SUB 04-077 Belle Vista, LLC Preliminary Subdivision Plat:  Request authorization to allow a private road. (Tax Map 69, Parcel 50C)  (Yadira Amarante)


Ms. Amarante summarized the staff report.  The applicant proposes to subdivide Tax Map 69, Parcel 50C, consisting of 76.513 acres, into 5 parcels. All five parcels will gain their frontage and access from a proposed private road. The property is zoned RA - Rural Areas and is located in the Whitehall Magisterial District on Critzer's Shop Road [Route # 151] approximately 0.2 miles south of its intersection with Rockfish Gap Turnpike [Route 250]. The Comprehensive Plan designates this property for rural area uses in Rural Area 3, (see Attachments A & B).

The reason for the Planning Commission review is for authorization of that private road.  The applicant submitted a request for the private road, which is shown on Attachment C.  Engineering staff looked at that request and has recommended approval. Engineering and Planning staff supports the use of a private road for the subdivision because the difference in earthwork during construction will be much less than if constructing a public road, (see Attachment D). After reviewing and analyzing the supporting earthwork computations submitted by the applicant, Current Development Engineering agrees that the degradation to the environment will be greater than 30% for the public road when compared to the private road. In other words, construction of a private road will alleviate a clearly demonstrable danger of significant degradation to the environment of the site, or adjacent properties.  Staff has looked at the other items from the Subdivision Ordinance in terms of whether or not the private road will be adequate to carry the traffic, whether or not the Comprehensive Plan provides for a public road in that alignment, and how the fee of the private road will be handled through a road maintenance agreement.  Staff has looked at all of this and recommends approval of the private road.  With approval of the private road from the Planning Commission, staff can approve the plat administratively. 

Mr. Thomas asked if there were any questions for Ms. Amarante.

Ms. Joseph stated that she would like to understand lot 3 because it looks as if some of lot 3 comes from the parent that the other lots have been created from.

Ms. Amarante stated that was correct.


Ms. Joseph asked if there has to be 21 acres added from this other parcel Z to allow them to have 2 development rights.


Ms. Amarante stated that they can get the 21 acres from a combination of both the existing parcel 50C and this lot Z.  But, the 2 acre kernel needs to come out of that portion of lot Z.


Ms. Joseph stated that the development right lives in lot Z.


Ms. Amarante pointed out that the Commission did not get reductions of the road profiles, but it was posted on the bulletin board.  Also, the engineering staff was able to put together that summary of the cut and fill, which they should have in their packet. 


Mr. Edgerton asked engineering staff to explain the option contained in the summary. In the last line on the first page it says staff investigated the possibility of shortening the road or using the 3 to 5 lot standard both of which would decrease the earthwork if the applicant chose not to do these.


Glen Brooks, Senior Engineer stated that this was mostly a verbal exchange with the applicant.  He stated that staff told them the possibility of shortening the road to serve the last two lots for the two lot private road.  Of course, they have this extra development right in the back and they wanted to reserve the possibility of getting six lots eventually, which would require the next standard up in the private road design.  That is why they are sticking with an 18 foot section instead of a 14 foot section, which the 3 to 5 lot standard would allow.  If they don’t go as far with the road up the hill you can reduce the earthwork quite a bit, this was what they were after.  But, the applicant did not wish to split the road that way. 


Ms. Amarante stated that if they would look at the corner of lot 2 she believed that the cul-de-sac could have gone up to that part and then they could have had a smaller private road to serve lot 3.


Mr. Edgerton stated that if they put the cul-de-sac back to the corner of lot 1 and 2 that would give access to lot 2, lot 4 and lot 3 and they could have a driveway.  He asked if that was correct.


Mr. Amarante stated that was correct.


Mr. Edgerton asked what they would be losing by going that route. 


Mr. Brooks stated that they would have to ask the applicant that question.


Mr. Edgerton stated that he did not think that they would be losing a development right or the use of the land.


Mr. Brooks stated that in the future if they made one more subdivision for a total of 6 lots they would have to meet the 6 lot private road standard, which is equivalent to the VDOT standard for mountainous terrain.


Mr. Edgerton stated that they were reserving the right to do one more development, but they want to do it with a private road that would work for 5 lots but not for 6 lots.


Mr. Brooks stated that they would just not have to upgrade the road in the future if they subdivided one more.  If they build a 3 to 5 lot standard, it is a 14 foot width. 


Ms. Higgins asked if it was VDOT’s mountainous terrain standards that they are following.


Mr. Brooks stated that it was which was above what was required in this case.


Ms. Higgins stated that instead of meeting the 3 to 5 lot standard, they are already meeting the standard for 6 lots.


Mr. Brooks stated that was correct. Therefore, if they subdivide one further lot, then they would be at 6 lots and don’t have to come back and rebuild portions of the road.


Ms. Joseph asked if engineering ever works with Fire and Rescue when they look at some of these private roads.


Mr. Brooks stated no, but that they were on the Site Review Committee so they have their chance to comment, but he does not work personally with them.


Ms. Joseph asked if they don’t comment on any of the slopes or any of the areas or aspects of the private road in getting rescue vehicles up there.


Mr. Brooks stated that he had not seen them doing that on any individual applications.  He stated that they do it in committee with larger scope items like redoing the VDOT standards and things like that. 


Ms. Higgins asked if Mark Graham could comment on that.


Mark Graham, Director of Community Development, stated that Ms. Higgins had approached him with a question about the driveways and the grades.  They have looked at that with Fire and Rescue with what is called safe and convenient access, which is a requirement for issuance of a Certificate of Occupancy with a house and what is necessary to get a fire truck to the house.  Obviously, if you are building a house we would love to have a fire truck to be able to get to it so that you could put the fire out. 


Ms. Joseph stated that they were talking about driveways at this point.


Mr. Graham stated that the question was what is necessary to get a fire truck on the road.  The Fire and Rescue people tell us that they are comfortable up to 20 percent with that grade to be able to get that equipment there.  They would need a 13’6” vertical clearance and they want a 10’ minimum horizontal clearance to make sure that they can get their equipment up there.  But as far as the road grade or driveway grade itself up to 20 percent is considered acceptable.


Ms. Joseph stated that she hated to contradict him, but she had talked to Dan Eggleston, the Chief, this afternoon and when she mentioned 16 percent that he thought that was pretty steep.


Mr. Graham stated that all he could say is that they have worked with Fire and Rescue staff and the 20 percent was the number that everybody agreed to.  He stated that was an acceptable highway standard.  If you just go 15 miles west of the city that the highways can be that great.


Ms. Joseph stated that the highways are usually publicly maintained.  She noted that they were talking about something that is privately maintained at this point.  Whether it is ice and snow removal or pothole or edges of pavement maintained that was what they were talking about with a private road.


Ms. Higgins stated that there was a difference between maintenance and fire truck safety access. 


Mr. Rieley stated that they were associated if a fire truck was trying to get up the road in a snowy condition and it has not been maintained properly.  He felt that was Ms. Joseph’s point. He stated that 20 percent on a small road is very difficult.


Mr. Thomas asked if there were any more questions.  There being none, he opened the public hearing and invited the applicant to address the Commission.


Tom Gale, representative for the applicant, stated that he had one piece of information that may be of some use to the Commission.  It is a slope map that shows the 15 percent greater slopes on the property.  He felt that the slope map shows you why they have the cul-de-sac where it is and actually justifies the road location.  He distributed copies of the map. He pointed out that he gave a copy of this map to the engineering department to justify the mountainous terrain standards, and they were okay with it.  As Mr. Brooks mentioned, he did try to do a public road and were turned down.   


Mr. Edgerton asked just for clarification that he said that he applied for a public road and they turned you down.


Mr. Gale stated that was correct.  He stated in Mr. Bryan’s letter that he indicated that the alignment was in the best place to build the road.  He pointed out that he was pleased to hear that. But, essentially VDOT does not recognize mountainous terrain standards in Albemarle County.  He stated that he did not realize that, but he had learned it the hard way.


Mr. Thomas asked if there was any one else present who would like to speak regarding this application.  There being no one, he closed the public hearing to bring it back to the Commission for further discussion and a possible motion.


Ms. Joseph distributed copies of the private road part of the ordinance because she thought that sometimes we only think that we can look at the 30 percent rule. She asked Mr. Kamptner to clarify this.  If you look at Section 14.233 on page 14-29, it says in addition to the request for authorization to construct one or more private roads in a subdivision the following related matters may also be considered by the Commission in conjunction to the request. If you turn the page on e, it says that the Commission may impose any condition pertaining to the road it deems reasonable and necessary in conjunction with any approval pursuant to this section.  That means that there are other things that they can look at other than the 30 percent aspect.  The other thing while you are on page 30 is that this pertains to what they can see.  Under a1, it says that the request shall also include a map of the subdivision having contour intervals at not greater than 20 feet showing the horizontal alignment together with field run profiles, as a requirement, and typical cross sections of the road. The County Engineer can waive the requirement of the field run profile. This sort of pertains to what they were looking at last week, but also this week.  Therefore, the County Engineer has every right to request a field run profile because it is a requirement.


Mr. Thomas asked if any other Commissioner would like to weigh in on that.


Mr. Rieley asked if they could back up for a minute and ask Mr. Gale a question for clarification.  He asked what were the typical side slopes shown on the grading in both cases.


Mr. Gale stated that the side slopes were 2 ½ to 1, which was consistent in both cases.


Mr. Thomas asked Mr. Kamptner if he had any comments to give the Commission on the part that Ms. Joseph was reading to them.


Mr. Kamptner stated that the standards under 14-232 provide the criteria to allow you to exercise the discretion whether or not to approve a private road.  It is clearly discretionary.  There is language in 234 that notes that private roads are to be the exception.  He stated that he has always read Section 233.e as simply granting the Commission the authority to impose conditions of approval.  Therefore, if the Commission chose to approve this private road they could add some additional conditions as to its design or what have you.  In Section 234.01 the field one profiles is a requirement and it does allow the County Engineer to waive that requirement.


Ms. Higgins asked to go back to their previous discussion.  From her perspective she was looking at the 76 acres and for various reasons it appears that not all of the development potentially are used because it could be 5 lots plus 1 more if it was a by right development. In this case the applicant attempted to do a public road and took the correct course.  They went to VDOT and proposed a design, but VDOT did not grant them a waiver.  Then her focus shifts to what is the least impact.  A private road in the rural areas at 2.5 to 1 slopes on side slopes are actually sections that will very well, depending on the depth of the field, require a guard rail.  For a VDOT road they have to be flat. Potentially for a private road in the County there are probably guard rail requirements that will kick in.  That would be minimized grading, but the grading widths could be greater.


Mr. Rieley stated that this was in a cut section and that does not require a guard rail.  He noted that the whole upper two-thirds is that soft cut.


Ms. Higgins stated that they look for a way to minimize the intrusion and the impact, which are the cubic yards of dirt to do with the grading and then the impervious area and widths.  They have gone to the mountainous terrain standards for the 6 lots, which is an accepted standard at 16 percent.  VDOT uses that standard across the mountain.  The reason that they don’t use it on this side of the mountain has to do with their snow removal equipment and not with the emergency vehicles.


Mr. Rieley pointed out that was not what Mr. Bryan’s letter says.  His letter says for safety reasons.


Mr. Edgerton pointed out that the letter also says for maintenance.


Ms. Higgins stated that what they were saying then was the VDOT has a recognized standard for mountainous terrain at 16 percent and he has implied that it is not safe.  She pointed out that she totally disagreed with that because there is not standard that VDOT holds that they will ever say that is not safe.  It is an accepted road standard in Augusta County, but on this side of the mountain in the Culpeper District it does not procure the kind of snow removal equipment that will operate effectively at that grade.  Across the mountain they buy different equipment and they handle those grades all of the time.  She felt that he meant and safety, but he cannot say that it is not safe because it is in their book as an accepted standard.  If they are talking about modifying a standard that has been used on a private road and it has been an acceptable standard in their Design Manual. She felt that they were going way past and were actually going to make it flatter and not necessarily straighter, but also increasing the grading over the 299 percent comparison.  She stated that she was confused and unsure why they were doing this.


Mr. Rieley stated that they had a good conversation about this last week.  There were two points that were made.  The point that Ms. Higgins made that was perfectly correct is that this standard allows a road to be construction which will have less impact because it can follow steeper grade.  The point that Mr. Edgerton made, which is equally correct, is that there are situations in which applying that standard allows the development of land that would otherwise have to be developed in a different way.  The question is which criteria this fits.  He felt that it was the second one.  The reason that it was the second one is that in order to achieve the ten percent grade the road gets in a deeper and deeper cross section until it gets up near the top where it is 40 feet deep.  That is not a practical alignment for a road if you take a 10 percent radiant as the way in which you have to design the road. If you were starting not with a 16 percent road, but a 10 percent road that the grade would never be there to begin with because that is not practical.  Not only are you in a 40 foot ditch with 40 percent slopes on both sides, but when you get to the cul-de-sac there is no way to get out because you have the 2 ½ to 1 side slopes on all sides.  It would have 40 percent slopes, which was 1 ½ times what their critical slopes standards are.  They would be manufacturing slopes 1 ½ times what critical slopes are.  From his perspective that is not a reasonable alternative to this.  Therefore, he could not support the private road standard in this case because he thought that it allows development in a way that would not occur without the exception.  As Mr. Kamptner pointed out private roads are intended to be the exception.  In his view they are intended to minimize disturbance, but not intended to make land developable if it is not otherwise practically developable by that general strategy.


Ms. Higgins asked if based on that did he mean that if there was a road standard that they could come up that could be built with this number of lots and then compared it to the private road, and then your argument would go away.


Mr. Rieley stated yes and that he had supported private roads in that situation lots and lots of times.  It is a judgment call because you have to figure out is this in fact allowing development to occur that would not otherwise occur by facilitating it.  Or is it just simply lowering the standard in order to mitigate the environmental impact.


Ms. Higgins felt that was not clearly in the standards here and this case was not as blatant as the one they looked at last week.


Mr. Rieley stated that he felt that it was almost identical.  In fact, he sent a memo around to his colleagues about this and he had not seen this when he did that.  It is striking the degree to which this is similar to that example that he just pulled out of the air.  That was 37.5 feet of cut and this is about 40 feet.


Mr. Thomas asked if it was really going to be a 40 foot gully when you get to the cul-de-sac.


Mr. Rieley stated yes that it was going to be 40 foot deep.


Ms. Joseph pointed out that was why it was important for the Commission to see the profiles because that is what it shows us.


Ms. Higgins stated that was in a public road scenario, but in a private road it is not.


Mr. Edgerton stated that he says that they do not outweigh our requirements for safety in standardized highway maintenance operations the degradation which will result in unacceptable costs to the public.  Then he goes on to say that to grant a waiver to this extent would set an impudent precedent.  That is pretty strong language. They have asked him to allow them to go to the 16 percent slope and keep everything else the same, and he is saying no that he did not think that is a good idea.  In engineering’s summary report, that they just received this evening, in the bottom paragraph on the first page there are positive alternative alignments.  However, not considering the other subdivision layouts there are not alternative alignments.  There are perhaps other ways to develop this property, but not with this alignment going through these slopes. At some point the topography may or may not have to be the determination about whether this development should occur, which was what he was struggling with.  In looking at these slopes, this property is incredibly steep.  There is not question about that.


Mr. Thomas asked if there were any other comments.  He asked if anyone could think of a better example of this from the past that was passable.


Ms. Higgins stated that there were a lot of private roads out there.  There have been three private roads along her road that have been put in during the past three years.  Those roads are 14 foot wide and are working nicely.  Across one of the stream crossings there is a 27 foot fill and that was minimized by going to a private road standard.  She felt that if there had been a waiver request in sections for maybe a 12 percent and VDOT can make them make the road longer to get up the same distance.  That would cause even more degradation to the environment.  She asked if they were saying that maybe a lot will drop off this or they will make the road longer. The applicant could withdraw it and come back with a different design and not come back before the Planning Commission and do it with a public road.  She felt that the applicant looked at their developable property.  Mr. Gale provided a plan that shows everything with 15 percent slope to show us that this land with using a private road that can follow the land in a more consistent way is the way to look at it.  She felt that in the past that is the way that it has been done by the environmental impact.  Since this is a 5 to 6 lot situation she did not think that it compares to the other one that they looked at.


Mr. Rieley stated that this is a wonderful possible Rural Preservation Development.  There are all kinds of ways that one can start. But, if you start with using public roads and that entails the 10 percent radiant, then you don’t end up here.  This has started somewhere else and it is justifying it by saying that a 10 percent road on this alignment is much worse, and it unquestionably is.


Ms. Higgins stated that the background of this is if it comes in as a private road in a Rural Preservation Development, then that would be given more favorable consideration.


Mr. Rieley stated that was not what he said.


Ms. Higgins stated that was what they did before.


Mr. Rieley stated that if you have road, whether it is a Rural Preservation Development or whether it is a conventional development, in which you have reasonable access and you can show that you could do a state road reasonably, but that you would like to minimize the environmental degradation by going to a private road then that is a viable case. But if you have a situation in which you have no practical way to get up the slopes without going to a 16 instead of a 10 percent radiant, then he thinks that you are utilizing the private road provision, which is to be an exception, to actually allow you to develop land in the rural area more conveniently than you could otherwise. He stated that he did not think that is what this provision is in there for.


Ms. Higgins stated that Mr. Thomas brought up a good point as to how there are other ones out there that have worked.  She reiterated that there were several examples on her road that have worked and there was about to be a fourth.  They have recently reviewed the rural areas comp plan and they have concerns about what is happening in the rural areas.  So now what they are doing is taking things that have been treated in a more routine fashion and looking at them with almost a different discussion and

treating these applications differently.  What you are implying is that we are kind of turning up the requirement to accomplish this.


Mr. Rieley stated that was absolutely untrue and he did not know where she gets that.


Ms. Higgins stated that it was her perspective that they need to change the rules and not just start interpreting them differently.


Mr. Edgerton stated that last week that he was of the opinion that they might need to change the rules, but actually he did not think they need to change the rules because they are very clear.  What Ms. Joseph has brought to them this evening is very clear.  The Commission has the authority.  They have been operating under the misinformation from his perspective that if it shows greater than 30 percent that they ought to do it.  Staff has been presenting it to the Commission that this is the way it is and so it ought to be done.  But, in the reality it is not staff’s decision and they are not the ones responsible for making this decision.  The Planning Commission is making this decision.  He felt very strongly that on this property if it cannot be done safely that he did not know why they should bend over backwards to do something to allow them to do something that is unsafe.  On this particular project he felt that they have a real issue here.


Mr. Rieley asked to make a quick observation that this is somehow new and that these have just been sort of automatic in the past.  They have had knock down drag outs and one of them at 1:00 a.m. in the morning that he remembers about private roads.  The Commission has wrestled with this and it has been a very difficult issue for years, but it has never been automatic.  There is nothing about their discussion here tonight that is new or inconsistent with the kind of discussions that they have has in the past.


Ms. Higgins stated that she agreed with him, but that Mr. Edgerton was just admitting that before you thought that it was worth changing the rules until you understood that you apply these.


Mr. Edgerton admitted that he was not as familiar with the ordinance as he should be.


Ms. Higgins stated that it was still a change in thought processing.  There is only one thing that she would dispute and she would dispute it until the last level including getting Jim Bryan back here.  VDOT has a standard for 16 percent grade and his letter does not negate the safety that was presented in the Design Manual that other localities use.  Therefore, vote against it for the reasons that you want to, but not because someone has said that the Mountainous Terrain Standards are unacceptable.


Mr. Edgerton asked if she had not just given the reason for why that standard does not apply to our County.


Ms. Higgins stated that is has to do with the maintenance of roads.


Mr. Edgerton asked but didn’t she just say it does not apply to our County.


Ms. Higgins stated that this district does not allow this County to use it because they don’t buy the equipment consistent with that.  She noted that it does not have to do with safety.


Mr. Edgerton pointed out that his letter says that.


Ms. Higgins stated that Jim Bryan was no longer there and if he was that she would take it to him.  She stated that they have allowed private roads at 16 percent before.


Mr. Thomas stated that he agreed with Ms. Higgins that they were really changing strokes in the middle of the stream when they go against that.  The 16 percent is in there and Mr. Bryan’s letter does say that it is unsafe, but he is not longer with VDOT.


Ms. Higgins pointed out that our ordinance has Mountainous Terrain Standards in it, but it is for 6 lots or greater.  She stated that they could say that their own standards are unsafe if you want to take that work and apply it to that grade. She asked that they not go on the record saying that their own standard is unsafe.


Mr. Rieley stated that Ms. Higgins makes an excellent point and he felt that Mr. Bryan’s statement has to be taken within the context that the equipment relative to maintaining those roads is not here and that is the basis for the safety issue.  He stated that his concern was whether giving a waiver for private roads in this case is an enticement at making it easier.  But, he felt that her point was well taken.


Mr. Thomas asked if the Commissioners understand the words that Ms. Joseph read or do they need more interpretation of that or more legal advice from Mr. Kamptner on that part of it.


Mr. Rieley felt that Mr. Kamptner has already done that.


Ms. Higgins made a motion that SUB-04-077, Bella Vista request to allow private roads be approved with conditions as recommended.


Mr. Morris seconded the motion.


Mr. Craddock stated that this has been a big discussion on one other committee that he was on about access to mountain tops regarding public and private roads.  Based on that and Mr. Bryan’s letter, if the new person there would come back with a letter saying that it is okay on this side of the mountain that it would certainly help this other committee that he was on also about going to the ridge tops. That has been a great concern.


Ms. Higgins stated that it does not have to be private roads to go to the ridge top.


Mr. Craddock stated that it was just the whole cutting of the road to a ridge top, whether it is public or private.  He stated that it regarded the development of property that would not otherwise be developed.


The motion for approval did not carry by a vote of (2:5).  (Higgins, Thomas – Aye) (Craddock, Rieley, Morris, Edgerton, Joseph – Nay)


Mr. Kamptner stated that another motion was needed and then he would provide the reasons based on what he had heard so far.


Mr. Edgerton moved to deny SUB-04-077, Belle Vista request to allow private roads.


Mr. Morris seconded the motion.


Mr. Kamptner stated that the reasons would be that the Commission would deny the request for private roads in exercise of its discretion under Albemarle County Code Sections 14-232 through 14-234 and the proposed public road amenities could not be approved by VDOT. Otherwise, the approval of the private road would allow the property to be developed differently than it could be with the public road.  In order for the preliminary plat to be approved, the subdivider must either amend the plat to show that all of the roads would be public roads or provide the Commission with an alignment of a private road that meets the requirements of the Albemarle County Code sections 14-232 through 14-234.


The motion for denial carried by a vote of (5:2).  (Craddock, Rieley, Morris, Edgerton, Joseph – Aye) (Higgins, Thomas – Nay) 


Mr. Thomas stated that there were two motions.  The first motion did not carry.  The second motion carried.  He stated that it was a good discussion and the Commission needs to hold a work session on that issue.


Return to PC actions letter