1973-08-15&84
8-15-73
An adjourned meeting of the Board of Supervisors of Albemarle County, Virginia
was held on August 15, 1973 at 7:30 P.M. in the Albemarle County Courthouse, said
meeting being adjourned from August 8, 1973. --~
Present: Messrs. Stuart F. Carwile, Gerald E. Fisher, J. T. Henley, Jr.,
William C. Thacker, Jr., Gordon L. Wheeler and Lloyd F. Wood, Jr.
Officers present: County Executive and County Attorney.
Absent: None.
Mr. Wheeler called the meeting to order and called for a public hearing on a
revised ordinance from the County Planning Commission to be known as the Albemarle
County Land Subdivision and Development Ordinance. This ordinance will replace the
existing land subdivision and development ordinance adopted in 1948 and amended
thereafter, with the objective of providing for an ordinance more in keeping with the
objectives of the adopted comprehensive plan and with modern day land use practices.
This ordinance is to guide and facilitate the orderly, beneficial growth of the community
of assuring the orderly subdivision of land at its development, and to promote the
public health, safety, convenience, comfort~ prosperity and general welfare. Notice
of this public hearing was published in the Daily Progress on July 25 and August 1, 1973.
Mrs. Ruth Miller, Zoning Administrator, was present to represent the Albemarle
County Planning Department.
Mr. Wheeler said he had received a copy of the proposed fee schedule and he
asked if this should be incorporated into the s~bdivision ordinance at this time or
if it could be incorporated at a later date. Mr. Batchelor asked that it be
incorporated at a later date.
Mr. Fisher asked if Mr. St. John had not recommended that this be incorporated
at the time the subdivision ordinance was enacted. Mr. St. John said he had
recommended this, but the fee schedule could be incorporated by resolution at a
later date, however, he felt that it should be enacted before the Planning Department
starts processing applications under this ordinance.
Mr. Wheeler said he had received a list of recommended changes in the proposed
ordinance from Mr. St. John and he asked that the Board discuss these changes before
opening the meeting for public comments.
Mr. St. John said the first change of any major consequence was under Section
1-39. The last sentence of that paragraph reads: "Restricted streets~can only be
applied for within those subdivisions involving, lOts or parcels of three acres of
more". He said that restricted streets are useful since they are designed to alleviate
hardships in cases where the Board does not feel that a person should go to the
expense of building roads to State specifications. He did not understand why this
provision is available only where a person had three acres of land. Mr. St. John
said the Planning Commission has reviewed this section and they now think that the
acreage should be reduced to two acres. He said this is a hindrance to the cluster
concept since this is one place where restricted roads can be used to great advantage.
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Mr. Fisher said the basic question of restricted streets is bothersome and he
felt that if the Board helped to reduce the cost of developments of two or more acres
it did not help any housing that might occur in smaller subdivisions.
Mr. Wheeler said he felt it was Mr. St. John's recommendation to delete the entire
sentence and not include any size. Mr. St. John said this was his recommendation but it
was not the recommendation of the Planning Commission. Mr. Wheeler said the Board was
only discussing Mr. St. John's recommendations at this time. Mr. St. John said he felt
that three acres was not the proper size.
Mr. Thacker said if th~s were changed to two acres this would also preclude the
cluster concept. Mr. Batchelor asked if the Board would like to consider L~ing the
size to the overall density of the area itself. Mr. Fisher said he felt this was
basicall~taken into account when speaking about ten lots or less for a particula~ size
of road. Mr. St. John said this had occurred to him when writing this recommendation.
There were certain standards that applied for ten houses on a road and he did not feel
that it made any difference if all ten houses were located on three acres or on three
acre lots.
Mr. Bill Roudabush said he felt restricted streets relate to the number of lots
and not the size of the lots served.
Mr. St. John said that the restricted road standards p~ohibited more than fifty
houses in one subdivision being considered for restricted roads.
Mr. Wheeler then inquired if any of the Board members objected to ta~ing out %his
sentence. No one objected and therefor the last sentence of Section 1-39 will be stricken
fr~m the final draft of this proposed ordinance.
The next change under disucssion was in Section 1-52, the definition of a sub~
division. The definition under discussion was as follows: "The division, including a
redivi~ion~;~of a parcel of land~ into two or more lots or parcels, anyone of which is
less than three acres each~ for the purpose of transfer of ownership or building
development; or,if a new street or access easement is involved in such division,any
division of a parcel of land. But the following shall not be deemed a subdivision:
A) The sale and exchange of parcels between adjoining landowners; where such sale or
exchange does not create additional building sites. B) The division of land for agri-
cultural purposes. C) The release of a portion of ~he security of any mortgage or deed
of trust.
Mr. St. John recommended the following wording: "Any division including redivision
of any parcel of land into two or more lots or parcels for the purpose of transfer
of-ownership of building development."
Mr. St. John said that this change in wording would require approval of the Planning
Commission before any division of land and would eliminate "loopholes" in the ordinance.
~ Mr. Wheeler asked that the Board stop at this time and hear public comments on this
change.
286
Mr. Bill Roudabush objected to this change feeling that it was not necessary
and would increase the cost of sales of real estate in the county, mostly to non-
developers.
Mr. William Stevens did not feel that this section relates to healt~, safety
and public welfare of the county and would create problems in the future by making
it difficult and increasing the cost of land for sale by the ordinary citizen.
Mr. Fisher asked what item "B" under this section encompassed. Mr. St. John said
this meant that land is not being divided for purposes of development or of building,
only to be divided and used for farm purposes.
Mr. Fisher asked if this was one of the loopholes that Mr. St. John was concerned
about. Mr. St. John replied yes, there are people who will abuse this by saying that
this division is for agricultural purposes, however, the Board could change this
size to five acres if they would say that any increased use of an existing right of
way shall be deemed a new right of way.
Mr. Stevens said Mr. St. John had a good point concerning the easement. He said
that an earlier draft of the ordinance stated five acres, however, subsequent drafts
were changed to three acres, and during public hearing by the Planning Commission, no
reason was given for this change.
Mr. Carwile suggested that the wording be changed to say "a new street or access
easement or if the subdivision fronts on a street or access easement of less than
fifty feet"or whatever size is to be used as a standard.
Mr. Fisher asked if this would allow subdivisions along fifty foot access easements
that w~uld nat come under restricted roads provisions. Mr. St. John said it would.
Hewever, he did not feel there were any old access easements fifty feet wide and he
recommended that a provision be included that any old county road which has not been
maintained since 1952 which is still not abandoned to public use shall not be considered
an existing access easement for the purposes of this ordinance. He said the Circuit
who
Court had recently ruled that these public right of ways can be used by anyone/would
want to make a road out of them and he would prefer that these not be deemed an
existing right of way for purposes of this section.
Mr. Roudabush felt that the three acre minimum was adequate.
Mr. Carwile suggested that definition "B" be taken out of Section 1-52 and
the last sentence of the definition be changed to "any division of a parcel of land ,
or if the street or new access easement is less than 50 feet.
A verbal vote of the Board was taken and the concensus of opiion was that the
acreage be changed to five acres and sentence "B" be stricken.
Mr. Wood felt the above requirement should comply with lot frontage in the
existing zoning ordinance. Mrf Fisher felt the provision could state that any lot
that has frontage of "X" feet or "Y" percent of required ~ilding width does come
under this ordinance.
8-1'5-73
Mr. Roudabush said this could be handled in the zoning ordinance, but stating
in the A-1 category that no lot shall have frontage on a street for less than 80%
of the required width of the building. Mr. St. John felt this would be the best
place to handle such a provision, and when this was discussed it would be hottly
contested since he understood that people want pipe stem lots.
Mr. St. John said that Mr. Carwile had asked him to comment on Section 3-3 because
he feels that the last sentence is inadvisable and that instead of right of way being
dedicated by a subdivider where streets are already planned, a setback should be provided
but not dedication. Mr. St. John agreed that the county comprehensive plan is only a
guide to general use of the a~ea, however, where the State Highway Department actually
has plans to put in a road or street and a developer ~hen~applies for a proposed subdivision
the
along the planned highway, the developer should be required to dediCate/area of his
subdivision within the planned right of way, howeverj he did not make a recommendation
on this change.
Mr. Stevens said he felt this section should read "should be dedicated" ratha~ than
"shall be dedicated."
Mr. Roudabush agreed with the text of the ordinance, however, he did not feel that
50
the divider should be required to dedicate more than his one-half of the/feet required.
Mr. Wood felt the Board should require the property owner to dedicate 15-25 feet
rather than to have the land reserved and then have to purchase additional right of way
for highway improvements.
Mr. Sto John felt the Board could require the subdivider to have a setback line or
reserve this land and not build on it, but he did not think they could be required to
dedicate the land without compensation.
Mr. Wheeler felt the Board could require the subdivider to reserve land but felt
he should be compensated for any additional width pas~ 50 feet.
Mr. Rotgin felt the Board should retain the right to reserve additional right of way
and he questioned the accura~ye of the Comprehensive plan.
Mr. Wheeler said the Comprehensive plan would be updated in the near future.
Mr. Rotgin asked ~out the second sentence in Section 3-3 which states~"Where a
subdivision has occurred on public streets less than 50 feet in width, additional
right of way shall be dedicated." He asked if there was a reason why in one place it
says "shall be reserved" and in another place "shall be dedicated." He asked if 50
feet is the width required by the State. Mr. Wheeler said this was the present standard.
A long discussion of Section 4-4 followed. Mr. Wheeler said the Board would be
holding work sessions on this proposed ordinance and would probably make changes at a
later date.
Mr. St. John said th~proposed fee schedule could be included as an amendment to
the ordinance at a later~ however, he asked that this schedule be made a part of the
minutes of this meeting.
288
8-15'73
SUGGESTED SUBDIVISION FEE SCHEDULE
Preliminary Plat
The subdivider sha~l pay a fee at the time when the preliminary o~ plat is filed.
Such fee shall be in the form of cash or a certified check payable to the County
of Albemarle, Virginia, the amount thereof to be determined in accordance with the
following schedule:
(a) $8.00 per acre for the first 10 acres in the subdivision.
(b) $5.00 per acre for each additional acre or fraction thereof over
10 acres in the subdivision.
(c) E~ filing of a preliminary plat, whether or not a preliminary
plat for the same property has been filed previously, shall be
subject to the same requirements and fees as specified for filing
of the preliminary plat.
Final Plat
The subdivider shall pay a fee at the time the final plat is filed.
Such fee shall
be in the form of cash or a certified check payable to the County of Albemarle,
the'amount thereof to be de~ermined in accordance with the following schedule:
(a)Administrative approval - $15.00 for plats containing three or less
lots plus $10.00 for field inspection if warranted.
(b) Commission and Board of Supervisors approval - $40.00 minimum for plats
containing three or less lots; plus $2.00 per lot for each lot in
excess of three, to and including 18 lots; $1.00 per lot for each lot
over 18 lots.
Mr. St. John commented on Section 3-15 stating that the word "extended" in this
section seems inadvisable. He felt this could mean a developer is required not
only to put in distribution lines and service lines within his subdivision , but
also to bring a water main from the end of an existing public main off~site, to
the s~bdivis~on itself. He said if this section means the developer is going to be
required to install transmission lines to bring the water to his development then
it should say this and if it does not mean this, it ought not be susceptible to
interpretation. Mr. St. John said there is a new statute in the Virginia Code,
~15.1-466(j) which for the first time allows counties, with the approval of sub-
divisions, to require a developer to contribute his share of the increase and the
cost of off-site facilities with respect to sewage only. Mr. St. John said this
statute
implied to him that before this~they felt this could not be required of the developer,
and they did not include water. He did not believe this allows this Board to require
a developer to pay for extension of a water main to a development. It only requires
him to install the distribution system within his development and then it is up to the
Service Authority as to whether or not they want to provide a main to bring the water
to that development.
Mr. Roudabush suggested the wording be changed to "where public and water
sewer services are furnished by the Albemarle County Service ~UTHORITY such service
shall be in conformity with requirements of the Albemarle County Service Authority."
Mr. Rotgin said that there are areas in the ~ounty which are not serviced by
the Albemarle County Service Authority and he asked that the language not limit this
to just the Service Authority.
189
Mr. Wheeler suggested that Mr. St. John word this section properly.
Mr. St. John said that Section 3-17, subparagraphs 2 and 3 are cumulative,
in other words this requires double bonding. He said this could be changed by
adding the word or between paragraphs 2 and 3.
Mr. Rotgin asked what kind of bonds are acceptable and then asked if the contractor
received interest on his bond. Mr. Batchelor replied that ~.~he receives interest only if
-%he gives the county a certificate of deposit which is interest bearing.
He then asked if the county Would accept letters of credit. Mr. Carwile felt an
~i-ep~b~ letter of credit acceptable to the county executive would be acceptable.
Mr. St. John said this could be written into thissection.
Commenting on Section 3-28, Mr. St. John said the last sentence of the first paragraph
beginning, "Restricted streets shall only be permitted in such instances..."was in his
opinion defective unless it has more definite standards than set out. He suggested the
following: "Restricted streets shall only be permitted in such instances as the
Commission shall find (not deem) to be in accord with the principles of sound engineering,
design, and planning for the orderly development of the general area, as determined by
the Commission°" (See Code Section 15.1-466 for authority for this kind of standard.)
Mr. Wheeler said he would like for this ~ction to say that the Board of Supervisors
may make recommendations. Mr. St. John said that Section 7-6 gives the governing body
the final word but this could be written into this section also.
Mr. Rotgin asked if this ordinance applied to either cluster or townhouse for sale?
Mr. St. John said it applies to everything.
for
Mr. Rotgin asked if this meant that cluster or townhouse/sale subdivisions having
50 or more dwelling units could not have restricted roads.
Mr. St. John said the theory is that you would have a state road for the entire
development, but where the individual clusters are located, you ~ould have restricted
roads serving one or more clusters so long as that particular road doesn't serve more
than 50 houses in one cluster. It does not mean that you cannot have any restricted
roads within the development.
Mr. Rotgin asked if this ordinance supersede~ the zoning ordinance and the townhouse
for sale provision. Mr. St. John said there will be a townhouse for sale and/or rental
in the new zoning ordinance.
Section 6-1. Mr. St. John recommended that the last sentence in this section
be changed to read "easements for sidewalk purposes shall be provided, except in cases
where the Commission shall find that other adequate pedestrian ways are being provided
or that due to the nature of the topography or other factors within the limit of sound
engineering and design, sidewalks are not required."
Section 8-3. Mr. St. John said the zoning body should appoint the agent in the
ordinance and the first sentence in this section should read "Governing body retains unto
itself the authority of final approval which authority hereby delegates to ~s agent
as to find in Section 1-1 of this ordinance, subject to the provisions for appeal in
Section 9-1 of this ordinance."
190
Section 8-4. Mr. St. John re,commended that an addition~paragraph (8-4-2)
be added to this section, as follows: "Nothing herein shall require the approval of
any subdivision or any part or feature thereof, which shall be found to constitute
a nuisance, or to constitute a danger to the public health, safety or general welfare;
or which shall be determined by the Commission, the governing body or its agent, to
be a departure from or a violation of sound engineering design or standards." He said
this is a "saving clause" and authority for it is found in Volume 2, Yokeley.on Zoning,
Section 12-4 on page 39. It is a rather innovative section but it has been upheld in
courts of law and its purpose is to prevent the mandatory approval of lots with
bizarre or absurd shapes, design, oro-other features, simply to fit into these specific
regulations with respect to the area, etc. He said the Planning Commission had asked
that this be included.
Section 9-2. Mr. St. John said he did not feel that the existence of practical
difficultires to the developer, stated in this section, should justify a variation or
exception. He said that if that is the fact anyone who can show facts constituting
practical difficultii~s can ask the court to reverse any disapproval of a subdivision
plan where the developer is required to comply with the ordinanCe. He suggested that
this section be replaced with the following wording:
9-2-1. '~Whenever, because of unusual size, topography, shape of the property,
location of the property, or other unusual conditions, the strict
application of the provisions of this ordinance would result in
extraordinary hardship to the develope~, the requirement may be
varied by the commission, subject to the approval of the governing
body or its agent, to permit subdivision, consistent with the spirit
of the ordinance and provided any such variance shall not be detri-
mental to the public safety, health and general welfare, and to the
orderly development of the area.
9-2-2. Upon finding in any case that, by substitution of technic, design,
or materials of comparable quality but differing from, those required
by this ordinance, a developer can achieve results which substantially
satisSy the overall purposes of this ordinance, in a manner equal to
or exceeding in the desired effect, the standards required herein,
then the commission with the approval of the governing body or its
agent may approve any such substitution of technic, design or materials.
Mr. St. John also recommended that a provision be included stating that the
county by virtue of the enactment of this ordinance, is not responsible for the
supression of any private nuisance, per se.
Mr. St. John said that when the Board considered restricted streets, Section 6-2
should be changed to read as follows:
6--2.
Ail restricted streets shall be designed only in accordance with
standards adopted therefor by the governing body as found in
Appendix A hereof, and with accompanying doc~~as exemplified
by B, C and D hereof.
Mr. Rotgin said. that Section 6.1(m), should be made consistent with the zoning
ordinance and under Section 7-8 he asked why landscape architects were excluded.
He also asked if the preliminary site plan could be the final site plan.
Mr. Thacker said he could see no reas~on why it could not be if the applicant
wanted to. go to the expense of preparing a final site plan.
Mr. Wheeler then asked comments of the Board members.
8-15-73
191
Mr. Wood felt that by allowing restricted roads this Board is creating problems
for future Boards of Supervisors that they will never be able to overcome and he%felt
this provision should be taken out of this ordinance completely.
Mr. Rotgin asked if the changes proposed this night would be drafted and then
discussed at a public hearing again.
Mr. Thacker asked that the Board be Sent a complete list of the changes.
Mr. Wheeler asked that a complete list of the changes be sent to the Board and
hopefully they would be able to take action on this ordinance by September 15. He said
he was concerned about restricted roads and he hoped the Planning Commission did not feel
that this Board was encouraging restricted roads.
Mr. Wood said that while working with the Planning Commission, he felt it was
their attitude that this Board was encouraging restricted roads.
Mr. Carwile said~t even if someone complies with all the conditions that have
been set forth for restricted roads they cannot have these without this Board's approval.
Mr. Thacker said it was not his intention to give blanket approval for any request
on restricted roads.
Mr. Fisher said he did~3.not feel the Board was fair to the consumer by allowing
substandard roads that he would have to take care of, but, he had studied this section
carefully and felt that a lot of the problems had been faced with these restrictions.
Mr. Wheeler felt restricted roads ~should be approved only when they are in the best
interest of all citizens of the county.
Mr. Wood said Where the Board could serve as they ha~ in the past md make exemptions
to citizens to provide for housing needs, restricted roads should be permitted, but this
should not be an open policy to lower the cost of development.
At this time, the Chairman closed the public hearing on the proposed Subdivision
ordinance.
Mr. Wood said that several months ago, this Board had held a public hearing in
North Garden for a proposed landfill site for the City of Charlottesville. He felt it
was unfair to keep that sector of the County waiting for a decision on this matter
and offered motion to deny the Massey tract as a landfill site.
Mr. Wheeler said he did not feel it was correct to take action on this tonight but
he would support the request to have this item set on the agenda for action.
Mr. Carwile said he understood the purpose of Mr. Wood's motion but he did not feel
it would be in the best interest of the county or-~he community to take action on
individual landfill sites prior to making a final decision.
Mr. Thacker said he would prefer to keep all options open and hopefully make a deci~o/~
on all of them in the near future.
Mr. Fisher said he would like to eliminate the Massey site and he would support
that motion if it comes before this Board, however,he said the Board had directed the
L~ill Committee to find four or more sites before a decision was made and he felt they
8-15-73
192
are looking for a place where an affirmative vote could be taken before throwing
out all possibilities.
Mr. Wheeler said it was the concensus of the Board that this item would not
be placed on the agenda until a later date.
Upon proper motion the meeting was adjourned at 10:35 p.m.
Chairman