2000-06-14June 14, 2000 (Regular Night Meeting)
(Page 1)
A regular meeting of the Board of Supervisors of Albemarle County, Virginia, was held on June 14,
2000, at 7:00 p.m., Room 241, County Office Building, McIntire Road, Charlottesville, Virginia.
PRESENT: Mr. David P. Bowerman, Mr. Lindsay G. Dorrier, Jr., Ms. Charlotte Y. Humphris, Mr.
Charles S. Martin, Mr. Walter F. Perkins and Ms. Sally H. Thomas.
ABSENT: None.
OFFICERS PRESENT: County Executive, Robert W. Tucker, Jr., County Attorney, Larry W. Davis,
Clerk, Ella W. Carey, and, Chief of Planning and Community Development, David Benish.
Agenda Item No. 1. The meeting was called to order at 7:00 p.m., by the Chairman, Mr. Martin.
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Agenda Item No. 2. Pledge of Allegiance.
Agenda Item No. 3. Moment of Silence.
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Agenda Item No. 4. Other Matters Not Listed on the Agenda.
Mr. Charles Trachta said he has served as a member of the Industrial Development Authority for
the past year. He has concluded that the IDA Board is too complacent and feels that every request which
passes before it should be approved, and often without any discussion. His concern arose from the recent
request from the Covenant School. At a time when religion cannot be mentioned in public school, the
County received a request for assistance from a private school which has a strong Christian vain to it. He
said the real problem is that the IDA Board did not take a vote, but only voiced an opinion on the request,
and decided to let it go before a judge for a final decision. He is suggesting that all of the IDA members
turn in their resignation, and then the Board of Supervisors either reappoint the existing IDA Board or
appoint a new IDA Board.
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Agenda Item No. 5. Consent Agenda. Motion was offered by Ms. Thomas, seconded by Ms.
Humphris, to approve Items 5.1 and 5.2 and to accept the remaining items on the Consent Agenda as
information. Roll was called, and the motion carried by the following recorded vote:
AYES: Mr. Bowerman, Mr. Dorrier, Ms. Humphris, Mr. Martin, Mr. Perkins and Ms. Thomas.
NAYS: None.
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Item 5.1. Revised Resolution to accept Summer Lane in Earlysville Meadows Subdivision into the
State Secondary System.
It was noted in the staff’s report that the Board adopted a resolution on May 3, 2000, requesting that
Summer Lane in Earlysville Meadows Subdivision be accepted into the State Secondary Road System.
This road was completed by the County using bond proceeds. One of VDOT’s requirements for accep-
tance of the road is the posting of a performance bond. In lieu of posting a bond, the resolution of May 3
should be revised to include a guarantee against defective materials and/or workmanship for one year.
At the request of the County’s Engineering Department, the following revised resolution
requesting acceptance of Summer Lane in Earlysville Meadows Subdivision into the State Second-
ary System of Highways, was adopted by the vote set out above:
R E S O L U T I O N
WHEREAS, the street(s) in Earlysville Meadows Subdivision described on the
attached Additions Form SR-5(A) dated April 19, 2000, fully incorporated herein by
reference, are shown on plats recorded in the Clerk's Office of the Circuit Court of
Albemarle County, Virginia; and
WHEREAS, the Resident Engineer for the Virginia Department of Transportation
has advised the Board that the street(s) meet the requirements established by the
Subdivision Street Requirements of the Virginia Department of Transportation.
NOW, THEREFORE, BE IT RESOLVED, that the Albemarle Board of County
Supervisors requests the Virginia Department of Transportation to add the road(s) in
Earlysville Meadows, as described on the attached Additions Form SR-5(A) dated April
19, 2000, to the secondary system of state highways, pursuant to § 33.1-229, Code of
Virginia, and the Department's Subdivision Street Requirements; and
BE IT FURTHER RESOLVED that the Board guarantees a clear and unre-
stricted right-of-way, as described, and any necessary easements for cuts, fills and
drainage as described on the recorded plats; and
BE IT FURTHER RESOLVED that the Albemarle Board of County Supervisors
hereby guarantees to the Virginia Department of Transportation for a period of one year
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from the date of acceptance into the secondary system of state highways, Summer Lane
against defective materials and/or workmanship up to a maximum of $3,750; and
FURTHER RESOLVED that a certified copy of this resolution be forwarded to
the Resident Engineer for the Virginia Department of Transportation.
* * *
The road described on Additions Form SR-5(A) is:
1)Summer Lane from the intersection of Route 743 (Station 10+0)), to the
cul-de-sac (Station 22+55) as shown on plat recorded 4/10/90 in the
office the Clerk of Circuit Court of Albemarle County in Deed Book 1095,
pages 666-668, and drainage easement plats dated 2/28/00, recorded in
Deed Book, 1897, page 71 and 75; and drainage easement plat dated
4/17/00, recorded in Deed Book 1910, page 35; with a 50-foot
right-of-way width, for a length of 0.24 mile.
Total Mileage - 0.24 mile.
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Item 5.2. Approval of conditions, SP-99-74, Townwood Mobile Home Park (Signs #75 & 76)
(deferred from June 7, 2000) (applicant requests deferral until June 21, 2000).
By the recorded vote set out above, SP-99-74 was deferred until June 21, 2000.
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Item 5.3. 2000 First Quarter Building Report as prepared by the County’s Department of Planning
and Community Development, was received as information.
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Item 5.4. Draft Copies of Planning Commission minutes for May 2, May 16 and May 23, 2000,
were received as information.
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Agenda Item No. 6. SP-00-004. Forest Lakes Veterinary Clinic (Sign #50). Public hearing on a
request to allow veterinary center. Znd HC. TM 32, P 37A, contains .962 of an ac. Loc on Seminole Trail
(Rt 29) near intersection of Airport Rd & Rt 29, across from the Forest Lakes community. Rivanna Dist.
(Notice of this public hearing was published in the Daily Progress on May 29 and June 5, 2000.)
Mr. Benish summarized the staff’s report which is on file in the Clerk’s Office and made a part of
the permanent records of the Board of Supervisors. He said the veterinary clinic would be located in
Seminole Commons in the Forest Lakes commercial area. The clinic will be about 2060 square feet in size
and there will be no boarding or grooming of animals at the clinic. The structure will be soundproofed.
Mr. Benish said staff reviewed this request for compliance with the Comprehensive Plan and
Zoning Ordinance and recommended approval subject to five conditions. At its meeting on May 2, 2000,
the Planning Commission unanimously recommended approval of SP-00-004 subject to the conditions
recommended by staff.
With no questions for staff, Mr. Martin invited the applicant to speak.
Dr. Ed Duval had no comments.
The public hearing was opened. With no one from the public rising to speak, the public hearing
was closed.
Mr. Bowerman offered motion to approve SP-00-004 subject to the conditions recommended by
the Commission. The motion was seconded by Ms. Humphris. Roll was called, and the motion carried by
the following recorded vote:
AYES: Ms. Thomas, Mr. Bowerman, Mr. Dorrier, Ms. Humphris, Mr. Martin and Mr. Perkins.
NAYS: None.
(Note: The conditions of approval are set out in full below.)
1.There shall be no outside exercise area;
2.No animals are to be confined outside;
3.No overnight boarding except for medical treatment;
4.Noise generated from the veterinary office shall not exceed 55 decibels in the
adjoining commercial space; and
5.The applicant shall comply with Section 5.1.11 of the Zoning Ordinance.
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Agenda Item No. 7. ZMA-00-001. Covenant Church (Sign #48). Public hearing on a request to
rezone a 0.35 ac strip of land & a 0.25 acre strip of land, TM61, P156 from R-4 to CO & a 0.611 ac portion
of TM61, P154C from C-1 to CO. Located on N sd of Rio Rd East, E of existing railroad. The subject site is
June 14, 2000 (Regular Night Meeting)
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the existing Covenant Church. (This property is designated Neighborhood Service in Urban Neighborhood
2 of the Comp Plan.) Rivanna Dist. (Notice of this public hearing was published in the Daily Progress on
May 29 and June 5, 2000.)
Mr. Benish summarized the staff’s report which is on file in the Clerk’s Office and made a part of
the permanent records of the Board of Supervisors. He said the applicant wishes to rezone approximately
0.6 acre from R-4 to CO to accommodate the placement of a storage unit in the future. The applicant has
proffered “to have the same proffers as the CO” parcel. Therefore, the following proffer references the
original proffering of uses that were approved in 1990: “The uses permitted on the property shall be limited
to those permitted by right in sections 23.2.1.4, 23.2.1.7 and 23.2.1.8, and those permitted by special use
permit in section 23.2.2, of the Albemarle County Zoning Ordinance, as they were in effect on June 14,
2000. Copies of the cited sections are attached to the staff’s report.”
Mr. Benish said the applicant also seeks to rezone a 0.611 acre strip of land to CO. The rezoning
request was mis-advertised and subsequently mis-zoned to C-1 by County staff in 1994. At that time, the
Board of Supervisors did approve a rezoning from R-4 to CO with a proffer, but the zoning map was
mislabeled as C-1.
Mr. Benish said staff reviewed this request for compliance with the Comprehensive Plan and
Zoning Ordinance and recommended approval subject to the proffers submitted by the applicant. He said
that at its meeting on May 23, 2000, the Planning Commission unanimously recommended approval of
ZMA-00-001 subject to the applicant’s proffer.
Mr. Martin invited the applicant to speak.
Mr. Paul Medler was present to represent the Church. He offered to answer questions.
Ms. Thomas asked how close the storage building will be to any neighboring house. Mr. Medler
said it will be closer to the area known as “Gasoline Alley.” It is not close to any houses.
Mr. Martin opened the public hearing.
Ms. Barbara Pugh said she is not an adjacent property owner, but is close to the property. She had
received information from the Planning Department saying there would be additional parking on the
property. She asked the location of that parking. Mr. Benish said parking is a site development plan
consideration, it is not directly related to this request.
Ms. Pugh asked if something was approved in December relating to a Free State Road/Meadow
Creek Parkway connector. She asked if that would impact on this site with the additional parking. Mr.
Martin said it will have some impact, and suggested that Ms. Pugh call Mr. Benish.
With no one else from the public rising to speak, the public hearing was closed.
Mr. Martin mentioned that his wife does belong to the Covenant Church.
Mr. Bowerman said he thinks the intended use is consistent with previous requests on this property.
He offered motion to approve ZMA-00-001 subject to the proffers attached to each parcel. The motion
was seconded by Ms. Humphris.
Mr. Martin asked Mr. Davis if his disclosure about his wife’s attendance at this church allows him to
vote on this question. Mr. Davis said “yes.
Roll was called, and the motion carried by the following recorded vote:
AYES: Ms. Thomas, Mr. Bowerman, Mr. Dorrier, Ms. Humphris, Mr. Martin and Mr. Perkins.
NAYS: None.
(Note: The proffers are set out in full below.)
PROFFER FORM
Date: 5/25/00
ZMA# 2000-001
Tax Map Parcel(s) # 06100-00-00-15600
0.6 Acres to be rezoned from R-4 to C0
Pursuant to Section 33.3 of the Albemarle County Zoning Ordinance, the owner, or its duly
authorized agent, hereby voluntarily proffers the conditions listed below which shall be
applied to the property, if rezoned. These conditions are proffered as a part of the
requested rezoning and it is agreed that: (1) the rezoning itself gives rise to the need for
the conditions; and (2) such conditions have a reasonable relation to the rezoning re-
quested.
1.The uses permitted on the property shall be limited to those permitted by right in
sections 23.2.1.4, 23.2.1.7 and 23.2.1.8, and those permitted by special use permit
June 14, 2000 (Regular Night Meeting)
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in section 23.2.2, of the Albemarle County Zoning Ordinance, as they were in
effect on June 14, 2000. Copies of the cited sections are attached thereto.
Ernesto V. Deomarupo Ernesto V. Deomarupo, Trustee 5/25/00
Charlie S. Scott Charlie S. Scott, Trustee 5/25/00
Harold Haga Harold L. Haga, Trustee 5/25/00
Signatures All Owners Printed Names of All Owners Date
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PROFFER FORM
Date: 5/25/00
ZMA# 2000-001
Tax Map Parcel(s) # 06100-00-00-15500 and 15600
0.611 Acres to be rezoned from C1 to C0
Pursuant to Section 33.3 of the Albemarle County Zoning Ordinance, the owner, or its duly
authorized agent, hereby voluntarily proffers the conditions listed below which shall be
applied to the property, if rezoned. These conditions are proffered as a part of the
requested rezoning and it is agreed that: (1) the rezoning itself gives rise to the need for
the conditions; and (2) such conditions have a reasonable relation to the rezoning re-
quested.
1.The uses permitted on the property shall be limited to those permitted by right in
sections 23.2.1.4, 23.2.1.7 and 23.2.1.8, and those permitted by special use permit
in section 23.2.2, of the Albemarle County Zoning Ordinance, as they were in
effect on June 14, 2000. Copies of the cited sections are attached thereto.
Ernesto V. Deomarupo Ernesto V. Deomarupo, Trustee 5/25/00
Charlie S. Scott Charlie S. Scott, Trustee 5/25/00
Harold Haga Harold L. Haga, Trustee 5/25/00
Signatures All Owners Printed Names of All Owners Date
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Agenda Item No. 8. ZTA-00-005. Nonconformities. To amend Chapter 18, Zoning, of the
Albemarle County Code, by repealing existing section 6.0, Nonconformities; by adding new section 6.0,
Nonconformities; by amending section 3.1, Definitions; section 10.3, Application of regulations for
development by right, section 10.3.1, Conventional development, section 30.6.6.2, Repair and maintenance
of structures, and section 30.6.6.3, Exemptions. This amendment pertains to the regulation of nonconform-
ing uses, structures and lots. (Notice of this public hearing was given in the Daily Progress on May 29 and
June 5, 2000.)
Ms. Jan Sprinkle, Chief of Zoning Administration, summarized the staff’s report which is on file in
the Clerk’s Office and made a part of the permanent records of the Board of Supervisors. She said this
amendment came about from a direct request from the Board of Zoning Appeals to address some
recurring variance requests. In order to remedy those concerns, staff realized it would be useful to also
remedy some of their interpretation problems. At the same time, it would be possible to make the
ordinance more readable and understandable by the general public. The proposal before the Board
tonight is a total reorganization of Section 6. Staff separated out nonconforming uses, nonconforming
structures, nonconforming lots, and clarified how the language related to each of these categories. Some
language has been changed to better define how things have been interpreted.
Ms. Sprinkle said the Planning Commission, at its meeting on May 30, 2000, unanimously
recommended approval of the amended ordinance as advertised for public hearing tonight.
Mr. Davis said he had handed to the Board a new Page 8 for the ordinance which contains new
language for Section 6.4.D, Setbacks applicable to a nonconforming lot.
After a short discussion period by Board members, Mr. Martin opened the public hearing. With no
one from the public rising to speak, the public hearing was closed, and the matter placed before the Board.
Motion was immediately offered by Ms. Humphris, seconded by Mr. Dorrier, to adopt An
Ordinance to Amend Chapter 18, Zoning, Article I, General Provisions, Article II, Basic Regulations, and
Article III, District Regulations, of the Code of the County of Albemarle, Virginia By Adding Sec. 6.1,
Purpose, Sec. 6.2, Nonconforming uses, Sec. 6.3, Nonconforming structures, Sec. 6.4, Nonconforming
lots; By Amending Sec. 3.1, Definitions, Sec. 10.3, Application of regulations for development by right, Sec.
10.3.1, Conventional development, Sec. 30.6.6.2, Repair and maintenance of structures, Sec. 30.6.6.3,
Exemptions; and By Repealing Sec. 6.1, Continuation, Sec. 6.2, Repairs and maintenance, Sec. 6.3,
Changes in district boundaries, Sec. 6.4, Expansion or enlargement, Sec. 6.5, Nonconforming lots, Sec.
6.6, Restoration or replacement, which included replacement Page 8.
Roll was called, and the motion carried by the following recorded vote:
AYES: Ms. Thomas, Mr. Bowerman, Mr. Dorrier, Ms. Humphris, Mr. Martin and Mr. Perkins.
NAYS: None.
June 14, 2000 (Regular Night Meeting)
(Page 5)
ORDINANCE NO. 00-18(4)
AN ORDINANCE TO AMEND CHAPTER 18, ZONING, ARTICLE I, GENERAL PROVI-
SIONS, ARTICLE II, BASIC REGULATIONS, AND ARTICLE III, DISTRICT REGULA-
TIONS, OF THE CODE OF THE COUNTY OF ALBEMARLE, VIRGINIA
BE IT ORDAINED by the Board of Supervisors of the County of Albemarle,
Virginia, that Chapter 18, Zoning, Article I, General Provisions, Article II, Basic Regulations,
and Article III, District Regulations, of the Code of the County of Albemarle is amended as
follows:
By Adding:
Sec. 6.1 Purpose.
Sec. 6.2 Nonconforming uses.
Sec. 6.3 Nonconforming structures.
Sec. 6.4 Nonconforming lots.
By Amending:
Sec. 3.1 Definitions.
Sec. 10.3 Application of regulations for development by right.
Sec. 10.3.1 Conventional development.
Sec. 30.6.6.2 Repair and maintenance of structures.
Sec. 30.6.6.3 Exemptions.
By Repealing:
Sec. 6.1 Continuation.
Sec. 6.2 Repairs and maintenance.
Sec. 6.3 Changes in district boundaries.
Sec. 6.4 Expansion or enlargement.
Sec. 6.5 Nonconforming lots.
Sec. 6.6 Restoration or replacement.
Chapter 18. Zoning
Article I. General Provisions
Sec. 3.1 Definitions. (Amended 6-14-00)
Lot of record: The term "lot of record" means a lot shown on a subdivision plat or
other lawful plat or legal description which is lawfully recorded in the Clerk's Office of the
Circuit Court of Albemarle County, Virginia.
Nonconforming lot. The term "nonconforming lot" means a lawful lot of record
existing on the effective date of the zoning regulations applicable to the district in which the
lot is located, that does not comply with the minimum applicable size or other lot require-
ments of that zoning district.
Nonconforming structure. The term "nonconforming structure" means a lawful
structure existing on the effective date of the zoning regulations applicable to the district in
which the structure is located, that does not comply with the minimum applicable bulk,
height, setback, floor area or other structure requirements of that zoning district.
Nonconforming use. The term "nonconforming use" means a lawful principal use
of the lot existing on the effective date of the zoning regulations applicable to the district in
which the use is located, or a more restricted use, that does not comply with the applicable
use regulations of that zoning district. A nonconforming use may have accessory uses, but
an accessory use shall not be eligible to be a nonconforming use. A use that is seasonal
on the effective date of this chapter shall be eligible to be a nonconforming use. A use that
is casual, intermittent, or temporary on the effective date of this chapter shall not be eligible
to be a nonconforming use.
Article II. Basic Regulations
Sec. 6.1 Purpose.
The purpose of this section 6 is to regulate nonconforming uses, structures and
lots in a manner consistent with sound planning and zoning principles, except for noncon-
forming signs regulated by section 4.15, and nonconforming uses and structures within the
flood hazard overlay district regulated by section 30.3. Nonconforming uses, structures
and lots are declared to be incompatible with the zoning districts in which they are located
June 14, 2000 (Regular Night Meeting)
(Page 6)
and, therefore, are authorized to continue only under the circumstances provided herein
until they are discontinued, removed, changed or action is taken to conform to the zoning
regulations applicable to the district in which the use, structure or lot is located.
(Ord. 00-18(4), 6-14-00)
State law reference - Va. Code § 15.2-2307.
Sec. 6.2 Nonconforming uses.
A nonconforming use may continue, subject to the provisions, conditions and
prohibitions set forth herein.
A.Change, enlargement or extension of area used by a nonconforming use.
The area occupied or used by a nonconforming use shall not be:
1.Occupation or use of additional area. Changed, enlarged or
extended to either occupy or use an additional area of the same lot or structure other than
that which existed on the effective date of the zoning regulations applicable to the district in
which the use is located; except that: (I) a nonconforming use may be enlarged or
extended throughout any part of a structure that was arranged or designed for such
nonconforming use on the effective date of the zoning regulations applicable to the district
in which the use is located, but only if the enlargement or extension does not change the
character of the nonconforming use; and (ii) a nonconforming quarry or cemetery may be
enlarged or extended to either occupy or use an additional area of the lot, or other abutting
lots under identical ownership as the lot on which the nonconforming use exists on the
effective date of this chapter; or
2.Occupation or use of additional structure. Changed, enlarged or
extended to occupy a structure not used for the nonconforming use on the effective date of
the zoning regulations applicable to the district in which the use is located; or
3.Relocation to previously unoccupied or unused area. Moved, in
whole or in part, to any portion of the lot or any other lot, unoccupied or unused by the
nonconforming use on the effective date of the zoning regulations applicable to the district
in which the use is located; or
4.Relocation to previously unoccupied or unused structure. Moved,
in whole or in part, to another structure unoccupied or unused by the nonconforming use
on the effective date of the zoning regulations applicable to the district in which the use is
located.
B. Enlargement or extension of a nonconforming use. A nonconforming use
shall not be enlarged or extended such that the character of the use existing on the
effective date of the zoning regulations applicable to the district in which the use is located
is changed. The zoning administrator's determination of whether the character of a
nonconforming use has changed shall be based on the magnitude of the change in the
size and scope of the use and the effects these changes have upon the purposes of this
chapter. In evaluating the change in the size and scope of the use, an increase in the
volume or intensity of the use and any alteration or variation in the use, such as the
provision of additional goods or services, shall be considered. A mere increase in the
volume, intensity or frequency of the use that is trivial, insubstantial or reasonably custom-
ary or incidental, and that is not accompanied by an alteration or variation in the use, shall
not be deemed to be an enlargement or extension of the use.
C. Enlargement, extension, reconstruction or structural alteration of a
structure. A structure that is used, in whole or in part, for a nonconforming use shall not be
enlarged, extended, reconstructed or structurally altered, except in the following circum-
stances:
1.Sanitary facilities. Notwithstanding any other provision of this
chapter, the sole purpose of the enlargement or extension is to house a potable water
supply, toilet or other sanitary facilities in a location approved by the zoning administrator,
provided that: (i) the sanitary facilities are not duplicative of facilities within the existing
structure; (ii) the enlargement or extension is limited to only that area which is necessary to
house the sanitary facilities; and (iii) the use of the new area is devoted only to the sanitary
facilities.
2.Ordinary repairs and maintenance of structure. The repairs
consist of ordinary repairs and maintenance, and the repair or replacement of nonbearing
walls, fixtures, wiring or plumbing, which is necessary to keep the structure in a usable
condition.
3.Repairs to correct unsafe condition in structure. Notwithstanding
any other provision of this chapter, the repairs are performed to strengthen or restore to a
safe condition the structure or any part thereof that has been declared to be unsafe by a
public safety official. The repairs may include improvements to provide fire safety and
June 14, 2000 (Regular Night Meeting)
(Page 7)
handicapped access, as provided in section 4.9 (buildings and structures: handicapped
access) of this chapter, even though these improvements are not mandatory.
4.Repairs or reconstruction of structure. The repairs or reconstruc-
tion are performed on a structure which is damaged as a result of factors beyond the
control of the owner or occupant thereof, provided that: (i) the repairs or reconstruction
commence within one (1) year, and are completed within two (2) years, from the date of
the damage; and (ii) the structure is not enlarged or extended as a result of the repair or
reconstruction.
D. Change to more restricted nonconforming use. If a nonconforming use is
changed to a more restricted nonconforming use, the original nonconforming use shall be
deemed to be abandoned and the use shall not thereafter be changed back to the original
nonconforming use. For purposes of this subsection, a more restricted nonconforming use
is a use whose character is either less nonconforming than the original nonconforming use,
or that occupies less area of the lot or the structure or structures in which it is located.
E. Effect of change of ownership. A change of the ownership or occupancy
of the nonconforming use, the structure, or the lot on which the nonconforming use is
located, shall not affect the status of the nonconforming use.
F. Termination of nonconforming status. The nonconforming status of a use
shall terminate and become unlawful if the use is enlarged or extended, or the structure
used for the nonconforming use is enlarged, extended, reconstructed or structurally
altered, in a manner not authorized by this section. Upon termination of the nonconforming
status, the use of the lot or structure shall immediately comply with the regulations set forth
in this chapter applicable to the district in which the use is located.
G. Discontinuance of a nonconforming use. A nonconforming use and all
uses accessory thereto shall be discontinued, and any use of the structure or lot shall
thereafter comply with the regulations set forth in this chapter applicable to the district in
which the use is located, if the nonconforming use is discontinued for more than two (2)
years, regardless of whether the use was continuous or seasonal. The two (2)-year period
shall not be tolled during any period during which a structure in which the nonconforming
use is conducted is extended, enlarged, repaired, reconstructed or altered as provided in
this section 6.2. The continuation of a use that is accessory to the nonconforming use
during the two (2)-year period shall not continue the nonconforming use.
(§§ 6.1.1, 6.1.2, 6.1.3, 6.1.4, 6.1.5, 6.2.1, 6.2.2, 6.4.1, 6.4.3, 6.6.1, 12-10-80, 3-5-86,
9-21-88, 9-9-92; Ord. 00-18(4), 6-14-00)
State law reference - Va. Code § 15.2-2307.
Sec. 6.3 Nonconforming structures.
A nonconforming structure may continue, subject to the provisions, conditions and
prohibitions set forth herein.
A. Extension or enlargement of a nonconforming structure. A nonconform-
ing structure shall not be enlarged or extended except in the following circumstances, and
provided that the enlargement or extension complies with all other applicable require-
ments:
1.Conforming use and compliance with setbacks. The use of the
structure complies with the zoning regulations applicable to the district in which the
structure is located, and otherwise complies with the front yard, rear and side setback
requirements applicable to the district in which the lot is located.
2.Structure where nonconformity is its noncompliance with require-
ments of section 4.2 of this chapter. The structure is a nonconforming structure solely on
the basis of the requirements of section 4.2 of this chapter, and qualifies for the exemption
provided in section 4.2.6.1 of this chapter.
3.Structure where nonconformity is its noncompliance with front
yard setback. The structure is a nonconforming structure because it does not comply with
the front yard setback requirements of the zoning regulations applicable to the district in
which the structure is located; provided that the proposed enlargement or extension: (i) is
no closer to a public street or private road right-of-way than the existing nonconforming
structure; (ii) is a minimum of twenty-five (25) feet from the right-of-way; and (iii) the
applicable rear and side yard setback requirements are complied with, unless they can be
reduced pursuant to section 4.11 of this chapter.
4.Detached single family dwelling where nonconformity is its
noncompliance with setback. The detached single family dwelling is a nonconforming
structure because it does not comply with any setback requirements of the zoning regula-
tions applicable to the district in which the structure is located, and the zoning district in
which the dwelling is located authorizes detached single family dwellings as a permitted
use; provided that the proposed enlargement or extension is: (i) no closer to a public street
June 14, 2000 (Regular Night Meeting)
(Page 8)
or private road right-of-way than the existing nonconforming dwelling; (ii) a minimum of
twenty-five (25) feet from the right-of-way; (iii) a minimum of six (6) feet from a side or rear
property line; and (iv) no closer to any other property line than the existing dwelling.
5.Sanitary facilities. Notwithstanding any other provision of this
chapter, the sole purpose of the enlargement or extension is to house a potable water
supply, toilet or other sanitary facilities in a location approved by the zoning administrator,
provided that: (i) the sanitary facilities are not duplicative of facilities within the existing
structure; (ii) the enlargement or extension is limited to only that area which is necessary to
house the sanitary facilities; and (iii) the use of the new area is devoted only to the sanitary
facilities.
B. Repairs, reconstruction or structural alterations of a nonconforming
structure. A nonconforming structure shall not be reconstructed or structurally altered,
except in the following circumstances:
1.Damage caused by factors beyond control of owner or occupant.
The nonconforming structure (other than a nonconforming sign) is damaged as a result of
factors beyond the control of the owner or occupant thereof, provided that: (i) the repairs,
reconstruction or structural alterations commence within one (1) year, and are completed
within two (2) years, from the date of such damage; and (ii) the structure is not enlarged or
extended as a result of such repair, reconstruction or structural alteration.
2.Repair to correct unsafe condition in structure. Notwithstanding
any other provision of this chapter, the nonconforming structure may be repaired to
strengthen or restore the structure or any part thereof to a safe condition that has been
declared to be unsafe by a public safety official. The repairs may include improvements to
provide fire safety and handicapped access, as provided in section 4.9, buildings and
structures: handicapped access, of this chapter, even though these improvements are not
mandatory.
3.Structural alteration reducing size of nonconforming structure. A
nonconforming structure may be structurally altered to reduce its height or floor area.
However, if a nonconforming structure is altered so as to reduce either the height or the
floor area of the structure, the height or the floor area of the original nonconforming
structure shall be deemed to be abandoned and the structure shall not thereafter be
altered to the original nonconforming structure.
4.Structure where nonconformity is its noncompliance with require-
ments of section 4.2 of this chapter. The structure is a nonconforming structure solely on
the basis of the requirements of section 4.2 of this chapter, and qualifies for the exemption
provided in section 4.2.6.1 of this chapter.
C. Relocation of a nonconforming structure. A nonconforming structure
shall not be moved to another location on the same lot or to any other lot unless the
structure becomes conforming as a result of the relocation.
D. Replacement of a nonconforming manufactured home. A nonconform-
ing manufactured home may be replaced with another manufactured home, provided it is
labeled in accordance with the current edition of the Virginia Manufactured Home Safety
Regulations, and is installed in accordance with the current edition of the Virginia Uniform
Statewide Building Code. Section 4.1.6 of this chapter shall apply to the replacement of
the manufactured home.
E. Effect of change of ownership. A change of the ownership or occupancy
of the nonconforming structure or the lot on which the nonconforming structure is located
shall not affect the status of the nonconforming structure.
F. Termination of nonconforming status. The nonconforming status of a
structure shall terminate and become unlawful if the structure is enlarged, extended,
repaired, reconstructed, structurally altered or replaced in a manner not authorized by this
section. Upon termination of the nonconforming status, the structure shall immediately
comply with the regulations set forth in this chapter applicable to the district in which the
structure is located.
G. Discontinuance of use of nonconforming structure. Use of a nonconform-
ing structure shall be discontinued, and the structure shall thereafter comply with the
regulations set forth in this chapter applicable to the district in which the structure is
located, if the occupation or use is discontinued for more than two (2) years, regardless of
whether the prior occupancy or use of the structure was continuous or seasonal. The two
(2)-year period shall be tolled during any periods during which the owner diligently and in
good faith pursues obtaining an occupant or use for the structure and during the period
during which the owner diligently and in good faith extends, enlarges, repairs, reconstructs
or alters a structure as authorized in this section 6.3.
(§§ 6.1.1, 6.1.2, 6.1.3, 6.2.1, 6.2.2, 6.4.2, 6.6.1, 6.6.2, 12-10-80, 9-21-88, 9-9-92; Ord.
00-18(4), 6-14-00)
June 14, 2000 (Regular Night Meeting)
(Page 9)
State law reference - Va. Code § 15.2-2307.
Sec. 6.4 Nonconforming lots.
A nonconforming lot may continue, subject to the provisions, conditions and
prohibitions set forth herein.
A. Physical changes to a nonconforming lot. A nonconforming lot may be
changed as follows:
1.Area or width. The area or width, or both, of a nonconforming lot
may be increased to make the lot less nonconforming.
2.Boundary line adjustments. The boundary of a nonconforming lot
may be adjusted provided that one lot sharing the boundary to be adjusted is a conforming
lot and the boundary line adjustment does not make the conforming lot nonconforming or
the nonconforming lot more nonconforming.
3.Public dedication or eminent domain. The area of a nonconform-
ing lot may be reduced by dedication for a public purpose or by the exercise of eminent
domain.
B. Uses allowed on a nonconforming lot. A nonconforming lot may be used
as though it satisfies the zoning regulation that makes it nonconforming, provided that:
1.The use is either a nonconforming use or is a use that complies
with the zoning regulations applicable to the district in which the lot is located; and
2.The zoning administrator determines that the lot may be occupied
consistently with the public health, safety and general welfare.
C. Division, combination, or adjustment of boundary line of nonconforming
lot authorized. A nonconforming lot may be divided, combined with any other lot, or have
one or more of its boundary lines adjusted, provided:
1.The resulting lot or lots comply with the requirements applicable
to the district in which the lot is located and all other applicable requirements of the
Albemarle County Code; or
2.In the opinion of the zoning administrator, the resulting lot or lots
more substantially conform to the requirements of section 4.0 (general regulations) of this
chapter and the area and bulk regulations applicable to the district in which the lot is
located, and comply with all other applicable requirements of the Albemarle County Code.
D. Setbacks applicable to a nonconforming lot. The current front, rear and
side yard minimum setbacks applicable to the district in which the lot is located shall apply
to a nonconforming lot; provided, that if any such setback is thereafter reduced as a result
of an amendment to the setbacks applicable to the district in which the lot is located, and in
effect when an existing structure is extended or enlarged, then that reduced setback shall
apply.
E. Effect of change of ownership. A change of the ownership or occupancy of a
nonconforming lot shall not affect the status of the nonconforming lot.
(§§ 6.1.1, 6.1.2, 6.5.1, 6.5.2, 6.5.4, 12-10-80, 4-15-81, 9-21-88, 6-14-89, 9-9-92; Ord.
00-18(4), 6-14-00)
State law reference - Va. Code § 15.2-2307.
Sec. 6.5 (Repealed 6-14-00)
Sec. 6.6 (Repealed 6-14-00)
Article III. District Regulations
Sec. 10.3 Application of regulations for development by right.
The following provisions shall apply to any parcel of record at 5:15 p.m., the tenth
day of December, 1980.
(§ 10.3, 12-10-80, 11-8-89; Ord. 00-18(4), 6-14-00)
Sec. 10.3.1 Conventional development.
Regulations in section 10.5 governing development by right shall apply to the
division of a parcel into five (5) or fewer lots of less than twenty-one (21) acres in area and
to the location of five (5) or fewer dwelling units on any parcel in existence at the time of
June 14, 2000 (Regular Night Meeting)
(Page 10)
adoption of this ordinance (reference sections 1.3). The aggregate acreage devoted to
such lots or development shall not exceed thirty-one (31) acres, except in such case where
this aggregate acreage limitation is precluded by other provisions of this ordinance. The
second sentence of this provision shall not be applicable to land divided between the
effective date of this ordinance (reference sections 1.3 and) and November 8, 1989.
(§ 10.3.1, 12-10-80, 11-8-89, 9-9-92; Ord. 00-18(4), 6-14-00)
Sec. 30.6.6.2 Repair and maintenance of structures.
An owner may repair and maintain a nonconforming structure or a structure
occupied or used by a nonconforming use as provided in sections 6.2(C), 6.3(A)(3) and
6.3(B) of this chapter, upon determination by the zoning administrator that such repair or
maintenance would not be contrary to the intent and purposes of this section 30.6.
(§ 30.6.6.2, 10-3-90; Ord. 00-18(4), 6-14-00)
Sec. 30.6.6.3 Exemptions.
The provisions of section 30.6.4.1 notwithstanding, no certificate of appropriate-
ness shall be required for the following activities:
a. The following exemptions shall apply to all buildings and structures:
1. Interior alterations to a building or structure having no effect on
exterior appearance of the building or structure.
2. Construction of ramps and other modifications to serve the
handicapped in accord with section 4.9.
3. The repair and maintenance of structures authorized pursuant to
section 30.6.6.2.
4. Main and accessory residential, forestal and agricultural buildings
where no site development plan is required for the work subject to the building permit.
5. General maintenance where no substantial change in design or
material is proposed.
6. Additions or modifications to a building where no substantial
change in design or material is proposed as determined by the zoning administrator.
(§ 30.6.6.3, 5-18-94; Ord. 00-18(4), 6-14-00)
_______________
Agenda Item No. 9. ZTA-00-006. Noise. Public hearing on an ordinance to amend Chapter 18,
Zoning, of the Albemarle County Code by repealing section 4.14.1.1, Method of measurement, and section
4.14.1.2, Meaning of terms; by adding section 4.18, Noise; and by amending section 4.14.1, Noise, section
5.1.02, Clubs, lodges, section 5.1.09, Fire, ambulance, rescue squad station (volunteer), section 5.1.11,
Commercial kennel, veterinary, animal hospital, section 5.1.16, Swimming, golf, tennis clubs, section
5.1.37, Outdoor amphitheater, and section 30.4.14, Performance standards. This amendment pertains to
the regulation of noise. (Notice of this public hearing was advertised in the Daily Progress on May 29 and
June 5, 2000.)
It was noted in the staff’s report that the Planning Commission, at its meeting on May 16, 2000,
unanimously recommended approval of the zoning text amendments as advertised.
Ms. Amelia McCulley, Zoning Administrator, was present to explain the recommended changes in
the ordinance. She first explained the basic characteristics of sound and sound measurement. She said
sound can be influenced by all types of atmospheric conditions, temperature, humidity, wind, man-made
structures, natural structures, topography, landscape features, etc. Sound measurement is a logarithm
measurement. Sound levels are not cumulative, so if there is one sound at 30 decibels and you introduce
another sound at 30 decibels, it does not add up to 60 decibels. It takes a three decibel change in the
sound level to even perceive the change by ear. Double the volume of sound is a ten decibel difference.
Ms. McCulley said the revision of sound regulation in Albemarle County has taken place through
two phases. Each of the two phases has a very different application. The first phase was an amendment to
the County Code adopted with the recodification of the Code in August, 1998. That sound regulation
relates to sound generated by people and is enforced by the County Police Department. That is a
subjective measurement based on nuisance noise.
Ms. McCulley said the second phase relates to sound that is generated by various types of land
uses, for example, commercial kennels, sawmills, various industrial uses. The amendment to the Zoning
Ordinance is an objective standard, and proposes very specific sound measurements. It is not based on
someone’s perception of a nuisance. It is based on something which can be read with a sound meter. This
ordinance is the result of several years of study and discussion. Several years ago, there was a Noise Task
Force with several members of the community, including a scientist from the University of Virginia,
members representing the Chamber of Commerce, citizens, and a person who wrote sound regulations for
a local hobby group. In addition to working with this task force, staff surveyed the regulations of other
June 14, 2000 (Regular Night Meeting)
(Page 11)
localities both in and out of Virginia. They read a lot of technical manuals, and took sound samples from
throughout the community to be sure that what is being proposed is realistic. She handed to the Board
members a noise meter so that the levels can be seen as this conversation takes place, and it will show that
the existing regulations are not practical so they are not enforceable.
Ms. McCulley said several different land uses in the Zoning Ordinance are pulled out for sound
regulation. Staff has seen that the maximum sound level of 40 decibels is not practical since the air-
conditioning system in this Board Room would measure at over 40 decibels. They feel that what is being
recommended is much better, sets out a more reasonable sound level, and is much broader. Current
regulations talk about uses of an industrial character being subject to noise regulations, plus five other
uses. Other than that, there are no sound regulations for land uses, unless it is specifically required as part
of special use permit approval. This will provide an across-the board regulation. Also, the current
regulations are for one standard maximum sound level regardless of time of day. Staff has recommended
a quieter night-time standard, which is being done by lots of localities, so there is a night-time standard, and
a day-time standard. The current ordinance does not list standard procedures, which are needed for
consistency, especially for purposes of court appearances. The current ordinance does not deal with high
levels of background sound. That has come up a couple of times. The draft ordinance provides a
calculation to account for loud ambient, background sounds.
Ms. McCulley said in terms of applicability, the ordinance applies to any sound that is generated
within Albemarle County regardless of whether the receiving property is in Albemarle County. There are a
set of definitions, including decibels and day-time standards which cover from 7:00 a.m. to 10:00 p.m.
Many sections of the existing ordinance gave 11:00 p.m. to 6:00 a.m. as night-time, so this would increase
the night-time quiet time. She said the real substance of the regulations is the table in Section 4.18.04,
Maximum sound levels. That section lists four different receiving zones each with sound levels based on
the sound period, day-time or night-time. The most restrictive, lowest maximum sound level is in the rural
areas, residential, and public space or institution receiving zones. The next sections sets out items such as
animals, emergency and agricultural operations, which are exempt from sound levels. Then the next
section mentions existing sound sources, things in existence at the time of adoption of the ordinance to
which the ordinance would not apply. However, when equipment that does not comply is changed, it would
then must apply, or the applicant would need to seek a waiver or modification from the Planning Commis-
sion. Section 4.18.07 outlines the procedure which would be followed. The sections which follow set out
specific uses and supplementary regulations for these uses.
Ms. McCulley said staff believes this amendment will greatly improve its ability to explain the
regulations to citizens and improve conditions overall. While it may cause more noise complaints, it
provides clear explanations of the procedures and regulations. The ordinance should not be unmanage-
able.
Mr. Martin asked for comments from Board members.
Ms. Thomas mentioned a court case in Charlottesville brought about because of a crowing rooster.
The lawyer argued that although the sound meter had been calibrated, it was not accurate. She asked if
the change in this ordinance will take care of such a situation. Mr. Davis said if the County follows the
procedures outlined in the ordinance, staff believes the ordinance is defendable.
Ms. Thomas said one of those procedures is that the meter would have to be calibrated within one
hour of when the measurement is taken. She asked if that is realistic. Ms. McCulley said staff has a
calibrater which provides spot calibrations prior to taking any measurement. Industry standards require an
annual calibration of the meter at the factory.
Mr. Dorrier said he has never seen a noise case won in a court using a decibel method of testing.
He said the ordinance mentions 60. He asked Mr. Davis the reading on the meter while he is talking. Mr.
Davis said it is registering between the high 50s and 60. Mr. Dorrier said that you would be in violation of the
ordinance just speaking in a conversational level. Mr. Davis said the noise source is measured at the
receiving area of the neighbor. Ms. McCulley said in an industrial setting, the building setbacks are 50 to
100 feet from the property line, so there will be that distance for sound attenuation.
Mr. Dorrier said he believes there will be a lot of problems that must be sorted out by the court, but
he believes the ordinance is probably as good as the County can get at this time. Mr. Davis said the next
ordinance before the Board tonight regards civil enforcement of the Zoning Ordinance, and that is a part of
the Zoning Ordinance staff would recommend be enforced civilly. Under that standard, there is a lesser
burden of proof. That would make this ordinance more viable for enforcement.
Ms. Thomas mentioned wording under “agricultural activities” and said she wanted to be sure the
County did not get in a situation like one of the counties in the northern part of the state where a farmer who
was plowing using lights was arrested for exceeding sound levels. She asked if the words “and equipment”
should be added to this section. Mr. Davis said he believes the words “including, but not limited to” are
sufficient. There was no intent to include any activity related to farming in this section.
Ms. Thomas mentioned “ground vibrations from blasting” and said this section refers to a section of
the Code with which she is not familiar. Ms. McCulley said the Bureau of Mines and Mineral Resources
regulates this activity, and the wording is taken directly from their regulations. Those regulations supersede
County regulations.
June 14, 2000 (Regular Night Meeting)
(Page 12)
Mr. Perkins asked about blasting for road construction, or to take out a tree stump or a beaver
pond. Ms. McCulley said “construction activities” between 7:00 a.m. and 10:00 p.m. are exempt, so that
would take care of road construction. She believes the other items would be covered under the exemption
for agricultural activities.
Mr. Martin said there has been a long history behind this amendment. He believes this is as good
as it can be, and is something the citizens can live with. He said if there were no more questions, he would
open the public hearing at this time.
With no one from the public rising to speak, the public hearing was immediately closed, and the
matter placed before the Board.
Mr. Bowerman said the Board has recognized that the ordinance on the books is unenforceable.
Imperfect as it may be, this is the most objective attempt staff can make using ordinances from other
localities. This amended ordinance does have standards that can be applied when there are significant
violations. He then moved to adopt An Ordinance to Amend Chapter 18, Zoning, Article II, Basic
Regulations, and Article III, District Regulations, of the Code of the County of Albemarle, Virginia, by
adding Sec. 4.18, Noise, Sec. 4.18.01, Applicability, Sec. 4.18.02, Definitions, Sec. 4.18.03, Procedure
for measuring sound, Sec. 4.18.04, Maximum sound levels, Sec. 4.18.05, Exempt sounds, Sec.
4.18.06, Existing sound sources, Sec. 4.18.07. Modification waiver, or variation; by amending Sec.
4.14.1, Noise, Sec. 5.1.02, Clubs, lodges, Sec. 5.1.09, Fire, ambulance, rescue squad station
(volunteer), Sec. 5.1.11, Commercial kennel, veterinary, animal hospital, Sec. 5.1.16, Swimming, golf,
tennis clubs, Sec. 5.1.37, Outdoor amphitheaters, Sec. 30.4.14, Performance standards; and, by
repealing Sec. 4.14.1.1, Method of measurement, Sec. 4.14.1.2, Meaning of terms.
Ms. Humphris gave second to the motion. She thanked the staff saying she knows it has been a
very painful headache and process for a number of years. Roll was called, and the motion carried by the
following recorded vote:
AYES: Ms. Thomas, Mr. Bowerman, Mr. Dorrier, Ms. Humphris, Mr. Martin and Mr. Perkins.
NAYS: None.
(Note: The ordinance, as adopted, is set out in full below.)
ORDINANCE NO. 00-18(3)
AN ORDINANCE TO AMEND CHAPTER 18, ZONING, ARTICLE II, BASIC REGULA-
TIONS, AND ARTICLE III, DISTRICT REGULATIONS, OF THE CODE OF THE
COUNTY OF ALBEMARLE, VIRGINIA
BE IT ORDAINED by the Board of Supervisors of the County of Albemarle,
Virginia, that Chapter 18, Zoning, Article II, Basic Regulations, and Article III, District
Regulations, are hereby amended and reordained as follows:
By Adding:
Sec. 4.18Noise.
Sec. 4.18.01Applicability.
Sec. 4.18.02Definitions.
Sec. 4.18.03Procedure for measuring sound.
Sec. 4.18.04Maximum sound levels.
Sec. 4.18.05Exempt sounds.
Sec. 4.18.06Existing sound sources.
Sec. 4.18.07Modification, waiver, or variation.
By Amending:
Sec. 4.14.1Noise.
Sec. 5.1.02 Clubs, lodges.
Sec. 5.1.09 Fire, ambulance, rescue squad station (volunteer).
Sec. 5.1.11 Commercial kennel, veterinary, animal hospital.
Sec. 5.1.16Swimming, golf, tennis clubs.
Sec. 5.1.37Outdoor amphitheaters.
Sec. 30.4.14 Performance standards.
By Repealing:
Sec. 4.14.1.1Method of measurement.
Sec. 4.14.1.2Meaning of terms.
Chapter 18. Zoning
Article II. Basic Regulations
Sec. 4.14.1 Noise.
June 14, 2000 (Regular Night Meeting)
(Page 13)
All sources of noise (except those not under direct control of occupant of use,
such as vehicles) shall be subject to and comply with section 4.18.
(§ 4.14, 12-10-80, Ord. 00-18(3), 6-14-00)
State law reference - Va. Code § 15.2-2280.
Sec. 4.14.1.1 (Repealed 6-14-00)
Sec. 4.14.1.2 (Repealed 6-14-00)
Sec. 4.18 Noise.
The board of supervisors hereby finds and declares that noise is a serious
hazard to the public health, safety, welfare, and quality of life, and that the inhabitants of
the county and adjoining localities have a right to and should be free from an
environment of noise. Therefore, it is the policy of the county to regulate noise as
provided in this section 4.18.
(Ord. 00-18(3), 6-14-00)
State law reference - Va. Code § 15.2-2280.
Sec. 4.18.01 Applicability.
This section 4.18 shall apply to sound generated from any land use within
Albemarle County, regardless of whether the property in the receiving zone is within or
without Albemarle County. This chapter is in addition to any sound or noise regulations
set forth in any other chapter of the Albemarle County Code.
(Ord. 00-18(3), 6-14-00)
State law reference - Va. Code § 15.2-2280.
Sec. 4.18.02 Definitions.
The following definitions shall apply to this section 4.18. The definitions of any
sound-related term not defined herein shall be obtained from the American Standard
Terminology if defined therein.
(1)"A" weighted sound level. The term "'A' weighted sound level" means
the sound pressure level in decibels as measured on a sound level meter using the
A-weighting network expressed as dB(A) or dBA.
(2)Acoustic calibrator. The term "acoustic calibrator" means an instrument
which measures the accuracy of a sound level meter.
(3)Ambient sound. The term "ambient sound" means the sound derived
from all sound associated with a given environment, being usually a composite of sounds
from many sources.
(4)Daytime. The term "daytime" means that period of a day beginning at
7:00 a.m. and ending at 10:00 p.m., each day of the week.
(5)Decibel. The term "decibel" means a unit for measuring the volume of a
sound equal to twenty times the logarithm to the base ten (10) of the ratio of the pressure
of the sound measured to the reference pressure, which is twenty (20) micropascals.
(6)Emergency operation. The term "emergency operation" means any
emergency service provided by any police, sheriff, fire or fire and rescue department, any
ambulance service or any other emergency service requiring a prompt response, and any
emergency repair of public facilities or public utilities.
(7)Equivalent sound level (Leq). The term "equivalent sound level" means
the average sound level accumulated over a given period of time. The equivalent sound
level is the A-weighted sound level corresponding to a steady state sound level
containing the same total sound energy as the time varying signal over a given period of
time, determined using a sound level meter as set forth in the American National
Standards for Sound Level Meters.
(8)Impulse sound. The term "impulse sound" means any sound of short
duration with an abrupt onset and rapid decay. This includes but is not limited to
explosions, drum beats, drop forge impacts, discharge of firearms and one object striking
another.
(9)Nighttime. The term "nighttime" means that period of a day beginning at
10:00 p.m. and ending at 7:00 a.m., each day of the week.
June 14, 2000 (Regular Night Meeting)
(Page 14)
(10)Noise. The term "noise" means any sound which violates the sound
level standards of this section 4.18, but does not include any sound which is exempt
pursuant to section 4.18.05.
(11)Person. The term "person" means any natural person, association,
partnership, corporation or other legal entity.
(12)Property line. The term "property line" means an imaginary line along
the ground surface which separates the real property owned by one person from another.
(13)Public facility. The term "public facility" means a structure or use which
may be publicly or privately owned or operated and which is generally open to the public,
and includes but is not limited to schools, libraries, parks, hospitals and uses of a similar
character.
(14)Receiving zone. The term "receiving zone" means the zoning
classification of the property receiving the noise, as shown on the official zoning maps.
For property which is located within another jurisdiction, the zoning administrator shall
determine the comparable zoning category, and be guided in making the determination
by the actual use of the property. The receiving zones shall include property with the
zoning classifications set forth below:
(a)Commercial receiving zone. A commercial receiving zone is
property zoned commercial (C-1), commercial office (CO), highway commercial (HC),
planned development -- shopping centers (PDSC), planned development -- mixed
commercial (PDMC), the commercial areas of a planned unit development (PUD), and
any other commercial zoning district.
(b)Industrial receiving zone. An industrial receiving zone is property
zoned light industrial (LI), highway industrial (HI), planned development -- industrial park
(PDIP), the industrial areas of a planned unit development (PUD), and any other
industrial zoning district.
(c)Public space or institutional receiving zone. A public space or
institutional receiving zone is property determined by the zoning administrator to be a
public facility or an institution.
(d)Rural areas and residential receiving zone. The rural areas and
residential receiving zone is that property zoned rural areas (RA), village residential (VR),
residential (R-1, R-2, R-4, R-6, R-10, and R-15), planned residential development (PRD),
the residential area of a planned unit development (PUD), the portions of the University of
Virginia located within Albemarle County, and any other rural or residential zoning district.
(15) Sound level meter. The term "sound level meter" means an instrument
used for making sound level measurements which meets the requirements of the
American National Standards Institute Type II rating.
(16)Source sound level. The term "source sound level" means the
equivalent sound level of the source being measured.
(17)Total sound level. The term "total sound level" means the equivalent
sound level of the source being measured and ambient sound before correction to
determine the source sound level.
(Ord. 00-18(3), 6-14-00)
State law reference - Va. Code § 15.2-2280.
Sec. 4.18.03 Procedure for measuring sound.
Each sound meter reading shall be conducted as provided herein:
A.Instrument of measurement. Each sound measurement shall be taken
only from a sound level meter.
B.Calibration of sound level meter. An acoustic calibrator authorized by
the manufacturer of the sound level meter shall properly calibrate the sound level meter
used for each sound measurement. The calibration shall have been performed within
twelve (12) months prior to the date of such reading. The user of the sound level meter
shall also have calibrated the sound level meter within one (1) hour prior to taking such
sound measurements.
C.Weather conditions. A windscreen shall be used on the sound level
meter when sound measurements are being taken. No outdoor sound measurements
shall be taken during rain or during weather conditions in which wind sound is
distinguishable from, and is louder to the ear than, the sound source being tested.
June 14, 2000 (Regular Night Meeting)
(Page 15)
D.Scale. Each sound measurement shall be expressed in units of the
sound level (dBA), in accordance with American National Standards Institute
specifications for sound level meters. Each measurement shall be made using the
A-weighted scale with fast response, following the manufacturer's instructions and
measuring the equivalent sound level. Impulse sounds shall be measured as the
maximum reading and not the equivalent sound level.
E.Place of sound measurement. Each sound measurement shall be
taken no closer to the sound source than the property lines of the receiving zone
properties or the property line along which a street fronts. If the property line of a
receiving zone property is not readily determinable, the sound measurement shall be
taken from any point inside the nearest receiving zone property, or within an occupied
structure located on receiving zone property. If the property line abutting a street is not
readily determinable, the sound measurement shall be taken from the edge of the
pavement which is closest to the source of the sound. Each sound measurement taken
of a sound source within a multifamily structure, such as an apartment building,
townhouse development and the like, may be made: (I) within the interior of another
residential unit in the same structure or the same development; or (ii) from common
areas.
F.Orientation of microphone. To the extent that it is practical to do so, the
microphone of the sound level meter shall be positioned four (4) to five (5) feet above the
ground or floor. The orientation recommended by the manufacturer of the sound level
meter shall supersede the foregoing orientation if the manufacturer's recommendation
conflicts therewith.
G.Duration of measurement. Each sound measurement shall be taken
over a period of five (5) continuous minutes, unless the sound being measured is an
impulse sound. If the sound being measured is an impulse sound, each sound
measurement shall be taken during the "impulse" or emission of that sound. The zoning
administrator shall determine whether a sound is an impulse sound for purposes of
determining the duration of the sound measurement.
H.Ambient sound measurement. The ambient sound shall be measured
for each sound measurement as follows:
1.The ambient sound level shall be averaged over a period of time
comparable to that for the measurement of the particular sound source being measured.
2.In order to obtain the ambient sound level, the sound source
being measured shall be eliminated by the source ceasing its sound-producing activity
and the ambient sound level shall be obtained from the same location as that for
measuring the source sound level. If the sound from the sound source cannot be
eliminated, the ambient sound level shall be measured from an alternative location
whose ambient sound level is not affected by the sound source in accordance with the
following procedure:
a.The alternative location should be as close as feasible as that
for measuring the source sound level, but located so that the sound from the source has
as little effect as possible on the ambient sound level measurement. Even if the source
sound is audible or is sufficient to raise the sound level above that which would be
measured were it inaudible at the alternative location, the reading is sufficient for the
purpose of this procedure.
b.The alternative location chosen must be such that structures in
the vicinity are similar in size and distribution, and the local topography is similar in
character to the location for the source sound level measurement.
c.Traffic conditions at the time the ambient sound level is
measured must be similar to those at the location for the sound source measurement.
I.Determining source sound level. Except for new equipment for which
the owner provides manufacturer's specifications related to sound levels accepted by the
zoning administrator, the sound level from a sound source shall be determined by
correcting the total sound level for ambient sound in accordance with the following
procedure:
1.Subtract the maximum measured ambient sound level from the
minimum measured total sound level.
2.In Row A below, find the sound level difference determined
under paragraph (1) and its corresponding correction factor in Row B.
June 14, 2000 (Regular Night Meeting)
(Page 16)
Row A
Sound Level
Difference (Decibels)
0.512345678910
Row B
Correction Factor
(Decibels)9.67431.81.61.21.00.750.60.5
3.Subtract the value obtained from Row B under paragraph (2)
from the minimum measured total sound level to determine the source sound level.
4.If the difference between the total sound level and the ambient
sound level is greater than 10 dBA, no correction is necessary to determine the source
sound level.
(Ord. 00-18(3), 6-14-00)
.
State law reference - Va. Code § 15.2-2280
Sec. 4.18.04 Maximum sound levels.
Except as provided in section 4.18.05, it shall be unlawful for any person to
operate or cause to be operated, any source such that the sound originating from that
source causes a sound level that exceeds the sound levels in the receiving zone,
measured pursuant to section 4.18.03, as set forth below:
Receiving ZoneTime PeriodNoise Level (dBA)
Rural Areas and Residential Daytime60
Nighttime55
Public Space or Institutional Daytime60
Nightime55
Commercial Daytime65
Nightime65
Industrial Daytime70
Nightime70
(Ord. 00-18(3), 6-14-00)
State law reference - Va. Code § 15.2-2280.
Sec. 4.18.05 Exempt sounds.
The following sounds shall not be subject to this section 4.18:
A.Animals. Sounds generated from animals including, but not limited to,
barking dogs.
B.Church bells or chimes. Sounds generated by church bells or chimes.
C.Construction, demolition and/or maintenance activities. Sounds
generated from construction, demolition and/or maintenance activities between 7:00 a.m.
and 10:00 p.m.
D.Emergency operations. Sound generated in the performance of
emergency operations including, but not limited to, audible signal devices which are
employed as warning or alarm signals in case of fire, collision or imminent danger, and
sounds generated by power generators during power outages and other emergency
situations.
E.Firearms. Sounds generated from the lawful discharge of a firearm;
provided that this exemption shall not apply to gun clubs or shooting ranges, nor to
firearms discharged at a gun club or a shooting range.
F.Parades, fireworks and similar events. Sounds generated from parades,
fireworks, and other events determined to be similar by the zoning administrator prior
thereto.
G.Protected expression. Any other lawful activity which constitutes
protected expression pursuant to the First Amendment of the United States Constitution,
but not amplified expression.
H.Public facilities. Sounds generated from the operation of a public facility
or public use or activity including, but not limited to, sounds generated from school
athletic contests or practices, and other school activities.
June 14, 2000 (Regular Night Meeting)
(Page 17)
I.Residential air conditioning units. Sounds generated from residential air
conditioning units.
J.Silvicultural or agricultural activities. Sounds generated during lawfully
permitted bona fide silvicultural or agricultural activities including, but not limited to,
logging activities and sounds caused by livestock.
K.Transient sounds from transportation. Transient sounds generated by
transportation including, but not limited to, public and private airports (except as otherwise
regulated), aircraft, railroads and other means of public transit.
L.Warning devices. Sounds generated by a horn or warning device of a
vehicle when used as a warning device, including back-up alarms for trucks and other
equipment.
M.Yard maintenance activities. Sounds generated from routine yard
maintenance activities including, but not limited to, mowing, trimming, clipping, leaf
blowing and snow blowing.
(Ord. 00-18(3), 6-14-00)
State law reference - Va. Code § 15.2-2280.
Sec. 4.18.06 Existing sound sources.
Each existing sound source existing on the effective date of this section 4.18 shall
be regulated as follows:
A.Each existing sound source that complies with the maximum sound
levels established in section 4.18.04 shall comply with all requirements of this section
4.18 rather than an applicable prior regulation.
B.Each existing sound source that does not comply with the maximum
sound levels established in section 4.18.04 shall not increase its sound level. Such a
sound source shall comply with such sound levels whenever a building, structure,
equipment or machinery thereof is expanded, enlarged, extended or replaced, unless a
modification, waiver or variation is granted as provided in section 4.18.07.
(Ord. 00-18(3), 6-14-00)
State law reference - Va. Code § 15.2-2280.
Sec. 4.18.07 Modification, waiver or variation.
The commission may grant a modification, waiver or variation from the standards
set forth in section 4.18.04, as provided herein:
A.The commission may modify, waive or vary the standard set forth in
section 4.18.04 in a particular case upon finding that strict application of the standard
would cause undue hardship and not forward the purposes of this chapter or otherwise
serve the public interest, or that alternatives proposed by the owner would satisfy the
purposes of this section 4.18 at least to an equivalent degree.
B.The commission may impose conditions on the modification, waiver or
variation that it deems appropriate to further the purposes of this chapter.
C.Prior to considering a request to modify, waive or vary, five (5) days'
written notice shall be provided to the owner, owner's agent or occupant of each abutting
lot or parcel and each parcel immediately across the street or road from the lot or parcel
which is the subject of the request. The written notice shall identify the nature of the
request and the date and time the commission will consider the request.
(Ord. 00-18(3), 6-14-00)
State law reference - Va. Code § 15.2-2280.
Sec. 5.1.02 Clubs, lodges.
Each club or lodge shall be subject to the following:
a.Regardless of provisions of individual zoning districts, gun clubs and
shooting ranges shall be permitted by special use permit only;
b.Such subordinate uses and fund-raising activities as bingo, raffles,
auctions, etc., shall be conducted in enclosed buildings only. No such activity shall be
conducted between 1:00 p.m. and 8:00 a.m.
(Amended 6-14-00)
Sec. 5.1.09 Fire, ambulance, rescue squad station (volunteer).
June 14, 2000 (Regular Night Meeting)
(Page 18)
Each fire, ambulance or rescue squad station (volunteer) shall be subject to the
following:
a.Any such use seeking public funding shall be reviewed by the
commission in accordance with section 31.2.5. Specifically, the commission shall find
that the proposed service area is not already adequately served by another such facility.
In addition, the commission shall consider: growth potential for the area; relationship to
centers of population and to high-value property concentrations; and access to and
adequacy of public streets in the area for such use. The commission may request
recommendation from the Albemarle County fire official and other appropriate agencies
in its review;
b.Such subordinate uses and fund-raising activities as bingo, raffles and
auctions shall be conducted in an enclosed building only. No such activity shall be
conducted between 11:00 p.m. and 8:00 a.m.
(Amended 6-14-00)
Sec. 5.1.11 Commercial kennel, veterinary, animal hospital.
Each commercial kennel, veterinary and animal hospital shall be subject to the
following:
a.Except where animals are confined in soundproofed, air-conditioned
buildings, no structure or area occupied by animals shall be closer than five hundred
(500) feet to any agricultural or residential lot line. For non-soundproofed animal
confinements, an external solid fence not less than six (6) feet in height shall be located
within fifty (50) feet of the animal confinement and shall be composed of concrete block,
brick, or other material approved by the zoning administrator;
(Amended 11-15-89)
b.For soundproofed confinements, no such structure shall be located
closer than two hundred (200) feet to any agricultural or residential lot line. For
soundproof confinements, noise measured at the nearest agricultural or residential
property line shall not exceed fifty-five (55) decibels;
(Amended 11-15-89; 6-14-00)
c.In all cases, animals shall be confined in an enclosed building from
10:00 p.m. to 6:00 a.m.
(Amended 11-15-89; 6-14-00)
d.In areas where such uses may be in proximity to other uses involving
intensive activity such as shopping centers or other urban density locations, special
attention is required to protect the public health and welfare. To these ends the
commission and board may require among other things:
(Amended 11-15-89)
- Separate building entrance and exit to avoid animal conflicts;
(Added 11-15-89)
- Area for outside exercise to be exclusive from access by the public by fencing
or other means.
(Added 11-15-89)
Sec. 5.1.16 Swimming, golf, tennis clubs. (Amended 6-14-00)
Each swimming, golf or tennis club shall be subject to the following:
a.The swimming pool, including the apron, filtering and pumping
equipment, and any buildings, shall be at least seventy-five (75) feet from the nearest
property line and at least one hundred twenty-five (125) feet from any existing dwelling on
an adjoining property, except that, where the lot upon which it is located abuts land in a
commercial or industrial district, the pool may be constructed no less than twenty-five
(25) feet from the nearest property line of such land in a commercial or industrial district;
b.When the lot on which any such pool is located abuts the rear or side
line of, or is across the street from, any residential district, a substantial, sightly wall,
fence, or shrubbery shall be erected or planted, so as to screen effectively said pool from
view from the nearest property in such residential district;
c.The board of supervisors may, for the protection of the health, safety,
morals and general welfare of the community, require such additional conditions as it
deems necessary, including but not limited to provisions for additional fencing and/or
planting or other landscaping, additional setback from property lines, additional parking
space, location and arrangement of lighting, and other reasonable requirements;
June 14, 2000 (Regular Night Meeting)
(Page 19)
d.Provision for concessions for the serving of food, refreshments or
entertainment for club members and guests may be permitted under special use permit
procedures.
Sec. 5.1.37 Outdoor amphitheater. (Amended 6-14-00)
Each outdoor amphitheater shall be subject to the following:
a.Overnight parking or camping shall not be permitted;
b.No such use shall be approved until adequate provisions for traffic
management have been demonstrated;
c.No such use shall be approved until adequate provisions for on-site
emergency medical facilities have been demonstrated;
d.No special use permit shall be approved without approval of a
monitoring program to insure maximum sound levels are not exceeded.
(Added 10-9-96)
Article III. District Regulations
Sec. 30.4.14. Performance standards.
In addition to any other provision of law, the following performance standards
shall apply to any use permitted hereby:
1.No blasting shall be permitted except in conjunction with a permit for a
stone quarrying operation;
2.Ground vibration from surface blasting shall not exceed the limits set
forth in 4 VAC 25-40-880, as measured in the manner set forth therein.
(Amended 6-14-00)
3.Airblast resulting from surface blasting shall not exceed one hundred
twenty-nine (129) decibels at any occupied structure not on the subject property.
(Amended 6-14-00)
_______________
Agenda Item No. 10. ZTA-00-007. Civil Penalties. Public hearing on an ordinance to amend
Chapter 18, Zoning, of the Albemarle County Code, by repealing existing section 37.0, Penalties, and by
adding new section 37.0, Penalties and remedies. This amendment pertains to establishing authority to
enforce certain identified zoning violations by civil penalties, and continuing existing authority to enforce
zoning violations by criminal penalties or by seeking injunctive relief or other remedies. (Notice of this
public hearing was advertised in the Daily Progress on May 29 and June 5, 2000.)
It was noted in the staff’s report that the Planning Commission, at its meeting on May 16, 2000,
unanimously recommended approval of ZTA-00-007 as presented at its public hearing.
Ms. Amelia McCulley, Zoning Administrator, said this amendment is before the Board at the request
of the County Attorney’s staff and the Zoning Department. They believe it will, first of all, reduce the staff
time necessary to investigate and resolve each specific zoning violation. Second, they believe it will provide
a deterrent to future zoning violations. It will be a more expedient means for providing compliance.
Currently, it is a criminal violation to violate zoning regulations, so when the Department does not reach
compliance with a person, the next step is criminal prosecution. This requires significant amounts of staff
time, and is not necessarily the best way to come up with the desired result for a case. She offered to
answer questions.
Mr. Dorrier asked if a teenager gave a party and had a loud stereo system, if the parent would be
prosecuted, or the teenager, or would a civil penalty be worked out. He asked the practicality of this
section. Ms. McCulley said it is her opinion that the regulation in that case would be in the County Code,
and police enforcement of a nuisance. Mr. Davis said Mr. Dorrier’s example would not be prosecuted
under the Zoning Ordinance, but under the County Code, if at all. It would be handled under standard
procedures.
Ms. McCulley said in any case in which something is of a recurring nature, or a very serious nature,
the Department can go for an injunction. The Department is not precluded from doing that either before or
after a civil penalty. In terms of how it would be applied, people would have to be given notice, and it would
be applied with discretion. If someone commits a minor violation and quickly complies, then a civil penalty
might not be applied.
Ms. McCulley said there was one other procedure she had not mentioned. That procedure relates
to the Freedom of Information Act. In the criminal procedure, a complainant’s name is protected. It is an
exemption under the Freedom of Information Act. Going through the civil procedure, that exemption could
not be provided, so the complainant’s name will not be taken. Complaints will be taken anonymously.
They feel this is better so the Department does not have to give out a name.
June 14, 2000 (Regular Night Meeting)
(Page 20)
Mr. Perkins asked about a section concerning a truck of a certain weight or a dual-wheeled
recreation vehicle being parked in a residential district. Mr. Davis said these regulations have been in the
Zoning Ordinance since 1980. All this does is list those which will be addressed civilly rather than
criminally. These were not added as part of this ordinance.
Mr. Bowerman said he thinks the Board is beginning to get an understanding of the issues the
Zoning Department has faced in the past, and continues to face with the ambiguities and inconsistencies in
the current ordinance. He thinks what staff has done is to bring some order and methodology to this
process. He knows of many instances where it has been next to impossible to get an injunction because
life and safety were not involved, but the nuisance value was greatly involved. This gives staff an
opportunity to follow through on the most grievous violations in a manner which allows their action to be
upheld in court.
With no further comments from the Board, Mr. Martin opened the public hearing.
Mr. Tom Olivier said he has not read the new ordinance, but wished to comment on some issues
which occurred in the past in the Schuyler area. There were times when the neighbors went to Ms.
McCulley due to individuals who had been engaged in zoning violations. When approached by the Zoning
Office, it became clear that the individuals had little information to voluntarily change their activities.
Eventually, with continued requests that something be done, the County took the individuals to court with
fairly mixed results. In the course of discussions about this new ordinance, the issue of civil penalties was
raised rather than having everything be a criminal penalty. It seemed to be a better way to handle some of
these cases. He said the whole idea of having treatment of a zoning violation as a civil issue has seemed to
some people for a long time to be a good thing to do.
With no one else from the public rising to speak, the public hearing was closed and the matter
placed before the Board.
Mr. Davis said if the Board is going to adopt this ordinance, he requests that the effective date be
July 1 to allow staff time to assure the process that will be coordinated with the General District Court.
Motion was offered by Ms. Humphris, seconded by Mr. Bowerman, to Adopt an Ordinance to
Amend Chapter 18, Zoning, Article V, Violation and Penalty, of the Code of the County of Albemarle,
Virginia, By Adding Sec. 37.0 Penalties and remedies, Sec. 37.1 Criminal penalty, Sec. 37.2 Civil
penalty, Sec. 37.3 Injunctive relief and other remedies; and, By Repealing Sec. 37.0 Penalties, with
the effective date of the ordinance being July 1, 2000.
Roll was called, and the motion carried by the following recorded vote:
AYES: Ms. Thomas, Mr. Bowerman, Mr. Dorrier, Ms. Humphris, Mr. Martin and Mr. Perkins.
NAYS: None.
(Note: The ordinance, as adopted, is set out in full below.)
ORDINANCE NO. 00-18(5)
AN ORDINANCE TO AMEND CHAPTER 18, ZONING, ARTICLE V, VIOLATION AND
PENALTY, OF THE CODE OF THE COUNTY OF ALBEMARLE, VIRGINIA
BE IT ORDAINED by the Board of Supervisors of the County of Albemarle,
Virginia, that Chapter 18, Zoning, Article V, Violation and Penalty, of the Code of the
County of Albemarle is amended as follows:
By Adding:
Sec. 37.0Penalties and remedies.
Sec. 37.1Criminal penalty.
Sec. 37.2Civil penalty.
Sec. 37.3Injunctive relief and other remedies.
By Repealing:
Sec. 37.0Penalties.
Chapter 18. Zoning
Article V. Violation and Penalty
Sec. 37.0 Penalties and remedies. (Amended 6-14-00)
Sec. 37.1 Criminal penalty.
Any person, whether owner, lessee, principal, agent, employee or otherwise, who
violates any provision of this chapter, or permits any such violation, or fails to comply with
any of the requirements hereof, or who erects any building or structure or uses any
building, structure or land in violation of this chapter or any site plan or other detailed
June 14, 2000 (Regular Night Meeting)
(Page 21)
statement or plan submitted by one of the above-described persons and approved under
the provisions of this chapter, shall be subject to the following:
A.The person shall have committed a misdemeanor offense punishable by
a fine of not less than ten dollars ($10.00) nor more than one thousand dollars
($1,000.00).
B.If the violation is uncorrected at the time of conviction, the court shall
order the person convicted to abate or remedy the violation in compliance with this
chapter, within a time period established by the court. Failure to remove or abate such
violation within the time period established by the court shall constitute a separate
misdemeanor offense punishable by a fine of not less than ten dollars ($10.00) nor more
than one thousand dollars ($1,000.00), and any such failure during any succeeding ten
(10) day period shall constitute a separate misdemeanor offense for each ten (10) day
period, punishable by a fine of not less than one hundred dollars ($100.00) nor more
than one thousand five hundred dollars ($1,500.00).
(Ord. 00-18(5), 6-14-00)
.
State law reference - Va. Code § 15.2-2286
Sec. 37.2 Civil penalty.
Any person, whether owner, lessee, principal, agent, employee or otherwise, who
violates any provision of this chapter, or permits any such violation, or fails to comply with
any of the requirements hereof, or who erects any building or structure or uses any
building, structure or land in violation of this chapter or any site plan or other detailed
statement or plan submitted by him and approved under the provisions of this chapter,
shall be subject to the following:
A.Schedule of violations subject to one hundred dollar ($100.00) civil
penalty for first violation. Any violation of the following provisions of this chapter shall be
subject to a civil penalty of one hundred dollars ($100.00) for the first violation, and a civil
penalty of one hundred fifty dollars ($150.00) for each subsequent violation arising from
the same set of operative facts:
1.Each use of a lot, including the use of any structure thereon, not
authorized either as a matter of right or by special use permit by the zoning regulations
applicable to the district in which the lot is located, in violation of, as applicable, sections
and subsections 10.2, 12.2, 13.2, 14.2, 15.2, 16.2, 17.2, 18.2, 19.3, 20.3, 20.4, 20.5,
20.6, 21.2, 22.2, 23.2, 24.2, 25.2, 25A.2, 26.3, 27.2, 28.2, 29.2, 30.2.4, 30.3.05, 30.3.06,
30.4.02, 30.5.5 or 30.6.3.
2.The location of a structure or improvement in an area other than
a building site, in violation of subsection 4.2.3.1.
3.The location of a structure or improvement or engaging in land
disturbing activity on slopes of twenty-five percent or greater, in violation of subsection
4.2.3.2.
4.The cutting of trees in violation of section 4.3.
5.The placement, allowance of, erection or maintenance of a
material impediment to visibility so as to restrict sight distance in violation of section 4.4.
6.Any violation of section 4.10, which regulates the height of
buildings and other structures, except as provided in subsection (B)(1).
7.Any violation of section 4.12, which regulates off-street parking.
8.Any violation of section 4.15, which regulates permanent and
temporary signs, except as provided in subsection (F).
9.Any violation of section 4.17, which regulates outdoor lighting.
10.Any violation of section 5.0, which establishes supplementary
regulations for certain uses authorized in the several zoning districts.
11.Any violation of section 32.0, which regulates site plans and
development pursuant thereto.
12.Any violation of a proffer, or a planned development application
plan, special use permit, variance, site plan, certificate of appropriateness or any
condition related thereto.
B.Schedule of violations subject to fifty dollar ($50.00) civil penalty for first
violation. Any violation of the following provisions of this chapter shall be subject to a civil
June 14, 2000 (Regular Night Meeting)
(Page 22)
penalty of fifty dollars ($50.00) for the first violation, and a civil penalty of one hundred fifty
dollars ($150.00) for each subsequent violation arising from the same set of operative
facts:
1.The construction, erection or location of an accessory building in
a residential district in violation of subsection 4.10.3.4.
2.Any violation of section 4.11, which regulates uses and
structures permitted in required yards.
3.The use of a major recreational vehicle in violation of subsection
4.13.1.2.
4.The parking of a truck with a gross vehicle weight of twelve
thousand (12,000) pounds or more or a dual-wheeled recreational vehicle in a residential
district in violation of subsection 4.13.3. Each such truck or dual-wheeled recreational
vehicle parked in a residential district in violation of subsection 4.13.3 shall constitute a
separation violation.
5.Any violation of section 4.18, which regulates noise.
6.The failure to maintain or replace recreational equipment in
violation of subsection 4.16.3.2.
7.Any violation of section 6.0, which regulates Nonconformities.
C.Each day during which a violation is found to exist shall be a separate
offense. However, the same scheduled violation arising from the same operative set of
facts may be charged not more than once in a ten (10) day period, and the total civil
penalties from a series of such violations arising from the same set of operative facts
shall not exceed three thousand dollars ($3,000).
D.Any person summoned for a scheduled violation may elect to pay the
civil penalty by making an appearance in person or in writing by mail to the department of
finance prior to the date fixed for trial in court. A person so appearing may enter a waiver
of trial, admit liability, and pay the civil penalty established for the offense charged. A
signature to an admission of liability shall have the same force and effect as a judgment
of court. However, such an admission shall not be deemed a criminal conviction for any
purpose. If a person charged with a violation does not elect to enter a waiver of trial and
admit liability, the violation shall be tried in the general district court in the same manner
and with the same right of appeal as provided by law. A finding of liability shall not be
deemed a criminal conviction for any purpose.
E.The designation of a particular violation in section 37.2(A) or (B) shall be
in lieu of any criminal penalty and, except for any violation resulting in injury to persons,
such a designation shall preclude the prosecution of the particular violation as a criminal
misdemeanor, but shall not preclude any other remedy available under this chapter.
F.The designation of a particular violation in section 37.2(A) or (B) shall not
be construed to allow the imposition of civil penalties: (I) for activities related to land
development within the meaning of Virginia Code § 10.1-603.2; or (ii) for violation of any
provision of the zoning ordinance relating to the posting of signs on public property or
public rights-of-way.
G.Any reference herein to a section of this chapter shall include all
subsections and paragraphs of that section.
(Ord. 00-18(5), 6-14-00)
State law reference - Va. Code § 15.2-2209.
Sec. 37.3 Injunctive relief and other remedies.
Any violation of this chapter may be restrained, corrected, or abated as the case
may be by injunction or other appropriate relief.
( Ord. 00-18(5), 6-14-00)
State law reference - Va. Code § 15.2-2208.
This ordinance shall be effective on and after July 1, 2000.
(Note: The Board recessed at 8:02 p.m. and reconvened at 8:15 p.m.)
_______________
Agenda Item No. 11. PUBLIC HEARING on An Ordinance to Amend and Reordain the Albemarle
County Code by adding a new Chapter 5.1, Conservation Easement Program, to establish the procedures
and criteria for a County program (to be known as the ACE Program) to purchase conservation easements
June 14, 2000 (Regular Night Meeting)
(Page 23)
under the authority of the Open Space Land Use Act. (Notice of this public hearing was published in the
Daily Progress on May 29 and June 5, 2000.)
Mr. Davis said at the Board’s February 2, 2000, meeting, it directed staff to draft an ordinance
implementing the ACE Program based on the ACE Committee’s final report dated November 3, 1999, as
supplemented by subsequent work sessions and a public hearing on January 12, 2000. The form of the
proposed ordinance is generally modeled after the Virginia Beach Agricultural Reserve Program, which is
the only existing program in Virginia. The Planning Commission held a work session on the draft ordinance
on May 23, 2000.
Mr. Davis said the ACE Program is to be administered by the Director of Planning and Community
Development as the Program Administrator. There will be a ten-member ACE Committee appointed by the
Board to evaluate and rank applications and then make recommendations to the Board; to annually review
the program’s eligibility and ranking criteria and to then recommend changes to the Board. There will be a
five-member Appraisal Review Committee appointed by the Board to review appraisals and make
recommendations on those appraisals to the Board. The Board will decide which conservation easements
will be purchased.
Mr. Davis said the Program is designed to rank properties on identifiable criteria which are set out in
the ordinance. This will assign points based on very specific attributes of the property. Applications by
property owners will be voluntary. When an application is submitted, they will identify property attributes
relevant to the Program. Staff will evaluate the property and assign points based on the attributes and rank
the properties accordingly. After review by the Committee, it would come to the Board for a decision as to
whether the Board agreed with the ranking, and after the process outlined in the ordinance, the property
owners who are chosen to have their property in the program, would be invited to submit an offer to the
Board to purchase the conservation easements.
Mr. Davis said there is a time line set forth in the ordinance. There are four different dates. July 1
is the application deadline for properties to be considered. The only two dates which are critical are July 1
(which is the date on which the Board authorizes staff to make the invitations for easements) and November
1. He recommends that the internal dates stay in the ordinance because it gives target dates for the staff to
meet. If the other dates are not achievable, those are dates the Board has the ability to modify.
Mr. Davis said as to the minimum terms and conditions of the conservation easement, they will
restrict further division so when the parcel or parcels subject to the conservation easement are less than
one hundred acres in the aggregate, they may not be further divided, and when greater than one hundred
acres in the aggregate, they may be divided if the average parcel size after division is at least one hundred
acres. Mr. Davis mentioned new wording for Section 5.1-109.A, Restriction on division, handed out earlier
tonight. He said there are three possible ways this section can be written, and there is no right or wrong
answer as to how this is approached.
Mr. Davis said in that same handout is new wording for Section 5.1-109.E, Designation of easement
holders. Because County funds will be used to purchase most easements, he feels it is important that the
County hold these easements since it has to meet the Dillon Rule for expenditure of funds. It was the
desire of the ACE Committee to have a co-holder. Two co-holders which have been identified are the
Virginia Outdoors Foundation or the Albemarle County Public Recreational Facilities Authority. Other
possible holders are only intended to be public bodies identified under the Open Space Land Act.
Mr. Dorrier asked if the owner will maintain control of the property subject to the easement. Mr.
Davis said the property remains under private ownership and private control. It remains private property in
all respects. The only restrictions on it will be as set forth in the conservation easement (see Section 5.1-
109, Easement terms and conditions).
Mr. Martin said if there were no further comments at this time, he would open the public hearing.
First to speak was Ms. Katie Hobbs, Natural Resources Chair for the League of Women Voters.
They support this ordinance which was written by a broad cross section of public and private groups. The
purchase of development rights, which is the main objective of this ordinance, is a good means of
protecting farmland, keeping it in agriculture use. All agree this is a sound idea, although all may not agree
on all of its purposes. There are quite a diverse listing of purposes in the document. All would agree that
the ordinance will contribute to alleviating other concerns. For that reason, the LOWV urges that a staff
person be hired to coordinate with other agencies and to use all means and methods available, including
the writing of grants. This would enable people interested in the ACE Program to have a variety of
mechanisms available to keep and protect their land, for themselves and for the interests of the County.
The LOWV believes that as this staff person begins to understand the scope of the ACE Program, an
overall plan will emerge to enable them to become more proactive in further promoting the purchase of
development rights. The LOWV also recommends that when the Board appoints an ACE Committee, that
committee should include a lawyer, a planning commissioner and a director from the Soil and Water
Conservation District. The LOWV has repeatedly voiced support for Comprehensive Plan provisions, land
use decisions and other County efforts to protect the watersheds, forests, historic resources, mountain
lands and the diverse biological communities. Over the ensuing time, the community’s good health
depends on these remaining intact and viable. This ordinance is a commonly agreed upon, bold, innovative
beginning.
Mr. Tom Olivier, President of Citizens for Albemarle, presented a prepared statement (copy is on
file with the permanent records of the Board of Supervisors). He said Citizens for Albemarle urges that the
June 14, 2000 (Regular Night Meeting)
(Page 24)
Board adopt the proposed ACE Ordinance, or a minor revision, provided that: (1) the County promptly and
thoroughly updates the Rural Areas section of the Comprehensive Plan, and (2) reviews and revises the
structure of the ACE Program in two to three years so that weak or faulty features are corrected.
Mr. Robert Self said he is conservator of architecture and furniture at Monticello and has served on
the Albemarle County Historic Preservation Committee for the past five years. They were charged with
drafting an historic preservation plan for Albemarle County. He said the Thomas Jefferson Memorial
Foundation which owns and operates Monticello, strongly supports the adoption of an ordinance to
establish the purchase of development rights. A PDR program would be a valuable tool to protect
Monticello’s viewshed which is enjoyed by over one-half million visitors annually. Monticello is the only
house in the United States on the World Heritage List and is an extremely important part of the regional
economy. He suggested that those responsible for drafting the ordinance consider amending the
document so that the eligible property weighting criteria point system include the historic structures in the
County. Albemarle County is known internationally for its historic significance, and its structures should be
counted as part of a purchase of development rights program.
Ms. Babette Thorpe was present to speak for the Piedmont Environmental Council. She said PEC
appeared before the Board in January and asked that the criteria be strengthened to insure that ACE helps
easement prospects that cannot benefit from the income and estate tax deductions. The proposal
submitted to the Board by Ms. Nancy McLaughlin accomplishes this objective better than the original
financial criteria, and PEC supports its inclusion in the ordinance. PEC is concerned about delaying the
first round of purchases until the Spring of 2001 and asks that the Board do whatever it can to keep
implementation of the ACE Program a priority in the months to come. As an aside, Ms. Thorpe said PEC
also hopes the Board will resist the temptation to overload this program with other regulations and Best
Management Practices. Please remember that this program started out to be a purchase of development
rights program, a way to reduce dramatically the residential development potential on key rural parcels.
They hope the Board will allow this program to remain true to that original intent. While there still may be a
few details to work out, PEC thinks ACE is essential to good conservation planning in Albemarle County.
PEC urges the Board to move forward, adopt the ordinance as soon as possible and begin putting in place
the staff and procedures necessary to carry out the program.
Ms. Wren Dawson Olivier said she is from the Schuyler area of Albemarle County. She supports
the ACE proposal and urges the Board to adopt the ordinance. She thinks it is important to protect the rural
areas, but also urges that the Board continue its efforts to update the Comprehensive Plan, particularly the
Rural Areas Chapter.
Mr. Ed Scharer said he is an Albemarle County farmer and is an enthusiastic supporter of the ACE
Program or PDR. He has a couple of questions about items listed under Section 5.1-109D. Words like
“restrictions shall include, but are not necessarily limited to” make him nervous. It also makes other
farmers nervous. If there is too much legal “jargon” involved, it will throw up “red flags” and discourage
farmers from applying. There is no reason to limit the size of and number of farm outbuildings. He
questioned Item (iii) the management of forest resources, but now understands this refers to using Best
Management Practices. He feels this should be spelled out rather than just using these terms.
Mr. Fred Scott said he is a farmer. If the County only has $2.0 million in the bank, he does not
believe too many farmers will take this program seriously because that is not enough money to buy land in
Albemarle County. He thinks the County should have ten times that much before it starts talking to
landowners. He thinks the concept of the sliding scale on the income side for the seller makes no sense. If
the County wants to buy real estate, buy it, don’t try to make social adjustments in what ought to be a
simple, straight forward purchase of property. Keep it simple.
Mr. A. C. Shackelford said he is President of the Albemarle County Farm Bureau. He said the
Farm Bureau has supported this enthusiastically from the beginning. They publicized it among their
members, and joined with the Virginia Cooperative Extension Service to put on an education program to
further the idea. One of the best things about the program is that it is voluntary. He wanted to comment
about Section 5.1-109D, the restrictions. As Mr. Scott said, too strict restrictions will discourage people from
buying into the program. It would take a lot of force to get him to sign due to the way some of the ordinance
is written. If management of forestry resources means best management practices, say so, otherwise he
would take that to say he would have to ask permission to cut a tree. If he had to ask to do that, he might
have to ask when he could cut hay. He is not referring to the current committee, but one that might be
more aggressive than this group fifty years from now. In reference to grading, blasting, earth removal, he
would not be able to bury a dead cow. He is not asking that anything be done to hurt the ordinance, but to
make some changes to make it succeed. He suggested delaying a vote, sending the ordinance back to
staff instructing them that the boundaries they put into it should put limits on bureaucracy and protect the
citizens.
Mr. Davis said he would like to provide a clarification. He said section “D” on the restrictions comes
straight from the Virginia Outdoors Foundation’s document proposed by the committee as the model
easement agreement. The ordinance was not intended to be specific as to how these things would be
taken care of, but would be set out in the easement agreement itself. That is where it will spell out that
forestry management will be best management practices. The easement document will be voluntarily
entered into by the landowner and will available to the landowner in advance. It will be part of a set of
easement agreements which will be of record so everyone will know what it means and no one will be able
to change those terms after the landowner has entered into the agreement.
June 14, 2000 (Regular Night Meeting)
(Page 25)
Mr. Joe Jones said he is from White Hall and is a farmer. He was a member of the ACE
Committee representing the Farm Bureau. He would like to reiterate to keep the ordinance simple. The
committee tried to get a glove that would fit all situations and landowners. He thinks the committee was
trying to make the program attractive to prospective landowners. Throughout the committee, they said
keep it simple, don’t try to deal with the management of the land. Don’t try to regulate anything. This is
simply a land preservation tool. He is uneasy because in the rankings there are references to the historic
district, the mountain overlay district, to historic structures, and stream fencing, and historic occurrences.
He said the population of farmers is elderly and those things are “red flags” to these people. It might be
helpful to spell out in Section “D” that the terms of the easement will be spelled out between the County
and the landowner. The ordinance gives the impression that the County is trying to impose other
ordinances, or other wishes, through this ordinance. He asked that the ordinance be kept simple.
Mr. Bruce Appleyard said he is the transportation and land use planner for the Southern
Environmental Law Center. He said they strongly support the acquisition of conservation easements, or
ACE Ordinance, before the Board tonight. This region is under tremendous pressure to develop and a
substantial amount of open space has already been lost. The ACE program will provide a much needed
and effective tool to protect the vulnerable agricultural and natural areas that make this community such an
attractive place to live, work and visit. SELC urges the Board to adopt the ordinance, but does have one
concern about the current proposal. By limiting acceptance of applications to only once a year, they are
concerned an opportunity may be missed in other parts of the year to protect threatened properties from
development. This year’s deadline would only be just a few short weeks away and they are concerned that
the program will not be in place in time, nor would there be enough time for prospective property owners to
consider submitting an application for protection. It would be unfortunate to have to wait another year for
this program to take effect. SELC recommends having a biannual review process. They recommend
correcting this program and then passing the ordinance.
Ms. Sherry Buttrick said she chaired the ACE Committee, and she thanked all of its members for
the time they had given over the past three years. She thanked Diane Mullins in the County Executive’s
Office for her unending administrative support and always good cheer. She said the committee worked
hard on multiple drafts of this ordinance and believe it is almost right. The Committee is willing to work with
staff to smooth out any rough spots. They thank the Board of Supervisors for their willingness to consider
this ordinance. Albemarle County is on the cutting edge. This would be only the second locality in the State
to have a PDR Program. The Committee asks the Board’s indulgence in breaking new ground if there are
a few rough spots.
Mr. DeForest Mellon said he would like to add his voice in support of the ACE Program. If recent
history is any guide, development pressures will continue to erode open space in Albemarle County. With
the loss of open space and its attendant bio-diversity resources, it impoverishes us all in terms of the loss of
renewable air, clean water storage and retention, etc. His only regret is that such an ordinance was not
proposed and adopted three years ago.
With no one else from the public rising to speak, the public hearing was closed at 8:55 p.m.
Mr. Davis said he would like to clarify a couple of things for the Board. Ms. Thomas said she thinks
a lot of questions would be answered if the Board had a deed document to which to refer. Mr. Davis said
the committee furnished a document which would address all of the restrictions in section 5.1-109D.
Basically, that document exists and addresses all of those issues. In the ordinance, staff highlighted the
type of restrictions usually found in conservation easements. There was a fundamental decision made by
the committee to change from a purchase of development rights program to a purchase of a conservation
easement program. Inherent in that decision was a choice to not just regulate the density, but to also
acquire a conservation easement to preserve certain features of the land. This is the heart of those
restrictions which are modeled after the Virginia Outdoors Foundation’s easement and similar organizations
of that type. The only other restriction envisioned in the ordinance is a restriction to be addressed on an
individual basis which would protect mountain resources if an application received points for mountain
resources. In that instance, language would have to be drafted in the easement document to conform it to
criteria in the Comprehensive Plan concerning protection of mountain resources, which was adopted a few
years ago. That would be done on a voluntary basis. Other things like historic structures would be treated
in a similar manner. If someone wants to receive points for an historic structure in order to be rated higher
on the eligibility list, easement language which would appropriately preserve that historical feature would
have to be adopted. It is not proposed in this ordinance, but a similar thing could be done for buffers to
perennial streams. It is not suggested that that language would be necessary in the easements because of
the water protection ordinance which already accomplishes what the conservation easement is proposed to
do. The standard easement agreement will be very similar to what the committee proposed. Other terms
of it may be somewhat site specific based on the mountain resource area. The document can be
completed in a short time.
Mr. Martin said if a few people got together over the next week, he believes there could be some
language added to clarify that document, and maybe change the language so it can be read by laymen and
more easily appreciated. He understands this document is being molded over things which already exist,
but on the other hand, there could be a second or third paragraph to explain it a little better. Mr. Davis said
the ordinance just highlights the issues, while the easement document itself sets out the restrictions.
Mr. Dorrier said he had a question about which properties would be eligible for inclusion. In reading
the original proposal, it talked about fill areas being eligible for the designation, and now it is being called a
conservation easement. He thought the purpose of the ordinance was to protect the public from
development in certain areas where it is not good for that area. Mr. Davis said under the guidelines for the
June 14, 2000 (Regular Night Meeting)
(Page 26)
open space easement, it has to be consistent with the Comprehensive Plan. This will accomplish what Mr.
Dorrier is inferring because the Comprehensive Plan targets the Rural Areas where there will be less dense
development, and where conservation of resources is appropriate. The major criteria for qualifying is that
the land is consistent with the Comprehensive Plan and a conservation easement would help protect that
resource. Even though it does not limit it just to Rural Areas land, for the vast number of circumstances that
is where it will be.
Mr. Dorrier said a ten-person committee seems to be a large committee to deal with the
administration of this program. Mr. Davis said that was the recommendation of the ACE Committee.
Mr. Dorrier asked if the Board of Supervisors can change the ranking for subjective reasons once
properties are ranked according to the point scale. Mr. Davis said the Board does not have to follow the
recommendation. The expenditure of the limited resources available is a legislative decision of the Board.
The program is intended to be a framework for bringing a property to the Board to be purchased in a logical
manner. Ultimately, the decision to purchase or not purchase is a decision of the Board.
Mr. Dorrier mentioned an issue raised by Mr. Scott concerning the income level of the applicant.
Mr. Martin said the whole purpose of that recommendation was because of the people who now donate
easements. He was concerned that the County not purchase easements that otherwise would be donated.
How to distinguish between the people who would continue to donate, and those who would not donate if
the County was purchasing was the question. The sliding scale was the answer to that question. People
with certain incomes would benefit more for tax purposes from donations.
Mr. Dorrier said he thinks it is a good idea, but suppose the property is in a location that needs to be
protected, then income level is less important than the property’s location. Mr. Bowerman said this is a
voluntary program, so the County might not be offered that property if the person had no economic
incentive because they had a low income, versus the person who had a lot of income, and could shelter
part of that income for tax purposes. With the donation, there might be the voluntary submittal of that
property with the income sliding scales because there would be benefits to all.
Mr. Dorrier asked if that is where the subjective decision of the Board comes into play because on a
mathematical scale they would not reach that point. Mr. Bowerman said that is part of the subjective
criteria. Somebody might withdraw a parcel, or the Board might decide after reviewing the list of
recommendations that one parcel was a higher priority than the others. Mr. Martin said the Board would not
be changing the rate under which that person would be compensated.
Ms. Thomas said she would like to go back to Section 15.1-109.D, Other restrictions. She said it
seems that the point Mr. Davis made in his verbal comments tonight, but not on paper, is that these
restrictions are voluntarily agreed to by the landowner. They are modeled after restrictions that have been
used in another restriction program used in Virginia. The wording as it stands in Paragraph D is scary to the
very people the Board wants to interest in this program. Those people have said these are scary words.
She is worried that if the paragraph remains worded as it is, this will be the thing that is most known about
this program and that will be most unfortunate. She thinks something must be done with the wording of this
paragraph. Just saying “the parcel shall be subject to restrictions that will be in the deed voluntarily agreed
to by the landowner (see attached model easement)” or something similar might solve the problem.
Mr. Perkins said the properties have the same restrictions on them that any other properties have
on them. The owner will not be able to put up signs, he will not be able to have commercial/industrial
developments unless he gets a special use permit. There may be a time when there would be a benefit to
the public to have something there like a campground, shooting preserve, etc. and that would have to go
through a special use permit. He does not believe there should be wording in the ordinance saying that can
never happen because there is a conservation easement or because development rights have been
purchased. He said this is a PDR Program and the conservation things can be attached to it. He
understands from talking to Ms. Buttrick that she negotiates restrictions on divisions. These are minimal
restrictions. Someone might want to sell all of their development rights, and if there are a thousand acres
there would never be a house on the property. That would be great and better than having the minimals
where a house could be built on each one hundred acres. Mr. Davis said the ordinance is based on
minimums rather than the maximum. That could be spelled out a little better. On the restriction issues,
most of these things are already addressed by zoning restrictions, so the property owner is not giving up
much, but the idea of a conservation easement is that it is permanent. Zoning ordinances change over
time. This easement will not affect the property just for today, but forever. The idea is that the County is
buying forever. If a future Board changed zoning restrictions and allowed signs in the rural area, this
property owner has given up that right. If the Board wishes to make this simply a purchase of development
rights program, it would not have any of these restrictions. That is an approach the Board can take. It is a
philosophical decision.
Mr. Martin said he believes that all that needs to be done at this point is to spend a week or two on
the wording.
Mr. Bowerman said he was surprised that even those who were critical of parts of the ordinance
were supportive of the ordinance overall. He thinks the Board members just need to find the common
ground. He wanted to point out that under Section 5.1-104(9), it talks about monitoring without any
identification of who will do that monitoring. He said the County has the mechanism to do that monitoring.
Ms. Thomas said the Director of Planning and Community Development is to be the administrative
officer of this program. Mr. Davis said as this was originally proposed by the Committee, they did not want
June 14, 2000 (Regular Night Meeting)
(Page 27)
the County to be the holder of the easement. It was to be the Public Recreational Facilities Authority or the
Virginia Outdoors Foundation, or some other holder. The County was not to have any enforcement at all.
Basically, because of the financial considerations involved, staff has proposed that the County be involved.
What was done in this section was to say the PRFA, the VOF, or whoever, would have primary monitoring
and enforcement responsibilities of the conservation easement, but if that entity could not do it, the program
administrator would be responsible for insuring that it is done.
Mr. Bowerman said on the draft sheet handed out tonight for Section 5.1-106.A.1, Establishment of
a Committee, it says that each member shall be a resident of Albemarle County. He questioned this. Mr.
Davis said in reviewing the ordinance, it struck him that that was not a good requirement for the Appraisal
Review Committee. Since the County cannot even require that the County Assessor live in Albemarle
County, the County could not require that these people live in the County.
Mr. Bowerman referred to the section on invitation or offer to sell which says the price shall not be
subject to negotiation. He asked if Section 15.1-109D does not in effect do that. Mr. Davis said this is
something which was critical to the Virginia Beach program. Once an invitation is made for the easement,
you do not want to get into extended negotiations over details. Prior to the County’s invitation to accept an
offer, there will be an acknowledgment and discussion as to what the terms of the easement might be.
What you don’t want to be negotiable is the price which will be set by the Review Committee and the
appraisal. Mr. Bowerman wanted to be sure this sentence does not restrict in any way the ability for an
easement to be drawn. Mr. Davis said this will all be done before the offer is made. After the offer is made,
you do not want to get into negotiations.
Mr. Dorrier said this is a once-a-year proposal, and he thinks the gentlemen who said it should be
twice a year, has a good point. Mr. Davis said it was recommended as an annual program because the
properties would be ranked according to the point system, and then the ones that are most deserving would
be purchased. If it were done twice a year with a limited amount of money, a ranking system cannot be
accomplished in order to get the best properties for the money available. The point that Mr. Appleyard
brought up about the dates for this year has been explained to the Board before. The dates can be
adjusted so that this year’s program can go ahead on an expedited schedule. If a unique parcel comes
forward where there is a forced sale, or some other circumstance where it has to be purchased out of
sequence, this ordinance allows the Board to do that. Hopefully, that will not be a common occurrence
because properties need to be ranked in order to get the best parcels, but the ordinance does allow that to
happen.
Ms. Humphris said she thinks the Board has a clear picture of the problems. Even though they are
not huge, they do need to be worked out. She thinks somebody needs to be working on this so that it can
be finalized at the first meeting in July.
Ms. Thomas said she would like to mention a couple of more things to be sure the other Board
members agree with her. She assumes that the committee members will be able to serve more than one,
one year term. Mr. Davis said there is no limitation on the number of times a person can be reappointed.
Ms. Thomas said on page 7, twice it says “the parcel is, or will be subject to a permanent
easement.” She understands some members of staff have problems with this wording because they don’t
know how to give points for something that might happen in the future. She thinks words like “or will be
subject to” also leads to a mistrust by the public. She asked if those words are necessary. Mr. Davis said
the purpose of the language is to allow someone who is willing to put an easement on his property to be
rewarded with points. If that language is taken out, at the time the application is submitted, they will have
had to have placed it into an easement. The committee was trying to encourage people to voluntarily give
an easement, not necessarily to the County, but to whatever entity that might take the easement. As this is
proposed, if someone doesn’t want the points for an historical easement, all they have to do is say so, and
they are not awarded points. They don’t have to give an easement. But, if someone wants to gain points,
and they are willing to enter into that easement, as long as they have given that easement by the time the
property is closed, they will have met the criteria for earning their points. If for some reason, at closing, they
have not given that easement, they would simply be passed over, and the County would not purchase the
property because they had failed to live up to their bargain. If you take out the language, more restrictions
are being placed on the applicant than if the language is left in.
Ms. Thomas suggested adding the word “volunteer” or “will volunteer to be subject to a permanent
easement ....” Mr. Davis said everything in this ordinance is voluntary. Although he understands what Ms.
Thomas is suggesting, maybe the word “voluntary” should be added in every sentence. Ms. Thomas said
she is not being that extreme. She is suggesting this in only two situations.
Mr. Martin said the Board needs to look at the big picture because he assumes this ordinance will
come back to the Board in six months for a finer tuning. He wants to get started.
Ms. Thomas said that is precisely what she is trying to do. She wants to develop a program that will
be attractive and do what is wanted from its very beginning. She said there is an amazing consensus in the
community that this program should go forward.
Mr. Dorrier said the Board members had received a letter from Mr. and Mrs. Olivier regarding the
Rural Areas plan and the Board’s procedure. He thought the Board came up with a plan in November of
1999 as to a way to develop the rural areas. Mr. Tucker suggested that Mr. David Benish explain to the
Board what has occurred since November.
June 14, 2000 (Regular Night Meeting)
(Page 28)
Mr. Benish said there has been a great amount of staff turnover and that has had a tremendous
impact on the work schedule. The Conservation Planner, the person working on the Rural Areas plan, left
the County. Staff has been trying to fill four different positions in the Planning Department. Two people
have now been hired, but the department is still understaffed, and it limits staff’s ability to move forward.
Hopefully, it will be back on track at the end of this summer.
Mr. Perkins said on Page 4 under A.1. there should be a comma between “conservation” and
“biology”.
Mr. Martin suggested that Ms. Buttrick, Ms. Thomas, Mr. Perkins and Mr. Davis serve on a
committee to finalize the wording on the ordinance.
Mr. Bowerman said he would suggest that the Board members be prepared to “discuss” the
ordinance at the day meeting on July 5.
Motion was offered by Mr. Bowerman, seconded by Ms. Humphris, to defer any action on this
ordinance to July 5. Roll was called, and the motion carried by the following recorded vote:
AYES: Ms. Thomas, Mr. Bowerman, Mr. Dorrier, Ms. Humphris, Mr. Martin and Mr. Perkins.
NAYS: None.
_______________
Agenda Item No. 12. Approval of Minutes: February 9, March 1, March 20 (A), April 5, April 10 (A),
April 12 and April 19, 2000.
Mr. Perkins said he had read the minutes of April 5, 2000, pages 1 to 30 (Item 12), and found them
to be in order.
Ms. Thomas said she had read the minutes of April 10 (A), 2000, and they are fine.
Motion was offered by Mr. Perkins, seconded by Ms. Thomas, to approve those minutes which
had been read. Roll was called, and the motion carried by the following recorded vote:
AYES: Ms. Thomas, Mr. Bowerman, Mr. Dorrier, Ms. Humphris, Mr. Martin and Mr. Perkins.
NAYS: None.
_______________
Agenda Item No. 13. Other Matters not Listed on the Agenda from the BOARD.
Ms. Thomas said during discussion of the petition by Covenant Church of God, it was noted that the
Planning Department’s action letter to the applicant in 1994 gave the wrong zoning category. She asked if
the Action Letter is the official document? Mr. Davis said an action letter has no official status of any kind.
Mr. Tucker said what is in the minutes is the official action.
_________
Ms. Thomas said the minutes mentioned the Groundwater Committee, and the Standing
Committee on Route 250 West. Mr. Tucker said staff is working on the Groundwater Committee, and the
Board had said they would like to reappoint some of the original members on the Route 250 West Corridor
Study Committee. He does not believe the original members have been requested to make a reply yet.
__________
Mr. Martin mentioned a letter he had received from the Jefferson Area Disability Services Board
asking that the County have someone present at the McIntire Skate Park. Mr. Tucker said he has
forwarded the letter to the County's Parks and Recreation staff and asked that they meet with the City's
Parks and Recreation staff to make a determination.
___________
Mr. Martin mentioned that he had received a notice from the town of Timberville stating that they
and Rockingham County have entered into an annexation agreement. He assumes this is just an
informational item. Mr. Davis said it is probably a notice which is required by the Code of Virginia.
_______________
Agenda Item No. 14. Adjourn. With no further business to come before the Board, the meeting
was adjourned at 9:35 p.m.
________________________________________
Chairman
Approved by the
Board of County
Supervisors
June 14, 2000 (Regular Night Meeting)
(Page 29)
Date
Initials