1998-10-14 000345
October 14, 1998 (Regular Night Meeting)
(Page 1)
A regular meeting of the Board of Supervisors of Albemarle County,
Virginia, was held on October 14, 1998, at '7:00 p.m., Room 241, County Office
Building, McIntire Road, Charlottesville, Virginia.
PRESENT: Mr. David P. Bowerman, Ms. Charlotte Y. Humphris,
Mr. Forrest R. Marshall, Jr., Mr. Charles S. Martin, and Ms. Sally H. Thomas.
ABSENT: Mr. Walter F. Perkins.
OFFICERS PRESENT: County Executive, Robert W. Tucker, Jr., County
Attorney, Larry W. Davis, and County Planner, V. Wayne Cilimberg.
Agenda Item No. 1. The meeting was called to order at 7:00 p.m., by the
Chairman, Mr. Marshall.
Agenda Item No. 2. Pledge of Allegiance.
Agenda Item No. 3. Moment of Silence.
Agenda Item No. 4.
Public.
There were none.
Other Matters Not Listed on the Agenda from the
Agenda Item No. 5. Consent Agenda. Motion was offered by Ms. Humphris,
seconded by Ms. Thomas, to accept the consent agenda as information.
Roll was called and the motion carried by the following recorded vote:
AYES: Mr. Martin, Ms. Thomas, Mr. Bowerman, Ms. Humphris and Mr. Marshall.
NAYS: None.
ABSENT: Mr. Perkins.
Item No. 5.1. Copies of minutes of the Planning Commission meetings of
September 8, and September 29, 1998, were received for information.
Item No. 5.2. Copy of minutes of the Albemarle-Charlottesville Regional
Jail Authority Board meeting of August 13, 1998, was received for information.
Item No. 5.3. Copy of minutes of the Rivanna Water & Sewer Authority
Board of Directors meeting of August 24, 1998, was received for information.
Agenda Item No. 6. SP-98-41. Wal-Mart Stores, Inc. (Signs #58,#59&
#60). PUBLIC HEARING on a request to amend existing permit in accord
w/provisions of §30.6.3.2 of Zoning Ordinance, to expand outdoor storage &
display w/in ECOD on 13.284 acs. Proposal calls for addition of 5 outdoor
storage containers on S side of existing Wal-Mart Store bldg. Loc on Rt 29 N.
Znd HC. TM45,P68D5. (This property is located in a designated growth area.)
Rio Dist. (Advertised in the Daily Progress on September 28 and October 5,
1998.)
Mr. Cilimberg said Wal-Mart is requesting additional outdoor storage in
the storage area they created on the southside of the store. They want to put
five temporary containers in an area that is screened. Staff feels the
additional storage containers can be accommodated and will not affect visi-
bility. Staff has recommended approval with one condition.
At its meeting on September 8, 1998, the Planning Commission unanimously
recommended approval of SP-98-41 subject to three conditions.
Mr. Marshall asked the applicant for comments.
Mr. Guy Fogg, representing Wal-Mart, said they are looking for a way to
better accommodate the store. Last year they had to store five additional
trailers at the Sams' parking lot. Wal-Mart does not think the storage space
will deter from the right-of-way or entrance corridor. Wal-Mart does not
intend to stack the containers.
October 14, 1998 (Regular Night Meeting)
(Page 2)
Mr. Marshall said he appreciated Mr. R~oker's comments made at the
Planning Commission meeting.
000346
Mr. Marshall then opened the public hearing. There being no one from
the public present to speak, the public hearing was closed.
Mr. Bowerman said he thinks the Planning Commission dealt with the
request adequately. He thinks the additional conditions by the Commission is
consistent with good planning. He then offered motion to approve SP-98-41
subject to the three conditions recommended by the Planning Commission. Ms.
Thomas seconded the motion.
Roll was called and the motion carried by the following recorded vote:
AYES: Mr. Martin, Ms. Thomas, Mr. Bowerman, Ms. Humphris and Mr. Marshall
NAYS: None. '
ABSENT: Mr. Perkins.
(The conditions of approval are set out below:)
Storage containers shall not exceed nine feet, six inches in
height;
2 o
The gates will remain closed except when being used; and
The storage units will not be stacked.
Ms. Humphris commented that the staff's report states that "The proposed
additional storage containers are not expected to be visible from the Route 29
North Entrance Corridor." She would have preferred that the staff stated
"will not be visible".
Agenda Item No. 7. ZMA-98-02. Airport Road Office Complex (Signs
#84U). PUBLIC HEARING on request to rezone 2.5 acs from RA to C-1
w/proffers. A conceptual plan that accompanies the rezoning, though not
proffered, shows construction of an office bldg. Loc on S side of Rt 649
(Airport Rd) approx 900 ft from inter of Airport Rd & Rt 29 (Seminole Trail).
TM32,P41B. (This property is designated for Office Service in Comp Plan.)
Rivanna Dist. (Advertised in the Daily Progress on September 28 and October
5, 1998.)
Mr. Cilimberg summarized the staff's report which is on file in the
Clerk's office and a permanent part of the record. There have been a number
of limitations to the uses that have been proffered out through the rezoning
proposal. Under this proposal, commercial uses cannot comprise of more than
50 percent of the building area. The applicants' intent is to reach future
development in that area with both office space and commercial services. The
applicants have not proffered a plan for the property; however, they have
proffered an area to be preserved from development in order to accommodate
widening of Airport Road. The applicants have shown in a conceptual plan that
an office building could be constructed with necessary parking on the site and
still allow for the expansion of Airport Road.
Mr. Cilimberg said originally the applicants proffered a '~no build" area
to be part of the expansion of Airport Road. The Commission requested, and
the applicant then proffered, right-of-way and construction easement
dedications. The area dedicated has been determined to be appropriate by the
engineering designers who are now working on the Airport Road improvements.
Therefore, the proffers and their reference to Parcel X and Parcel Y, on the
attachment, to those proffers allow for the area expected to be needed for the
widening of Airport Road.
With these proffers, staff and the Planning Commission have recommended
approval of the rezoning request.
Ms. Thomas asked about the sidewalk. Mr. Cilimberg said the sidewalk is
of the design the engineering firm is working with. The applicants
actually adjusted Parcel X at the request of the designers for Airport Road.
Mr. Marshall asked the applicant for comments.
Mr. Rick Jones, General Partner of Airport Road Limited Partnership,
000,347
October 14, 1998 (Regular Nigh~ Meeting)
(Page 3)
said he had no additional information. They tried to offer everything that
the Planning Department wanted to see. This has been a long process which
started in January and will continue until the road is completed. The
applicants have agreed to do no construction in the easement area for five
years. The reason the applicants did not think they could proffer a building
design is because the road project seems to be changing frequently. In fact,
they changed the proffer map about a week ago based on the latest design from
the Highway engineers. The applicants know they have enough land to do a nice
office building. The applicants hope the Board will agree with the Planning
staff and Commission, and unanimously recommended approval of the rezoning.
Mr. Marshall then opened the public hearing. There being no one from
the public present to speak, the public hearing was closed.
Mr. Martin said he thinks the' Planning Commission did a good job of
working with the applicants on this request. He then offered motion to
approve ZMA-98-02 as proffered, signed by Richard H. Jones, General Partner,
Airport Road Limited Partnership, and dated October 6, 1998. Ms. Humphris
seconded the motion.
Roll was called and the motion carried by the following recorded vote:
AYES: Mr. Mar~in, Ms. Thomas, Mr. Bowerman, Ms. Humphris and Mr. Marshall.
NAYS: None.
ABSENT: Mr. Perkins.
(The proffers are set out below:)
PROFFER FORM
Date: Auqust 25, 1998 ZMA# 98-02
Tax Map Parcel(s)# 003200000041B0
2.4 Acres to be rezoned from RA to Cl.
Pursuant to Section 33.3 of the Albemarle County Zoning
Ordinance, the owner, or its duly authorized agent, hereby
voluntarily proffers the conditions listed below which shall be
applied to the property, if rezoned. These conditions are
proffered as a part of the requested rezoning and it is agreed
that: (1) the rezoning itself gives rise to the need for the
conditions; and (2) such conditions have a reasonable relation to
the rezoning requested.
The primary use of the site will be for office use and
associated parking; however, up to 50% of the total floor
area may be used for the uses identified in Section 22 of
the Albemarle County Zoning Ordinance in effect on July 24,
1998, a copy of which is attached (on file in the Clerk's
office), as follows:
* 22.2.1. (a) (1):
Antique, 9ift, jewelry, notion and craft
shops
22.2.1. (a) (2): Clothing, apparel and shoe shops
22.2.1. (a) (3): Department store
22.2.1. (a) (4) : Drug store, pharmacy
22.2.1. (a) (5): Florist
22.2.1. (a) (6) : Food and grocery stores including such
specialty shops as bakery, candy, milk
dispensary and wine and cheese shops
22.2.1. (a) (7): Furniture and home appliances (sales and
service)
22.2.1. (a) (8): Hardware store
22.2.1. (a) (9): Musical instruments
22.2.1. (a) (10): Newsstands, magazines, pipe and tobacco
shops
22.2.1. (a) (11): Optical goods
22.2.1. (a) (12): Photographic goods
22.2.1. (a) (13): Visual and audio appliances
22.2.1. (a) (14): Sporting goods
22.2.1. (a) (15): Retail nurseries and greenhouses
22.2.1. (b) (2): Barber, beauty shops
22.2.1. (b) (3): Churches, cemeteries
22.2.1. (b) (4): Clubs, lodges, civic, fraternal,
October 14, 1998 (Regula~ Night Meeting)
(Page 4)
000348
patriotic (reference 5.1.2)
22.2.1. (b) (5): Financial institutions
22.2.1. (b) (6): Fire and rescue stations (reference
5.1.9)
22.2.1. (b) (8): Health spas
22.2.1. (b) (10): Laundries, dry cleaners
22.2.1. (b) (11): Laundromat (provided that an attendant
shall be on duty at all hours during
operation
22.2.1. (b) (12): Libraries, museums
22.2.1. (b) (13): Nurseries, day care centers (reference
5.1.6)
22.2.1. (b) (14) : Eating establishments
22.2.1. (b) (15): Tailor, seamstress
22.2.1. (b)(17): Electric, gas, oil and communication
facilities excluding tower structures and
including poles, lines, transformers,
pipes, meters and related facilities for
distribution of local service and owned
and operated by a public utility. Water
distribution and sewerage collection
lines, pumping stations and appurtenances
owned and operated by the Albemarle
County Service Authority
22.2.1. (b) (18): Public uses and buildings including
temporary or mobile facilities such as
schools, offices, parks, playgrounds and
roads funded, owned or operated by local,
state or federal agencies (reference
31.2.5); public water and sewer trans-
mission, main or trunk lines, treatment
facilities, pumping stations and the
like, owned and/or operated by the
Rivanna Water and Sewer Authority
(reference 31.2.5: 5.1.12)
22.2.1. (b) (19): Temporary construction uses (reference
5.1.1)
22.2.1. (b) (20) : Dwellings (reference 5.1.21)
22.2.1. (b) (21): Medical center
22.2.1. (b) (23): Temporary nonresidential mobile homes
22.2.1. (b) (24): Indoor athletic facilities
22.2.1. (b) (25): Farmers' market (reference 5.1.36)
Special uses for the property shall include those uses
identified in Section 22.2.2 of the Albemarle County Zoning
Ordinance in effect on July 24, 1998, a copy of which is
attached (on file in the Clerk's office), as follows:
22.2.2.1:
* Commercial recreation establishments including
but not limited to amusement centers, bowling
alleys, pool halls and dance halls
* 22.2.2.2: Electrical power substations, transmission
lines and related towers; gas or oil trans-
mission lines, pumping stations and appurte-
nances; unmanned telephone exchange centers;
micro-wave and radio-wave transmission and
relay towers, substations and appurtenances
* 22.2.2.4: Fast food restaurant
* 22.2.2.5: Veterinary office and hospital (reference
5.i.il)
* 22.2.2.6: Unless such uses are otherwise provided in
this section, uses permitted in section 18.0,
residential R-15, in compliance with regula-
tions set forth therein, and such conditions
as may be imposed pursuant to section 31.2.4.
* 22.2.2.9: Parking structures located wholly or partly
above grade
* 22.2.2.10: Drive-in windows serving or associated with
permitted uses
As depicted on a certain physical survey of Roger W. Ray &
Assoc., dated September 16, 1998, and revised September 22,
1998 and October 6, 1998, captioned "Parcel X, Parcel Y and
October 14, 1998 (Regular Night Meeting)
(Page 5)
000349
Residue, The Property of Airport Road Limited Partnership,"
(the ~Plat"), attached (on file in Clerk's office) hereto and
incorporated herein:
so
The applicant will dedicate parcel "X" to the
Commonwealth or its appropriate agency for the
Commonwealth's use in widening and realigning Airport
Road within a route selected as of the date of this
application (the "Road Project"). Parcel "X" shall be
the lesser of 0.270 acre or that amount of applicant's
property actually comprising a portion of Airport
Road, as realigned upon completion of the Road
Project.
During a period of the earlier of five (5) years
following September 29, 1999 or the completion of the
Road Project as it affects the applicant's property,
the applicant shall not construct a building structure
or other improvement, other than an accessway, in that
0.301 acre portion of the property shown as Parcel ,,y,,
on the Plat. However, under no circumstances shall
this agreement with respect to Parcel Y restrict or
limit access to or development of (I) the remaining
portion of the applicant's property not subject to
dedication or easement as referenced herein and (ii)
that portion of Parcel Y over which the temporary
easement rights referenced herein are not being
exercised or will not need to be exercised.
For a period expiring on September 29, 2003 or on the
date of completion of the Road Project as it affects
the applicant's property, whichever first occurs, the
applicant agrees to grant reasonable and temporary
construction and grading easement(s) over, on and upon
Parcel Y for use as and when that portion of the road
Project affecting the applicant's property is being
constructed. On September 29, 2003 or the date of
completion of such construction, whichever first
occurs, any such temporary easement(s) shall be deemed
null and void, and the County or the Commonwealth, or
the appropriate agency of either, shall execute such
document(s) as the applicant may reasonably request in
order to confirm the release of Parcel Y back to the
applicant and the relinquishment by the County or the
Commonwealth, or both, of any easement rights related
thereto.
Building and parking setbacks on the property shall be
measured from the anticipated property line based on the
final road design plans, if the property is developed before
completion of the Airport Road widening project.
Agenda Item No. 8. ZMA-98-16. Colonnade Center (Sign #56). PUBLIC
HEARING on a request to rezone 18,360 sq ft pcl from R-15 to HC to locate
commercial/office bldg. Loc on Colonnade Dr (off Ivy Rd, adj to Townside
Shopping Ctr & University Heights Apts.) TM60,P~OC2 P40C3. Loc in Development
Area Neighborhood 6 & recom for Urban Density Residential use in Comp Plan.
Jack Jouett Dist. (Advertised in the Daily Progress on September 28 and
October 5, 1998.)
Mr. Cilimberg summarized the staff's report which is on file in the
Clerk's office and a permanent part of the record. Mr. Cilimberg said there
was some mixup in the reference to the parcel number. The staff's report
indicates the parcel as 40C3 which is correct. However, there was an
irregularity in advertising of the parcel. The advertisement listed the
parcel as 40C2. Parcel 40C3 will be combined with Parcel 40C2. He has spoken
with the County Attorney and the applicant, and they all feel they can move
ahead with the request. This error is not of great significance and has no
material affect on the proposal.
Mr. Cilimberg said staff has recommended approval of the request with
acceptance of the applicant's proffers. He noted that the proffers dated
October 14, 1998 (Regular Night Meeting)
(Page 6)
00O;350
October 2, 1998 provided to the Board members were not signed. He now has
signed proffers that are dated October 14, 1998. There were no changes in the
proffers. Mr. Cilimberg also noted that within those proffers, the applicant
agreed to include several additional proffers to address requests made by the
Commission. The Planning Commission's and staff's recommendation is for
approval.
Ms. Thomas said some time ago the Board talked about how best to get the
residents of those apartments a walking path towards the University of
Virginia that would not impact anybody's particular property. She does not
think that was ever pursued. This property is just to the south of where any
walking would take place. Mr. Cilimberg said staff determined that would be a
CIP project, potentially one that would have to be done with the City of
Charlottesville and the University of Virginia. One of the concerns was
walkers going through other property. There is an easement that theoretically
allows for that kind of walking to occur.
Ms. Thomas said she wanted to make sure the fence does not cross the
walking access for the neighborhood. Ms. Humphris said the fence separates
this property from St. Anne Belfield's property. She does not think St. Anne's
would want the walking path to be in the middle of their property. The path
needs to be further south up the hill.
Mr. Marshall asked the applicant for comments.
Mr. Cliff Hamner, representing Colonnade Associates Limited Partnership,
said he did not have much to add to the staff report. The applicant's intent
is to take two marginal properties and combine them to make one viable piece
of property. The fence would be between St. Anne's Belfield and this
property, and should not affect anyone's right-of-way or crosswalk easements.
He is available to answer any questions.
Ms. Thomas asked if the applicants had a use in mind for the property.
Mr. Hamner said they do not have a specific tenant. They would like to have a
nice office building, but want to retain some flexibility so as to have a
successful project. They have worked willingly with the staff to proffer out
any unacceptable or inappropriate commercial uses.
Mr. Marshall then opened the public hearing. There being no one from
the public present to speak, the public hearing was closed.
Ms. Humphris said it seems like the Planning staff's report and the
Planning Commission's discussion covered just about everything. She agrees
with both of their decisions on the future of this parcel. She then offered
motion to approve ZMA-98-16, as proffered, signed by S. W. Heischman, Managing
Partner, Colonnade Associates, LLC, dated October 14, 1998. Ms. Thomas
seconded the motion.
Roll was called and the motion carried by the following recorded vote:
AYES: Mr. Martin, Ms. Thomas, Mr. Bowerman, Ms. Humphris and Mr. Marshall
NAYS: None. '
ABSENT: Mr. Perkins.
(The proffers are set out below:)
PROFFER FORM
Date: 09/16/98 ZMA# 98-16 Tax Map Parcel(s)# 60-40C3
.42 Acres to be rezoned from R-15 to HC.
Pursuant to Section 33.3 of the Albemarle County Zoning
Ordinance, the owner, or its duly authorized agent, hereby
voluntarily proffers the conditions listed below which shall be
applied to the property, if rezoned. These conditions are
proffered as a part of the requested rezoning and it is agreed
that: (1) the rezoning itself gives rise to the need for the
conditions; and (2) such conditions have a reasonable relation to
the rezoning requested.
Permitted uses of the property shall include only those uses
allowed in Section 24.2.1 of the Albemarle County Zoning
October 14, 1998 (Regular Night Meeting)
(Page 7)
O00 ol
Ordinance in effect on September 21, 1998, a copy of the
section being attached (on file in the Clerk's office}
hereto, except the following:
2.
3.
4.
7.
23
25
26
32
34
38
39.
40.
43.
Automobile laundries.
Automobile, truck repair shops.
Automobile service stations
Building material sales.
Convenience Store (except as provided in Proffer 3).
Mobile home and trailer sales and service.
Motor vehicle sales, service and rental.
New automotive parts sales.
Sale of major recreational equipment and vehicles.
Wholesale distribution.
Indoor Theaters.
Heating oil sales and distribution.
Temporary non-residential mobile homes.
Farmers Market.
Special uses of the property shall include only those uses
allowed in Section 24.2.2 of the Albemarle County Zoning
Ordinance in effect on September 21, 1998, a copy of the
section being attached (on file in the Clerk's office)
hereto, except the following:
5o
Drive-in theaters.
Auction houses.
Permitted uses of the property that may be used only if such
use or uses allowed in Section 24.2. 1 of the Albemarle
County Zoning Ordinance in effect on September 21, 1998, a
copy of the section being attached (on file in the Clerk's
office) hereto, occupy no more than 50% of the building area
are:
21.
22.
Convenience stores.
Light Warehousing.
Machinery and equipment sales, service and rental.
Applicant will build a fence between the subject property
and the property of St. Anne's Belfield school at such a
time that a building is located on the subject property and
it is in use.
Agenda Item No. 9. ZMA-98-19. Mitchell Matthews (Signs #39().
PUBLIC HEARING on a request to rezone .45 ac pcl from R-1 to CO, to estab
architects office & residents w/in existing dwelling. Loc on Stillfried Ln
behind Teague's Funeral Home), off Rt 250 E. TM60,P36A. Property located in
Development Area Neighborhood 6 & recom for Community Service use in Comp
Plan Jack Jouett Dist. (Advertised in the Daily Progress on September 28 and
October 5, 1998.)
Mr. Cilimberg summarized the staff's report which is on file in the
Clerk's office and a permanent part of the record. The proposed rezoning
meets the goals identified in the Comprehensive Plan for infill commercial
development and Neighborhood 6. A site plan waiver, which the Planning
Commission granted, shows that the purpose for which this rezoning was
requested can be accomplished. Staff identified no unfavorable aspects of the
request. Staff and the Planning Commission have recommended approval. There
are no proffers.
Mr. Marshall asked the applicant for comments.
Mr. John Matthews, representing Mitchell Matthews Architects, said he
had nothing to add to the staff's report. They did meet with their immediate
neighbors who all expressed support of the project. They~also worked
diligently with the County staff and agreed to their requests. He believes it
would be a great benefit to the County to retain this building. The building
adds variety, interesting character and the architectural heritage of
Charlottesville and Albemarle County. He will be happy to answer any
questions from Board members.
October 14, 1998 (Regular Night Meeting)
(Page 8)
000852
Ms. Thomas asked when the house was constructed. Mr. Matthews responded
that he believes 1920.
Mr. Marshall then opened the public hearing. There being no one from
the public present to speak, the public hearing was closed.
Ms. Humphris said she thinks it is wonderful that Mr. Matthews wants to
have such a great adaptive reuse of a stone building. There are not that many
stone buildings in this community. Ms. Humphris then offered motion to
approve ZMA-98-19. Ms. Thomas seconded the motion.
Roll was called and the motion carried by the following recorded vote:
AYES: Mr. Martin, Ms. Thomas, Mr. Bowerman, Ms. Humphris and Mr Marshall
NAYS: None. ' ·
ABSENT: Mr. Perkins.
Agenda Item No. 10. Other Matters not Listed on the Agenda from the
BOARD.
Ms. Thomas offered motion to reappoint Mr. Ivar Mawyer to the
Equalization Board, as the Samuel Miller District representative, with said
term to expire on December 31, 1999.
Ms. Humphris offered motion to reappoint Mr. George Larie to the
Equalization Board, as the Jack Jouett District representative, with said term
to expire on December 31, 1999.
Ms. Humphris offered motion to appoint Ms. Donna Marshall, to the Board
of Social Services, as the Scottsville District representative, to fill out
the unexpired term of Michael Brown, with said term to expire on December 31,
1999.
Mr. Martin seconded the motions.
Roll was called and the motions carried by the following recorded vote:
AYES: Mr. Martin, Ms. Thomas, Mr. Bowerman, Ms. Humphris and Mr. Marshall
NAYS: None. ·
ABSENT: Mr. Perkins.
Ms. Humphris said the Board owes a letter of thanks to Delegate Mitchell
Van Yahres for his recent letter to David Gehr, VdoT's Commissioner,
regarding placing communications towers in highway rights-of-way, to be used
by private companies.
Ms. Thomas said Senator Emily Couric informed her that she has asked
Legislative Services to draft legislation that would require VdoT to go
through local zoning procedures when a tower is going to be placed in their
right-of-way. Ms. Humphris commented that Senator Couric has been working on
that for quite a while.
Mr. Davis said there was a dispute between Lakeside Associates, and
Albemarle County and the Albemarle County School Board, regarding the use of
the detention pond at the Monticello High School site. A settlement agreement
has been negotiated between the parties that would resolve the dispute
amicably. This past Monday night, the School Board approved the settlement
agreement. He asked the Board of Supervisors to authorize the County
Executive to enter into the settlement agreement on behalf of the County which
would conclude this litigation.
Ms. Humphris offered motion, seconded by Ms. Thomas, to authorize the
County Executive to enter into a settlement agreement with Lakeside
Associates, on behalf of the County, for use of the detention pond.
(Note: Mr. Martin filed a Transactional Disclosure Statement, indicating
that personal interest in a contract with the principal regarding real estate
disqualifies him from voting on this issue. A copy of the statement is on
file in the Clerk's office and a part of the record of this meeting.)
October 14, 1998 (Regular Night Meeting)
(Page 9)
000353
Roll was called and the motions carried by the following, recorded vote:
AYES: Ms. Thomas, Mr. Bowerman, Ms. Humphris and Mr. Marshall.
NAYS: None.
ABSTAIN: Mr. Martin.
ABSENT: Mr. Perkins.
This Settlement Agreement (the "Agreement") is entered into
this 25th day of September , 1998, by and between Lakeside
Associates II Limited Partnership and Lakeside Associates LLC
(collectively "Lakeside" or "Plaintiff"), the County of Albemarle and
the Albemarle County School Board (collectively the "County" or
"Defendant").
RECITALS
a. Lakeside has filed a Bill of Complaint and Motion for
Temporary Injunction in the Albemarle County Circuit Court claiming
the County's use of water for irrigation purposes from a body of
water (the "Lake") located adjacent to Plaintiff's and Defendant's
respective properties has damaged Plaintiff's property and seeking
to enjoin the County from pumping water from the Lake.
b. The parties have agreed to a temporary settlement of all
matters in dispute between them relating to the allegations set
forth in the Bill of Complaint and Motion for Temporary Injunction,
without any admission of liability by either party.
AGREEMENT
In consideration of the following mutual promises, releases,
and good and valuable consideration, the parties agree as follows:
1. Withdrawal/Dismissal of Actions
1.1 Lakeside agrees to dismiss without prejudice its
Bill of Complaint and Motion for Temporary Injunction now pending in
the Albemarle County Circuit Court. Lakeside releases the County
from any liability for damages as a result of the County's use of
water from the Lake up to and including the date of the Agreement.
1.2 The parties agree that Lakeside and the County
shall each have the right to appropriate remedies, at law or equity,
in the event that this Agreement is breached in the future, or at
the expiration of this Agreement.
2. Water Usaqe
2.1 The County agrees to utilize Lake water for
irrigation purposes only as long as the water surface elevation is
not lower than 22 inches below the spillway through April 30, 1999.
The water surface level was noted to be 19.5 inches below the
spillway on August 18, 1998.
2.2 The County agrees to utilize Lake water for
irrzgation purposes only as long as the water surface elevation is
not lower than 9 inches below the spillway from May 1 through
September 15.
2.3 The County agrees to utilize Lake water for
irrigation purposes only as long as the water surface elevation is
not lower than 14 inches below the spillway from September 16
through April 30.
2.4 The parties agree to provide timely notice to each
other of any construction activity which must be performed on the
Lake or forebay. Construction activities will not be subject to the
water surface level requirements noted above. Construction
activities which affect the level of the pond will, if reasonably
possible, only occur from September 16 through April 30.
000354
October 14, 1998 (Regular Night Meeting)
(Page 10)
2.5 Since the high school construction site has been
substantially stabilized, the County will no longer require any
drawdown of the Lake for erosion control purposes. However, the
County specifically reserves the right to future drawdown of the
Lake, not to exceed 6 inches below the spillway, for erosion control
protection.
2.6 This Agreement does not in any way restrict the
parties from any or all other uses of the Lake that they may have
pursuant to the Lakeside Declaration of Restrictions, Covenants and
Conditions dated January 19, 1994, as amended or under applicable
law. '
3. Term
The term of this Agreement shall expire on January 1, 2001, at
which time the parties agree to meet and confer concerning possible
continuation of the water usage limits outlined in this Agreement.
In the event that the parties are unable to agree on water usage
limits after the expiration of this Agreement, it is agreed that the
parties shall be entitled to any and all legal rights and remedies
that they may have, in law or equity, concerning the usage and
withdrawal of water from the Lake.
4. Entire Aqreement
This Agreement contains the entire agreement between Lakeside
and the County with respect to the litigation now pending in
Albemarle County Circuit Court, and shall be binding upon and inure
to the benefit of their successors and assigns. In addition, the
parties represent that they have relied upon the advice of their
respective attorneys concerning the legal consequences of this
Agreement, that the terms of this Agreement have been completely
read and explained to Lakeside and County officials, and that the
terms of this Agreement are fully understood and voluntarily
accepted and agreed to by Lakeside and the County.
5. Attorneys' Fees and Costs
Each party shall bear all fees and costs arising from the
activities of its own attorneys in connection with all matters
referred to herein, including but not limited to the pending
litigation, this Agreement and all other related matters.
6. Governin Law
This Agreement shall be construed and interpreted
accordance with the laws of the Commonwealth of Virginia.
7. Additional Documents
in
The parties agree to fully cooperate and execute any and all
supplementary documents and to take all additional actions as may be
necessary or appropriate to give full force and effect to the terms
and intent of this Agreement.
8. Recordation
Either party may record this Agreement in the Clerk's Office
of the Circuit Court for Albemarle County.
COUNTY OF ALBEMARLE
By:
Robert W. Tucker, Jr.
County Executive
ALBEMARLE COUNTY SCHOOL BOARD
By:
Kevin C. Castner
Division Superintendent
Approved
000855
October 14, 1998 (Regular Night Meeting)
(Page 11)
LAKESIDE ASSOCIATES II LIMITED PARTNERSHIP
By:
Its:
LAKESIDE ASSOCIATES, LLC
By:
Its:
Agenda Item No. 11. Adjourn. At 7:29 p.m., with no further business to
come before the Board the meeting was adjourned.
airman
Board