SP-2004-00040 Mount Fair Farm (Sign #73 & 95) -  Request for special use permit to permit fill in the floodplain for the purpose of constructing two stream crossings for a second driveway/farm road, in accordance with Section of the Zoning Ordinance which allows for fill in the floodplain.  The property, described as Tax Map 26, Parcel 33, contains 75.3 acres, and is zoned RA, Rural Area and is located at the northwest corner of the intersections of Rt. 810 (Browns Gap Turnpike)  and  Rt. 673 (Slam Gate Road).  The Comprehensive Plan designates this property as Rural Area in Rural Area 1. (Yadira Amarante)


Ms. Amarante stated that this request would go to the Board of Supervisors on November 10. The applicant is requesting approval of a special use permit to construct a dam, a pond and a driveway to provide access to pastures for the operation of a horse breeding establishment on this property. The new driveway will loop from a new entrance on Slam Gate Road, which was State Route 673 to a new proposed entrance on State Route 810, Brown Gap Turnpike. The driveways are proposed to cross the flood plain of a tributary of Doyle’s River in two locations. The dam with a footbridge and a pond are also proposed in these floodplains. One new entrance on Route 810 is proposed in the floodplain of Doyle’s River.  All of the elements are proposed to be constructed in the Flood Hazard Overlay District. They are as listed in the staff report for a culvert for the driveway, two bridges for the driveway, and a dam with a footbridge. She pointed out that the applicant has indicated that footbridge may or may not be constructed, but it still appears on the plan.  In addition, there will be excavation for the pond and an entrance on Route 810.  All of those items are proposed to be in the floodplain. As you know, this property is located in the Water Shed District, and therefore their stream buffer is also associated with these streams. Basically, the stream buffer is the limit of the floodplain or 100 feet from the center line of the stream, whichever is greater. It is staff’s opinion that the floodplain and the stream buffer disturbances can be minimized. 

Staff has recommended denial of the special use permit. It is our opinion that the impacts to the floodplain and the stream buffers can be minimized. There are probably a number of different ways that this could be done.  Staff has not come up with any specific solutions where they can recommend approval.  Staff is not going to design this site for the applicant.  All that staff can say is that there are probably alternative locations for this driveway. There are probably alternative ways to access all of the pasture lands that the owner would like to access.  Staff realizes that the owner must have reasonable access to their property. But, it is our opinion that they can do it in a less invasive and intrusive way into the stream buffers and the floodplain. That being said, the applicant has not provided staff with these alternative locations.  Therefore, staff has nothing to compare.  Staff does not have two scenarios to use to compare it.  Therefore, staff is recommending denial. 

While engineering staff was reviewing this project against the Water Protection Ordinance, which offers protection to natural resource areas particularly in the Water Supply/Water Shed, engineering staff concluded that they could not approve the disturbances of the stream buffer and denied those disturbances. This is outside of the Planning Commission’s purview.  But, staff wanted to mention it because without disturbance of those stream buffers basically the items in the special use permit cannot be built.  The applicant has appealed that decision of the Program Authority of the Water Protection Ordinance to the Board of Supervisors. The Board will hear that item on November 10 along with the special use permit. 

In terms of impacts to the floodplain, staff did not get enough information in terms of what the dam and the pond would do to the flood levels.  As you know, one of the things that staff looks for regarding floodplain crossings is that the floodplain levels are not increased by the fill that is put in the floodplain.  Staff could not determine that by the information that was given to us.  That is one of the major reasons that staff is recommending denial.  Parcel 33 is the little parcel south of the floodplain activity that is Mount Fair, which is a historic property.  It is on the Virginia Landmark Register and the National Register of Historic Places. Recently, staff found out that it was also under easement with the Federal government.  There are specific items in that easement where it lists things that cannot be done on the property.  Therefore, the 3 acres, which includes the house and outbuildings, is not subject to this special use permit and the 75 acres, which is subject to this special use permit, are under the same easement.  The entire 78 acres are under a conservation easement with the Federal government, which disallows the construction of dwellings, barns, outbuildings, roads and other structures without written approval of the Board of Historic Resources.  At the end staff will amend the recommended conditions of approval if the Planning Commission chooses to approve the request to include something in writing from the Department of Historic Resources where they approve all of those structures. 

Staff’s recommendation for denial of the special use permit is based on the fact that staff has not received adequate information to access about the floodplain levels.  The whole stream buffer issue will be left up to the Board to decide whether or not they feel that the disturbances are appropriate. Staff will have to make a finding that the proposal will not be a substantial detriment to this property or to the adjacent properties.  Staff has not been able to do that. 

To summarize, staff has identified the following factors, which are favorable to this request:

1.       The proposed farm operation is consistent with the Rural Area goals of the Comprehensive Plan.


Staff has identified the following factors, which are unfavorable to the request:


1.             The applicant has not provided the County with enough information to analyze the impacts to public health, safety and general welfare in terms of post-construction floodplain levels.

2.             The location of the driveway and extent of buffer disturbance do not appear necessary for reasonable use of the parcel as a horse farm.

3.             The applicant has not provided an alternate design to eliminate unnecessary stream buffer disturbance.

4.             The Water Protection Ordinance disallows unnecessary stream buffer disturbance.



Staff recommends denial of SP-2004-040.

Should the Board vote to approve the special use permit, staff recommends that the applicant be required to comply with the following conditions of approval:

1.       With the exception of all changes that would be required in order to comply with the conditions listed herein, the site shall be developed in general accord with the plans entitled, “Mount Fair; Albemarle County, Virginia; MacFarlane Residence; Whitehall Virginia,” dated 6/17/04  and provided herein, with Attachment C.

2.       Provide a plan which shows all existing conditions – parcel boundaries, structures, driveways, entrances, culverts, floodplain (both on and adjacent to the property and along SR 810 and SR 673), and topography on and adjacent to the entire property.

3.       Provide a plan which shows proposed topography, extent of fill and limits of the proposed changes to the floodplain and stream buffers.

4.       Provide plans for the bridges, dam and culverts.

5.       Provide sufficient engineering data to demonstrate that there will be no increase in flood levels during the occurrence of the one hundred year flood in accordance with Section of the Zoning Ordinance.

6.       Provide sufficient data to demonstrate that stream buffer disturbances are kept to a minimum, especially for driveways or roadways where reasonable access may be provided elsewhere, according to Section 17.312.5 of the Water Protection Ordinance.

7.       Obtain necessary federal and state permits the US Army Corps of Engineers and Virginia Department of Environmental Quality for work in the stream(s).

8.       Written approval from the Virginia Board of Historic Resources is necessary.


The owner of the property is present as well as his engineers to answer any questions.


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


Ms. Higgins pointed out that the existing gravel road is an entrance and is suppose to be closed.  But, that gravel road is not in the floodplain, but it is in the stream buffer.


Ms. Amarante stated that in 1995 there was a special use permit for a new driveway and a culvert. The special use permit was for fill in the flood plain. When making a field visit, staff assumed that was the driveway that she went on in the field. But, after a discussion with Ms. Higgins she thought that driveway was outside of the floodplain, but inside of the stream buffer.


Ms. Higgins stated that as far as items that are improvements to what is out there now obliterating that gravel road and entrance in its proximity to the stream would be an improvement to what is there now.


Ms. Amarante stated that was correct, especially if they were to replant it.  Staff is not sure if that is part of their mitigation plan or not.


Ms. Higgins stated that there was no information about the section, but they keep talking about the road.  From the discussion, she got the idea that this was gravel and used for tractors and horses.


Ms. Amarante stated that it was not a paved road, but a gravel road.


Ms. Higgins asked how wide the road was.


Ms. Amarante stated that she was not sure, but that it scaled to be about 12 feet wide.


Ms. Higgins stated that as far as mitigation that she felt that a lot of this hinges on this issue of necessary versus unnecessary.  She asked for further discussion on that issue. She voiced concern about the safety of the tractor use if they put the entrance in around that corner on Route 810.  She asked that they hear from the applicant.


Mr. Rieley asked if they know what the drainage area is coming into this proposed impoundment. 


Ms. Higgins stated that the staff report says that the applicant did not submit any information on the floodplain analysis.


Ms. Amarante stated that the applicant’s engineer could probably answer that question.


Mr. Rieley stated that his other questions may be in the same category.  He asked the distance to the head of the stream and whether or not this is in the FEMA floodplain and has been mapped.


Ms. Amarante stated that they do have FEMA floodplain here and it shows up on the new maps.  She stated that the applicant had their own study done, but it has not been mapped by FEMA.


Mr. Rieley asked the degree to which agricultural ponds are exempt from a good bit of the typical County review.  He asked what the limits are to that.


Ms. Amarante stated that Zoning made the determination that the agricultural pond is allowed in the floodplain.  It is no longer a reason as to why Engineering is recommending denial of the special use permit. It is specifically just for the dam and the crossings of the road.


Mr. Rieley stated that it was the impact on the stream and the floodplain.


Ms. Amarante agreed and noted that it was not related to the dam.


Mr. Rieley stated that it was the dam as a feature regardless of whether it was impounded water or not.  He thanked staff for that distinction.


Ms. Joseph passed around the information Ms. Amarante had given her regarding the former approved entrance on this site so that the Commission can see where it is located.  (See Attachment)


Ms. Higgins pointed out that the entrance was actually constructed to the left of that.  Obviously, there is a substantial difference because one can see where the water has been.  There was some flooding and this is much higher with what they built.


Mr. Edgerton asked for clarification.  He asked if the pond is okay, but the dam is not.  If they took the driveway off the pond, would the dam be okay then.


Ms. Amarante stated that there was no driveway on the dam.


Ms. Higgins stated that there was a footpath on the dam.  The driveway is actually proposed above the impoundment.


There being no further questions for staff, Mr. Thomas opened the public hearing and invited the applicant to address the Commission.


John MacFarlane stated that he along with his wife, Dudley, purchased the Mount Fair Farm about a year ago with the hope of turning it into a horse farm where they intend to breed and raise horses.  He stated that they greatly appreciate this opportunity to explain their rationale.  Actually it is not a driveway, but it was a farm access road from Route 820, which would bisect the property from the barn to Route 810 so that they can access all of the pastures. Unfortunately, this meeting falls right in the middle of the Washington National Horse Show where her wife is actually an exhibiter. Therefore, she could not be present tonight and had provided him with some notes.  He stated that he would explain the rationale of the road and then would turn it over to Ken Collier from HGOR, who is their landscape architect from Atlanta, and Glen Curtis, of Dreyfus, who has done a lot of the survey work. They have worked hard with Paula Loft who is in the office of Historical Resources.  Before they bought the property they worked very closely with him.  They actually gave him a list of all of the things that they proposed to do including the barn and the road accessing from Route 810. He gave preliminary approval that all of the things that they proposed to do that he felt were within the intent and the scope of the use of the property.  He is the one who is charged with overseeing the easement.  They have since worked very closely with him with their architects.  Mr. Loft has approved the drawing for their proposed house renovations and the barn that was going to be placed behind the house. Also, he preliminarily saw the roads and said that they were okay, but wanted to see what was ultimately approved.  Therefore, they were working very closely with them and are very sensitive that this is on the Historical Register.  He stated that they were very committed to preserving the architectural integrity of the home.  He explained the proposed use and why they need this access.


Ken Collier, environmental manager with Hughes, Geary, O’Leary and Ryan, stated that they have been working on this project since February. He stated that they had been deferred once because of receiving the comments back late.  By the time that they received their response back they were not able to be reviewed until the next meeting.  Therefore, they had to defer.  He pointed out that they did not want to be deferred again and wanted to present it to the Commission so that they could start working through some of the issues.  It has been a long process.  He stated that their flood study did not get reviewed for this meeting.  Therefore they will be addressing all of those issues.  He hoped to get some feedback from the Commission to see how they can bring this project to a close.  Mr. MacFarlane has already addressed some of the issues.  He pointed out the location of the items on the plan concerning the proposal.  He stated that this was not a new entrance to the house, but is a farm access road out on to Route 810 to access the pastures. There are two major streams that come onto the property. Their confluence is just before Slam Gate Road and then they join further on down.  They are tributaries to the Doyle’s River.  The pond would intercept one of the streams.  The road will be gravel with a single lane 12 foot wide.  There will be two bridges that will cross the streams in order to access the lower pasture out by the highway and come back. There will be a culvert underneath the proposed access road to Route 810.  There will be another culvert to continue to allow drainage through this other area.  The other two bridges are designed to span the streams rather than have a culvert.  They would also be spanning the bedding bank to mitigate those impacts as well.  They are not going to do any walls at the stream or anything like that.  Therefore, the existing bedding bank will stay impact.  The proposed impacts for the pond location will affect 299 linear feet of stream.  The stream buffer encroachment by the road will be .26 acres. The floodplain fill is estimated approximately 500 to 600 cubic yards. The pond can mainly be constructed through excavation rather than damming up and filling everything. They can do most of it through excavation.  So the dam would be limited in size. It is only going to be approximately 8 feet deep because they hit rock.  It is going to be fairly small on 1.2 acres and fairly shallow. He stated that as referred to earlier, engineering said that they did not have the information, but they found that it had been submitted and requested that it be looked at prior to this meeting.  He pointed out that for some reason those plans were not looked at in time for this meeting. They have looked at a lot of different alternatives to try to avoid minimized impacts.  They reduced the size of the pond to 1.2 acres.  The farm road is going to be gravel rather than asphalt.  The road location was designed to avoid existing trees. They can look at alternatives with the Commission’s input.  The original design was trying to increase the size of the pastures in this location.  Therefore, they did encroach some into the stream buffer.  If that becomes an issue they could look at an alternative layout for that.  The bridges are going to be narrow, one-lane and wooden with a very low profile. The wetland impacts have been minimized to qualify for a nation-wide permit with the US Army Corps of Engineers.  That application is ready to go in as soon as they work out a final design.  They have already met with the US Army Corps of Engineers and DEQ on site. An important part of their plan is the mitigation plan.  They realize that they have stream buffer encroachment issues.  The areas in green are being proposed to be preservation areas to protect those areas in perpetuity and to be filed with the deed.  It is a total of 15 acres. He stated that he just wanted to make them aware of the coordination efforts that they have gone to in attempts to get feedback.  It has been really difficult in getting some comments like they hope to receive from the Commission to see how they can move this project forward. With that in mind he would like to have Glen Custer from Draper Aden address the floodplain issues since they did a hydrology study and determined what the flood elevations would be to show that the pond and the dam would not have an impact on the floodplain.


Glen Custer, of Draper Aden Associates, stated that there is FEMA floodplain shown on the plan.  It is hard to determine what those maps really represent.  Therefore, they went through an analysis on here to determine what the floodplain would be.  He summarized what they went through.  Basically the culverts on Slam Gate Road are insufficient to handle the high flows. In their analysis they found that in a 100 year storm the water will come up about 2 ½ feet over the road. Basically they have shown what they think about elevation 723, which was what they were coming up with. It will totally inundate the pond and it will come up to the top of the dikes. As Ken said, they have tried to keep everything very low profile. As far as filling in the floodplain, what they were looking at doing is for every cubic yard of fill that they put in they were willing to excavate out areas that are up above the floodplain to compensate. There will not be any lose of flood storage capacity behind the road. He stated that they were willing to take whatever measures as possible to not impact the floodplain.  The floodplain area stays within the farm and does not impact any adjacent property owners.  They have tried to present this information to staff several times, but the issue with them was basically whether you as it was presented could actually put the pond in there.  Engineering has their data to review.  This is just a quick summary of what they have presented.


Mr. Thomas asked if there were any further questions for the applicants. 


Mr. Rieley asked what size drainage area they would have.


Mr. Custer stated that he did not have his notes with him, but it was a very large drainage area.


Mr. Rieley asked if he knew how far it was to the head of the stream.


Mr. Custer stated that it was thousands of feet up to the head waters.


There being no further questions for the applicants, Mr. Thomas asked if there was anyone in the audience that would like to speak on the application. There being none, he closed the public hearing to bring the matter back before the Commission for discussion and a possible action.


Ms. Higgins stated that Mark Graham was present due to her telephone call.  She felt that they recently ran into the same sort of dilemma when a certain position was taken and in this case maybe unnecessary being the key word that maybe this is an unnecessary crossing that the additional information was not considered to be pertinent.  She noted that maybe the information was not in their hands in time regardless, but it did not give the Commission all of the information that they needed to make a decision if they decided to forward this to the Board.  She felt that engineering has correctly done their job because they were reading the ordinance and interpreting it from an engineering perspective of if you could avoid impact to the stream buffer, then you avoid it.  She stated that maybe Mr. Graham could shred some additional light on this issue.  She invited Mark Graham to speak.


Mark Graham, Director of Community Development, stated that as Ms. Amarante mentioned this is an issue under the Water Protection Ordinance with the Program Authority to make a determination on whether this is necessary for a reasonable use of a property. That was something that engineering staff did struggle with. He pointed out that he did speak with Glen Brooks who was the engineer on this project.  He agrees with his interpretation of it. Whether this use fits that criteria he felt was hard for them to say. There is an appeal to the Board on this issue as far as what can be allowed with the stream buffers.  The decision is to go forward with the special use permit to the Board.  The idea is that the appeal can be considered simultaneously with the special use permit. 


Mr. Rieley asked Mr. Graham if this ever got to the point at which specific mitigation measures were being discussed.


Mr. Graham stated no, not really because the staff did get on the necessary for reasonable use.  There is not sense discussing mitigation measures if they can’t even agreed that the use is allowed at all. 


Mr. Rieley stated that the Water Protection group essentially made that determination, and Mr. Graham agreed.


Mr. Thomas stated that his thoughts were along the line as Ms. Higgins had mentioned that the bridge would keep the tractors and equipment out of the stream.


Ms. Higgins stated regarding the interpretation of the ordinance that she felt that engineering had done the correct thing, but she did not think that they have a way where mitigation efforts could be considered with the net effect of denying this would be.  There are programs that offer contributions to fencing to keep livestock away from streams.  She stated that maybe staff does not have the flexibility to go to that level.  But it would have been helpful for them to say that these are the proposed mitigation things and these are the proposed impacts.  She suggested that maybe that was something that the Planning Commission could consider.  Since staff did not analyze that information that don’t have that input.  She stated that they will be asking for additional information that engineering has had. She felt that it was reasonable that tractors and horses being led don’t have to walk through the streams.


Mr. Rieley stated that he did not feel comfortable acting on this without the engineering department reviewing the information.


Mr. Morris agreed that they need all of the information.


Mr. Edgerton asked if there was time to defer this request.


Mr. Kamptner stated that this request was scheduled to be heard by the Board on December 8.


Mr. Morris suggested that they ask the applicant if he would request a deferral.


Mr. Collier stated that the applicant wants to formally request a deferment.


Mr. Rieley made a motion to accept the applicant’s request for deferral of SP-2004-00040, Mount Fair Farm, to no later than the November 16 meeting.


Ms. Amarante stated that the appeal goes to the Board of Supervisors on November 10.  Therefore, the issue should be resolved by November 16.


Mr. Craddock seconded the motion.


The motion carried by a vote of (7:0).


Mr. Thomas stated that the motion carried to defer SP-2004-00040, Mount Fair Farm, to no later than the November 16 meeting.


(Recorded and transcribed by Sharon Claytor Taylor, Recording Secretary.)


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