Albemarle County Planning Commission

April 27, 2004


The Albemarle County Planning Commission held a work session on Tuesday, April 27, 2004 at 4:00 p.m., at the County Office Building, Room 235, Second Floor, 401 McIntire Road, Charlottesville, Virginia. Members attending were William Rieley, Rodney Thomas, Chairman; Calvin Morris, Marcia Joseph, Bill Edgerton and Pete Craddock, Vice-Chairman.  Ms. Higgins arrived at 4:07 p.m.  Mr. Edgerton arrived at 4:15 p.m.  Absent was Pete Craddock.  


Other officials present were David Benish, Chief of Planning & Community Development; Scott Clark, Senior Planner; David Hirschman, Water Resource Manager; Bob Crickenburger, Deputy Director of Parks and Recreation; Pat Mullaney, Director of Parks and Recreation; Susan Thomas, Senior Planner and Greg Kamptner, Assistant County Attorney.


SP 2003-079 The Rocks Amendment (Sign #49, 52, 53) Request for special use permit amendment to: (1) Allow reconfiguration of the Preservation Tract; (2) Allow for an alternate private road location than was approved with the original Rocks Rural Preservation Development. This request is made in accordance with Section of the Zoning Ordinance, which allows for 20 or more Development Lots in a Rural Preservation Development. The property, described as Tax Map 74, Parcels 18,18C, 18C1, 18C2, 18C3, 18D, 18D1, 18D4, 18D7, 18D8, 18D9, 18E, 18E1, 18E2, 18E3, 18E4, 18E5, 18E8, 18E9, 18F, 18F1, 18F2, 18F3, 18F9, 18G, 18G1, 18G3, 18G4, 18G5, 18G6, 18G7, 18G8, 72, 73, and 74, contains  645.237 acres, and is zoned RA - Rural Area. The proposal is located off of Rt. 637 (Dick Woods Road), at its intersection with Interstate Route 64 in the Samuel Miller Magisterial District. The Comprehensive Plan designates this property as Rural Areas in Rural Area 3.  (Yadira Amarante)


Ms. Amarante stated that there were a few clarifications that need to be made to the staff report. She asked that each Commissioner note the following corrections on their individual staff report as she went through it. One of the applicant’s requests is to allot three additional development rights that were left over from the original special use permit for The Rocks Rural Preservation Development. Staff received comments from several persons that throughout the staff report that the request was not clear. After the applicant pointed it out, staff realized that it probably was not as clear as it should be. On page 2, in the middle of the page, she asked that a change should be made from “. . .  3 additional dwelling divisions within Lot 1 which is a 106 acres. . .”  to read  “. . . in essence since lot 1 will have the ability to create four development lots/dwellings within its boundaries.”  She noted that is the actual request.


Mr. Edgerton stated that the applicant has not told us where those lots will be, and Ms. Amarante stated that was correct.


Mr. Edgerton asked if they already had the right to divide that property.


Ms. Amarante stated no, because the special use permit that was approved in 1991 showed those 43 lots on the plan of development for the Rocks, but now they want to take it up to the 46 lots that were previously allowed.  She pointed out that the owner did not want to show the location of those lots at this time.


Mr. Edgerton asked if there was a reason why.


Ms. Amarante stated that the property was sold and she thought that the new owner does not know where he would like to put those lots.  That owner is fully aware that he will need to come back and amend the special use permit to be able to create those parcels because it will be a departure from the application plan that the Commission is being asked to approve tonight.


Ms. Joseph stated that on the plan that they say it looks like lot 1 contains all of that space that is now called open space on the original approved special use permit, and Ms. Amarante stated that was correct.


Ms. Amarante asked to continue with the corrections, and then she would present the staff report. On page 6 at the top of the page, basically the same change should be made to read, “Three addition dwellings/divisions within lot 1 (the lot has a total of 4 development rights).”  Then on page 8, under the recommended conditions of approval on item number 3, the wording should be changed to read, “Within the boundaries of Revised Lot 1 there shall be allowed a total of 4 (four) dwelling units or 4 (four) lots.”  Staff noted that was all of the corrections.  Staff summarized the staff report as follows. The petition is requesting four different amendments to SP-91-36, which is the current special use permit on this parcel that is an existing Rural Preservation Development of 43 development lots and one Rural Preservation Tract.  The first request is to amend the boundaries of the preservation tract as shown on the application plan. The second request is to amend the boundaries of four parcels, which were created in 1991 at the top of Bear Den Mountain. Those lots were created as family division lots. The family division provision is for only two years, and therefore the four parcels are now normal lots and the applicant would like to amend and change the boundaries of those four lots. The applicant would like to amend the access shown on the original plan from the side of Bear Den Mountain coming through The Rocks Preservation Development. The applicant would now like to move the road to come through Rosemont Subdivision and allot those three additional development rights to give lot 1 a total of four.


Mr. Thomas asked if the road would not be coming through Rosemont.


Ms. Amarante pointed out that it would be coming through Rosemont Subdivision and not through The Rocks.  She stated that in reviewing this request that she did not go back and try to look at the original Rural Preservation Development and how that was approved since she assumed that at the time it was approved in 1991 that they did the right thing in approving it.  She stated that these were what she would consider with the exception of one thing being the minor modifications to the Rural Preservation Development, and therefore recommends approval with the conditions listed.  Staff would be happy to answer any questions that the Commission might have.


Mr. Thomas asked if the Commissioners had any questions for Ms. Amarante.


Ms. Joseph asked if all of those lots as shown from the original special use permit have been recorded and platted.


Ms. Amarante stated yes, that the preliminary plat was approved by the Commission in 2002.


Ms. Joseph asked if the plat was recorded, and Ms. Amarante stated that she believed that it has.


Ms. Joseph asked if those lots were shown on the tax maps, and Ms. Amarante stated no that the lots have not shown up on the tax maps yet, but that it has been recorded.


Ms. Joseph stated that if it has not been recorded that she wondered how it has vested.


Ms. Amarante stated that even if the subdivision plat has not been recorded, that the special use permit has been vested.


Ms. Joseph asked how the special use permit was vested.


Ms. Amarante stated that the special use permit was vested by a determination by the Zoning Administrator in 1993.


Ms. Joseph asked what the Zoning Administrator had based that on, and Ms. Amarante stated that she did not remember what the specifics were on that since they had gone through this conversation in 2002 when the subdivision plat came through.


Ms. Joseph asked if staff had received anything in writing from Rosemont Homeowners Association saying that this community has agreed to an extension of this.


Ms. Amarante stated that the Secretary of the Rosemont Homeowners Association is present tonight with a letter from some of the Rosemont Homeowners Association members. Staff has not heard anything against the proposal.


Mr. Edgerton stated that visually he could see some benefit, as backed up in the staff report, for the change of access to the four family subdivision lots. He stated that he had a great deal of difficulty in seeing any benefit in giving three more development rights. He asked if there was something that he was missing from a staff perspective.


Ms. Amarante stated that from staff’s perspective, noting that she had talked with the Rural Area Planners before coming to a conclusion was that they were allowed 46 development lots at the time that they made the application for the special use permit in 1990. They chose to only use 43 of those development rights for whatever reasons. After going back and reviewing the previous staff report and minutes that it was not clear, and she assumed that they did not want to maximize their development potential.  This applicant does want to maximize their development potential and are asking for those three development rights that were kind of left out there just floating and not used, but would now like to use those.


Mr. Rieley stated that his understanding was that when a special use permit is given for a specific project that then supersedes the theoretical number of development rights.


Ms. Amarante stated that he was absolutely right and that she should not be calling them development rights since the zoning on that property is for those 43 lots. The by right potential of that property used to be 46 lots, and at that time if they had shown 46 lots. That is why the applicant is amending that special use permit.


Mr. Thomas stated that the question is whether the applicant should have lost the other three lots.


Ms. Amarante stated that had they shown in 1991 the 46 development lots as opposed to the 43 development lots that she has no reason to believe that those 46 lots would not have been approved, but that she did not know.  She pointed out that she had looked at the previous materials and gone back and read the minutes


Mr. Thomas stated that in other words it does not set in stone that they had to stay with the 43 lots.


Mr. Kamptner stated no because one way to look at it is that the development rights in this case is 46 and would always be there theoretically.  The special use permit that allows the Rural Preservation Development in this case limited them to 43 lots because that was sought. The applicant always has the opportunity to come in and amend their special use permit to revive those three unused theoretical development rights.


Ms. Higgins stated that in the notes, which was very tiny, it talks about no development rights are being affected by the transfer of land from tax map something to something. She pointed out that her impression was that they did not intend to forever limit the development rights or there would have been a condition with the special user permit at that time to limit them. The real question relates to the issue of those three development rights and if the benefits here were significant in some ways and why they should not allow the development rights by right when they were getting a preservation tract development in this case.  She pointed out that she had not seen anything that precluded that, but that some of the notes were too small and unreadable.


Ms. Amarante agreed that the notes were very small, but pointed out that those notes should probably not have been on that. Staff was considering the plan that was part of the Commission’s packet, which was the application plan for the special use permit.  Those notes were usually seen on a subdivision plat.  Therefore, those notes were really irrelevant. She suggested placing a condition on it or just note for the record that these notes can be removed since they don’t need to be on this document. There are some boundary line adjustments happening between the preservation tract and some lots in Rosemont Subdivision. She noted that was meant to say nothing is happening with the development rights for those lots in Rosemont since the preservation tract obviously does not have any development rights being transferred.


Mr. Craddock asked if at the number 9 if the note about lots 1, 2, 3 and 4 in the preservation tract may not be subdivided was a moot point.


Ms. Amarante stated that the special use permit was going to signify that, and it was not necessary for it to be on this plan because it should be on the subdivision plat.


Ms. Higgins assumed that note 10 that says The Rocks lot 1 has three (3) development rights was what was recorded on the plat that was approved before.


Ms. Amarante stated that what was before the Commission was not what was approved before.


Ms. Higgins asked if that plat had been approved by the County and recorded and if it designated where the development rights were retained.


Ms. Amarante stated no that it did not. She pointed out that actually that was not the plat that was recorded.  She stated that was the approved special use permit plan that was the plan of development for The Rocks.  The plat that was recorded is different from what the Commission sees there, and that the open space was eliminated.


Ms. Joseph asked if the final plat that was recorded did not carry forth the open space reference.


Ms. Amarante stated that was correct and that she could elaborate on that.  In 2002 when the subdivision plat came before us, staff looked at this and was kind of confused as to what to do with that open space.  There is really no open space provision in the Rural Areas District, except for Rural Preservation Developments which they call Preservation Tracts.  Therefore, staff did not know how to deal with that open space.  As far as staff was concerned it was just another parcel.  If it was not a preservation tract, which it clearly is not, then there is no easement or restrictions to it in the covenants.  When the applicant came in 2002 with their subdivision plats the original subdivision had expired. Therefore, the applicant had to come back in 2002 to redo their subdivision and staff did not know what to do with that open space. Therefore, staff just included it as part of lot 1.  Zoning approved the subdivision and signed off on it as being in compliance with that plan.


Mr. Benish asked that they keep in mind that the special use permit plan governs what happens on this parcel.


Ms. Joseph asked how one would know if they did not see the plat.


Mr. Benish stated that the plat signifies that it is governed by the special use permit.


Mr. Edgerton stated that it might be argued that there was an implied promise that would remain open and it sounds like the new owners have decided not to.  In the review of that, it was given as an argument for why they thought this was such a great idea.  Now they were being told that they were just kidding and they are really going to divide that land up.


Ms. Amarante stated that the open space tract right now and the way that the subdivision was approved in 2002 that it does not exist.  However, they could tonight limit those development rights and limit the size of the lots.  Staff tried to limit the area to at least keep the development east of the flood plain.


Mr. Morris stated that on number 9 of the recommended conditions on page 8 that staff states that conditions 9 through 19 have been obtained. He pointed out that he did not see a number 19.


Ms. Amarante stated that actually it should really say 10 – 13.  There were two special use permits in 1990 with one for flood plain crossing and the other for rural preservation development. She stated that only conditions 10 – 13 would deal with that ridge crossing and the private road that was approved in SP-91-36.  Therefore, she asked to amend that to say conditions 10 – 13. She pointed out that there was one more change that needs to be made to the conditions. The applicant has asked if condition 15 could be deleted. Staff’s reason for that condition originally was that after talking with the Homeowner’s Association of Rosemont that their covenants specifically restrict certain types of traffic and she did not want the preservation tract to be restricted in terms of its usage for agricultural and forestry purposes. If they wanted to use the land in that way, she wanted the trucks to be able to get onto the land.  After talking with the applicant’s council, she did not think they needed that note because they still retain their access through lot 1 on that original jeep type of trail road.


Mr. Edgerton stated that one of the arguments given for changing the access was that they would not have to clear that entire road, but he would assume that they would have to clear that road if they were retaining that access.


Ms. Amarante stated that there were two conditions included so that the Public Recreational Facility Authority will have to review any expansion or widening of that road for forestal and agricultural purposes and the Engineering Department would have to approve an erosion and sediment control plan. She pointed out that at least the County will be able to regulate how that road gets developed in the future. She stated that the argument was that moving the access for those four development lots from that jeep trail road to Rosemont on a physical level makes sense, but they did not want to limit the access.  Part of the preservation tract and the easement of the Public Recreational Facility Authority was that it will be used in an agricultural or forestal way and they did not want to limit the use of the preservation tract in any way.  The jeep trail exists now and it will continue to exist.  


Mr. Thomas asked if that would give them access to Rosemont Subdivision.


Ms. Amarante stated that it gives the four residential lots access to Rosemont, which will become part of their Homeowners Association and in their covenants be responsible for the roads in Rosemont.


Ms. Higgins asked that “it” be changed to “if” in condition 16 regarding the roads, and Ms. Amarante agreed.


Mr. Thomas opened the public hearing and asked the applicant to come forward to address the Commission.


Terra Boyd, representative for The Rocks LLC, stated that the request was to amend the special use permit.  There are representatives present tonight for the applicant, The Rocks LLC, which includes their engineer, Thomas Lincoln who was also from the Neighborhood Association for Rosemont; and a member of the Board from the Rosemont Homeowners Association who was signed up to speak.  Therefore, she would describe their position later in the meeting.  She stated that she wanted to make sure that the Commission was clear on exactly what they were asking for here because it is a fairly complex set of changes that they were making to an originally fairly complex project.  The project was a RPD done under a special use permit because it was over 20 lots, which was approved a few years ago and then platted and put to record.  The way it was set up is kind of interesting in that the rural preservation lots were down in the bottom land close to Dick Woods Road in order to create a preservation parcel up on the side of Bear Den Mountain and preserve that wooded area.  That is what you can see in the application plan as that large area that has a lot of slopes on it, which was depicted on their plan.  Up in that area before the RPD was finally platted and, of course, before the conservation easement on the preservation parcel was put in place, the four family lots were platted up there by a former owner. Those would remain up in that area. The thrust of their application is to move the access to those family lots from an existing approved very long route to a very short and less environmental stressful access from the Rosemont Subdivision.  In order to access those four lots from that road in a way that makes engineering sense they needed to move those four lots by a boundary adjustment over slightly.  She pointed out that her understanding from their engineers was that this movement does not cause them to be more visible. But, in fact there were drawings submitted showing site lines from I-64 to back that up that these are not going to make these lots more visible.  The lots are currently not built on. There are no houses up there and the lots have not been cleared.  This boundary line adjustment is not going to change anything regarding the preservation values and the preservation track.  Of course, they will have to take that up directly with the Public Recreational Facility Authority next month to talk about amending the easement to allow those lots to be reconfigured.  Therefore, nothing that the Commission does this evening will force their hand in making any approvals since they will have to consider separately the impacts on the preservation values that they would be concerned about with the preservation parcel.  They are proposing to move the road over and reconfiguring the family lots. Regarding the existing approved access road, she pointed out that the environmental impacts of their proposal versus the existing approved access road from The Rocks Subdivision up over the mountain to the family lots that they were looking at difference in impact for the existing road, which is 434,100 square feet of disturbance to vegetation, to their proposal that would reduce that to 76,800 square feet.  Therefore, that is less than a quarter of the amount of disturbance that would otherwise happen if they were to improve the existing approved jeep trail up the side of the mountain if they were to approve it to the point that it could be used for access to residential lots. Staff kept a condition in the special use permit that would allow access over that jeep trail for agricultural and forestry purposes in keeping with the purposes of the conservation easement. There are no immediate plans to clear a lot or anything else on that preservation parcel.  Currently, that lot is being used recreationally.  If there were plans to do that the improvements that would be made to that road to make it usable for agricultural or forestal purposes would be far, far less than would be required to bring that road up to the County’s standards for accessing residences on the top of the mountain. Therefore, they feel that in presenting this to the County that they are offering an appealing option for getting rid of a road that is already approved and that has a lot of negative consequences in the watershed and they are replacing it with a much more environmentally sensitive road that has the support of the neighbors as well.  They see this as a win/win situation and have worked hard with the neighbors to make sure that they do as well. The change in the road also lessens the visual impact. The existing approved access if it were built would be basically a gash up the side of Bear Den Mountain and visible from both I-64 and Dick Woods Road. The proposal where they would like to shorten this access through Rosemont would not be visible from either I-64 or Dick Woods Road. The road is their major persuasive point.  There were also concerns about the changes to lot 1 and she would like to clarify the changes. When The Rock RPD was originally platted there was an omission made on that plat.  Typically when they record a subdivision plat and there are development rights that remain there is a note that goes on the plat that says X number of development rights remain with lot Y. There is no such note on this plat, even though as Ms. Amarante presented, who checked with Bill Fritz who was the staff person who worked on The Rocks RPD, that those did exist.  They simply want to assign them to lot 1. There are conditions in this special use permit application that would fit any development that would eventually possibly happen on lot 1 would have to comply with. Condition 3 states that anybody who wished to develop all 3 of the additional residences on lot 1 that fill out that development potential on that single lot that they would have to submit a site plan. In addition, to subdivide lot 1 they would have to submit a subdivision plat for County approval. There is also a condition 4 for the special use permit amendment which would forbid any building on lot 1 within the floodplain, which is a substantial area. Originally they had talked about trying to plot those lots, but it was problematic with the floodplain.  The current owner of the lot wanted to get those development rights assigned to lot 1 to increase the value of lot 1.  If the owner had immediate plans on the table to change that or to resubdivide it, then they would be platting those lots right now.  The owner will have to come back to the County if he ever wants to use those development rights and plot the lots or comply with the Site Plan Ordinance. If lot 1 was going to have further residences located on it that the County would get another shot at how those would be configured.  The protections that Ms. Amarante has built into the proposed conditions are fair and would protect the things that the Commission would be concerned about, which would be the impacts in the floodplain. She asked that the Commission approve the amendment with the conditions as presented by staff.


Mr. Rieley stated that Mike Boggs copied him on a recent correspondence that he sent to Ms. Amarante relative to the road standards for the new section of road and argued for a relaxation of the minimum road standards.  He pointed out that these conditions require the use of the VDOT Mountain Terrain Standards. He asked if the applicant was comfortable with these conditions including that one.


Ms. Boyd stated that they have submitted a request for waivers and those will be considered with the subdivision plat.  They plan to come back before the Commission for that request.


Ms. Higgins asked if condition 6 was a condition of the original approval of the special use permit or if that was new.  She suggested that the condition should be amended to say access road, dwellings and septic field areas.


Ms. Amarante stated that it was not a new condition and was an original condition from SP-1991-36.


Mr. Thomas stated that there were two persons signed up to speak.  He stated that the first on the sheet was Anabel Bowen and he asked her to come forward to address the Commission.


Anabel Bowen, a member of the Board of Directors of the Rosemont Homeowner Association and Secretary/Treasurer, stated that in that capacity that she wanted to bring to the Commission a letter from their Board of Directors. She summarized the letter as follows.  She noted that they have combined their support for this special use permit as well as for the SUB for the subdivision plat in one letter because they did not realize that the two issues would be separated.  The Board of Directors of the Rosemont Homeowners’ Association unanimously supports the petitions to the Planning Commission by The Rocks, LLC and Haley, Chisholm & Morris, Inc., who are their developers and partners, for this special use permit and the SUB-2003-262. We believe that the requested waivers will minimize negative environmental, as well as visual impact and will allow Newcomb Mountain Lane to fit the mountainous terrain more naturally.  Upon approval by the County of the cited petitions, The Rocks, LLC has requested in writing that their four lots be fully included into Rosemont, thus subjecting those lots to all Rosemont Homeowner fees (including private road maintenance fees) and to the full Rosemont Homeowners Association Covenants, Conditions and Restrictions.  Our Board unanimously supports this and will urge all Rosemont owners to vote for this amendment for their inclusion.  The letter is signed by our five board members.  (See Attachment H – Letter dated April 26, 2004 from Rosemont Homeowners’ Association to Planning Commission)


Harry Bowen, Jr. stated that he wanted to read a letter that they were going to submit to the Commission in support of this approval process. He pointed out that he was the owner of the corner lot in Rosemont Subdivision on lot 46, which probably will have as much impact as anybody in there from this approval of Newcomb Mountain Lane.  He summarized the letter as follows. From the view on our part of 11.3 acres, we will look at Newcomb Mountain Lane either way that the road is constructed.  We have carefully evaluated the impact of these applications and conclude that approval will greatly benefit all owners in Rosemont.  Therefore, they wholeheartedly support the applications to the Albemarle County Planning Commission by Haley, Chisholm & Morris, Inc. and The Rock, LLC.  We urge the County approval of all elements of the petitions, especially the waivers of the County’s road standards for Newcomb Mountain Lane and allowing access to the four lots owned by The Rocks, LLC.  We believe that the waivers are necessary in this instance to minimize the negative environmental and visual impact and to preserve the rural nature of the Ivy entrance corridor.  Approval of these applications will prevent unsightly scar on Newcomb Mountain that would be highly visible from I-64, The Rocks at Ivy subdivision, Rock Mills Farm, Rosemont Farm and about 20 lots in Rosemont subdivision.  Thank you very much for the opportunity to express our support for the efforts of these two developers to preserve the beauty of our mountains.  (Attachment G - See the attached copy of the letter submitted by Harry Bowen, Jr. and Anabel S. Bowen dated 4/26/04 addressed to Planning Commission.)


Mr. Thomas asked if there was anyone else present who would like to speak regarding this application. 


Jeff Werner, representative for Piedmont Environmental Council, stated that he did not have any comments that support this proposal, but he had been listening and had some observations and questions.  Since they were talking about the rural area that he had been planning to come and tell the Commission that Babette Thorpe’s replacement is in.  As of last year the County they had worked with people of 42,300 acres under easement in the County, which was good news for the rural area. The objectives for the County’s Rural Areas Policy are to limit residential development in the Rural Area only to that which is related to a bona-fide agricultural/forestal use. He stated that he was a little alarmed to hear that in discussing condition 15 that there are subdivisions in our Rural Area that prohibit agricultural and forestal vehicles. This is a preservation tract that is supposedly for agricultural use and they were trying to figure out how to agricultural people to it.  He felt that something there needs to be discussed further. He noted that he paid a lot of attention when trees are discussed in County issues, particularly when they talk about tree protection in our tower ordinances.  He stated that this was a question more for clarification and for future reference.  In condition 5 it says 10 trees per acre and he questioned the rationale for that in if that would do anything substantial. He stated that the report states that it is more or less an addition of 4 family lots which will interestingly generate approximately 40 vehicle trips per day. There is a comment that says that this is incremental and it is no big deal. He pointed out that at the Board of Supervisors meetings many people on Doctor’s Road and Gilberts Station Road have absolutely demanded that millions of dollars be paid to improve those roads.  It is just an observation, but as they incrementally add four houses here and four houses there adding the number of vehicle trips that they are ultimately going to pay the price to pave those roads. 


Mr. Thomas asked if there was anybody else present who would like to speak regarding this request.  There being none, he closed the public hearing to bring the matter back before the Commission for discussion and possible action.


Ms. Higgins stated that in reviewing the condition about the agricultural/forestal processes and if condition 15 is deleted for example and condition 16 becomes 15, she did not interpret that it limits access for those purposes, but as a matter of fact it limits improvements for only those purposes. She stated that she thought that was clearly the intent and it was only due to potential restrictions of taking equipment through Rosemont, which would only fail if the Rosemont Subdivision requirements excluded some sorts of equipment. She noted that it was probably unlikely that if a tractor went through there that someone would complain.  There are probably tractors that go through there to cut the grass.  Therefore, she was unsure about that.  The Rosemont Homeowners Association’s letter talks about that the Board unanimously supports this and would urge Rosemont homeowners to vote for this inclusion.  Therefore, she suggested that there be a condition that those lots, which are clearly giving up their access by the longer route to go through the shorter route through Rosemont, be conditioned upon the vote or confirmation or verification of documentation that they are allowed to be accessed by that road or the Commission will have approved something and that it be precluded if the homeowner’s association does not vote the way that the Board has shown them to vote. She noted that it was probably unlikely, but that she felt that should be a condition.


Mr. Rieley stated that there seems to be a couple of parallel issues. The issue of replacing this very long road parallel to I-64 that is highly visible and highly disruptive up to the top of the mountain with a small connection from an already existing road seems to be a no brainer.  He felt that there were a number of details about the road standards that the Commission would get into at the next level of this, but he felt that part of this was very clear.  He noted that he had more difficulties on the issues of moving previously platted lots to a higher elevation when their Comprehensive Plan clearly says that preservation of mountain tops is an important criteria.  He noted that he had even more trouble essentially adding four development rights in the Rural Area.  His reading of the situation that they were in is that there were a certain amount of development rights on this. The applicant chose to develop this by a special use permit and a part of that package was leaving all of that lot 1 area open, which was the plan.  The plan did not have four lots in that area. This seems to be a gratuitous bonus of giving additional development rights. Those development rights might have some theoretical standing somewhere, but once the special use permit was instigated the only way that they could get additional development rights was through another special use permit and he did not think they should be giving special use permits to add to development rights in the Rural Area.  He stated that he was concerned about those four lots on top moving higher and adding four lots below, but he thought that the road changes were very sensible.


Ms. Joseph stated that adding on that issue that if they don’t know where the lots were going that was another issue. She felt that the Board of Commission approved the plan thinking that the open space was going to remain open, but then under this proposal it all becomes one lot. She pointed out that they would be saying it was alright to put four lots on lot 1 any place that they want to.  She acknowledged that the request would come back before the Commission, but it was still a great concern. 


Mr. Edgerton concurred that he would like to change the access, leave the four family subdivision lots as originally platted, and was completely against coming back now and adding three lots.


Mr. Higgins suggested that condition 6 read that the clearing of land should be limited to the minimum amount necessary for the construction of an access road, dwelling and appropriate septic field areas.  That change would allow staff the ability for when someone comes in for a building permit to review the septic field location to avoid conflict with the trees.  Personally, she felt that they have an example before the Commission where they keep wanting neighbors to work together and developers to work with neighborhoods and it seems to be an unanimous benefit that this is coming back before us and it is very frustrating that Ms. Bowen said that they want to correct that the note was not included on that previous plat and since it appears that there is not a lot of documentation that in the benefit of the doubt that typically the zoning department when they check a plat when there are development rights retained that they say they stay with the lot, but they don’t show where they are platted.  If this clearly restricts their location and they are going to be covered under a Site Plan or Subdivision Ordinance requirements and that they have gone through this effort of consolidating access and improving it environmentally and all of the other benefits that she was not willing to not let them use what they could have used. She felt that they have to go back to the original premise that you have a preservation tract and it is predicated on the fact of how many rights did they have to begin with.  So now that it was a preservation tract in essence they were taking away those three potential lots. She stated that they could disagree about that approval, but obviously that documentation is not before the Commission. Therefore, she was willing to give them the benefit of the doubt and did not think that those three houses or a barn with an apartment as a way to use it or the creation of the three lots was a reason to vote this down. She made a motion that the request be approved with the conditions recommended by staff with the changes she noted about the cleared area and adding a condition that it be included to provide documentation that the Homeowners Association has allowed the access and to be incorporated into their use.


Mr. Thomas stated that due to a lack of a second that the motion dies.  He asked if there was another motion.


Mr. Rieley made a motion for approval of SP-2003-079, The Rocks Amendment, with the staff’s recommendations, with the changes in the language that Ms. Higgins just made, and in addition the stipulation that the 4 (four) additional lots be deleted and leave the locations, with minor boundary adjustments to accommodate the road, aside to essentially where they are and that everything else or all of the road change remain as it is. 


1.          Development of The Rocks shall be in accord with the “Special Use Permit Plan…” prepared by Thomas B. Lincoln Land Surveyor, Inc. dated April 2, 2004. For purposes of these conditions it shall heretofore be referred to as “The Application Plan.”

2.          The boundaries of Parcels identified as Tax Map 74, Parcels 18C, 18C1, 18C2 and 18C3 may be modified to allow minor variations to accommodate the new road alignment for the extension of Newcomb Mountain Lane that will serve these lots. only as shown on “The Application Plan.”

3.          Within the boundaries of Revised Lot 1 there shall be allowed a total of 4 (four) dwelling units or four (four) lots. Before the 3rd dwelling unit can be constructed a site plan meeting the requirements of Section 32 of the Zoning Ordinance or a Site Plan Waiver, per Section 32.2.2 of the Zoning Ordinance shall be submitted, reviewed and approved by the County. All subdivisions within the boundaries of Revised Lot 1 shall conform to the rules and regulations set forth in Chapter 14, the Subdivision Ordinance.

4.          All dwellings/lots within Lot 1 shall be located east of the floodplain of Ivy Creek.

5.          A minimum of ten trees per acre shall be provided on the development lots and the lots permitted by condition one, in accordance with Section of the Zoning Ordinance for the purpose of providing screening from Interstate 64 and Route 637.  Trees shall be installed within two planting seasons of the date of issuance of a certificate of occupancy for the dwelling on the lots.

6.          Clearing of land shall be limited to the minimum amount necessary for the construction of access roads, and dwellings; and appropriate septic field areas.

7.          Building siding and trim shall be of colors and materials that blend with the surrounding natural environment. Highly reflective colors or surfaces, or light colored roofs are prohibited.

8.          Concrete driveways visible from off-site shall be darkened to blend with the surrounding natural environment.

9.          The bridge shall not be constructed until the approvals in conditions 9 through 19 10 through 13 have been obtained;

10.      Department of Engineering issuance of an erosion and sediment control permit;

11.      Department of Engineering approval of bridge design;

12.      Department of Engineering approval of hydro geologic and hydraulic calculations to ensure compliance with Section 30.3. of the Zoning Ordinance;

13.      Department of Engineering approval of private road plans and drainage calculations.  Private roads shall be designed to Virginia Department of Transportation mountainous terrain standards. This condition is only applicable to the private roads constructed to access and provide frontage to all the lots in the Rocks development except the Rural Preservation Tract and revised Tax Map 74, Parcels 18C, 18C1, 18C2 and 18C3. as shown on “The Application Plan.”

14.      The extension of Newcomb Mountain Lane as a private road is subject to Planning Commission approval. The Planning Commission shall establish the standard of the private road extension at the time of review.

15.      The Preservation Tract shall not have access to or from Newcomb Mountain Lane.

16.      The existing road, shown entering from Rocks Farm Drive, parallel to Interstate 64 and meandering through the Preservation Tract shall not be improved or widened except for agricultural and/or forestry purposes. The need for such improvements shall be reviewed by the Public Recreational Facilities Authority. It If the Public Recreational Facilities Authority deems that the improvements are warranted, construction shall not commence until a road plan and an erosion and sediment control plan has been reviewed and approved by the County Engineer.

17.      Prior to the approval of any plat modifying the boundaries of the Rural Preservation Tract, the rural preservation easement shall be amended to allow the modification; amendment to the easement is subject to the review and approval of the County and the Albemarle County Public Recreational Facilities Authority. Approval of this special use permit in no way implies or guarantees approval of a modified easement by the County or the Albemarle County Public Recreational Facilities Authority.

18.      Prior to the approval of any plat providing access to Newcomb Mountain Lane an amended road maintenance agreement shall be reviewed and approved by the County Attorney. This agreement shall be recorded with the plat.

19.      Provide evidence to the County that the Rosemont Homeowner’s Association consents to the Newcomb Mountain Lane extension to serve as access to the four mountain lots.


Mr. Thomas asked if he wanted to add the suggested language on condition #6 about the appropriate septic field areas, and Mr. Rieley stated yes that he did want that added and that staff would craft the language.


Mr. Benish pointed out that his motion essentially deleted condition #3 with all of the other things that he mentioned that deletes the one about the additional dwellings.


Mr. Edgerton asked if the motion was to leave the existing four family division lots as originally platted with minor boundary adjustments to accommodate access to the road, which was in addition to deleting condition #3, and Mr. Rieley agreed.


Mr. Kamptner asked if condition #2 would be amended concerning the parcels, and Ms. Amarante stated that staff could amend that condition. 


Mr. Edgerton seconded the motion.


Mr. Craddock asked if condition #15 was deleted and condition #6 was amended, and Ms. Amarante stated that was correct.


Mr. Thomas asked for an explanation regarding condition #3.


Ms. Amarante stated that they were deleting condition #3 in its entirety.


Mr. Edgerton stated that Phase I would stay the way that it was originally promised in 2002.


Mr. Thomas pointed out that personally he disagreed with that decision.  He agreed with Ms. Higgins because he did not see much of a reason to change that because he liked the way the road was coming through Rosemont and creating those lots on the back.  He noted that the other roads would have been eliminated.


Mr. Rieley stated that would suggest that they would built four times as much road and that it was an awful lot less expensive to do what they have proposed.  It does not require the incentive of the four additional development rights.


Ms. Joseph stated that in the long run that a lot less would be spent on the maintenance of the road.


Ms. Higgins pointed out that she had got the impression from the adjacent home owners that by them allowing the access for the four lots that it was predicated upon the improvement of the visuals and that sort of thing. Therefore, that they might go hand in hand as far as the home owners are concerned if this developer ties them together, then it might fail and not go forward.


Mr. Thomas stated that in other words the accessibility would still be here, but these would be spread out all over the parcel rather than being right here.


Mr. Rieley stated that the lighter line would stay where they are and this other line was where it was proposed. He noted that he was suggesting that they leave the lines where they were and they just would not move them to that side of the road.


The applicant asked to make one comment to clarify what they were discussing.


Mr. Thomas stated that he could not make a comment at this time unless there was a request by a Commissioner because there was a motion on the table.


The motion carried (6:1).  (Higgins – No)


Mr. Thomas stated that SP-2003-079 would be heard by the Board of Supervisors on June 9th.


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