Mount Fair Water Protection Ordinance Appeal




Appeal of Program Authority action disapproving stream buffer disturbances, pursuant to the Water Protection Ordinance section 17-311.




Tucker, Foley, Graham, Brooks





Nov. 10, 2004


ACTION:     X                         INFORMATION:   



  ACTION:                               INFORMATION:   










Section 17-317 of the County’s Water Protection Ordinance (WPO) establishes where stream buffers are to be retained and established in the County.  In applying that criteria to the application for a special use permit for Mount Fair Farm, staff determined that the property lies within the Rivanna River Reservoir Watershed, more specifically on tributaries to the Doyles River, and that part of the proposed development is within protected stream buffers.  This proposal requires six general areas of stream buffer disturbance for a pond and driveway.  For the driveway this development includes:


            1. The new entrance on Rt. 810, which is in the buffer of the Doyles River,

            2. The first bridge on the driveway, which is over a tributary to the Doyles,

            3. The second bridge on the driveway, which is over another tributary to the Doyles, and

            4. A culvert under the driveway, which is for a smaller minor tributary. 


For the pond, this development includes: 

            5. The dam, which is downstream of the first bridge, next to Rt. 673 (Slam Gate Road), and

            6. Excavated areas on both main tributaries, in order to enlarge the pond surface.


Section 17-321 of the County’s Water Protection Ordinance defines the circumstances in which the County’s program authority may allow development within a protected stream buffer.  As applied to the pond, this is clearly a circumstance under which the program authority may allow development, with approval of a mitigation (17-321.4.).  As applied to the driveway, the ordinance requires the program authority to determine “…that the stream buffer would prohibit reasonable access to a portion of the lot which is necessary for the owner to have a reasonable use of the lot;”  (17-321. 5.).  Given this requirement, the program authority believes it is beyond its authority to approve the driveway development in this circumstance.   Without the approval of the driveway in the stream buffer under the WPO, the approval of a special use permit for the driveway becomes meaningless.     




Goal 2.2: Protect and/or preserve the County's natural resources




Staff reviewed the proposed development within stream buffers in conjunction with a special use permit for fill in the floodplain.  The application materials, and discussions with the applicant's representatives, indicate that the intention is to build access to pasture for horses, as well as a pond.  There is an existing residence on the property with access from Rt. 673, Slam Gate Road.  There is also a separate existing farm access on Rt. 673, with a ford over the main tributary, providing access to the areas intended for pasture.


The background narrative explained that the program authority may allow development of a driveway in a stream buffer

provided it is determined that the stream buffer would prohibit access to a portion of the lot which is necessary for the owner to have a reasonable use of the lot.  As access to the pasture areas already exists, it becomes difficult for the program authority to maintain that this driveway is necessary to provide reasonable use of those portions of the lot. Additionally, staff noted several alternatives to the proposed driveway that would greatly reduce the impacts while allowing the proposed use.  Those alternatives include using the proposed dam for the driveway, using the existing adjoining state highways, and using a single minimal crossing from the existing driveway near the house to the pasture area between the stream forks.  Buffer disturbances to allow additional access to the residence and associated structures would appear to be a matter of convenience, which places the decision beyond the program authority. 


It is noted that the proposed pond can be allowed by the program authority, but it will affect the existing farm access.  With the pond as proposed, stream buffer disturbance may be necessary for reasonable improvements allowing access to pasture areas. That issue will be considered through review of the required mitigation plan.  In considering the plan, the applicant must still satisfy the program authority that this development will be the least disruptive to the natural functions of the stream buffer (17-322 C.2.).  It appears this can be accommodated by consolidation with the permitted disturbances at the dam and/or use of the existing access on Rt. 673.  That decision would be made at the time the mitigation plan is reviewed.


Finally, staff would note that the position of the program authority does not imply the applicant’s proposed use of the property is desirable or undesirable.  The proposed use of the property is not part of the consideration listed in the WPO for approving a mitigation plan and, as the program authority has no authority to limit future use of the property, there is no assurance that a proposed use, however desirable, would be maintained.  This factor is considered important for the decision before the Board with this appeal. 




1.                   Staff recommends the Board uphold the program authority’s determination that the proposed driveway has not satisfied the requirements of Section 17 321.5 of the Water Protection Ordinance.  




Applicants Appeal Letter

Photograph of Stream Area

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