2004-07-14N
July 14, 2004 (Regular Night Meeting)
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(Page 1
A regular meeting of the Board of Supervisors of Albemarle County, Virginia, was held on July 14,
2004, at 6:00 p.m., Room 241, County Office Building, McIntire Road, Charlottesville, Virginia.
PRESENT: Mr. David P. Bowerman, Mr. Ken C. Boyd, Mr. Lindsay G. Dorrier, Jr., Mr. Dennis S.
Rooker, Ms. Sally H. Thomas and Mr. David C. Wyant.
ABSENT: None.
OFFICERS PRESENT: County Executive, Robert W. Tucker, Jr., County Attorney, Larry W. Davis,
Substitute Clerk, Sharon C. Taylor, Director of Planning and Community Development, V. Wayne
Cilimberg, and Mr. William Fritz, Chief of Current Zoning.
Agenda Item No. 4. The meeting was called to order at 6:00 p.m., by the Chairman, Mr. Dorrier.
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Agenda Item No. 5. Pledge of Allegiance.
Agenda Item No. 6. Moment of Silence.
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* At this time, Mr. Dorrier asked that Ms. Pat Smith and Mr. Neal Goodloe come forward for
Consent Agenda Item No. 8.3, Proclamation recognizing July 18-24, 2004, as Probation, Parole and
Community Supervision Week.
Mr. Dorrier said the Board recognizes the week of July 18th through July 24th, 2004, as Probation,
Parole and Community Supervision Week, and encourages all citizens to honor and recognize the
achievements of these community corrections professionals.
Ms. Smith thanked the Board members for this recognition.
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Agenda Item No. 7. From the Public: Matters Not Listed on the Agenda.
Mr. Tobey Bouch said he represents the Central Virginia Family Forum and many concerned
citizens who are present at this meeting tonight. They have come to talk about the new Planned
Parenthood Clinic being completed at 2964 Hydraulic Road. He said the Zoning Administrator signed a
zoning clearance form for a “medical clinic” at this address. This undid five years of oversight by the Board
of Supervisors. In 1998 and again in 2000, the Board approved special use permits granting permission for
a two-story plus attic and basement mixed-use building with professional office and residential use. He said
the special use permit issued according to the Zoning Ordinance allows no use by right other than the
specified use approved by the Board. In this case the use was proposed to be professional office (definition
of this use is in the Zoning Ordinance). A medical center is defined as an establishment wherein medical
care is provided on an outpatient basis, a definition which is different from that of a hospital or a professional
office.
Mr. Bouch said they are asking the Board to review the use of the building and revoke the special
use permit. He said that while the aesthetic conditions imposed by the County may have been satisfied,
they feel the current property owner is in violation of the conditions of use. They know that Planned
Parenthood of the Blue Ridge intends to operate an abortion hospital on the second floor of this facility.
This use is far removed from the special use permit approved in 2000, thus they feel the Board must
intervene and assert the authority granted to it by the Zoning Ordinance. They ask that this be done at the
Board’s next meeting. If Planned Parenthood would like to open a hospital, the Forum asks that they not be
allowed to do it in a residential district under the guise of an office building. He asked that the Zoning
Ordinance be amended to ensure that such indiscretions on the part of zoning administration are not
allowed in the future (see copy of Mr. Bouch’s complete statement on file in the Clerk’s Office with the
permanent records of the Board of Supervisors).
Ms. Reneé Townsend said she lives at 1558 Garden Court and has lived there since 1997. She
and other residents in this complex were unaware of this proposed office building which will someday
operate as a Planned Parenthood regional medical facility. She said the public notice in front of the
building was not noticed by many residents in the area. Originally, they were informed that it would be an
office building. She is upset with the change in use. She understands Planned Parenthood applied for a
zoning clearance in October, 2003, and Zoning administration has allowed them to operate a clinic under
the existing special use permit. She asked that the Board revoke the special use permit the Zoning Office
changed in description from the initial permit. She thinks the current use is a complete departure from the
original intent. She said abortion clinics have always drawn controversy in the form of protesters. She is
convinced that the establishment of Planned Parenthood will be a detriment to her peaceful residence.
She is a teacher at Albemarle High School just one-half mile away. Two months ago she encountered pro-
life student demonstrators with graphic signs right next to the school’s property. From what she had heard,
it will be one of the largest and most comprehensive Planned Parenthood facilities in the nation. The
president of Planned Parenthood of the Blue Ridge, Mr. Nova, was recently quoted in the Daily Progress as
saying “We chose the location because it provided high visibility.” She asked if this is the same proposal as
that made by Mr. Bonner in 2000 for a low-impact office building which the Board insured would blend
neatly into residential surroundings. She said Mr. Nova also boasted that this will be the second facility in
the nation to offer first trimester abortions, adoption services, and prenatal care all at one site, while also
housing the group’s political director from Richmond. She said this is a far cry from what the Planning
Commission described in 2000 as a building which would house several small business offices and
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collectively employ 10 persons. One of the only objections to the request was the location of a dumpster on
the site. Now, there is concern that there will be an incinerator and garbage disposal next to the building.
She and several other residents of Garden Court are concerned about this because their back yards are
only yards away from this building. There is a question of what they will be disposing of in their incinerators
and dumpsters. She is concerned about Planned Parenthood’s establishment next to her home and in her
quiet residential neighborhood. For this reason, she asked that the Board revoke the special use permit
which was transferred to Planned Parenthood by zoning administration.
Ms. Melissa Stehl said she is a resident of 314 Dover Road. She has been a registered nurse for
24 years. She e-mailed all the Board members about her concerns and has received several replies. She
has been assured that the facility is to be a regular gynecology office. If so, it would fall under the special
use permit issue. She has now learned that there are special modifications being made to the building in
order to provide a hospital type environment and to provide invasive surgical procedures. She knows there
are several communities where it has been disputed as to whether it is appropriate to have these types of
uses in an outlying area which are away from medical facilities. She does not think this is an appropriate
use in this community. There are going to be families and children walking around in this neighborhood.
This is not a regular medical office and it might be dangerous to women. She said it is an inappropriate use
in the neighborhood. She is not asking that the Board shut down the clinic, whether she agrees or not, but
she thinks the use no longer fits the permit as it was originally issued. She asked that the permit be
reviewed and then revoked.
Mr. Michael Sharman asked everyone in the audience who is in favor of the revocation of the
existing special use permit to stand. Mr. Dorrier asked that the record show that nearly everyone in the
room (estimated at 100 people) stood. Mr. Sharman said he is an attorney working with Central Virginia
Family Forum to assist them in finding a regulatory, legislative or judicial remedy to the proposed use of
Planned Parenthood’s Hydraulic Road property as a regional abortion hospital. He said the Board took a
deliberative look at this property when it was brought as a request for a low-impact real estate insurance
group office. It was said that there would be little traffic coming and going. He said that the president of
Planned Parenthood, in a June 27, 2004, article in the Daily Progress, listed their use of the property as:
office space for its grassroots activist organization, as a political base; to provide prenatal care; to provide
adoption services; and, to provide abortions under the new proposed state and federal regulations
mandating that abortions be performed in a hospital.
Mr. Sharman said that written on the blueprints, it says the building is proposed as a hospital. That
is not the use. The Board was asked to approve a real estate and insurance office for the then existing
owner. That use was never done. Nobody ever occupied the building for that purpose, and now Planned
Parenthood has purchased the building and is putting in an abortion hospital. He calls that a “bait and
switch.” He said the potential harm to the community from an abortion hospital is vastly greater than the
likely effects from the original real estate and insurance office proposal approved by the Board. He said
that in the United States, health care records are not centralized and the issue of abortion is highly
politicized. He said Mr. Bouch had handed to the Board members a copy of a proposed ordinance (copy on
file). If the Board does not think it can revoke the special use, it may issue the ordinance which would apply
to not only Planned Parenthood abortion provider proposal, but to anyone within the County. (See copy of
statement which is on file in the Clerk’s Office with the permanent records of the Board.)
Ms. Paula Rondon said she is a rising senior at Albemarle High School. She came to voice the
opinion of the youth who are against this abortion clinic being put up in front of their school. They don’t want
it there because it will send the wrong message to kids. She thinks the clinic is being put in this location
because they know they will have the clientele. They are doing it for the money. In addition to killing
babies, they might hurt the girls who go there. There has never been an abortion clinic in front of the
school, and it is not needed now. She asked that the Board take into consideration what she and her fellow
students have to say. It is really important that this clinic not go in front of the school.
Ms. Rhonda Sears said she was pregnant during her high school years. She was not the only girl
in that situation. She decided to give birth to her daughter who is now flourishing in her adoptive family.
She thinks it would be a tragedy beyond words to allow an abortion clinic to open up across the street from
a high school where there are pregnant women who feel similarly vulnerable and scared. Such a decision
would send the wrong message to teens who are trying to make the right choice. If the Board feels it must
allow such an institution to open in Albemarle County, it should be kept far away from the youth.
Mr. Dorrier said that is everyone who had signed to speak. He asked the County Attorney to speak
about the ordinance and the permit.
Mr. Davis said this request came to the Board in 2000 as a special use permit. The Board
approved a permit that permitted professional offices in this building. Since that time, building permits have
been obtained and a preliminary zoning clearance approved for the proposed use. Under the Zoning
Ordinance, the use is classified as a medical office which has been historically and consistently classified as
a sub-use of professional office. He said the proposed use as identified and described to the Zoning Office
is a professional office which is consistent with the special use permit use that was allowed in August of
2000. The question has been posed as to whether or not the Board can revoke the special use permit
because of the nature of this medical office. The Zoning Ordinance does not make a distinction between
types of medical offices. Under the Zoning Ordinance, the only basis for revoking a special use permit is if
the proposed use has willfully violated the Zoning Ordinance or any conditions that were imposed by this
Board under the special use permit. This use has not violated any of those Zoning Ordinance conditions or
special use permit conditions at this time. There would be no basis for the Board to initiate a revocation of
this particular special use permit. Any challenge to the special use permit itself would have had to be made
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in the year 2000. There is no longer any ability to challenge the special use permit. There has been
mention that the Board has greater powers to judge the compatibility of this use now and use that as a basis
for revoking the special use permit. That is not correct. Those are considerations that could have been
taken into account in 2000 when the special use permit was being considered, and conditions could have
been applied to address zoning issues. Those considerations are not appropriate at this time for a
revocation procedure because there are no conditions being violated. He understands this use has not yet
been put into operation. They are still in the process of obtaining a final building/occupancy permit. There
is no legal basis for the Board of Supervisors to stop this use from occupying the building.
Mr. Dorrier asked if any Board member would like to comment.
Mr. Boyd asked if any of the points brought out by those speaking changes Mr. Davis’ position on
this matter. Mr. Davis said “no.” Someone suggested adopting an abortion provider ordinance, but in
Virginia the Board operates under the Dillon Rule. Unless the Board is specifically enabled to adopt this
type of ordinance, it does not have the authority to do so.
Mr. Bouch requested time to ask one question.
Mr. Dorrier stated that Mr. Bouch could ask only one question.
Mr. Bouch asked where a medical office is allowed by special use permit in the professional office
category.
Mr. Davis said under the common practice of how zoning ordinances are interpreted, and within the
professional office category, the Zoning Administrator looks at what uses are typically included in that
category. A number of sources are used to help make that interpretation. Medical offices in Albemarle
County have consistently been approved as part of a professional office. Medical office is not listed as a
separate use. It is categorized as a professional office use and that is a commonly-accepted inclusion
within that term. In her examination of this particular use as proposed, it clearly falls in her definition
consistently applied for medical offices.
Mr. Dorrier said that is as far as the Board can take this subject tonight. He thanked everybody who
had come to participate and exercise their right to free speech.
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Agenda Item No. 8. Consent Agenda. Motion to approve Items 8.1 through 8.3 and to accept item
8.4 for information was offered by Ms. Thomas, seconded by Mr. Bowerman, and carried by the following
recorded vote:
AYES: Mr. Bowerman, Mr. Boyd, Mr. Dorrier, Mr. Rooker, Ms. Thomas and Mr. Wyant.
NAYS: None.
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Item 8.1. Approval of Minutes: March 3, 2004.
Ms. Thomas had read the minutes of March 3, 2004 (Pages 1 to 20 ending at Item 10) and found
them to be in order as presented.
By the recorded vote set out above, the minutes were approved as presented.
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Item 8.2. SP-2003-084. Dennis Enterprises - Rio Road (Sign # 55). (Applicant requests deferral
until September 8, 2004).
Letter dated June 18, 2004, had been received requesting that this petition be deferred until
September 8, 2004. The request was approved by the recorded vote set out above.
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Item 8.3. Proclamation recognizing July 18-24, 2004, as Probation, Parole and Community
Supervision Week.
By the recorded vote above, the Board approved of the proclamation as set out below:
PROBATION, PAROLE AND
COMMUNITY SUPERVISION WEEK
WHEREAS
, District 9 Probation and Parole Department and OAR-Jefferson Area Community
Corrections are an essential part of the criminal justice system; and
WHEREAS
, these community corrections professionals uphold the law with dignity, while recognizing
the right of the public to be safe-guarded from criminal activity; and
WHEREAS
, these community corrections professionals are responsible for providing pre and post trial
supervision to adult defendants and offenders in the community; and
WHEREAS
, these community corrections professionals are trained professionals who provide
July 14, 2004 (Regular Night Meeting)
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services and referrals for offenders; and
WHEREAS
, these community corrections professionals work in partnership with community agencies
and groups; and
WHEREAS
, these community corrections professionals promote prevention, intervention and
advocacy; and
WHEREAS
, these community corrections professionals provide services, support, and protection for
victims; and
WHEREAS
, these community corrections professionals advocate community and restorative justice;
and
NOW, THEREFORE
, I, Lindsay G. Dorrier, Jr., Chairman, on behalf of the Albemarle Board of County
th
Supervisors, do hereby proclaim the week of July 18 through July 24th, 2004 as
PROBATION, PAROLE AND COMMUNITY SUPERVISION WEEK
and encourage all
citizens to honor and recognize the achievements of these community corrections
professionals.
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Item 8.4. Copy of draft Planning Commission minutes of June 22, 2004, was received for
information.
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Agenda Item No. 9. SP-2004-010. Moore’s Building Parking (Brown Auto Group)(Sign #83).
Public hearing on a request to allow stand-alone parking in accord w/Sec 24.2.2 (12) of the Zoning Ord
which allows for stand-alone parking & parking structures. TM 78, P 16, contains 4.87 acs. Znd HC. Loc
on US Rt 250 E (Richmond Rd) approx .1 mile from intersec of Richmond Rd & Rt 20 N (Stony Point Rd).
Rivanna Dist. (Notice of this public hearing was published in the Daily Progress on June 28 and July 5,
2004.)
Mr. Bill Fritz said the applicant is proposing to use the former lumber storage area at the rear of the
Moore’s Building on U.S. Route 250 East as a stand-alone parking lot to allow the Brown Automotive, Flow,
and Crown Motors auto dealerships to park inventory that will not fit in their existing locations located on
Richmond Road, U.S. Route 250 East. The petition was heard by the Planning Commission on June 22,
2004, and by a vote of 7:0, recommended approval of the request subject to conditions.
At this time, Mr. Dorrier asked the applicant to speak. There was no one present to speak. Mr.
Dorrier then 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 Mr. Boyd to approve SP-2004-010 subject to the five conditions
recommended by the Planning Commission. The motion was seconded by Mr. Rooker. Roll was called,
and the motion carried by the following recorded vote:
AYES: Mr. Bowerman, Mr. Boyd, Mr. Dorrier, Mr. Rooker, Ms. Thomas and Mr. Wyant.
NAYS: None.
(Note: The conditions of approval are set out below.)
1. A site plan amendment shall be submitted for approval, which shall be in general accord with
the concept plan on Tax Map 78, Parcel 16, dated 3/19/04 (Attachments A);
2. At least one (1) sign shall be posted in the parking area that identifies the use as parking for
Brown Automotive, Flow Companies of Charlottesville, and Crown Motor Company only, with
size and location of the sign to be determined and approved by staff;
3. No customers of the three (3) dealerships noted above shall be permitted onsite;
4. The use shall be valid for a period not to exceed one (1) year from the approval of the site plan
amendment. Any extension of the one (1) year period will require that SP-2004-010 be
amended; and
5. Approval of the special permit does not authorize the use to begin. The use may not lawfully
begin until all necessary approvals have been received and conditions met. This includes,
compliance with applicable conditions of the special permit; approval of and compliance with
the site plan; and, approval of a zoning compliance clearance.
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Agenda Item No. 10. SP-2004-012. Verulam Farm Conservation Group LLC/Nextel Partners
(Signs #85 & 86). Public hearing on a request to allow construction of a personal wireless service fac
w/wooden monopole approx 101 ft in total height & 10 ft above height of tallest tree w/in 25 ft. The
proposed facility would include flush-mounted panel antennas & ground equipment stored in a 200 sq ft
building. This application is being made in accord w/Sec (10.2.2.6) of the Zoning Ordinance which allows
for microwave & radio-wave transmission & relay towers in the RA. TM 74, P 17 contains 356.26 acs. Znd
RA. Loc on Bloomfield Rd (Rt 677), approx .75 miles from intersec of Rt 637 & Rt 677. Samuel Miller Dist.
(Notice of this public hearing was published in the Daily Progress on June 28 and July 5, 2004.)
Mr. Cilimberg said the applicant had earlier proposed construction of a personal wireless service
facility under the name of Gallihugh. That proposal was for a pole in a different location, and the request
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was deferred. The applicant then looked at this site where another pole having minimal impact had already
been approved. As with the first request it would result in a monopole that is 10 feet taller in height than the
tallest nearby tree, a total height of 101 feet. As with the first pole located at this site, the top of the pole
had limited visibility. From the public road system that surrounds the area, the balloon could only be
located after it was first raised to 20 feet above the tallest tree within 25 feet, ten feet higher than the
applicant’s true request. The facility would be located very close to the Omnipoint facility on this site, about
23 feet away; that Omnipoint facility has not yet been established, but was approved by the Board.
Mr. Cilimberg said staff recommended approval subject to conditions. The Planning Commission,
at its meeting on June 22, 2004, by a vote of 7:0, recommended approval subject to those same conditions.
Ms. Thomas asked if the issues concerning conservation easements have been solved. Mr.
Cilimberg said staff understands that has happened.
Mr. Dorrier asked the applicant to speak.
Mr. William Dailey said he represents Nextel Partners, the applicant for this request. They want to
collocate on a second pole in the general area. He has talked with the representative of Omnipoint-T-
mobile and the issues have been “ironed out” with Verulam Farm, the underlying lease.
At this time, Mr. Dorrier 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.
Ms. Thomas offered motion to approve SP-2004-012 with the 22 conditions and requirements
recommended by the Planning Commission. The motion was seconded by Mr. Wyant. Roll was called,
and the motion carried by the following recorded vote:
AYES: Mr. Bowerman, Mr. Boyd, Mr. Dorrier, Mr. Rooker, Ms. Thomas and Mr. Wyant.
NAYS: None.
(Note: The conditions of approval are set out below.)
The facility shall be designed, constructed and maintained as follows:
1. With the exception of any minor changes that would be required in order to comply with the
conditions listed herein, the facility including the monopole, the ground equipment building,
and any antennas shall be sized, located and built as shown on the concept plan entitled,
“SP-004-012 - Nextel Partnership/Verulam Farm Conservation Group LLC/Meechum”, last
revised May 25, 2004, and provided with Attachment A;
2. The calculation of pole height shall include any base, foundation or grading that raises the
pole above the pre-existing, natural ground elevation;
3. The top of the pole, as measured Above Mean Sea Level (AMSL), shall never exceed ten
(10) feet above the top of the tallest tree within twenty-five (25) feet. In no case shall the
pole exceed one hundred one (101) feet in total height at the time of installation without
prior approval of an amendment to this special use permit or personal wireless facility
permit;
4. The monopole shall be made of wood and be a dark brown natural wood color;
5. The ground equipment building, antennas, concrete pad and all equipment attached to the
pole shall be the same color as the pole and shall be no larger than the specifications set
forth in the application plans.;
6. Only flush-mounted antennas shall be permitted. No antennas that project out from the
pole beyond the minimum required by the support structure shall be permitted. However,
in no case shall the distance between the face of the pole and the faces of the antennas be
more than twelve (12) inches;
7. No satellite or microwave dishes shall be permitted on the monopole;
8. No antennas or equipment, with the exception of a grounding rod, not to exceed one (1)
inch in diameter and twelve (12) inches in height, shall be located above the top of the
pole;
9. No guy wires shall be permitted;
10. No lighting shall be permitted on the site or on the pole, except as herein provided.
Outdoor lighting shall be limited to periods of maintenance only. Each outdoor luminaire
shall be fully shielded such that all light emitted is projected below a horizontal plane
running though the lowest part of the shield or shielding part of the luminaire. For the
purposes of this condition, a luminaire is a complete lighting unit consisting of a lamp or
lamps together with the parts designed to distribute the light, to position and protect the
lamps, and to connect the lamps to the power supply;
11. The permittee shall comply with section 5.1.12 of the Zoning Ordinance. Fencing of the
lease area shall not be permitted;
12. Size specifications and other details, including schematic elevations of the antennas shall
be included in the construction plan package;
13. Site grading and all construction around the facility shall be minimized to only provide the
amount of space that will be necessary for placement of the monopole and equipment
building; and
14. Details and cross sections for any future plans to upgrade the existing dirt logging road
shall be subject to review and approval by the County’s Engineering Department.
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Prior to the issuance of a building permit, the following requirements shall be met:
15. Certification by a registered surveyor stating the height of the reference tree that has been
used to justify the height of the monopole shall be provided to the Zoning Administrator;
16. Prior to beginning construction or installation of the pole, the equipment cabinets or
vehicular or utility access, an amended tree conservation plan developed by a certified
arborist, shall be submitted to the Zoning Administrator for approval. The plan shall specify
tree protection methods and procedures, and identify any existing trees to be removed on
the site - both inside and outside the access easement and lease area. All construction or
installation associated with the pole and equipment pad, including necessary access for
construction or installation, shall be in accordance with this tree conservation plan. Except
for the tree removal expressly authorized by the Director of Planning and Community
Development, the permittee shall not remove existing trees within two hundred (200) feet of
the pole and equipment pad. A special use permit amendment shall be required for any
future tree removal within the two hundred (200) foot buffer, after the installation of the
subject facility; and
17. With the building permit application, the applicant shall submit the final revised set of site
plans for construction of the facility. During the review of the application, Planning staff
shall review the revised plans to ensure that all appropriate conditions of the special use
permit have been addressed.
After the completion of the pole installation and prior to the issuance of a Certificate of Occupancy
or to any facility operation, the following shall be met:
18. Certification by a registered surveyor stating the height of the pole, measured both in feet
above ground level and in elevation above sea-level (ASL) using the benchmarks or
reference datum identified in the application shall be provided to the Zoning Administrator;
19. Certification confirming that the grounding rod’s: a) height does not exceed two (2) feet
above the monopole; and, b) width does not exceed a diameter of one (1) inch, shall be
provided to the Zoning Administrator; and
20. No slopes associated with construction of the facility shall be created that are steeper than
2:1 unless retaining walls, revetments, or other stabilization measures acceptable to the
County Engineer are employed.
After the issuance of a Certificate of Occupancy, the following requirements shall be met:
21. The applicant, or any subsequent owners of the facility, shall submit a report to the Zoning
Administrator by July 1 of each year. The report shall identify each personal wireless
service provider that uses the facility, including a drawing indicating which equipment, on
both the tower and the ground, are associated with each provider; and
22. All equipment and antennae from any individual personal wireless service provider shall be
disassembled and removed from the site within ninety (90) days of the date its use is
discontinued. The entire facility shall be disassembled and removed from the site within
ninety (90) days of the date its use for personal wireless service purposes is discontinued. If
the Zoning Administrator determines at any time that surety is required to guarantee that
the facility will be removed as required, the permittee shall furnish to the Zoning
Administrator a certified check, a bond with surety satisfactory to the County, or a letter of
credit satisfactory to the County, in an amount sufficient for, and conditioned upon, the
removal of the facility. The type of surety guarantee shall be to the satisfaction of the
Zoning Administrator and the County Attorney.
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Agenda Item No. 11. ZMA-2004-002. Townhouses Fontaine Avenue (Sign #80). Public hearing
on a request to rezone 12.606 acs from HC to PRD to allow 60 dwelling units. TM 76, Ps 12A & 12G. Loc
on N side of Rt 702 (Fontaine Ave), approx .25 miles W of the intersec of Fontaine Avenue & Rt 29. (The
Comp Plan designates this property as Neighborhood Service, in Neighborhood 6.) Samuel Miller Dist.
(Notice of this public hearing was advertised in the Daily Progress on June 28 and July 5, 2004.)
Mr. Cilimberg said the applicant has requested a deferral of this request, but he does not have a
specific date. There has been a problem with the current ownership interest (a partnership) and their ability
to reach a conclusion in selling the property to the applicant. As a result, the applicant has been advised
that they should delay any final zoning decision on this particular project. The applicant has representatives
present tonight, and if so desired, Mr. Cilimberg said he will present the application. He then handed to the
Board the updated proffers that reflect the current status on this project.
Mr. Dorrier said if the request is to be deferred the Board may want to let the staff report be
presented at that time. He asked the applicant to come forward.
Mr. Mark Keller said he worked on the plan. Mr. Nicholas Michaels who represents the applicant is
in the hall outside of this room speaking with a neighbor.
Mr. Tucker said that usually, if there are members of the public who wish to speak, the Board has
heard a brief review of the request by staff, and then allowed comments from those people in case they
cannot come back to the Board meeting.
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Mr. Dorrier said Ms. Elena Day has signed to speak.
Ms. Day said she would be glad to speak, but would prefer to wait.
Mr. Dorrier asked the applicant to speak.
Mr. Nicholas Michaels said he represents Weather Hill Homes and would ask that the request be
deferred. There is a legal problem with the existing owners. The attorney for the existing owner is also
present tonight and can speak.
Mr. Bowerman asked the reason for the deferral.
Ms. Thomas said the Board does not like to defer requests at the last minute because the public
has been notified that there is to be a public hearing, and sometimes they have gone to great lengths to get
here.
Mr. Michaels suggested having the public hearing and then deferring the vote. He said Ms. Kerry
Taylor, who represents the seller, is present.
Ms. Taylor said she represents Jefferson Lodge, LLC, which is the current owner of the property in
question. One member of the Lodge has filed lis pendens against the Lodge. That is being disputed and
litigated. They believe it is a frivolous suit, but they have to deal with it. As a result, the sale to Weather Hill
Homes cannot go forward because of the dispute of ownership, which is a dispute of the LLC which owns
the property. A bill of complaint was filed, motions were filed, and it was dismissed without prejudice. The
plaintiff was allowed to refile. They have responded again with motions to have the matter dismissed, but
have not gotten a hearing date at this time. She does not know when the matter will be finalized.
Mr. Dorrier asked if Ms. Day would like to speak now.
Mr. Davis said given that Ms. Taylor said there may be a considerable delay, and since the
Planning Office notified some people that this matter would not be heard tonight, it is likely the Board will
have to readvertise and hold the public hearing later.
Ms. Thomas said she sent e-mail messages to as many people as possible to tell them that this
matter would be deferred.
Mr. Davis said because there is a time delay, conditions may change which would change
comments, so unless someone feels compelled to speak tonight, it would be a better use of the Board’s
time to simply defer the public hearing and re-advertise.
Mr. Dorrier asked Ms. Day if she would come to another meeting. Ms. Day said she does not read
her E-mails except early in the morning. She will come again.
Ms. Kathy Cassidy said she represents the Board of the University Montessori School. Their facility
abuts this property. She would like to get on the list for notices.
After a lengthy discussion and after agreement among the different parties, Ms. Thomas offered
motion to defer this request until November 10, 2004. The motion was seconded by Mr. Wyant. Roll was
called, and the motion carried by the following recorded vote:
AYES: Mr. Bowerman, Mr. Boyd, Mr. Dorrier, Mr. Rooker, Ms. Thomas and Mr. Wyant.
NAYS: None.
_______________
Agenda Item No. 12. ZMA-2004-003. Avon Park (Sign # 81). Public hearing on a request to
rezone 9.976 acs from R-1 to R-6 to allow 16 single family & 43 townhouse units. TM 90, P 32. Loc on Rt
742 (Avon Str Ext.), approx one-half mile S of the intersec of Avon St Ext & Stony Creek Dr. (The Comp
Plan designates this property as Neighborhood Density, recommended for 3-6 du/ac, in Neighborhood 4.)
Scottsville Dist. (Notice of this public hearing was published in the Daily Progress on June 28 and July 5,
2004.)
Mr. Cilimberg said the applicant and property owner, Weather Hill Development, LLC, proposes
rezoning a 9.976 acre parcel located on Avon Street Ext. from R-1 (Residential) to R-6 (Residential) to
allow 59 dwelling units. The applicant has provided a set of proffers and conceptual elevations. The site is
located on the west side of Avon Street Ext. about a quarter mile north of its intersection with Route 20.
Mr. Cilimberg said staff looks at a variety of areas related to the Comprehensive Plan, to the
Neighborhood Model. and aspects that relate to various impacts on resources, community facilities and
such. In summary, staff suggests that this proposal meets many of the applicable principles of the
Neighborhood Model, it provides a mix of dwelling units, 15 percent affordable housing is provided to meet
targets, and building massing and architecture that will create a human-scale development is ensured.
Mr. Cilimberg said staff noted a couple of things which are not favorable to this request. For the
single-family homes there are individual grinder-pumps being used, and staff does not think these are an
ideal solution to sewage discharge, but are necessary due to the grade location of those particular homes.
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Staff also noted that the sewer connection through Mill Creek South Open Space would result in removal of
mature trees. There is now, at the request of the Planning Commission, and with the proffers that have
been developed since the Commission meeting, a sixth proffer which addresses conservation of trees in
extending that sewer line in Mill Creek South (Mr. Cilimberg handed to the Board members a copy of new
proffers dated July 14, 2004).
Mr. Cilimberg said that in terms of the 15 percent element for affordable housing, it is covered
under Proffer No. 5 included in the information he just handed to the Board. Essentially this proffer
establishes how the affordability target would be met. This proffer has been reviewed by the County
Attorney’s Office and by the Housing Office.
Mr. Dorrier asked the applicant to speak.
Mr. Nick Michaels said he represents Weather Hill Homes. He said this is an infill project consistent
with the County’s Comprehensive Plan. Included in the project is a 50-foot water tower needed by the
Albemarle County Service Authority (ACSA) for this project for fire flow. ACSA will use it to improve water
pressure in the area. This project needs 180,000 gallons but the ACSA suggested it be built to furnish
250,000 gallons. As to affordable housing, this is the second project by this firm that addresses this issue.
They have included nine for-sale units, or 15 percent of the project, as affordable housing units. For the
extension of infrastructure to this site (water and sewer), they worked with the Mill Creek South
Homeowners Association. The sewer line will probably go through the Mill Creek South common area,
plus the front yard of one homeowner. In response to comments the applicant got both before and during
the Commission’s hearing, they will be adding additional buffer plantings. He then offered to answer
questions.
Mr. Wyant asked about the plantings which do not show on the drawings. Mr. Michaels said the
plan is still a conceptual plan. Mr. Wyant asked about plantings on the boundary with Mill Creek. Mr.
Michaels said the Mill Creek border is heavily wooded, so he does not believe Avon Park will be visible to
them even in the wintertime. There will be an ACSA easement of 20 feet. The applicant has agreed to hire
an arborist to do a tree conservation plan to be sure a minimal number of trees are removed.
Mr. Wyant asked the source of water for this development. Mr. Michaels said there is a main at the
Mill Creek South entrance which is to be extended about 1000 feet to the entrance to Avon Park.
Mr. Wyant said it appears that most of the houses are to be located along Avon Street so there will
be grinder pumps in the majority of those houses. Mr. Michaels said all of the townhouses will feed to the
municipal sewer. There are two private homes which could probably be feed by gravity to the line, but the
remainder of the homes will probably require individual grinder pumps. The applicant suggested a central
system, but the ACSA wants no part of such a system. The ACSA asked them to put in the individual
grinder pumps. Grinder pumps have been used in sections of Dunlora and in several other developments.
Mr. Dorrier asked about stormwater drainage. Mr. Michaels said they will have a detention pond on
the site, and other devices may be recommended as the engineering work is completed.
Ms. Thomas asked how the developer managed to get in the 15 percent affordable housing units.
Other developers have said that is an impossible goal. Mr. Michaels said the ability to provide affordable
housing on any given site is individual to that site. A lot has to do with the cost of the site and its topography.
They bought this land at a reasonable price. The selling price of single-family homes in this development
will be the most expensive at a possible maximum of $350,000. Some of the townhouses may sell for
$225,000 to $250,000. Getting $225,000 down to $175,000 in this development was not difficult because
this site was easier to develop.
Mr. Michaels said the Planning Commission has insisted on their proffering affordable units without
them knowing all of the rules and regulations which will be in place. If there were an ongoing affordable
housing program that was administered effectively by one of the County departments, or by a nonprofit, and
there was a track record, it would be much simpler. He said their timing is not the best because they are
among the first to offer affordable housing in a development.
Mr. Boyd asked the price of units in this development. Mr. Michaels said the average price of a
single-family dwelling would be about $350,000. He said that Weather Hill Homes asked the County to
revise its fiscal impact study saying the average taxable value of those homes would be $450,000. He said
prices are going up dramatically. He thinks the prices are still in flux and it is difficult to say what the market
will be when this project comes on the market. However, $450,000 sounds a little high.
Mr. Boyd said by pushing up the values of the homes it reduces the fiscal impact of the project. He
has some other questions. He read the letter dated April 27, 2004, from the Mill Creek South Homeowners
Association in which they requested a number of things. They asked that County erosion control measures
be required for the sewer line construction and that restoration of the woodland and the open slope to their
prior condition be required, and that the Homeowners not be required to maintain the replanted construction
area.
Mr. Michaels said the Commission discussed whether this should be the subject of a proffer. When
that sewer line work is done it will have to be to County and ACSA standards. These standards are more
than adequate to protect the property and make sure the job is done properly. The applicant then added a
proffer which was actually written by the County Attorney’s Office. Mr. Michaels said the attorney for the Mill
Creek South Homeowners Association is reviewing the most recent revision of the easement agreement
July 14, 2004 (Regular Night Meeting)
)
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that covers this in a more thorough way than the proffer does. Therefore, the applicant does not believe
Proffer No. 6 is necessary.
Mr. Boyd asked if the Mill Creek South Homeowners were given the assurances requested. Mr.
Cilimberg said the Commission asked that a proffer be provided to essentially provide a double assurance.
There is already assurance through the easement agreement, but the Commission felt the County would
also benefit by having a proffer that spelled out what the applicant would do to assure that the Mill Creek
open space was appropriately intruded upon by the sewer line.
Mr. Boyd said he wants to prevent the Mill Creek South Homeowners from coming back to the
County later saying these things were not done to their satisfaction. His last point relates to affordable
housing. He asked why Proffer No. 5 on the proffer handed out earlier tonight was not in the original proffer
statement. Mr. Michaels said there was a proffer concerning affordable houses earlier, but the language
has been changed, added to and clarified.
Mr. Davis said the prior proffer did not say how the affordable percentage applied to the purchase
price. Staff asked that language be included to say what the purchase price would have to be. The proffer
has been improved since it was reviewed by the Commission.
Mr. Boyd said the part that bothers him about the proffer is the specificity added as to how the
fifteen percent will be handled. He does not think the details set out in this proffer have been worked out by
the Housing Committee yet, so he does not think the Board can start setting rules before it hears from that
committee. He is not ready to approve this language. The Board formed a committee to look at how to
administer affordable housing and has not received their report yet.
Mr. Rooker said the applicant has signed a proffer statement to do these things. He assumes the
applicant is agreeable to doing these things.
Mr. Michaels said Mr. Vito Cetta has served on the AHIP Board for a number of years. He has
been very involved with the affordable housing issue. But, he will agree and say he does not believe the
County has all the groundwork done that is necessary to make it work. He said one of the proffers actually
says the sale is only good for the first sale. They actually objected to that stipulation but were told they had
to put that in because that is all they could promise. He is concerned about how the price of a home will be
set when aiding a property owner at a certain income level. That person may be able to buy it at less than
what the applicant can sell it for. If there is any profit on the sale, it should go back into the program. That
is part of what is being worked on by the Committee.
Ms. Thomas said she hopes this request will help move that committee along.
Mr. Boyd said he agrees with Mr. Rooker. This is just a proffer made by the applicant and not an
endorsement by this Board.
Mr. Rooker said the Board’s only alternative is to vote against this request. That, or a request to
change the proffers, would create a delay for the applicant
Mr. Boyd asked who decided on this verbiage.
Mr. Davis said it was done primarily from input by Mr. Ron White, the Housing Director. He said
nobody thinks this is a perfect plan. Staff would have liked to have a mechanism in place such as a
revolving fund so it did not apply to just the first sale. The applicant could proffer that it apply to every sale,
but the County would have no way to administer that. Staff felt this was a good approach to meet an
immediate need for affordable housing. Hopefully, staff can put together a proposal which will be a good
blueprint for everyone in the future.
Mr. Boyd said he has a problem with whether affordable housing needs to be $172,000. He does
not know that the County should be creating a bureaucracy and a program to supplement these people
who would have a combined income of $60,000 a year. He said this program is not really dealing with
people that much in need.
Mr. Michaels said the median income in the County is about $56,000. Eighty percent of that would
be the upper threshold.
Mr. Boyd said that is why a committee was appointed to study this matter and to bring back the
details.
Mr. Wyant asked if the square footage on these units is equivalent to the houses being built to sell
for $230,000.
Mr. Michaels said the units in this project will be two stories. They will have on-street parking, two
bedrooms, two bathrooms, a living room, a dining room, a kitchen, a rear yard, and a front porch. It will be
a starter house.
Mr. Dorrier said the Board appreciates this developer working with the County. He has proved that
there can be a small subdivision with 15 percent affordable housing. A number of people said it could not
be done.
July 14, 2004 (Regular Night Meeting)
)
(Page 10
Mr. Boyd said that in several other developments the County received cash proffers of $3,000 per
unit, but these proffers are for $1,000.
Ms. Thomas said the other developments contain no affordable housing units.
Mr. Rooker said the plan for this development contains a park which appears to be about three-
quarters of an acre in size. Mr. Michaels said it about 300 feet long, so it is probably a football field in
length.
Mr. Rooker said that in most developments like this there are recreation areas for things like tot lots
and playgrounds. This development has 60 houses in close proximity to each other. He asked if there is
any intention to put in play areas. Mr. Michaels said they thought the park would be an active play area. It
was not their intention to include other things.
Mr. Rooker asked that the developer look at that idea. If some area is not provided for active
recreation within developments like this, everyone who wants their child to have an active play area has to
get in a car and take them someplace. He asked that the developer consider whether this would be
appropriate for this project.
At this time, Mr. Dorrier opened the public hearing.
Ms. Thomas Mank with the Mill Creek South Homeowners Association spoke. She said Mr. Don
Lepsch, their vice-present, was also present, and Ms. Nini Almy, the adjoining property owner. She said
they are fairly satisfied with the progress being made with the developer on negotiating the easements both
across the Mill Creek South Homeowners common area and Mrs. Almy’s lot. There will be separate deeds
of easement for both situations. Initially, the developer proposed coming straight down the hill and they
knew there would be environmental management issues with that, plus cutting a swath through the woods.
She said they have negotiated an offset which they think will work. The Albemarle County Service Authority
has been involved with that. ACSA standards are actually lower then they expected because they do not
require reseeding of the open trench which would be cut and filled through the open area in Mill Creek
South. That is why the Homeowners insisted on stronger language to protect the turf, as well as removing
as few large trees as possible in the wooded area. She said they have not seen the proffer that the County
staff wrote. They would like to have a copy of those proffers. As to the comment about play areas, the
Homeowners have a natural common area of about four acres which lie between a number of the single-
family houses and the Avon Park boundary. They would not appreciate seeing kids building tree houses
and playing in the woods, although they know it is inevitable. That is their open space, and they hope the
children’s recreation would be provided for in a meaningful way within Avon Park rather than have it spill
over and result in impromptu camps in the woods.
Mr. Don Lepsch said he agrees with Mr. Boyd that a family income of $60,000 seems a little high to
be considered for affordable housing. He wonders who is actually being helped. He thinks it would be
quite a bit lower. He said this development will have 16 single-family homes and 43 townhouses. He said
the ratio is different from that in Mill Creek South which has about 90 percent single-family homes. He is
concerned about the future. He is concerned about the road to the adjoining 1000 acres behind Mill Creek
South that is being left open. He would not want to see that area become all townhouses since it would
change the environment of Mill Creek South. Unfortunately, the developer of Mill Creek South did not leave
any buffer from about 200 feet beyond this point. The development comes right down to the road that is the
main road into Mill Creek South. In the future, should the Board consider other developments like this, he
hopes it will consider some sort of boundary between that development and Mill Creek South.
With no one else from the public rising to speak, the public hearing was closed and the matter
placed before the Board.
Mr. Wyant immediately offered motion to approve ZMA-2004-003, Avon Park, with the proffers
distributed to the Board this night, dated July 14, 2004. The motion was seconded by seconded by Mr.
Rooker. Roll was called, and the motion carried by the following recorded vote:
AYES: Mr. Bowerman, Mr. Boyd, Mr. Dorrier, Mr. Rooker, Ms. Thomas and Mr. Wyant.
NAYS: None.
(Note: The proffers, as submitted July 14, 1004, are set out in full below.)
PROFFER FORM
Date of Proffer Signature: 7-14-04
ZMA # 2004-03
Tax Map 90 and Parcel Number 32
9.976 Acres to be rezoned from R-1 (Residential) to R-6
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 with the offered plans approved for development. These conditions are
proffered as a part of the requested rezoning and it is agreed that: (1) the rezoning itself gives rise
July 14, 2004 (Regular Night Meeting)
)
(Page 11
to the need for the conditions; and (2) such conditions have a reasonable relation to the rezoning
request.
(1) The development on Tax Map 90, Parcel Numbers 32 shall be in general accord with the plan
produced by Weather Hill Homes, Ltd, dated April 21, 2004, entitled “Avon Park Site Plan”,
herein referred to as the plan, (sheet S-1). The development shall be found in general accord
with the plan if the layout is generally the same with a buffer area to the south, open space
along the Entrance Corridor, a central park space of the same size or larger, and
interconnections north and south.
(2) No building permit shall be issued unless and until the Director of Community Development, or
his assigns, determines that the townhome facades are in general accord with the sheets SC-
2, SC-3, and SC-5a, of the architectural plans dated April 26, 2004, entitled “Avon Park
Townhomes”. The façade shall be determined to be in general accord with the architectural
plans if the windows are in a similar alignment, and there are architecture features that break
up the massing of the buildings, such as the porches, porticos, and gables.
(3) The owner shall contribute $59,000 cash to the County for funding pedestrian improvements in
the Neighborhood that are identified in the County’s capital improvement program prior to or at
the time of the first building permit for any dwelling unit within the development. If this cash
contribution has not been exhausted by the County for the stated purpose within ten (10) years
from the date of the contribution, all unexpended funds shall be refunded to the owner.
(4) The Owner shall design and construct a water tank for fire fighting purposes and human
consumption, and a pump station that will fill the tank. The capacity of the tank and the water
flow shall meet the standards specified by the ACSA. The water tank and pump station shall be
constructed prior to the issuance of any building permits for any dwelling unit within the
development. The water tank, pump station and associated piping will be dedicated to the
ACSA upon completion.
(5) The owner shall provide nine units of affordable housing as identified on the plan produced by
Weather Hill Homes, Ltd, dated April 21, 2004, entitled "Avon Park Site Plan", herein referred
to as the plan. The owner shall convey the responsibility of constructing the affordable units to
any subsequent purchaser of the subject property. The current owner or subsequent owner
shall create units affordable to households with incomes less than 80% of the area median
income, such that housing costs consisting of principal, interest, real estate taxes and
homeowner's insurance (PITI)) do not exceed 30% of the gross household income (e.g., for
2003, the price of the maximum affordable home for purchase was $172,000). All purchasers
of these units shall be approved by the Albemarle County Office of Housing or its designee.
The owner/builder shall provide the County or its designee a period of 90 days to identify and
pre-qualify an eligible purchaser for the affordable units. The 90-day period shall commence
upon written notice from the owner that the units will be available for sale. This notice shall not
be given more than 60 days prior to anticipated receipt of the certificate of occupancy. If the
County or its designee does not provide a qualified purchaser during this period, the owner
shall have the right to sell the unit(s) without any restriction on sales price or income of
purchaser. This proffer shall apply only to the first sale of each of the nine units.
(6) Prior to construction of the sewer connection from the subject property across the Mill Creek
South common area, the owner shall submit a tree conservation plan prepared by a certified
arborist. The plan shall be submitted to the agent for review and approval to assure that
existing conditions in the woodland will be preserved to the extent possible and that the sewer
construction zone is the minimum allowed by the ACSA. The plan must be approved by the
agent before any trees are removed within the sewer construction zone. The plan shall identify
all trees to be removed and specify tree protection methods and procedures, including how
root systems and root zones will be protected. Except for the tree removal expressly authorized
by the agent, the owner shall not remove existing trees outside of the sewer construction zone.
Marc Powell (Signed) Marc Powell, Managing Member July 14, 2004
Signature of All Owners Printed Names of All Owners Date
__________
Mr. Rooker asked if the Housing Committee has made any progress on the affordable housing
issue. Mr. Tucker said he has not received any report from the committee at this time. At the Board’s
August meeting, he will try to have an updated report on the agenda.
Mr. Rooker asked if they could go ahead and recommend one thing at a time. For example, the
revolving fund has been talked about for a long time. If the committee is in agreement on this part of the
plan, perhaps they could send it forward.
______________
Agenda Item No. 13. ZTA-2003-002. Personal Wireless Service Facilities. Public hearing on an
Ordinance to amend Secs 3.1, Definitions, 5.1.40, Personal wireless service facilities, 10.2.1, By right,
10.2.2, By special use permit, 12.2.1, By right, 12.2.2, By special use permit, 13.2.1, By right, 13.2.2, By
special use permit, 14.2.1, By right, 14.2.2, By special use permit, 15.2.1, By right, 15.2.2, By special use
permit, 16.2.1, By right, 16.2.2, By special use permit, 17.2.1, By right, 17.2.2, By special use permit, 18.2.1,
By right, 18.2.2, By special use permit, 19.2.1, By right, 19.2.2, By special use permit, 20.3.1, By right,
20.3.2, By special use permit, 20A.6, Permitted uses, 22.2.1, By right, 22.2.2, By special use permit, 23.2.1,
By right, 23.2.2, By special use permit, 24.2.1, By right, 24.2.2, By special use permit, 25.2.2, By special use
July 14, 2004 (Regular Night Meeting)
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permit, 27.2.1, By right, 27.2.2, By special use permit, 28.2.1, By right, 28.2.2, By special use permit,
30.3.5.1.1, By right within the floodway, 30.3.5.2.1, By special use permit within the floodway, of Chapter 18,
Zoning, of the Albemarle County Code. This proposed amendment would define terms related to personal
wireless service facilities, establish a three-tier process for reviewing applications for personal wireless
service facilities based upon prescribed criteria, & allow personal wireless facilities by right or by special use
permit in the identified zoning districts depending on the tier under which the facility qualifies consistent with
the Comprehensive Plan's Personal Wireless Service Facilities Policy. (Notice of this public hearing was
published in the Daily Progress on June 28 and July 5, 2004.)
Mr. Cilimberg said the Board adopted a policy several years ago regarding the provision of
personal wireless facilities and that policy became an element of the Comprehensive Plan. He said this
ordinance is the last of a series of Zoning Text amendments which are intended to implement that policy. At
its meeting on April 20, 2004, the Planning Commission reviewed and unanimously recommended approval
of the proposed amendments to Section 5.1.40 of the Zoning Ordinance, related definitions in Section 3.1,
and individual district regulations allowing Tier I and Tier II personal wireless service facilities by right and
Tier III personal wireless service facilities by special use permit. The latest draft of the ordinance (marked
amended July 7, 2004), and was included in the Board’s packet of materials for this meeting.
Mr. Cilimberg said the Commission, in taking this action, requested that there be certain changes
made to the draft ordinance to address its specific concerns:
1. Include a provision that would allow an applicant to submit an application for a Tier III facility if the
facility was denied as a Tier II facility. This concern has been addressed in Section 3.1 of the
proposed ordinance in the definition for Tier III facilities.
2. Include language enabling an applicant to appeal the denial of a waiver requesting that a Tier II
facility be installed more than seven feet, but not more than ten feet, above the tallest tree within 25
feet. This concern has been addressed in the last sentence of Section 5.1.40.d(5).
3. Include a list of specific criteria and guidelines for the Zoning Administrator to determine whether to
require surety for the cost of removing a facility. These criteria have been added to Section
5.1.40.c(6).
4. Revise the tree conservation requirements to require a tree conservation plan in all cases; the prior
draft allowed the applicant to submit a statement that no tree would be removed in lieu of a tree
conservation plan. These revised tree conservation requirements are in Section 5.1.40.c(4).
Mr. Cilimberg said some representatives of the wireless industry expressed concern to the
Commission that the proposed definition of "avoidance area" was so broad that virtually all treetop wireless
facilities would be classified as Tier III facilities requiring a special use permit (in contrast, a Tier II facility
would be approved by the Commission without conditions provided all applicable regulations were
satisfied). Although the Commission briefly discussed this concern, it did not make a recommendation as to
whether the definition should be revised.
Mr. Cilimberg said that after the Commission meeting, staff conducted research and found that all
of the treetop facilities approved by the Board within the past two years would have been classified as Tier
III facilities. In response to these findings, staff recommends that the definition of "avoidance area" be
narrowed to encompass those resources commanding the greatest protection in the Natural Resources
and Cultural Assets section of the Comprehensive Plan and the Personal Wireless Service Facilities Policy.
The two criteria deleted from the prior draft are: "any location that would adversely impact any resource
identified in the open space plan or a natural resource or cultural asset identified in chapter 2 of the
comprehensive plan", and "any location having unlimited visibility."
Mr. Cilimberg said it is important to clarify the meaning of Tier II and Tier III. Requiring a Tier III
would not change anything in effect at this time. Distinguishing where that did not need to happen seemed
to be important. Also, having a review by the Commission only was deemed to be important. This was
based on the existing policy, industry comments and the intent of this amendment as discussed with the
Commission. He described the difference between a Tier II and Tier III review. The closest parallel would
be for a by-right Rural Preservation Development of 20 or less lots, and by special use permit for a RPD of
over 20 lots. The Commission reviews all of the RPDs for 20 or less lots under the by-right scenario for a
RPD. That would be the equivalent for a Tier II under this ordinance amendment. The Commission would
review all Tier II requirements.
Ms. Thomas said the Commission cannot deny any of those applications. Mr. Cilimberg said by-
right the petition would have to meet all of the conditions of the ordinance, and it would be subject to
approval if it met those conditions.
Mr. Rooker said this is similar to site plan and subdivision approval. Mr. Cilimberg said RPDs are
unique in that the requirements for them are beyond what is required for normal subdivisions. The
requirements for Tier II facilities are beyond what would be the normal requirement for any tower, and the
Tier I facilities as described in the ordinance. They would have to meet the criteria for Tier II in order to be
approved. It would be a review by the Commission and it would be subject to public input. The Tier III is
subject to approval of a special use permit on which the Board would review and hold a public hearing after
receiving a recommendation from the Commission. The process for Tier II and Tier III would essentially
work like the old RPDs by-right and by special use permit.
July 14, 2004 (Regular Night Meeting)
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Mr. Davis said Tier II would be a ministerial process. Tier III would remain a legislative process.
Ms. Thomas said for the public the process for a Tier II application would be the most frustrating.
The public would be allowed to come to a Commission meeting and speak. The Commission would be
allowed to talk but could not deny any request that met the requirements set out in the ordinance. The
public can speak about something that impacts their neighborhood but if it is not contrary to one of the
standards written in this amendment, then there if nothing that can be done and the tower can be erected
by right. She thinks that is a scam of a public hearing and a scam of a Commission meeting. Unless the
standards are so carefully written that every possible contingency is covered, the request has to be
approved.
Mr. Bowerman asked if that is a bad thing. The Board is setting up the criteria by which the request
will be judged.
Ms. Thomas said that maybe everything the Board and staff have ever been able to think about is a
part of this amendment.
Mr. Tucker said this is similar to a dance hall permit where the permit is granted automatically if the
applicant meets all the conditions.
Mr. Boyd asked why the Commission is going to hold a public hearing if they can’t deny the
application.
Mr. Dorrier said there is a difference between ministerial and legislative actions. This Board takes
legislative actions while administration of the Zoning Ordinance is a ministerial function.
Mr. Davis said approval of a subdivision plat or a site plan is a ministerial action. The criteria are
established by the Board of Supervisors. Then the Commission’s Agent determines if those criteria have
been met. If they have been, the Agent is mandated to approve it. This is as Ms. Thomas described. Even
though there may be some other impact, unless the regulations have addressed that impact satisfactorily,
there is no way for the agent to deny it. If it has met all the criteria it has to be approved.
Mr. Rooker said the Commission’s acts are always ministerial. Mr. Davis said they are unless the
Commission is making a recommendation.
Mr. Rooker said they are not making a decision, only forwarding a recommendation. They have a
number of areas where they take action, but they are really ministerial action. Sometimes they make those
decisions against approvals. There are things over which the Commission has some leeway in making their
interpretation as to whether requirements have been met. In this case, he wonders the value of the Tier II
request to the Commission since it takes time for the Commission to review the request, and it costs the
applicant money to bring the request to the Commission.
Mr. Dorrier said it also ties up staff.
Mr. Rooker said there is also the public, as Ms. Thomas pointed out, giving input on a decision that
will be made based on a form or checklist.
Ms. Thomas asked what the Commission could do to a Tier II request. She thinks the difference
between seven and ten feet is one example.
Mr. Cilimberg said they could require 10 feet rather than seven based on criteria which had not
been met. In his experience as Planning Director, subdivision and site plan review are the toughest for the
Commission because of the reasons mentioned tonight. He has found that the Commission sometimes
makes a different interpretation of the standards than that made by staff. Whether that was appropriate has
never been called into question. Staff’s review is based on certain things, and the Commission has from
time to time made a different interpretation and they have exercised that latitude. That could happen with
the Tier II facilities. He expects that would happen from time to time because in the past some of the
conditions recommended by staff have been modified by the Commission. There is limited discretion in
interpreting some of the criteria and standards that the Commission would view differently than staff.
Mr. Bowerman said he does not remember why the Board is looking at this policy again. Mr.
Cilimberg the policy is set out in the Comprehensive Plan, but it has never been codified.
Mr. Rooker said this will basically codify the conditions that have, over many years, become
standard conditions. Mr. Cilimberg said they have been vetted so much through the years with the different
decisions of the Commission and Board that the conditions have actually benefited by the time that has
passed. It is now time to codify those conditions in a precise way. Those conditions have become the
standards the Board uses in virtually all approvals, but they do get tweaked every now and then.
Mr. Rooker said this is good in that the applicant can look at the ordinance and see the
requirements. Mr. Tucker said placing a mobile home in the County used to require a special use permit.
All the requests came to the Commission and the Board and the same conditions were applied to almost
every request. Then someone asked why this was being done, and the use was made a matter of right, but
the petition had to meet all those conditions. That is the same sort of change being recommended in this
case. Everyone knows what conditions are being recommended, so just make them a part of the ordinance
so the applicant can move forward as long as they can meet those conditions.
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Mr. Boyd said that has been his observation over the last six months. They are the same conditions
each time.
Mr. Cilimberg said if the Board does not feel the Commission’s review of a Tier II application is
necessary, then Tier II is not needed. Everything in Tier II can be moved to Tier I. However, that is not the
way it was set out in the policy, and was not the way staff looked at it with the Commission.
Mr. Davis said the ordinance does not require a public hearing by the Commission. It is the same
as for a site plan or subdivision plat, there is no advertised public hearing for these types of actions. By
practice, the Commission has these things on their agenda, and they allow public input, but that is not
codified as part of the ordinance. Any denial by the Commission of a Tier II requires the Commission to
specify what would be required for it to be approved, the same as a site plan or subdivision, and, similarly, if
the applicant disagrees with the Commission, they can appeal to the Board of Supervisors. That ministerial
decision can be bumped up to the Board to make the decision.
Mr. Dorrier asked if there is a public hearing required for subdivisions and site plans. Mr. Davis said
there is not. Notice is given to the adjacent property owners and that gives them an opportunity to provide
input before or at the meeting, but it is not a legally required public hearing.
Ms. Thomas said she asked staff in an E-mail this afternoon to give the Board some examples.
She said if the Board were to approve the draft ordinance dated April 14, 2004, every request seen by the
Board over the last two years would have been regarded as a Tier III. Two lines in the definition of
“avoidance area” have been deleted from the draft dated July 7, 2004 (“... any location that would adversely
impact any resource identified in the open space plan or a natural resource or cultural asset identified in
chapter two of the comprehensive plan;” and, “any location having unlimited visibility;....”). This creates a
situation where not all of the requests seen in the last two years would be a Tier III. She asked which
requests would not come to the Board using the new ordinance.
Mr. Stephen Waller, Senior Planner, said of the six totally new requests, without this language,
three of those six would fall under the Tier II criteria.
Ms. Thomas asked which three would have been considered a Tier II. Mr. Waller said they are: 1)
Canody - Moores Creek. The location is on Route 29 South in the northbound lane. It is 30 feet from the
right-of-way within a nicely wooded area. It would be a Tier III request because the property is located in an
Entrance Corridor regardless of whether or not the ARB had given the request a favorable
recommendation. 2) Verulam Farm – the first request would have been a Tier II were it not located within
the Entrance Corridor. 3) Vest. This request originally went to the Commission with a recommendation for
denial, but after the Commission worked through the request, it came to this Board with a recommendation
for approval. That location is off of the northbound lane of Route 29 South, very far to the south of the
County. This request would have qualified as a Tier II request as well.
Mr. Waller said some older requests which would have qualified as a Tier II are: 1) The original
Bellair facility that is located next to the road, but which many people say they cannot see when driving on
Route 29 South. It would be a Tier III request because the land lies in the Entrance Corridor. 2) The
second Bellair facility would be a Tier III because it is located within 200 feet of the first tower. 3) The
original Herring site would have been a Tier II facility because it lies across the road from a scenic overlook.
There are now four towers located on that property and the additional towers would have been Tier III
facilities. The original requests had a 200-foot tree conservation area requirement. If a request for an
additional tower is within 200 feet of that first tower, it affects that conservation area. Those requests would
require additional attention as opposed to the first request for a tower going on a site staff considers a good
site.
Ms. Thomas said those five requests mentioned would be Tier II under the current proposal. Mr.
Waller said that is correct.
Mr. Rooker said that is because of the entrance corridor. Mr. Waller said it also because forest and
farm lands are identified as an open space resource for protection. Tier II is ideal for forested areas.
Mr. Bowerman said the Board knew the tower would work in the entrance corridor based on the
approvals sent to it by the Commission. What value is there in having the Architectural Review Board do
what they do?
Mr. Rooker asked what would prevent a tower from being located 20 feet off of the right-of-way. If
“entrance corridor” is taken out of “avoidance area”, the Board would not be looking at the request. It would
become a ministerial decision. Mr. Cilimberg said that is if all the criteria were met.
Mr. Rooker asked what would happen if visibility was no longer a criterion and there were no trees
around the tower location. There are requirements for maintenance of trees and requirements concerning
the height of a tower with respect to trees. What if it is an open area along an entrance corridor? Can
towers be put up as a matter of right with no review?
Mr. Wyant asked about scenic highways.
Mr. Rooker said that not all entrance corridors are scenic highways. There is Hydraulic Road, Rio
Road and Route 29.
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Mr. Cilimberg said the avoidance area definition will kick in for Tier III. Then there are criteria set
out for Tier II. One criterion is that the facility shall not adversely impact resources identified in the County’s
Open Space Plan. Without adequate screening, the request would not fall under Tier II.
Mr. Rooker said he does not remember the ARB ever recommending denial of any tower request.
They don’t view it as their job to recommend denial. They view it as their job to take the application and try
to dress it up on the existing location. They don’t like to make a decision that it is not appropriate to the site.
He asked if the entrance corridor is a protected area in the Open Space Plan. Mr. Davis said it is.
Mr. Rooker said he wants to be sure towers that are not screened will not be allowed all along the
entrance corridors.
Mr. Bowerman agreed.
Mr. Cilimberg said there is also visibility from adjacent parcels and streets to consider. There are
criteria about the limitation of that visibility. Staff will look at requests as the Board has looked at them in the
past.
Ms. Thomas asked if No. 2 on the top of page 10 will do it (“The facility shall be sited to minimize its
visibility from adjacent parcels and streets, regardless of their distance from the facility.”).
Mr. Davis said that unless visibility can be minimized, it does not meet the criteria of No. 2. He
believes there is some discretion allowed as to how to meet that standard.
Mr. Rooker asked if this only speaks to how the tower is sited on that property as opposed to
making a decision that the site is unacceptable. If the site had no trees, can a determination be made that
the site does not qualify because no matter how the tower is sited, the criteria cannot be met.
Mr. Davis said if the tower cannot be sited to minimize visibility, then it would be denied as a Tier II.
If there were an open piece of property, and the request was to place the tower in the middle of that
property, the request would be denied because it is visible.
Mr. Rooker said if that is the case, then he is comfortable with the language.
Ms. Thomas asked if taking out of the definition of avoidance area the words “any location having
unlimited visibility” is safe because Tier II requires that visibility be minimized.
Mr. Davis said there could be a situation as described by Mr. Rooker, an open field and someone
wants to put a tower there. As the language was originally proposed, that request would require a special
use permit which is a legislative decision where this Board could find that the tower was visible, and deny
the request. That would be an easily defended decision. In this situation, if an applicant could find a way to
minimize visibility by planting trees or something else and then argue that they had minimized visibility, it
could be contested. From a practical standpoint, he does not think that would be a problem. The situation
would have to be addressed in a way to actually minimize its visibility.
Ms. Thomas said one thing that is driving her is what is happening in Greene County. She said the
first cell tower operators in Albemarle County devised the telephone type of pole with a tuning fork of some
type on top. Someone in Greene County must have felt that was a good idea, so they started putting them
in the middle of parking lots, where they are very ugly. When she sees that this ordinance would allow a
pole to be placed without Tier III review in any location having unlimited visibility, what comes to mind is
those unfortunate towers in parking lots. Those locations have unlimited visibility, the poles are the latest
technology for the least visible poles, but they are a real eyesore.
Mr. Davis said the Board may want to instruct staff to take this draft ordinance and boost wording in
the criteria. When this was originally drafted, a special use permit was required for “avoidance areas” with
unlimited visibility. These criteria have not been adjusted to address that situation. If the Board has a
concern about that, staff needs to look at whether this language is adequate to address the modified
definition of “avoidance areas.”
Ms. Thomas said she would be more comfortable doing that, partly because she just got a copy of
the revised language this afternoon.
Mr. Dorrier said there are some people in the audience who would like to speak. He then opened
the public hearing on this item.
Mr. Pete Caramanis, attorney for Alltel, thanked the County for this effort. Codifying what had
become standard conditions will be a big help. He said the wireless providers try to design a site that will
meet requirements. That has been somewhat difficult given the conflict between the wireless policy and the
ordinance. He supports the changes recommended to the definition of avoidance areas. Without those
changes, no facilities fit into the definition. He would like the Board to consider changing the language
prohibiting towers from being within 200 feet of an existing tower. In the list of five tower sites mentioned by
Mr. Waller earlier, three of those sites have more than one tower on the site. They have co-existed well and
they are no more visible than the original towers. The ordinance is written now to require that an additional
tower on the same site be 200 feet away, or on another parcel. Each new tower requires a new access
road even if it is just 200 feet away, utility easements, etc. It takes away from the County’s goal to minimize
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visibility of these sites, and to minimize land disturbance as these sites are constructed. He asked that this
limitation be taken out of the definition if the Tier II criteria are rewritten.
Mr. Caramanis said he would like to comment on the practical aspect of this amendment. It
appears that Tier III would become presumptively inappropriate. In other words, a Tier III application is filed,
and staff asked that it be a Tier II. Considering the way the ordinance is written with that limitation, a Tier III
application might actually be better, having lower visibility and lower land disturbance. The Commission
was willing to state that a Tier III would not be presumed to be worse than a Tier II. He asked that the Board
consider that same thing and offer its opinion on the record that that would not be the case.
Ms. Thomas said there is nothing in the language that says a second tower cannot be constructed
close to the first one on a site. It is just that the applicant has to go through Tier III review. She asked that
Mr. Caramanis quantify how much worse the Tier III review is, and to what lengths an applicant would go to
in order to avoid filing a Tier III application.
Mr. Caramanis said applications are time-driven and Tier III opens the application to public
comment. Once sites are found, the applicant wants to build the tower immediately. A major factor is the
extra months it would take to get approval. When doing site selection, they look for a site that will most
likely be approved. With the limitation in the language, it probably will not be the best site, even from the
County’s perspective. By making it a Tier III application, the wireless provider would get pushed toward
finding a different Tier II site that might be a worse site. One thing that is good about Tier II is that if the
criteria are met, the application is approved.
Ms. Valerie Long said she has represented several wireless carriers over the past few years. She
agrees with the comments of Mr. Caramanis in every respect. She commented to the Commission that the
definition of avoidance area was overly broad. She appreciates the research Mr. Caramanis did on past
approvals to see which would have been Tier II and Tier III. She did the same thing for some of the sites of
her clients and found that some of the very good sites would have been Tier III under this new ordinance.
She noted a location in the Samuel Miller District near Arrowhead Farm on the east side of the road
heading north where there is a second pole on the facility in a heavily wooded Entrance Corridor district.
She knows where it is located, but cannot locate it just driving along the road. It could probably handle
more towers, just like the Herring site, without having an adverse impact. She applauds the proposed
revisions to the definition of avoidance area. She still thinks it is a little tight. The definition of skylighting is a
little broad and could technically be applied to almost any site. She said there are a variety of vantage
points where a tower might not be viewed, but 100 yards down the road it could be skylighted and
technically be a Tier III facility.
Ms. Long said she thinks the seven feet versus ten feet in terms of the height of the tower above the
top of the highest tree is very important. In many cases, the difference in visibility between seven and ten
feet is minimal, but the difference in function of that signal from the tower is important to the industry. She is
pleased that criteria have been included in the ordinance allowing for modification from seven to ten feet,
but the standard is still stringent. The applicant has to demonstrate that increasing the height from seven to
ten feet would not have an adverse visual impact and that technical reasons require the tower to be taller.
In her opinion, it should not require both.
Ms. Long’s time for speaking had expired, but asked that she be allowed to make a further
comment. Mr. Dorrier acquiesced. Ms. Long said the way the current conditions are drafted is a good
compromise. They state that the top of the tallest tree shall never be more than a certain number of feet
above the top of the reference tree. That works well for the County because it provides some certainty
knowing that the pole will never be but that number of feet above the top of the reference tree. It provides
an incentive for the wireless provider to do everything in his power to protect the health of the reference
tree. If for some reason the reference tree were to die, the condition would require that the top of the pole
be no taller than ten feet above the remaining tallest trees. The benefit to that condition in the past has
been that if the tree grew, upon a showing by a certified surveyor, staff could allow the height of the tower to
be raised by an equivalent distance. The new ordinance addresses that issue, but it is no longer an
automatic increase. It also requires a demonstration that there will not be an adverse visual impact from
that increase in height. From the industry’s perspective, that is a step backward. If the reference tree grows
by five feet, the tower should be able to be raised by an additional five feet. She understands that very few
carriers have asked to increase the height of these poles because of the cost of replacement, particularly
for wood poles. However, at some point in the future, it will take a significant effort to go back each time to
demonstrate visibility.
Ms. Thomas asked Ms. Long to what lengths she would advise her clients to go to avoid the Tier III
process. Ms. Long said her answer is similar to that of Mr. Caramanis. It is a site specific issue. She thinks
the industry would want to get a site in operation. When there is a need for a site, it is an immediate need.
In that respect the ordinance is well-crafted because it means the very best sites will be Tier II sites and will
be reviewed and approved faster. She would counsel her clients to find the very best site available, and
one that is a Tier II site which gets administrative approval. The worst thing for an applicant is to spend a lot
of time and money investing in a site, and be denied by either the Commission or the Board. The
application process is very expensive. Because the definition of Tier II is broader than she would
recommend, she is concerned that at some point in the future, she would not be able to advise whether it
would be a Tier II or a Tier III site. She is fearful that there would be no answer in that regard until after
going through the Tier II application process.
Mr. Rooker asked who makes that determination. Would not the Zoning Administrator’s office
decide whether it is a Tier II or Tier III site?
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Mr. Davis said they could initially, but it may be a difficult determination and the Commission would
simply deny the site as a Tier II because they did not think it qualified. The ordinance was modified to make
the Tier II a Tier III if the Commission denied the application.
Ms. Long said that is helpful, but the problem is that the applicant is probably three months into the
process at that point. If denied by the Commission, they would then file by the next filing date for special
use permits. It is then a minimum of four months from the start of that process until the application is heard
by the Board.
Mr. Rooker asked if the Commission, at the same meeting, could make a motion to treat the
application as a Tier III application. Mr. Davis said a Tier III application requires an advertisement.
Ms. Long said that is her concern. She thinks there should be some way to make that
determination earlier, but that would take away the discretion of the Commission. She is not sure of the
solution, but when the issue is time, there is not a lot of difference from the applicant’s point of view in
bringing something as a Tier II request to the Commission, and filing for a Tier III request and taking it all the
way to the Board.
Mr. Davis said the Zoning Administrator will make a determination when the application is filed as to
whether it is Tier II or not. There is an appeal provision in the ordinance in the event the Commission does
not feel it meets the criteria for Tier II. Otherwise, the application would simply be denied as a Tier II and
the applicant would have no avenue to get that application approved.
Mr. Cilimberg said theoretically the applicant could appeal that decision to the Board. It would not
be a special use before the Board, but an appeal of a ministerial decision or they could go back and go
through the special use permit process.
Mr. Bowerman said that would take seven months.
Mr. Davis said if the application were determined to be a Tier II and the Commission denied the
request, and the applicant thinks they can meet the criteria for Tier II, they could appeal that decision to the
Board. The Board could overrule the Commission. Then, if the Board denied the appeal, the applicant
would have to go through the special use permit process. If the applicant is satisfied that they did meet the
Tier II criteria, they could apply for a special use permit because then there would be conditions to offset the
impact.
Mr. Bowerman asked if a request could be advertised as a Tier III application even if they apply for
a Tier II so it could be advertised in order to cut the process time.
Ms. Thomas said the public would then think there was going to be a public hearing.
Mr. Rooker said if people get a determination from the Zoning Administrator, he thinks that would
take care of the situation 99 percent of the time. It would be a rare occasion when the Commission would
disagree with the Zoning Administrator’s determination. That would allow a threshold interpretation.
Ms. Long said she did not want to discourage the concept of a Tier II because it is very important to
the industry.
Ms. Thomas said this is the second time the Board has been faced with the recognition that a
special use permit is so feared that people will go to great lengths to avoid it. The first time was when the
Mountain Protection Ordinance was proposed. The Board thought having a special use permit was going to
be the escape clause and offered it with great generosity to property owners. It turned out that it was such a
frightening concept that instead of regarding it as a gift to the citizens, the citizens thought it was a penalty.
Instead of being the way to get a pole on a difficult site, it looks like Tier III is being regarded as a thing to be
avoided at all costs. It may be self-defeating.
Mr. Dorrier said the process involves much time and much money and that is why special permits
are feared.
Mr. Rooker said it is the uncertainty of approval. On the other hand, any time a discretionary
decision of the Board is involved, it makes the outcome uncertain. The question is how far the Board wants
to go in eliminating discretion. Looking at the avoidance areas, he might be in favor of eliminating 200 feet
from a scenic river and 200 feet from the national park because he thinks some of the best sites are sites
that would not qualify there. They automatically become avoidance sites. He would like to see some
addition to the criteria for Tier II facilities saying “the site shall provide adequate opportunities to screen the
facility.” Then follow that with “the facility shall be sited to minimize visibility from adjacent parcels.” That
would make it clear that this language refers to sites that provide some potential for screening the facility.
He asked how the other Board members feel about the two areas in the avoidance area that he mentioned.
Mr. Bowerman asked about one tower being located within 200 feet of another tower.
Mr. Rooker said normally he would not have a problem with two towers that meet all the criteria.
When there are more than two towers, it becomes a tower farm.
July 14, 2004 (Regular Night Meeting)
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Mr. Bowerman said he thinks that is reasonable.
Mr. Dorrier said one more citizen had indicated that he would like to speak.
Mr. Robert Hogue said he hopes the County will consider how close it allows a tower to an adjacent
or adjoining property owner. There was one proposed for Nextel-Gallihugh and he was asked for an
easement on his property. He refused to grant an easement, and they asked the Planning Commission to
overturn the easement, but they did not. If the tower were allowed, because of liability, he would have clear
cut his trees back. No trees would have fallen against their tower or their building. He hopes the Board will
consider that and also that the adjoining landowner should not have to provide screening with trees. The
tower that is already on that site is visible in the wintertime. He can see it everyday from his kitchen table.
The trees in his yard are dying. Trees only have a certain life span, and they are close to his neighbor’s
property.
Mr. Rooker said if criteria were added requiring that the site provide adequate opportunities to
screen the facility that means it cannot be dependent upon the neighboring property to provide that
screening.
Ms. Paula Figgett with Site Solutions, said she had one site which was denied at the Commission
level, so she decided not to pursue it. That was a site adjacent to the David Weber property. There were
three treetop facilities there. When she did the site selection, instead of going to the three treetop facilities,
she went to the adjoining property owners. There were no problems with the property owners, but they
were subject to a 200-foot conservation easement against the other treetop facilities and Mr. Weber would
not sign a conservation easement for the adjoining owner although he had three towers on his property.
She will note that she likes to cluster facilities. If they are not put in a certain area, then another tower must
be put in a closer location. There would have to be more facilities rather than just one facility. That is her
main point. She also thanked County staff for all the time they have put into this ordinance.
Ms. Thomas asked how Ms. Figgett wanted the ordinance changed.
Ms. Figgett said she would like to have the ability to place three or four facilities at one location
instead of having a 200-foot distance between the facilities. About $30,000 is put into a site before even
getting to the zoning process. They have started to include County staff members in the site selection
process. In this case, there was a staff member involved. Because of changes in personnel over the years,
sites have been subject to different interpretations. That is difficult for the applicant. This ordinance
outlines a little better what is required. She said she will avoid special use permits like the plague. She will
also say that there has been little or no public comment on any of their sites. There was only one in a
subdivision for collocation on a Dominion Power structure where there was opposition.
Mr. Rooker asked if all of their applications have been approved except for that one.
Ms. Figgett said “yes.” With the collocation on the structure with Dominion Power, they made a few
concessions with the homeowners’ association. But, it takes one to one and one-half years in order to get
something approved, and by then the carrier is so frustrated that they pull all their funding and decide not to
build the site because of its costs.
Ms. Thomas said that collocation on the Dominion Power tower is now a Tier I site. Ms. Figgett said
that is correct. In this case, it was in a private subdivision, so the homeowners were involved in the process
early on.
Mr. Rooker asked if that request was in Montview Subdivision. Ms. Figgett said it was.
Mr. Rooker said that is the very situation where public input is needed. Ultimately, the public input
resulted in agreements to change the application to be more palatable to the homeowners. He said the
Board has to look at both sides of the issue.
Ms. Figgett said that was a private subdivision, so the homeowners had input regardless of whether
the petition came to the Board or not. They could make the decision collectively whether or not it got to the
zoning stage.
Mr. Rooker said it was on private property. He recalls that the homeowners’ association did not
control the tower site. That was on a Dominion Power easement.
Ms. Figgett said it was within the roads controlled by the association. They had to have access
within those roads. They did a lot to make that happen by making concessions. They even vaulted the
cabinets underground so there was no visibility.
Mr. Rooker said the Board has had other applications where towers were next to subdivisions and
the applicant did not need to use that subdivision’s roads. It is nice to have a process where the
neighborhoods can have input, and perhaps some impact on the application.
Ms. Figgett said she works in five different states, and Albemarle County has the most rigorous set
of laws. They have tried to abide by them and be sensitive to the community,
Ms. Debbie Balzer said she is the Site Acquisition Manager for Intelos. She said the site Ms. Figgett
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referred to is an Intelos and is still a problem today. If the County allowed telecommunications facilities to
be within 200 feet of each other, that would allow two tower companies to work together on things like
access roads. That would save costs, because it costs quite a bit of money just to get to the zoning
application process. If this Tier II process is approved and they only have to get Commission approval, she
wonders if the deadline schedule will remain the same and what the application fee will be. She said time is
of the essence. After her budget is approved for a site, there is a limited amount of time
to get the tower on the site. It usually takes one-half of a year to find a site and then they have to go
through the zoning process.
Mr. Boyd asked if having two towers within 200 feet of each other is enough, or do they need more
towers. Ms. Balzer said she thinks two are sufficient. They are presently working on a site and she knows
that there are three carriers looking at same property. It is a huge farm. The property owner is talking to all
three carriers, and he wants them to all go within the same area with one access road.
Ms. Long suggested that the ordinance language be tweaked to allow staff the discretion to decide
that a site is a good site and able to handle multiple facilities. In the definition of avoidance area, one
criterion is that the facility be located on property under a conservation easement. For a long time, she felt
that was an appropriate category of properties to be included in an avoidance area. She works with
landowners who put their land in an easement, and they have said that they want to reserve the right to put
a treetop facility on their property even after it is under easement. The tower approved earlier tonight on the
Verulam Farm site is on property under easement. Protection for the property is built in because the
landowner would have to approve any application for a special permit on his property and the easement
holder would also have to approve it. If it is okay with the easement holder and the landowner, presumably
it should be sufficient to protect the open space and conservation purposes of the easement. There are a
number of properties in the County, large wooded properties, which are often near major roads and scenic
highways and which are under easement now and many more will be in the future. This language takes
away the property options for sites that could be Tier II sites. She proposes that the language be deleted
from the definition.
Ms. Thomas said she personally spoke to a gathering of the Virginia Outdoors Foundation to try
and convince them that treetop towers would be appropriate on property that had conservation easements.
She thinks they did make that determination. She thinks they will be greater sticklers than the Board. She
said a few years ago, there was a large piece of property in a conservation area and the Board said that
was an avoidance area. The tower company moved immediately off of that property and erected a tower.
It bothers her because the person who has the conservation easement, having generously preserved that
land for future generations and more importantly for all of her neighbors, has to look at this tower. She
thinks parcels adjacent to property on which there is a conservation easement or open space easement
should be regarded as avoidance areas. Otherwise, the Board is condemning people meeting one of the
highest goals in the Comprehensive Plan (the Rural Area conservation and growth management), when
they put their land in a conservation easement.
Mr. Rooker said he is willing to take out that language. Just because a site is within a conservation
easement or open space property, should not automatically kick it into an avoidance area. Some of the
best sites have been sites in open space or conservation areas. If all the other visibility requirements are
met for Tier II, if the conservation easement property owner and the conservation easement holder both
agree, why should the County step in and penalize the person who put their property into the conservation
easement by denying them the potential of earning revenue off of that property when it meets all the
visibility requirements?
Mr. Dorrier said that is a good point.
Ms. Thomas asked if this would affect the Public Recreational Facilities Authority in any way.
Mr. Davis said the easement would control whether or not the facility could be located on that
property. If a property owner said they did not want a tower on their property that could be added into the
easement. He said the current model easement does allow towers.
Mr. Dorrier asked if anyone else from the public wished to speak. With no one coming forward to
do so, the public hearing was closed and the matter placed before the Board.
Mr. Davis said he would like to answer a question from earlier in the meeting about the timing of the
process. The ordinance provides that an application will be treated like a site plan which basically requires
a 60-day approval cycle. That is considerably faster than the special permit process. At this time, there is
no fee listed in the ordinance for the review process. That is something which should be corrected.
Mr. Waller said that is something staff will have to address.
Ms. Thomas suggested that the Board summarize what it is asking staff to do. There is the fee
structure; changing the avoidance area to remove parcels subject to a conservation or open space
easement; to remove the location within 200 feet of a national park or national forest. Mr. Tucker said it
was suggested that scenic river also be removed.
Ms. Thomas said she questions that. National Parks and national forest in Albemarle County are
by definition, well-forested areas.
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Mr. Bowerman said there are not going to be any towers around rivers anyway because rivers are
low in elevation.
Ms. Thomas said there is also the change on Page 10, No. 2, with some kind of wording that the
site has to afford the screening and not just that the facility is sited to minimize visibility.
Mr. Rooker suggested just adding another numbered paragraph to the effect that “The site shall
provide adequate opportunity to screen the facility.”
Ms. Thomas said she likes Mr. Davis’ suggestion that since the Board has changed the definition of
“avoidance area” that staff go through the draft ordinance carefully to make sure there is not something
else that needs to be changed.
Mr. Davis said there were a couple of other issues raised. One has to do with the criteria to raise
the tower from seven to ten feet above the tallest tree. There are two criteria now, visibility and the
technical necessity for the height change. He asked if the Board wants to maintain “technical necessity” if
the visibility criteria is satisfied.
Mr. Rooker said he thinks almost every applicant could make that showing. The County does not
have adequate staff with RF capabilities to make a judgment as to whether or not the statement by an
engineer that the facility will be technically better if they move it up, is accurate or not. Also, because of the
expense involved, the applicant is not going to raise the tower unless it is going to improve the technical
aspects of the tower. He is in favor of dropping that stipulation.
Mr. Davis said a similar issue was raised. If the trees grow and the applicant wants to raise the
tower, is that something the Board wants to happen automatically with staff approval? The draft ordinance
requires a demonstration that there is no adverse impact by raising the tower. He said that under the
special use permit conditions, that is not required.
Mr. Rooker said he thinks the requirement should be dropped.
Ms. Thomas said there is a tower which she sees out of her front door. It is protected by one tree
and it is pretty visible. Even if that tree grows five feet, it will not have grown to endear itself. If anything, it
would just become more visible. She is not sure she wants that change to be automatic. What is the
alternative?
Mr. Davis said that under the proposed ordinance, they would have to demonstrate that there is no
adverse visual impact.
Ms. Thomas asked if that is demonstrated just to staff. Mr. Cilimberg said the way the ordinance is
written now, the agent may authorize the height to be increased.
Ms. Thomas said she thinks it would be fine to have the agent do it, but she thinks it should be
approved and not happen automatically.
Mr. Davis said that under the special use permit conditions the tower would have to be approved.
The applicant has to demonstrate that the tree has grown. If that can be satisfactorily demonstrated, the
agent must approve the request. This ordinance takes it a step further by saying that not only must it be
demonstrated that the tree has grown, but also that there is no adverse visible impact. That is a greater
standard than what has been required in the special use permit process.
Ms. Thomas said that should be proved to the agent, someone needs to look at the visual impact of
such a request instead of it being automatic.
Mr. Rooker said he thinks that is unfair because the County does not impose that requirement
when someone applies for a new tower. If the property meets the criteria for a site, there is nothing which
says the tower cannot be seven feet above the highest tree because of some judgment about visibility of
that site. Also, if the reference tree grows and the applicant applies for a higher tower on that site, there is
no criteria to be judged about its being raised seven feet above the tallest tree. In an existing tower situation
which has passed all the criteria and the tree grows, the applicant has to make an additional showing about
visibility which is not required when applying for a new tower.
Ms. Thomas said she thought they did have to make such a showing. Mr. Rooker said they do not.
Ms. Thomas said if they don’t, she is even more upset. Mr. Rooker said this only has to do with the issue of
“above” the tallest tree. The site qualified initially because it satisfied all the criteria. Ms. Thomas said that
had a lot to do with visibility. Mr. Rooker said it had nothing to do with the tallest tree except that they could
only be a certain number of feet above that tallest tree. If that tree were 110 feet tall, they could go up to
117 feet under the seven-foot stipulation. There was no aesthetic judgment about the seven feet in
relationship to the tallest tree. That is automatic under this ordinance. All of a sudden it is not automatic
when the tree grows. They spent a lot of money on the site and the reference tree grew and they can no
longer get the signal out in the same way they got it out before. To him, that should not be a judgment.
Once the tower has been approved, they should not be treated differently with respect to its height than
someone who applies for a new tower. If someone came in and applied for a second tower on the same
site, the criteria applied to that second tower would be less than the criteria the Board is talking about
applying to the existing tower.
July 14, 2004 (Regular Night Meeting)
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Ms. Thomas said if the site is a good site for reasons other than just the tallest tree, and over the
years the tallest tree grows taller, but things change on the site over the years, she thinks it is appropriate to
use some judgment as to whether raising that tower another five or ten feet is still creating a situation that is
not visually intrusive. Mr. Perkins always assured the Board that when trees got to that height, they were not
going to grow taller. She does not think this will happen often, but when it does, it will be some years after
the initial approval, and other things will have happened on that site.
Mr. Rooker said he would agree with Ms. Thomas if the agent could take into consideration
something other than just the tallest tree on the site in making that decision. He wonders if the Board is
putting a burden on the agent to make that determination. If the only thing he can look at is that the one
tree is changing height, then in reality visibility is almost always going to be impacted by raising that tower
height. Now, a tower that was once seven feet above the tallest tree is only three feet above the tallest tree.
Is it fair to put the applicant in a situation where towers that were approved with respect to their relationship
to the tallest tree all of a sudden can’t remain on the site because the tallest tree has gotten taller?
Someone could put a tower on a site next door which meets the criteria and put it up seven feet above the
tallest tree, and once they had established all the criteria, that is a given.
Mr. Bowerman agreed with Mr. Rooker.
Ms. Thomas said she also understands what Mr. Rooker is saying.
Mr. Wyant asked what happens if the tallest tree on the site dies. Does that mean the tower would
have to be lowered?
Mr. Davis said they would either have to do that or come back before the Board and satisfy the
Board that the tower should remain on the property.
Mr. Wyant said these trees will grow slow at that height.
Mr. Dorrier asked if the 200 feet between towers was eliminated.
Mr. Davis said that is the clustering criteria, so he understands that the Board would allow two
towers to be located in the 200 feet, but the third tower would have to be more than 200 feet away or be a
Tier III.
Mr. Wyant said there was a concern expressed about screening of those towers, so if any kind of
screening is done, is the lesser of the tree heights used as the mean sea level elevation?
Mr. Rooker said Tier III allows additional criteria to be applied, or there is the ability to deny the
request. Someone can always think of anecdotal situations where approval would have been fine. That
could be said every time there is a situation where there are three towers, and the Board approves the
request, but in his mind, once there are more than two towers on a site, it is getting to be a tower farm. On
some sites that might work fine.
Mr. Bowerman asked what would happen if the Commission made a decision that three would be
okay, and the agent also made a determination that three can locate on the same site and meet the criteria.
Mr. Rooker said he is comfortable with two, but thinks that when it gets to three he would like an
opportunity to look at the situation.
Mr. Bowerman asked why the Commission could not do that.
Mr. Rooker said they can, but if it is a Tier II request, they could not deny it.
Mr. Bowerman said if the tower can’t be hidden, they could deny the request.
Mr. Boyd said it still has to meet all the other criteria. It does not automatically have to be put to a
Tier III.
Mr. Rooker said the same thing could be said for every Tier III application.
Mr. Bowerman said that is true, but someone has to make that determination, so why not let the
Commission do it.
Mr. Rooker said the Commission does not have the right to deny a request.
Mr. Bowerman said it would not meet the criteria for a Tier II if that was the case.
Mr. Rooker said each tower is judged independently. The tower clustering effect cannot be judged
in this proposed ordinance unless there is something that causes it to be kicked in to Tier III after
assembling a certain number of towers within a certain distance. Every tower is considered as though there
is nothing else around it. If the Board wants to be able to consider the visual aspect of having a number of
towers located near each other, at some point it has to be kicked into an avoidance area which means that
it gets a special use permit.
July 14, 2004 (Regular Night Meeting)
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Mr. Bowerman said it is hard for him to conceive that two towers met the criteria, and then the third
tower on the same site does not make it a Tier III site. They are looked at individually.
Mr. Rooker said if the 200-feet distance from each other is deleted, the fact that there are other
towers on the site is irrelevant.
Mr. Bowerman said each one is independently verified that it is not a problem.
Mr. Rooker said the visibility aspects of the other towers would not be taken into consideration.
Mr. Bowerman said the towers would not be there if they had not already received approval.
Mr. Boyd asked why the cumulative effect would not be taken into consideration.
Mr. Rooker said there is nothing in this ordinance that would allow that to be done.
Mr. Davis said that only the visual effect of a single tower would be looked at.
Mr. Boyd asked if that is relative to what is around it.
Mr. Bowerman said Mr. Rooker is thinking that three towers are automatically bad. That they
automatically lead to a situation that is not wanted.
Mr. Rooker said he believes that multiple towers within a short space of each other present a
visibility situation that is different from one tower.
Mr. Bowerman said he does not think it is significant.
Ms. Thomas said maybe something can be worded so it is not the 200 feet but the cumulative
effect of more than one tower taken into account by the Zoning Administrator when deciding if it is a Tier II
or Tier III situation. She said the Herring site is a marvelous site with four towers. On the Weber site that
was mentioned, it was actually the cluttering on the ground that caused the site to become cluttered with
three towers. It was a site where the top of the towers could not be seen, but one drove by the bottom of
the towers.
Mr. Davis said Ms. Thomas has mentioned something staff can work with. That is, four or less
towers within 200 feet could be a Tier II tower. Then add criteria under the Tier II considerations for the
Commission to determine whether or not the cumulative impact of towers within 200 feet adversely affects
the visibility of the site, rather than the specific tower. That would be criteria that could be used to deny it as
a Tier II.
Mr. Rooker said he would be comfortable with that suggestion.
Mr. Davis said if the Commission denied the request, it could be appealed to the Board or become
a special use permit. He said staff will have to work on the language.
Somebody in the audience asked a question which could not be heard. Mr. Davis said the
ordinance already addresses that issue. Under the criteria which are incorporated by reference, the tower
either has to be the height of the tower away from the property line or an easement has to be acquired from
the adjacent property owner to locate it closer.
Ms. Thomas said if the adjacent owner won’t give an easement, then they don’t have to worry about
it. Mr. Davis said that is correct. The tower has to be located a distance off at least its height away from the
property line.
Mr. Bowerman said they are probably willing to pay for that easement.
Mr. Wyant said that has not been deleted from the ordinance. Mr. Davis said that is correct.
Mr. Dorrier asked if there should be a motion on this matter.
Mr. Davis said that because some of the changes are less restrictive, but some might be more
restrictive, it will probably need to be readvertised so the Board can hold another public hearing on the
changes in order to meet legal criteria. He suggested that it be advertised for September or later.
Mr. Tucker asked if the Board would consider having the public hearing at the day meeting in
September, rather than on a night meeting.
Mr. Davis asked if the Board wanted staff to determine a reasonable fee to cover the County’s
standard cost of review.
Mr. Dorrier asked the amount of the fee at this time. Ms. Long replied from the audience that it is
$980 at this time.
Mr. Rooker offered motion to defer any action on this ordinance until September 1. The motion
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was seconded by Mr. Boyd. Roll was called, and the motion carried by the following recorded vote:
AYES: Mr. Bowerman, Mr. Boyd, Mr. Dorrier, Mr. Rooker, Ms. Thomas and Mr. Wyant.
NAYS: None.
_______________
Agenda Item No. 14. From the Board: Matters Not Listed on the Agenda.
Mr. Boyd said he researched the minutes where the Board approved the Six-Year Road Plan, and
the Board did say that Allen Road was to be the second Rural Rustic Road Program. He does not think
VDoT has changed the numbers in their report.
Mr. Tucker said he made that request directly to VDoT so it should be changed soon.
Mr. Wyant said he met with VDoT and some residents of Allen Road, so it is being worked on.
__________
Mr. Boyd said he would like to offer motion to appoint Mr. Peter Maillet to the Fiscal Impact
Advisory Committee with a term to expire on July 8, 2006. The motion was seconded by Ms. Thomas. Roll
was called, and the motion carried by the following recorded vote:
AYES: Mr. Bowerman, Mr. Boyd, Mr. Dorrier, Mr. Rooker, Ms. Thomas and Mr. Wyant.
NAYS: None.
__________
Mr. Davis said there is a proposal to buy some property from the Hedgerow Corporation located in
the City adjacent to the Juvenile Court facilities. What is required at this time is a motion to approve two
agreements. One agreement authorizes the purchase of the property and authorizes the County Executive
to execute the agreement on behalf of the County. The Board also needs to authorize an agreement with
the City of Charlottesville regarding the joint purchase and ownership of that real estate and to authorize the
County Executive to execute that agreement. If the Board is satisfied that this is the path it wants to take,
there should be a motion to approve the two agreements referenced.
Mr. Boyd offered motion to this effect. The motion was seconded by Mr. Rooker. Roll was called,
and the motion carried by the following recorded vote:
AYES: Mr. Bowerman, Mr. Boyd, Mr. Dorrier, Mr. Rooker, Ms. Thomas and Mr. Wyant.
NAYS: None.
__________
Mr. Dorrier thanked Ms. Sharon Taylor, Recording Secretary for the Planning Commission, for
standing in for Ms. Carey at the long meetings today.
_______________
Agenda Item No. 15. Adjourn.
At 9:20 p.m., with no further business to come before the Board, the meeting was adjourned.
________________________________________
Chairman
Approved by the
Board of County
Supervisors
Date: 12/01/2004
Initials: EWC