decision of the Albemarle County Planning Commission made on February 6, 1979, in granting approval of the Tom C!ausen final subdivision plat (formerly Donald Waldron) on the grounds that my clients are aggrieved by the decision of the Planning Commission. Very truly yours, (Signed) Francis L. Buck" March 21, 1979 (A~ernoon Meeting - Adjourned from March 15, 1979) ~n HIT THE FI:IREB:lll~ INSTMJ- HR5 RCK,~I'-EDEE BEFDRE FE DRY ElF I'~tlB NICK,G. THEODOSE D.B. 46'8 p =464, 46 5 :B~ plat N 6 -559 -. ' CAR~R D.B. 78'-605 D.B. 553-294 2. 558 AC /- ./ $ ETBAC K 20' O0"W 64.00 ' $4 e 34' 56"W 81. 2 S 26° 1:5'00"W 107.00 ' STONE 17 o 09'48" W 61,50' I / /., /I %N \ PLP.4NINr- DESIGNATED AGENT 5 2 o 50' 26"-W 155.96 ' "W S 49° 08' 14 g5.12 ' S 45° 43' 12 W 112.40' $ 41° 22'00"W 94. O0 ' ALL LAND zONED A-I. GUISEPPE 'a BETTY D~B. 108 '-10,4 ALBEMARL5 CO. / LOUISA CO.' I~[IIT L CERTIFICATE No. LAND 600 I! -- TRX HRP B! PRRCEL IF:Et Lb 5;. NRLDRE]N I:LBEMRRLE CD~, V IRE ! N I R !1~! FEET PRBPERTY V' IRE INIR March 21, 1979 (Afternoon Meeting- Adjourned from March 15 1979) Mr. Buck noted that adjoining property owners, the Howell's and Roebuck's are also opposed to this subdivision, although he does not represent them. His clients appealed the Planning Commission's decision because this parcel is located on a very rough, dirt road of only eight to ten feet in width which also serves four or five other tracts of land; all parcels being 15 to 20 acres or greater in size. Th~a~O~g owners do not feel they should have the burden of an additional use that is incompatible (acreage being only 2.5) or the alternative which was presented by the Planning Commission, of entering into a private road maintenance agreement to meet the needs of Mr. Clausen and any future subdivision which might occur on this road. Mr. Buck said the argument was made at the Planning Commission hearing that this is a hardship case for the Clausen,~.. He feels the hardship is on the adjoining property owners. When an attempt was made to subdivide the property in 1974, Mr. Buck contacted the Planning Office. On October 22, 1974, Mrs. Mary Joy Scala advised the attorney for the Anconas/i (who sold and subdivided the property), that it was not a legal subdivision and could not be subdivided until approved by the Planning Commission. Mr. Buck said he was also advised that his clients were protected. When it was learned last summer that the property might be subdivided and sold to the Clausenm~ Mrs. Scala advised in writing that: "I spoke to Fred Payne, Deputy County Attorney, regarding the status of this subdivision He stated he felt the prospective purchasers would be protected by a title search. He also said I should inform the Building Inspections Department again that this particular property has never received subdivision approval and they should not issue a building permit." Mr. Buck said both the Waltons~ and the Anconas were given notice several years ago that this subdivision was in violation, so they should not now be claiming a bad situation and asking for relief. Of particular concern is the fact that another person has expressed an interest in subdividing and putting rental units on the tract of land at the end of this dirt road. Mr. Buck said there have been two lawsuits to establish whether this dirt roadway is a public road, a prescriptive easement, or simply a trespasS. There has never been a judicial determination on this question. The road goes through the Theodose property and they have no objections to its present usage. As showm on the plat drawn by Robert L. Lum, at one time there was a roadway across the Ancona parcel (Ridge Road) to the Theodose parcel that served a l~t of people. It has never been determined that this road was ever a part of the public highway system, and no plat has ever been found which shows that the road ever went through the Theodose property. The only reference to the road that goes through the Theodose property was made about 1~70. When the Theodoses~ bought this property, there was no use of this road by any other person. They did not realize they were buying property that would be faced w~th the problem of future development. Mr. Buck said since there are six separate parcels that front on this roadway, the County's Private Road Ordinance requires that there be a I4-foot wide roadway. At the present the road is from eight to ten feet in width. To compl~ywith this requirement would encroach further on surrounding properties. For all of these reasons, Mr. Buck asked that the Board reverse the decision of the Planning Commission in approving this plat. Mr. Theodose said if this is a public road, there are only 300 yards of it left. To his knowledge, and he has lived here since 1955, only a few farmers have used the road to take cattle back to the undeveloped 70-acre parcel. The rest of the road is completely gone. Mr. Cary Jackson said he sold the Theodose~, their property. Aside from the difficulties with the road, the subdivision proposed by the ClausenS~ is not compatible with the other land uses in the area. Mr. Fisher said a plat drawn by Kurt Gloeckner shows a road going all the wayl from State Route 799 to Interstate 64 labeled "Ridge Road". He asked if there is legal access to Mr. Clausen's parcel across the Theodose property. Mr. Buck said there is nothing of record. There have been two lawsuits, but the most recent lawsuit was settled when Mr. Theodose sold Mr. Howell an easement across his property. The only basis for saying there is a prescriptive easement is by virtue~of the fact that this may have been a public road which was never brought into the State system in 1932. The plat drawn by Mrs. Gloeckner was done for purposes of litigation to simply show where Ridge Road might have been located. The plat has never been put to record to establish anybody's legal title. Mr. Fisher said for purposes of the record, the plat drawn by Mr. Gloeckner is dated November 12, 1975, and is a plat purporting to show a survey of Ridge Road. Mr. Clausen was present with his attorney Mr. Paul Peatross. Mr. Peatross said he could not understand Mr. Buck's legal objection to this subdivision. Condition No. 2 imposed by the Planning Commission requires Mr. Clausen to furnish legal proof of an easement to the satisfaction of the County Attorney. Without that proof, there is no subdivision. Mr. Clausen is willing to abide by all six conditions imposed by the Planning Commission. Also, Mr. Clausen is willing to enter into a private road maintenance agreement, but the other property owners refuse. It is not a question of hardship, but it is impossibie to have a private road maintenance agreement. Mr. Peatross then reviewed the history of this parcel. It originally was part of a tract and it was sold to the Anconas~ by the WeakleyS'? in 1973. The majority of the parcel. rests in Fluvanna County. The 2.61 acres rest in Albemarle County. The Anconas~ sold the 2.61 acres in question to the Waldrons~~ in 1974 and then the Waldrons~ sold it to the Clausens~ in June, 1978. The remainder of that 33-acre tract, which was subdivided off of the 2.61 acres and which lies partially in Albemarle County, never came before the Planning Commission for approval as a subdivision. No question was ever raised about that being a lawful subdivis When the Waldrons owned the property, their attorney, Mr. John Dezio, checked to see if they could get a building permit and wrote the WaldronsV'-~saying: "There is no reason, according to the County Planner, why a building permit could not be issued." Mr. Clausen purchased the property in June, 1978. He talked to the Zoning Administrator and did obtain a building permit on December 13, 1978. He proceeded to prepare the land for building. Then, on January 3, 1979, he was called and told to stop building, the County was going to withdraw the building permit because he did not have the proper approvals. At that point, he stopped building and came before the Planning Commission to get the subdivision approved. Mr. Peatros said he did not understand the objections. Mr. Buck's clients are simply saying they do not want another house built in the area, but Mr. Clausen can, by right, build a house on a two- acre parcel. Mr. Clausen is March 21, 1979 (Afternoon Meeting- Adjourned from March 15,1979) There is no way to enter into a private road maintenance agreement because the other property owners are unwilling to do so. Mr. Peatross said he did not think there was any hardship for his client to prove and asked that this subdivision plat be approved as approved by the Planning Commission. Mr. Roudabush asked if Mr. Theodose owns property on both sides of "Ridge Road" Mr. Buck said yes; the road cuts through his property and very close to his house. Mr. Lindstrom asked how this parcel of land was created. Mr. Peatross said the Ancona ~ brought the 33-acre tract, sold 2.61 acres to Mr. Waldron, and the other parcel to other parties, eventually being owned by the Roebuck's. Mr. Buck said the HowellS~ and the Roebuck property lies about 99% in Fluvanna County and that is why these parcels were not presented to the Albemarle County Planning Commission. Dr. Iachetta said from looking at Mr. Gloeckner's plat, it appears that the entrance to this road~is not on the land owned by either Mr. Theodose or Mr. Clausen. Mr. Buck said he believes it is on property owned by Mr. Dabney. Dr. Iachetta asked how Condition No. 4 could be imposed when the applicant does not own the land at the entrance to this road. Mr. Fisher said it appears that Mr. Clausen owns a parcel of land that meets zoning requirements for a dwelling unit in Albemarle County. There should be some mechanism that would allow him the use of that parcel. Mr. Peatross said his client is willing to show the County Attorney that he has a legal right of way over the Theodose property. Mr. Roudabush asked why the Court had never decided this question. Mr. Peatross said the Court has never heard this question on its merits; the cases have been non-suited and settled. Mr. St. John said he could not make any ruling that would bind Mr. Theodose. If the Board approves this plat, with the conditions of the Planning Commission, Mr. Theodose would still have the option of going to Court and having the road ,closed. Mr. St. John said the question of a right of way, or no right of way, is not before the Board. This Board has no power to rule on such a question. There is an anomaly here in that the whole subdivision was put to record illegally. This opinion was given by the County Attorney's Office to the Planning staff several times, but a building permit was issued; ostensibly (although there are no facts to prove this statement) because the applicant took Mr. Dezio's letter to the Zoning Administrato~ and asked for a building permit. Mr. Roudabush said he is reluctant to approve a subdvision where the only access is across land belonging to another person and that second party has to prove that no right of way exists. In this case, the burden of proof is falling on the wrong person. He felt Mr. Clausen should prove to the Planning Commission that he has right of way to his property which is acceptable under existing County ordinances and then return for approval of the subdivision. Mr. Henley felt this question should be before a court and not before the Board. Mr. Lindstrom suggested that the Board deny the subdivision until the question of right of way is clarified. Mr. Peatross said his client can show the County Attorney proof that he has a legal right of way. If the Board deals only with the lawful request for a subdivision, Mr. Theodose can seek an injunction to stop use of the road if he so chooses. Mr. Fisher said the Board has seen no such proof. Mr. Peatross reiterated that his client has title insurance insuring the property and the right of way. Mr. Clausen is willing to submit this to the County Attorney. Mr. St. John ~aid if the Board looked at such evidence, they would have to let the objectors present all the evidence they had, and the Board would be trying a right of way case. Mr. Lindstrom said that is a question for the judiciary. Mr. Dorrier felt that instead of trying the Guestion of right of way, the Board should not approve the subdivision. Mr. Lindstrom then offered motion to deny the approval of the subdivision granted by the Planning Commission on February 6, 1979, based on the facts presented at this meeting. The motion was seconded by Mr. Roudabush. Mr. Henley said he would not support the motion because nobody has presented any facts that Mr. Clausen does not have a right of way. The motion carried by the following recorded vote: AYES: NAYS: Messrs. Dorrier, Fisher, Iachetta, Lindstrom and Roudabush. Mr. Henley. Agenda Item No. 5. Pine Run Plat Appeal. (Subdivision Plat of Lots 9 - 12, Pine Run, Rivanna District, Albemarle County, Virginia, drawn by Wm. Morris Foster, dated January 19, 1979, revised February 6, 1979.) Ms. Mason Caperton, Planner, gave the staff'e report: "LoCat'ion: South off Route 759 just east of Route 616 ~c~eage: 10.435 acres Zoning: A-1 History: Lots 1 - 8 were approved on March 22, 1976 Staff Comment: Staff recommends approval subject to conditions. Eeco~me~de'd 'CO'~ditions of 'Approval: 1. Health Department approval. 2. Comply with private road ordinance including: ga) County Engineer approval; (b) Maintenance agreement. 3. Comply with Virginia Department of Highways and Transportation recommendation to make frontage improvements placing the shoulder Break point at 15 feet and the ditch at 18 feet from the center of the road. Ms. Caperton said~ the Planning Commission, at their meeting on February 20, 1979, gave conditional approval to this plat, subject to the conditions recommended by the Staff. 218 Mr. Fisher noted the following letter had. been received noting this appeal: "February 26, 1979 Mr. Robert W. Tucker, Jr. Designated Agent Board~of Supervisors County of Albemarle Charlottesville, Virginia Dear Mr. Tucker: March 21, 1979 (Afternoon Meeting - Adjourned from March 15, 1979~)~ As the representative of the owners of the proposed Lots 9-12 "Pine Run"; I wish to appeal the decision of the Planning Commission regarding the conditions of approval of the plat of Lots 9-12, "Pine Run". The condition being appealedai~h~i~rginia Department ~f Highways and Transportation recommendation for frontage improvements placing the shoulder break at 15 feet and the ditch at 18 feet from the centerline of the road. It would be greatly appreciated if you would submit this plat to the Board of Supervisors for their review at the earliest meeting possible. Sincerely yours, (Signed) W. Morris Foster" Mr. Foster was present. He said no other conditions imposed by the Planning Commission were of concern but No. 3. Mr. Gordon Wheeler, agent in the sale of the property, was also present. Mr. Wheeler said that Route ?59 is a gravel road of only about one mile in length. This condition would mean improving a section of t000 feet in length in the middle of that one mile length, at a cost of about $5,000. Mr. Wheeler did not believe the Highway Department will make any improvements to Route 759 in the next ten years and this is the wrong way to go about upgrading County roads. Subdivision has already occurred further down this road and this same condition was not imposed on that property owner. He also felt that a spot improve- ment such as this would be a safety hazard. The owners of this property are poor people and if they have to sell the property as one parcel they will get a lesser price. He asked the Board, for the sake of the property owners, to drop this condition. Mr. Kendrick Dure asked if there had been a determination made that there would be a substantial increase in traffic on Route 759 as required by Section 18-39(o) of the Subdivisio Ordinance. Mr. Fisher said he did not know if the Planning Commission had made such a ~. determination. Mrs. Frances Hederick, one of the owners of the parcel in question, Said they want to sell this land so they can pay for her mother's home. Across the road from this land there have been about 40 homes built and none of the other developers were required to do anything to the road. Mr. Fisher asked for the traffic counts on Route 759. Br. Dan Roosevelt, Resident Highway Engineer, said in 1976 there were 76 vehicle trips per day, and in 1978, there were 99 vehicle trips per day. Mr. Fisher said at the Annual Road Hearing, the Board received many complaints from citizens that their road was fine until additional development took place. Mr. Fisher asked that the Board proceed with hearing Agenda Items No. 7, 8 and 9 before taking action on any particular one, since the appeals are similar. Agenda Item No. 7. Harry L. Wise Final Plat Appeal. (Plat showing Lots 1, 2, 3, & 4 - a division of Tract "A" owned by Harry L. and Elizabeth A. Wise, Samuel Miller District, ~ Albemarle County, Virginia, drawn by Wm. Morris Foster, dated January 5, 1979.) On the west side of Route 678 south of Decca (near Meriwether Lewis Elementary School). Acreage: 8 acres Zonin.~: A-1 Agricultural Proposal: To divide four parcels of 2+ acres each~to have access from State Route 678 and to be served by private wells and septic facilities. Staff Comment: The plat would meet all the requirements of the Land Subdivision and Development Ordinance and Staff recommends approval provided that the following conditions are met: Recommended Conditions of Approval: 1. Maintenance agreement between Lots 1 and 3 for the 30-foot joint driveway easement to be approved by the County Attorney. 2. County Engineer approval of ~0-foot joint~ driveway easement. 3. Virginia Department of Highways and Transportation approval of private entrance locations for Lots 2 and 4 and frontage improvements. 4. Written Health Department approval. 5. Waiver of Section 18-36(d) of the Subdivision Ordinance." "Location: Ms. Caperton said, the~Planning Commission, at its meeting on February 27, 1979, gave conditional approval to this plat, with the Staff's recommended conditions, but changing No. 3 to read: "Virginia Department of Highways and Transportation approval of private entrance locations for Lots 2 and 4 and frontage improvements, as recommended in their letter of February 8, 1979, and a waiver of the tree requirements." The Planning Commission also added Condition No. 6 reading: "Show 75-foot setback from Route 678." Mr. Fisher read the following recommendation from a Highway Department letter dated January 8, 1979: "The area indicated is adequate for private entrances. Adequate sight March 21, 1979 (Afternoon Meeting - Adjourned from March 15, 1979) distance exists. We recommend that' frontage improvements of the property be required by placing the shoulder break point at 15 feet from the centerline of the existing road, ditch at 18 feet." Mr. Kendrick Dure noted that he had filed the following letter appealing the Planning Commission's decision: "March 2, 1979 Reference is made to Action Letter dated March 1, 1979, signed by N. Mason Caperton, a copy of which is hereto attached. Please be advised that Harry L. Wise and wife hereby, by me, as their attorney, request an Appeal to the County Board of Supervisors with respect tO Condition No. 3 as set forth in the letter referred to above, in so far as said Condition No. 3 relates to State road frontage improvements. In short, we hereby ask for Board of Supervisors review of the road frontage improvement requirement noted in the Highway Department letter dated February 8, 1979, copy also attached." Mr. Dure then referred to a letter he had written t'o Mr. St. John: "20 March, 1979 George R. St. John, Esq. Attorney for the County of Albemarle 416 Park Street Charlottesville, Virginia Re: Offsite highway improvements recommended by Highway Dept. Dear George: As I stated at the last Board of Supervisors meeting on March 14, 1979, I feel there are serious constitutional problems with the recent "across-the-board" Highway Department recommendation pertaining to subdivision off~site road improvements which generally provides as follows: We recommend that frontage improvements of the property be required by placing the shoulder break point at 15 feet from centerline of the existing road (center of the) ditch at 18 feet. Reference is made to Attorney General Opinion to Spotsylvania County Attorney dated June 1, 1976 wherein it was opined that Virginia Code Section 15.1-466 "adequately support(s)" a county subdivision ordinance virtually identical to Albemarle County Code Section 18-39(o). It is my understanding that said County Code section is the source of authority for Planning Commission imple- mentation of the above-quoted Highway Department recommendation. This being the case, there must be a determination that there will be an "increase in traffic which may reasonably be expected to result from the development of such subdivision" and a finding that a proposed subdivision's "roads will be inadequate" for such increase in traffic. The Highway Department has stated to me personally and to the press that this road frontage recommendation stems from a request by the Board of Supervisors and an effort by them to find alternative means to stretch County tax dollars for improvement of secondary County roads. Reference is made to Board of Supervisors v. Rowe, 216 Va. 128 (1975) wherein the Court states at page 138: The precise question before us is whether a local governing body has the power 'to enact a zoning ordinance that requires individual landowners, as a condition to the right to develop their parcels, to dedicate a portion of their fee for the purpose of providing a road, the need for which is substantially generated by public traffic demands rather than by the proposed development. Our enabling statutes delegate no such power. The Court then cites Article I, Section 11 of the Constitution of Virginia stating the prohibition of taking private property for public use without just compensation. The Court held invalid the dedication requirement at issue. It is my opinion that the imposition of off-site road frontage improvement requirements based on the need to stretch tax dollars to provide for greater overall road improvement and bearing no direct relation to the traffic impact of the specific individual subdivisions involved, is unconstitutional under the Rowe decision and the Constitution of the Commonwealth. Lastly, should such off-site requirements be deemed tax assessments, de facto or constructive, they would be by implication contrary to Sect±on 15.~-J-4~-~-~ and Section 15.1-1239 ~.~. seq. of the Code of Virginia. For reference purposes, I am representing Mr. and Mrs. Harry L. Wise on an appeal of the above-referenced requirement pertaining to their proposed eight- acre subdivision on State Route 678. Your due consideration will be appreciated. Very truly yours, March 2l, 1979 (Afternoon Meeting - Adjourned from March 15, 1979) Mr. Dure said he understands that the frontage improvements being imposed on this plat are from Section 18-39(o) of the County Code. This section provides that a finding be made that the road is inadequate and there will be an increase in traffic from the development of Mr. Wise's property. He did not believe there has been a finding that the traffic from this subdivison will necessitate these road improvements. He referred the Board to the oPinion in the Rowe case and generally went over the points in his letter to Mr. St. John. Mr. Dure ther showed to the Board photographs of the property in question to bring out his point that this requirement is unreasonable for this subdivison. He said that grading 15 feet from the centerline of the road, and putting the center of ditch at 18 feet, will take a 21 foot improvement on an~ existing 30-foot right of way. This improvement will require the felling of about 80 hardwood trees along the road. It will also require moving 27,500 square feet of earth because of the severe banks along the road. In fact, the road would have to be graded back about 30 additional feet in order to have a slope down to the ditch. Also, if the State ever straightens this road, it will make most of these improvements meaningless. To improve this short stretch of road leading into the hairpin curve at the end of Lot 4, is not wise because it will be an invitation for people to speed through the improved area. These ~, requirements are unrealistic for a four-lot subdivison on a road of this nature. It might be found by the court to be confiscatory if the requirements are so stringent that they deny the owner the use of his property.. The Planning Commission waived tree requirements in this case since when trees are taken down on the State right of way, they must be labeled as to species and replaced on site or funds put into a tree escrow fund so they can replaced at another location. Mr. Fisher said he did not know about this requirement for replacement of trees. He the~ -asked the Highway Engineer, Mr. Dan Roosevelt, to give the traffic counts for Route 678. Mr. Roosevelt said, in 1976 there were 58 vehicle trips per day; in 1978 there were 72. If the Highway Department's standard of seven vehicle trips per day is applied to these four lots, the traffic count would be over 100. Mr. Roosevelt said, in thinking about the way the Department normally improves a gravel road, he thinks the road would be improved along the existing centerline to a point about 75 feet from the southern property line of Lot 4. The last 75 feet would not fit in with the future improvement of the road because of the curve. The "tree" policy referred to by Mr. Pure is used when the Department already owns right of way and a developer is not required to dedicate additional right of way, but wants to make frontage improvements along the existing right of way and this improvement requires the takin of trees. Referring to the plat before the Board, Mr. Roosevelt said at least 10 feet of right of way is being dedicated as the result of this subdivision. Since the Highway Depart- ment has requested these improvements, the Department will not further burden the developer with replacement of trees. Mr. Roosevelt said it is his impression that Mr. Dure is saying that the Highway Depatment and the County came up with a scheme that may or may not be legal to get developers to build roads. These recommendations for frontage improvements came about by the County changing its ordinances to require off-site improvements. The Highway Department feels that any development along a highway, no matter what size the development, warrants minimum improvements to the frontage on a State road. Mr. Dorrier said that may not be economically feasible for this property owner. Mr. Roosevelt said that is a decision for the governing body. Dr. Iachetta asked if it is not a question of the subdivision itself necessitating the improvements. Mr. Roosevelt said in each of these cases, the road does not meet tolerable road standards. The Highway Department can see that further development will make the road even more intolerable. If the cost of these minimum improvements is pro- rated against the greater cost of a total improvement project, it can be see that the cost is not that great. Agenda Item No. 8. John Gibbs Preliminary Plat Appeal. (Plat showing 17 lots situated on State Route 618, Albemarle County, Virginia, Tax Map Sheet 105, Parcel 20C, drawn by B. Aubrey Huffman & Associates, Ltd., dated January 9, 1979.) Ms. Caperton gave the staff's report: "Location: On State Route 618 west of Route 53 near Fluvanna County kcreage: 48.5 acres Zoning: A-1 Agricultural Proposal: For 17 residential lots with an average size of 2.8 acres Staff Comment: The plat would meet the requirements of the Land Subdivision and Development Ordinance and the Staff recommends approval pro- vided the following conditions are met: Recommended Conditions of Approval: l) Written Health Department approval. 2) Provide written and signed statement regarding improvements required of the developer (Section 18-52(m) of the Ordinance). 3) Virginia Department of Highways and Transportation approval of frontage improvement's. Ms. Caperton said, the Planning Commission, at its meeting on February 27, 1979, gave conditional approval to this plat subject to Conditions 1 and 2 as recommended by the Staff, but changing Condition No. 3 to read: "Virginia Department of Highways and Transportation approval of frontage improvements as recommended in their letter of February 8, 1979, with a waiver of the tree requirements." The Planning Commission also add ed Condition No. 4 reading: "Note on the plat that iots 14 - 17 shall have no access on the private or CCC road." Mr. Fisher noted receipt of a letter dated March 8, 1979, from George M. Coles, Jr., appealing the decision of the Planning Commission on this plat. "This will serve as notice of Mr. Gibbs' intention .to appeal the approval of his two requests for subdivision of property located on State Routes 618 and 729 respectively. Specifically, Mr. Gibbs objects to the conditions numbered 2 and 3 respectively on the attached letters requiring him to make certain frontal ~t~provements suggested by the State Highway Department." March 21, 1979 (Afternoon Meeting - Adjourned from March 15, 1979) Mr. Coles referred to his letter of March 20, 1979, addressed to George R. St. John, County Attorney: "I am writing on behalf of my client, John W. Qibbs, Jr., to protest the requirement that he make certain frontage improvements to existing public roads as a condition of approval of his subdivision on State Routes 618 and 729. This action has been taken pursuant to Section 18-39(o) of the County Subdivision Ordinance allowing the Planning Commission to require improve- menv of public streets prior to approval of a subdivision plat where they find the subdivision traffic will result in the existing roads being made inadequate. My research has convinc~ed me this ordinance is illegal and in violation of the provisions of the Virginia Constitution. Article 1, Section 11 of the Constitution prohibits "any law whereby private property shall be taken or damaged for public uses, without Just compensation." The Virginia Supreme Court has decided that the money necessary to fund the performance of such requirements is property within the meaning of this section of the Constitution. Board of Supervisors v. Rowe 216 Va.128. Some commentators have attempted to limit the holding of this case to the situation where such requirements are imposed by zoning law without regard to the necessity of such requirements. See articles in 9 Richmond Law Review 435 and 10 Richmond Law Review 440. I can see no such distinctions either in the Constitution or in the language of the Court in Rowe. Further, we believe the ordinance as now drafted amounts to a disguised special assessment in violation of the constitutional restrictions on such taxes. It is specifically provided that while the General Assembly may authorize the taxation or assessment of local property owners for abutting local public improvements, such assessments may not be in excess of the peculiar benefits resulting from the improvements to such abutting property owners. Virginia Constitution Article I, Section 3. The County Ordinance assesses property not on the basis of the benefit accruing to the property but on the chance happening that a particular property owner's subdivision creates the necessity for such improvement. In such case, the landowner is required to make improvements that benefit all who employ the road and require an expenditure far in excess of the peculiar benefit to his land. By phrasin~ this tax as a condition of subdivision, the County has attempted to evade these constitutional limitations and the specific procedures by which special assessments may be made. See Va. Code Section 15.1-239 et seq. However, we insist this law must be examined in terms of its substance and not its form; in this light it is a tax, and nothing else, that attempts to shift the County's burden of maintaining the existing road system onto the private citizens. We urge you to make your own consideration on this ordinance and we will, of course, appreciate any response you may have to our position. We ask only that you keep in mind the basic principle that "the responsibility for building and maintaining County and district roads is on the board of supervisors, not on the individual citizen or the Courts. Michie's, Vol. 18, Taxation, Section 7, p. 122." Mr. Coles said the letter makes two points: 1) Is the CounTy's ordinance valid as it reads? and 2) Is the ordinance as it be being construed, legal? It appears that the ordinanc is being construed to read that if the Highway Department wants improvements, these improvemen' are required. He insisted that the ordinance does not read that way. The question that the Board should consider is, will the road will be inadequate after the subdivision is completed? Mr. Roosevelt has not made such a finding. In every case before the Board today, the roads are already inadequate. Mr. Coles said where the roads are already inadequate, he does not feel this ordinance can be imposed. Mr. Coles asked the definition of "inadequate" as applied in this case. He did not think the Highway Department has proved~that after construction of this subdivison the road will be inadequate. It also does not make sense to improve a 4000- . foot section on a five-mile unimproved road when the Highway Department will be making improve~ ments to this road in the future. Mr. Fisher asked Mr. Roosevelt for traffic counts on Route 618. Mr. Roosevelt said there were 57 vehicle trips per day in 19Z6 and 80 vehicle trips per day in 19?8. Multiplying 17 lots by the Highway Department's figure of seven vehicle trips per day would make a total of 119. Mr. Fisher asked if Route 618 is in a tolerable condition. Mr. Roosevelt said in order to meet a tolerable standard the road would have to have a 16-foot paved surface. This road is no more than 22 feet from ditch to ditch. This section of Route 618 (near the Fluvanna County line) was brought to the Board's attention at the Annual Road Hearing last week as being in need of improvements. Agenda Item No. 9. John Gibbs Final Plat Appeal. (Plat showing division of Parcel 20D on Sheet 105, County Tax Map, Albemarle County, Virginia, drawn by B. Aubrey Huffman & Associates, Ltd., dated January 15, 1979.) Ms. Caperton gave the staff's report: "Location: Acreage: Zoning: Proposal: On the north side of Route 729 near Fluvanna CounTy 10+ acres A-1 Agricultural For five residential lots of approximately 2+ acres each to be served by individual wells and septic facilities and to have March 21, 1979 (Afternoon Meeting - Adjourned from March 15, 1979) 3) Shared entrances be located, where possible, subject to the approval of the Virginia Departments of Highways and Transportation. 4) The road dedication on the plat be shown as stated in Virginia Department of Highways and Transportation letter of~February 8, 1979. Ms. Caperton said, the Planning Commission, at its meetin~ on February 27, 1979, gave conditional approval to this plat, subject to the Planning Staff's recommended conditions, but adding the words "with a waiver of the tree requirements" to Condition No. 2. Mr. Fisher referred to the letter from the Highway Department dated February 8, 1979: "John Gibbs Final Plat~ Route 729: Route 729 has been staked to obtain right of way for a proposed improvement in the future. Ail of the property owners along these roads have signed Daeds of Dedication which are at this time being placed in line for recordation, The plat shown does not reflect the limits of that right of way which has been agreed to be dedicated at this time. At the common corner of Lot B and C proposed, the right of way is into the property farther with no additional right of way needed in the area of corner A and B. Adequate sight distances exist for private entrances. We would recommend that frontage improvements placing the shoulder break point at 15 feet and the bottom of the ditch at 18 feet from the center!ine be required across Lots E and D. However, due to the change in alignment this widening should not continue across Lots C, B or A." Mr. Roosevelt said the Highway Department's letter refers to right of way which has been dedicated so the plat will accurately reflect that dedication. He then gave the following traffic counts: in 1976 there were 78 vehicle trips per day, and in 1978, there were 90 vehicle trips per day. This road has a 16-foot graveled surface and is only 20 feet from ditch to ditch. Mr. Coles said he had the same questions about constitutionality as on the last plat. Also there is a hardship involved because 400 feet of frontage improvements are being required for these five lots. Since Mr. Roosevelt has already said that this road is inadequate, he does not believe the Board can impose this requirement. Mr. James Wooten, attorney for the applicant on Agenda Item No. 6, asked why their appeal was not being considered with the other plat appeals. He felt their plat was being singled out for separate treatment. Mr. Fisher noted that the Board had already spent several hours discussing the Blue Ridge Estates Plat and he understood the implications of hearing this petition separately. He also noted that Mr. Roudabush cannot participate in the discussion of Blue Ridge Estates. Mr. Gibbs was present and said he understands the concern of the Planning Commission and the Board is with health and safety. He noted that if any of the property owners before the Board today were subdividing their properties into tracts of five acres or larger, these owners would not be subject to approval by this Board and would not be assessed any road improvements. He does not believe this piecemeal improvement of one-half of one side of the road will achieve anything for health or safety reasons. He also did not believe that money spent to improve a road in this way will serve any useful purpose, Mr. Roosevelt said he would take exception to Mr. Gibbs statement. He feels that widenin a road along the frontage of the property will be an improvement even recognizing that on each end of the property, the road will narrow back to 18 feet from ditch to ditch. Mr. Roosevelt said he had previously indicated that an added advantage to these frontage improvements is that any future improvement of the roadway will not affect the grading which has already been completed. Mr. Fisher then asked the County Attorney about the legal questions raised. Mr. St. John said he had no substantial disagreement with the law as stated by these attorneys. The County Attorney's Office advised the Board at the time the County's Ordinance was adopted that there is a justiciable question on the constitutionality of the Ordinance itself; this question havi] g never been decided by the State Supreme Court. Mr. St. John said there is an Attorney. General s opinion saying that an ordinance in Spotsylvania County, exactly in the same terms as Albemarl. County's ordinance is valid. This same opinion says that while construction can be required in a given set of facts, a fee for escrow money for general improvements cannot be required. The keystone in the Rowe case is that there must be a factual finding that the need for the improvements will be uniquely and specifically generated by the development in question. If the Board has made such a finding, and that finding is based on provable facts, the imposition of these requirements to both subdivisions and site plans, is supportable in court. Mr. Coles asked if Mr. St. John would agree that where the Highway Department says the road is already inadequate, this is a finding that the subdivision will create the need for these improvements. Mr. St. John said if the need is rationally related to the public safety and well being; if the-need is generated by the particular development; and if the need is substantially-fulfilled by the requirements, the Board is within the allowable limits of the law in making these requirements. Mr. Dorrier said these roads are already in need of improvements. These developments will not help, but they will not substantially generate the public traffic that will require the improvement. He said the whole question hinges on the word "substantially . Mr. Lindstrom said the facts presented indicate that there will be an increase in traffic directly in front of the development, therefore application of the ordinance is warranted. Mr. Fisher said based on Highway Department calculations, for the Pine Run Subdivision there will be an increase of 28%;.[ for the Harry Wise plat, there will be an increase of 39%; for the Gibbs preliminary plat, there will be a 149% increase; and for the Gibbs final plat, there will be a 39% increase. Ail four roads are designated by the Highway Department as non- tolerable and it does not make sense to permit development (no matter what size) on roads in that condition without requiring some improvements. The people who will live in these new March 21, 1979 (Afternoon Meeting - Adjourned from March 15, 1979) subdivisions will benefit from the improved road and he feels it is reasonable to uphold the Planning Commission's recommendation. Mr. Henley said he feels the Board has enough evidence to justify applying the ordinance to these subdivisions. Dr. Iachetta said the roads being discussed are roads that basically serve the people living on those roads, as opposed to major highways which serve through traffic. He has no trouble with requiring improvements on parcels where the improvements will benefit the owners of those parcels and he also-feels that these improvements will help the safety aspects of the roads. Mr. Dorrier said there is a distinction between improvements on-site and those off-site. He has trouble supporting off-site improvements, but will support the Highway Department's recommendations in these cases. Mr. Dorrier said he was sympathetic ~to Mr. Dure's statement about removing trees, banks and other things because he feels that when such things are required, it prices land "out of the reach" of the average citizen. In making a decision such as this, the Board is doing something that has a direct affect on the cost of housing, but safety does come first. Mr. Roudabus~ said he is familiar with both Route 618 and Route 729. He agrees that~both are inadequate and in need of improvement, but this method of making improvements has not been uniformly applied. Some roads have more burden to bear than others and he cannot support putting the burden entirely on the property owners. Mr. Roudabush said he hopes the Board will, in the near future, look at a policy which can be uniformly applied. The Board having heard these plat appeals, b~gan the vote as follows: Agenda Item No. 5. Pine Run Plat Appeal. Mr. Roudabush offered motion that the Planning Commission's requirement with respect to Condition No. 3 be overruled There 'was no second to this motion. ' Motion was then offered by Mr. Henley to concur with the action of the Planning Commissio on February 20, 1979, in approving this plat. The motion was seconded by Mr. Lindstrom and carried by the following recorded vote: AYES: Messrs. Dorrier, Fisher, Henley, Iachetta and Lindstrom NAYS: Mr. Roudabush. ' Agenda Item No. 7. Harry Wise Final Plat Appeal. Mr. Lindstrom offered motion to concur with the action of the Planning Commission on February 27, 1979, in approving this plat. The motion was seconded by Mr. Dottier who then asked if the requirement that the shoulder break point be placed at 15 feet from the centerline and the ditch at 18 feet meant that the trees and banks, shown in~ the pictures earlier in the meeting, would be substantially moved. Mr. Roosevelt said the road is currently about 18 feet from ditch to ditch. The new ditch will be 18 feet from the centerline of the existing road. This will take an additional nine feet on that side of the road with a foot or so down to the bottom of the ditch and then a one-to one- and-one-half slope back to the adjacent property. Mr. Lindstrom said the Highway Department has recently recommended full frontage development, but it was stated today that because of the realignment that might be required on the curve just past Lot 4, that the H~ghway Departme~ t would not recommend improvement immediately prior to the entrance to that curve. Mr. Lindstr~ said he did not know at what point the Highway Department would recommend termination of the improvement. Mr. Roosevelt said the Highway Department will have to determine the future alignment of Route 678. Words to the effect that the ditchline will be placed along the future alignment will be sufficient. Mr. Lindstrom then amended his motion to concur with action of the Planning Commission on February 2Z, 1979, in approving this plat, but changing Condition No. 3 to read: "Virginia Department of Highways and Transportation approval of private entrance locations for lots 2 and 4 and frontage improvements." The amended motion was seconded by Dr. Iachetta. Mr. Dorrier said he had some trouble voting for the motion because it will be a lot of expense for just four lots, but if the Board does not make these requirements for safety reasons, there will be trouble in future years. The motion carried by the following recorded vote: AYES: Messrs. Dottier, Fisher, Henley, Iachetta and Lindstrom NAYS- Mr. Roudabush. · Agenda Item No. 8. John Gibbs Preliminary Plat Appeal~ Mr. Coles asked the County Attorney if the applicant could withdraw both the plat and the plat appeal at this time. Mr. Roudabush said the plat is not approved until all conditions are met. Mr. St. John .said recording the plat is the actual act of subdivision. Mr. Gibbs said he does not wish to be stopped from coming back to the Planning Commission aft.er other remedies have be~n exhausted. Mr. St. John said the act of noting an appeal does not wipe out what the Planning Commission has done. -Motion was then offered by Mr. Henley to concur with the action of the Planning Commission Onfollowing recorded February vote: 27', 1979. The motion was seconded~ by Mr. Lindstrom and carried by the AYES: NAYS: Messrs. Dorrier, Fisher, Henley, Iachetta and Lindstrom Mr. Roudabush. · Agenda Item No. 9. Jo~hn Gibbs Final ~lat Appeal. Mr. Lindstrom offered motion to concur w~th the action of the Planning Commission on February 27, 1979. The motion was seconded by Dr. Iachetta and carried by the following recorded vote: AYES: Messrs. Dorrier, Fisher, Henley, Iachetta and Lindstrom 224 March 21, 1979 (Afternoon Meeting - Adjourned from March 15, 1979) Agenda Item No. 6. Blue Ridge Estates Final Plat Appeal. (Subdivision Plat of "Blue Ridge Estates" located on State Route 692 near Greenwood., Samuel Miller Magisteria1 District, Albemarle County, Virginia, drawn by William S. Roudabush, Inc dated January 22 1979, revised February 13, 1979.) '' · (Mr. Roudabush abstained.) Mr. Fisher said the Board had heard an appeal on the Blue Ridge Estates Preliminary Plat at their meetings of February 14 and March 7. The preliminary plat was approved subject to eight conditions. "Location: Acreage': Zoning: History: Ms. Caperton then gave the Planning Staff's report: On Route 692 near Greenwood 27.6+ acres A-1 Agricultural The Planning Commission approved the preliminary plat on January 9, 19Z9, with conditions. Proposal: For 12 residential lots of 2+ acres each to be served by individual wells and septic facilities and to have access from a 50-foot private road. Staff Comment: The plat appears to meet the requirements of the Land Subdivision and Development Ordinance, and therefore, the Staff recommends approval, subject to: Recommended_ Conditions of Approval: 1) Waiver o£ scale required. 2) Written Health Department approval. 3) Compliance with private road ordinance, including: a) County Engineer approval of road plans. b) Maintenance agreement to be approved by the County Attorney. 4) Virginia Department of Highways and Transportation approval. 5) County Engineer approval of drainage easements. Ms. Caperton said the Planning Commission, at its meeting on February 27, 1979, gave conditional approval of the plat, subject to the conditions recommended by the staff (chan the word "required" to "granted" in Condition No. 1), but adding the following conditions: 6) 7) 8) Waiver of Section 18-36(d) granted as for existing entrance. Virginia Department of Highways and Transportation approval as per their letter of December 7, 1978. Note on plat: "No further division using 30-foot or 50-foot easements without Planning Commission approval." Mr. Fisher then noted receipt of the following letter: "March 1, 1979 Mr. Robert W. Tucker, Jr. Director of Planning Albemarle County 414 East Market Street Charlotltesville. Va. 22901 Re: Blue Ridge Estates - Final Plat Appeal of decision of Planning Commission Dear Bob: Pursuant to Section 18-4 of the Land Subdivision and Development Ordinance of Albemarle County, Virginia, please be advised that my clients, Mr. and Mrs. Charles G. Aubry, adjacent property owners of Blue Ridge Estates, are aggrieved by the decision of the Planning Commission on February 27, 1979, and hereby note their appeal to the Board of Supervisors. The reason for this appeal was the failure of the Planning Commission to require off site improvements to State Routes 691 and 692 as provided for in Section 18-39(o) of said Ordinance. Due to the fact that State Route 692 is or exceeds capacity at the present time, my clients feel it is imperative to improve this road and State Route 691 before further subdivision of Blue Ridge Farm occurs. Very truly yours, (Signed) Paul M. Peatross, Jr." Mr. Fisher asked Ms. Caperton to explain the differences between the preliminary and the final plat for Blue Ridge Estates. Ms. Caperton said they are basically the same. The only difference is that the cul-de-sac at the end of the private road has been moved to within the boundaries of this property rather than being on the residue of the property and a 30-foot access easement to the residue has been reserved. Also, the Planning Commission required the owners to include the residue of the property in the maintenance agreement. Mr. Peatross was present. He said the Planning Commission did not require any off-site road improvements when they approved this final plat. Mr. Peatross then restated highway traffic counts on Routes 691 and 692 which are set out in the minutes of February 14, 1979. March 21, 1979 (Afternoon Meeting - Adjourned from March 15, 1979) 225 He asked that the Board rea'dopt Conditions No. 5 and 8 relating to road improvements, as they were placed on the preliminary plat approval. Mr. Peatross said his clients feel justified in making this request since this subdivision will be generating traffic and according to the Highway Department's defintion, making the road non-tolerable. Mr. James Wooten, attorney for Blue Ridge Estates, was present. He stated again, his concern that the requirement for off-site road~improvements in this case is unconstitutional. The applicant can, by right, develop this property in two-acre lots. Since there is nothing in the Constitution, statutes or case law of the State of Virginia which requires private landowners to construct or maintain public facilities as a condition for development, the applicant resists the imposition of this condition. He then asked if Mr. St. John would give his opinion as to whether the improvements required of the developer on the preliminary plat are constitutional. Mr. Lindstrom said Mr. St. John was asked for a legal opinion on this question at the March 7th meeting. He gave an opinion that night and restated it today on a different matter. Mr. Lindstrom said the Board cannot sit and wait for a 100% sure case before making a decision the Board must act on every case. In this instance, Route 692 was built at public expense, but will serve a private purpose. When public facilities are used to generate private profit and those public facilities are inadequate, or will be made inadequate by this private purpose Mr. Lindstrom said, as an elected official, he feels an obligation to be concerned with the assessment of the costs involved to make the facilities adequate. He suggested that the same conditions be placed on the final plat as those placed on the preliminary plat. Mr. Dorrier said this case is somewhat different~! from those heard earlier today. He feels the present traffic connt is already high enough to warrant improvements to Route 692 and does not feel the additional 70 or 80 cars which Blue Ridge Estates will generate is ~ufficient to require the developer to make the off-site road improvements. Therefore, he cannot support the recommended condition of requiring off-site improvements, although he does support on-site frontage improvements. Mr. Lindstr'om suggested deleting Condition No. 7 recommended by the Planning Commission and rewording it to read: "Road improvements to 18 feet in width with shoulder and ditching improvements from Blue Ridge Estates entrance on Route 692 to the intersection of Route 691 subject to approval of Virginia Department of Highways and Transportation." He also suggested changing Condition No. 4 to read: "Approval of commercial entrance, turn lane and taper, and frontage development in accordance with Virginia Department of Highways and Transportation letter of December 6 -1978." Mr. Lindstrom's moiion was seconded by Dr. Iachetta. Mr. Henley said he will support the motion again because the applicant has stated that his land it too high priced and he has to develop it. This is one way of getting a small portion of the road improved along with the frontage of his property without making him improve someon~ else's property. Although ~his seems like a lot for 12 l~ts, Mr. Henley said he is basing his decision on the fact that many more lots will be developed and put more vehicles on this road. Mr. Fisher said he will support the motion because he feels these improvements will benefit the people who will live there and in that sense there is some reason to say it is a reasonable request. Roll was called and the motion carried by the following recorded vote: AXES: Messrs. Fisher, Henley, Iachetta and Lindstrom. NAYS: Mr. Dorrier. ABSTAINING: Mr. Roudabush. Agenda Item No. 10. At 6:20 P.M., t~he meeting was adjourned.