Albemarle County Planning Commission

January 11, 2005

 

The Albemarle County Planning Commission held a meeting and a public hearing on Tuesday, January 11, 2005 at 6:00 p.m., at the County Office Building, Room 241, Second Floor, 401 McIntire Road, Charlottesville, Virginia. Members attending were William Rieley, Rodney Thomas, Calvin Morris, Jo Higgins and Pete Craddock.  Absent were Bill Edgerton, Marcia Joseph and David J. Neuman, FAIA, Architect for University of Virginia.  Mary Hughes attended the meeting to represent David J. Neuman.

 

Other officials present were David Benish, Chief of Planning & Community Development; Frances MacCall, Senior Planner; Amelia McCulley, Division Director of Zoning & Current Development; Juandiego Wade, Transportation Planner; Glenn Brooks, Senior Engineer; Bill Fritz, Chief of Current Development; Mark Graham, Director of Community Development and Greg Kamptner, Assistant County Attorney.

 

Call to Order and Establish Quorum:

 

Mr. Benish called the regular meeting to order at 6:00 p.m. and established a quorum. He asked for nominations for a temporary Chairman for tonight’s meeting due to the absence of the Chairman and Vice-Chair.

 

Mr. Rieley nominated Mr. Thomas to be temporary Chairman.

 

Mr. Morris seconded the nomination.

 

The motion carried by a vote of (2:1). (Higgins – No) (Thomas – Abstain)  (Edgerton, Joseph – Absent)

 

Mr. Benish turned the meeting over to Mr. Thomas.

 

Public Hearing Items:

 

 

ZTA 2004-00009 Gas or Oil Transmission Line:  Proposal to amend Section 3.1, Definitions, of Chapter 18, Zoning, of the Albemarle County Code.  This ordinance would amend Section 3.1, Definitions, by amending the definition of “transmission line, gas or oil” to mean pipelines that convey gas or oil for the purpose of supplying gas to a system, or which serve as a common source of supply from a system station or substation to one or more distribution lines as delineated in the definition if any portion of the pipeline is within the rural areas (RA) zoning district or within a public right-of-way abutting such district.  (Amelia McCulley)

 

Ms. McCulley summarized the staff report.  This is a proposal to revise the definition of transmission lines, gas or oil, and to broaden it and further clarify it.  In terms of background, the Charlottesville Gas Division is currently proposing a 6" gas main trunk line from the General Electric Fanuc Plant in Albemarle County along Route 29, extending to also provide service to Greene County. The Commission should have a colored map attached to the staff report. The Zoning Administrator has again determined that this gas line is a transmission line, requiring a special permit for approval.  The City of Charlottesville has again filed an appeal of the Zoning Administrator's determination.  The appeal is pending and is scheduled for a February 8th public hearing with the Board of Zoning Appeals.

 

PUBLIC PURPOSE TO BE SERVED:

Staff recommends that revision to this definition will allow a more comprehensive review (as is required for a special permit) for the impact caused by significant gas and oil transmission lines.  This special use permit review would include the impact on the Rural Areas and protected resources caused by proposed lines.  The special permit review could also consider the impact, including service to our development areas, from extensions to establish new systems in other jurisdictions.

 

DISCUSSION:

Lines for the distribution of local oil or gas service to customers are permitted by right.  The main gas or oil trunk lines which serve the distribution lines and supply the system are transmission lines and require a special permit for approval.  Electrical power substations, transmission lines and related towers also require a special use permit for approval.  Water and sewer lines, interceptors and larger facilities are allowed by-right; however, they are subject to review for compliance with the Comprehensive Plan.

 

The currently proposed 6" gas main trunk line will extend only about 1 1/2 miles along Route 29 in Albemarle County before it reaches Greene County.  Once there, it will extend another approximately 4 1/2 miles before the currently proposed termination at the S.L. Williamson Asphalt Plant.  In Greene County, 4" gas mains will extend from the 6" trunk line at Routes 607 and 33.  Smaller (2") lines serve numerous individual subdivisions.  The City has explained that this expansion of service can be provided with an increased supply within the existing lines.

 

This revised definition is not intended to require further approvals for the distribution lines.  This revised definition is intended to address the impact of the main trunk lines which cross the Rural Areas to provide service to the smaller distribution lines.  The fact that individual customers would be permitted to tap into a transmission line is not determinative as to whether the line is a distribution or a transmission line.  The fact that a new line does not directly connect to a gas supply at a station or substation, is also not determinative as to the classification of the line.  The proposed ordinance definition parallels federal regulations for transmission, distribution, service and main natural gas lines as found within 49 CFR § 192.3.

 

The City of Charlottesville Office of the City Attorney has submitted a letter of objection to this ZTA (Attachment C).  There are representatives present tonight who will speak to that. They ask "as a matter of fundamental fairness, that consideration of the City's plans by the Zoning Administrator, and if necessary by the BZA, be allowed to continue under the provisions of the Albemarle Zoning Ordinance as currently in effect."  They further state that revising the zoning ordinance definition that will require a special permit for more lines is not consistent with the Comprehensive Plan and will result in difficulties for interpretation.

 

What staff is suggesting is that we acknowledge, identify and address potential impacts. Staff is not trying to address or control development in other Counties.  That is not the agenda here.  It is to address the impacts on our resources in our Rural Areas and Entrance Corridors when you have a significant line that traverses the County.  There are some existing lines which may as a result of this definition become nonconforming. 

 

One of the points also made in the letter from the City relates to the fact that this definition would cause some existing lines to become nonconforming to the requirement of a special use permit.  Staff has not studied this issue extensively and can offer preliminary comment.  Those nonconforming transmission lines may remain and their use may continue consistent with Virginia Code and Albemarle County Zoning Ordinance provisions.  Maintenance of the lines is permitted; however, enlargement or extension of these transmission lines would be subject to a special permit.

 

With regards to compliance with the Comprehensive Plan, staff recommends that the requirement of a special permit for a broader definition of "transmission line" will better serve our Comprehensive Plan goals.  To illustrate the point, staff provides some relevant excerpts from the Comprehensive Plan:

 

General Principles for Other Utilities:

Ø       The County's growth management goals are to be supported through the appropriate provision of transportation, public utilities, and public facilities and services to designated Development Areas.  The provision of fire, rescue, and police protection, roads, utilities, school bus service, and other governmental activities and functions to a large, dispersed rural population is viewed as inefficient and contrary to the overall public interest in guiding new development to the designated Development Areas.

Ø       Emphasis is placed on providing a level of public service delivery that will support development in, and direct development to, designated Development Areas.  To accomplish this, service and facilities will be provided at a much higher level in Development Areas than in the Rural Areas.  Those persons living in the Rural Areas should not anticipate levels of public service delivery equal to services provided in the Development Areas.

 

Staff will address the three (3) criteria which the Board has previously asked staff to discuss with zoning text amendments.

 

Administration / Review Process:  Broadening this definition will Increase the number of lines which will require special permits as opposed to being permitted by-right.  This will increase the administration and review process for oil and gas lines.  Because it is not a frequent proposal, it is not expected to have much impact on staff.

 

Housing Affordability:  The proposed amendment would not affect housing affordability.

 

Implications to Staffing / Staffing Costs:  This amendment alone is not expected to generate much impact on staff workload.    

 

RECOMMENDATION:

In conclusion, she asked in light of the schedule that they were on that the Commission consider this amendment and forward your comments and your advisory recommendation to the Board so that they can keep on schedule for February 2.  Staff hereby recommends adoption of the draft ordinance found in Attachment B.

 

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

 

Mr. Rieley stated that he had one question about the schedule.  He would presume that the appeal to the BZA is on its own schedule and this is another thing and if they don’t relate because that is something that was already in the works before this came about.  He asked if that was correct.

 

Ms. McCulley stated that was right.  The BZA schedule at this point is for February 8 and it is independent of the zoning text amendment schedule.

 

Mr. Rieley stated that it was independent of this and no matter what this determination is it won’t affect that.  In other words they are not going to be making their determination based on the new rules.  He assumed that they would be making their decision on the rules that were in place for the definitions that were in place when the appeal was filed.

 

Mr. Kamptner stated that the BZA would be considering the appeal of the Zoning Administrator’s determination back in October or November.

 

Mr. Rieley stated that it was be concerning the definition at that time.

 

Mr. Kamptner stated that it would be for that time, but it may render that appeal moot if the definition has changed.

 

Mr. Edgerton asked if there were any further questions for staff. There being none, he opened the public hearing and invited the appeal, who was the City of Charlottesville to speak.

 

Ms. McCulley pointed out that the County was the applicant for the zoning text amendment.

 

Craig Brown, Attorney for the City of Charlottesville, stated that they were not the applicant, but were an extremely interested party in this zoning text amendment.  With him tonight was Judith Mueller, Director of Public Works; Phil Garber, Chief Gas Engineer for the City and Stan Ballis, principal with the law firm of Miller, Ballis and O’Neil who has been counsel to the City’s gas division on regulatory matters for the last thirty years.  He asked to offer his opinion of the question that Mr. Rieley posed.  The sole question before the Board of Zoning Appeals is the correctness of Ms. McCulley’s interpretation of the existing definition of transmission lines.  If the County Board of Supervisors changes that on February 2 prior to the BZA, then he thinks that moots their appeal.  It is an appeal of a provision that is no longer in existence.  Therefore, he did not think they would be allowed to go forward on that track if this ordinance is in fact amended.  They appreciate the opportunity to comment on it.  It is a very significant amendment because they believe that it could seriously impact the City’s ability to provide natural gas service to customers in Albemarle County.  It affects not only the line that the City is planning in the County, but it may also make certain existing lines, as Ms. McCulley referenced, nonconforming transmission lines.  That is significant because it means that they cannot replace those lines unless they get a special use permit.  As background he asked to show the Commission their existing natural gas system.  He referred to a diagram he had on display.  This is the Buck Mountain gate where they receive gas from Columbia Gas Transmission System.  It is transported into the City along this line for distribution to in the City and County.  In terms of some reference the white area is the City. Some of the County lines include Farmington, Boar’s Head Inn, Ednam Forest, Mill Creek, Pantops/Wilton Farms and Route 250 east to the intersection of Route 22 to serve Keswick Estates.  North of the City there is the line which goes up the Route 29 Corridor to serve customers there that terminates at the GE Fanuc Facility.  This line is currently in the median of Route 29 north of the city.  The definition that is being proposed is in response to the City’s plans to extend this line, which is about a mile and a half to the Albemarle County border with an extension of the existing 6 inch natural gas pipe line that is currently there.  If they are allowed to build it he felt that it would be in question on whether they would be required to get a special use permit.  This additional line for the last one mile and a half would be within an easement that is immediately adjacent to the Route 29 right-of-way.  They think that significantly it is within an existing easement for overhead utility lines before it enters Greene County.  They have been planning this line for years believing that it was a by right use because its purpose is to distribute gas to customers rather than to supply gas to a system, which is the current definition of transmission line.  In the agenda materials there is a statement that staff finds that the distinction between lines for distribution of local service, which are permitted as a matter of right, and transmission lines, which are permitted only by special use permit can be further clarified with amendment to the Zoning Ordinance.  They certainly don’t dispute that.  He felt that anytime that they have the opportunity to provide greater clarity in a land use regulation that it is openly in everyone’s best interest to do so.  But, it is unfortunate however in their opinion that this proposed amendment does not do that.  The most recent version that they received last Wednesday is very complicated and in their opinion overly broad. It still defines transmission lines as lines that supply gas

“to a system” but like the current definition it does not define a system. It still defines a transmission line by reference to this specific line, but it also presumably would include this line despite there being very significant differences between the characteristics of the two lines. In addition to those two components it would apply to a pipe line any portion of which is within a rural areas zoning district or within a public right-of-way abutting such district.  Our interpretation of that language is that it would make this line where it leaves the City a transmission line despite the fact that it is going through probably the most densely developed and heavily populated area of the County and it would make this a transmission line simply because it abuts areas that are zoned for rural use north of the City.  Of course that means that entire line has become a nonconforming use.  He thought that the statement was made that the proposed ordinance definition parallels federal regulations for transmission, distribution, service in main natural gas lines found within the Code of Federal Regulations.  He felt that the use of the word parallel is curious.  He noted that he thought of something that is parallel that it is never touching and sitting there aside from one another.  It does track the definition of service lines, but none of these lines that are in existence now and none that the City is proposing meet the federal definition of a transmission line.  As you know, this line went to the BZA in 1999 and that was the position that they took at that time that under federal law it was not a transmission line.  Staff’s and the BZA’s position was that federal regulations were pretty irrelevant and meaningless when it came to defining a land use in a local zoning ordinance.  In light of the wording of the amendment, it seems that the concern is to protect the County’s rural areas.  That is certainly a very legitimate concern.  He felt that to put that into context he would ask them to look at the fact that the City has been providing natural gas in to Albemarle County for the better part of the last thirty years.  To the best of their knowledge there has never been a special use permit requirement for any line that conveys gas from the City into the County.  They are likewise unaware that there has been any adverse consequence or harm that has resulted from the presence of these lines whether they have been in the rural areas or in one of the development areas.  For the lack of better word, he would say that they are puzzled why this proposed mile and a half extension of this existing 6 inch line when it is right next to Route 29 and under an existing overhead utility line is seen as perhaps posing a threat to the rural character of the County. If it does not, their question is why this ordinance is drawn so broadly to include it.  The Comprehensive Plan does, of course, state that residents who live in rural areas can not expect the same level of public service delivery equal to services provided in development areas.  That certainly makes sense and it recognizes that the provision of County funded services such as fire and rescue, police protection, school bus service, and roads can be very inefficient in a sparsely populated area.  That is true for gas. Although in this case it would be inefficient for the City rather than the County and that is the reason why gas lines are planned for areas where they know development is going to occur.  In a natural gas system pipe lines are not extended into undeveloped natural areas with the hope that some day development is going to occur there.  They had a policy approved by City Counsel which dictates their decisions to extend gas lines, which are based on an economic model that must show a certain return on an investment within a specific period of time.  That really can only occur when they know that there is going to be development that can use natural gas.  That situation exists in Green County. To summarize, they certainly don’t question the motivation in trying to protect the County’s rural areas.  It is certainly admiral and understandable. They think that this proposed amendment is overly broad and it is not tailored to protect that interest.  It would include both this proposed line, which they don’t see how it could pose a threat to any rural areas, and the existing lines, which he frankly did not think anybody knew they were there other than for their gas division.  This small one mile and a half extension he felt has placed them in the position of feeling like they were looking at a avalanche all of a sudden where all of their significant gas lines in the County may become nonconforming uses, which cannot be replaced and cannot be extended without getting a special use permit from the County. In closing, he stated that he would like to make one suggestion.  He pointed out that he had some language that he would like to suggest.  He stated that the County staff might be able to improve up their suggested language.  But, he would like for this to be an opening for some discussion.  The County Comprehensive Plan states that public utilities should be located in a manner that has minimal impact on the natural environment.  Certainly, no one can argue with that. They would suggest that if their pipe lines that are in rural areas are kept in a public right-of-way or within a specified distance of a public right-of-way or as in this line within an existing utility easement, keeping in mind that they were only going to go where they have customers that are willing to buy gas, then he would suggest that they have met that goal of locating in a manner that has a minimal impact on the environment.  He handed out information regarding a proposed definition that makes the City’s supply line from the City gate at Buck Mountain a transmission line and it would retain the statement that a transmission line supplies gas to a system.  It would also apply to a pipe line located in whole or in part within a rural areas zoning district that supplies gas or oil directly from a system station to one or more distribution lines within a rural areas zoning district.  But it would allow them to have their pipes when they are located within 50 feet from an existing or an improved right-of-way or within an existing utility easement. They would also ask that the definition that the Commission adopts grandfather in their existing lines and not make them nonconforming.  He thanked the Commission for considering their comments.  If there are any questions, he would be happy to answer them.

 

Mr. Thomas asked if any Commissioners had any questions.  There being none, he asked if there was anyone else present that would like to speak regarding this request. 

 

Eric Christianson asked what kind of pressures that line is running at.  He felt that the definition of a transmission line and its hazards had a great deal more to do with how big it is and how much pressure it is than what its ultimate purpose is.  There have been gas lines where someone has come along with a backhoe and caused apartment buildings to burn down.  It happened in New Jersey while he was living there.  The second thing is that he would like to see all of that stuff buried under the ground.  Utility right-of-ways are fine, but if you have to build a trestle in the utility right-of-way that he did not think that is what is meant by low impact.

 

Mr. Thomas asked Mr. Brown if he could answer Mr. Christianson’s question about what the pressure would be

 

Mr. Brown stated that the wiring which comes in from the City gate at Buck Mountain conveys gas at 400 pounds per square inch until it reaches a station on 29 North at Greenbrier. The line that runs north of the City on the Route 29 right-of-way is 90 pounds per square inch.

 

Mr. Thomas asked if there was anyone else in the audience who would like to speak on this 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 asked if staff had a chance to look at the City’s proposed language changes.  There are two issues.  The first is the potential grandfathering because that is a unique point in this proposed language. 

 

Ms. McCulley stated that staff has just received this information and did not have prior access to this.  There are two components to this. On the bottom it relates to the grandfathering the existing lines.  She stated that staff does not object to that.  The new language she was not prepared to speak about without conferring with other staff in considering it.

 

Mr. Kamptner stated that if the Commission wishes to close the public hearing tonight and defer action for two weeks.

 

Ms. McCulley suggested that the request be deferred to January 25.

 

Mr. Rieley stated that he appreciated Mr. Brown’s presentation.  It seems that the proposed language is a reasonable way to reach an accommodation.  He proposed that the Commission do exactly what Ms. McCulley suggested.  This would give staff time to evaluate this and see if they can come to a reasonable accommodation for the City’s concerns.

 

Ms. Higgins stated that Mr. Brown’s presentation was pretty much what she would expect as a presentation at the time the special use permit is being requested.  He had a very good explanation of the issues that would be of concern under a special use permit request.  But the crux of this is the effect on the rural areas and whether the effect is directly because of the line’s location within the ground or does it effect by having it available.  The only parallel that she can draw is water and sewer and that there is typically a jurisdictional area associated with water and sewer.  That is under the control of the Board of Supervisors having to affect growth.  But, she did understand that it was the supply and demand and that there were a lot of efficiencies with using gas versus other forms of energy.  The real question is whether the City’s goal is just not to be subject to special use permits, which she did understand.  The second part would be is what sorts of conditions under a scenario of a special use permit consideration would be considered if it is in close proximity to an approved public right-of-way or an existing utility easement.  She raised one objection regard being close to an existing utility easement because of the existing wind.  If it exists where there are overhead power lines and putting a gas line under the ground would kind of make it that they can go anywhere.  The language is a little broader than she would have expected to see as a counter proposal to the language that has been proposed by staff. She questioned when it said within an existing public utility easement is it existing of February 2, 2005 or is that the new ones that would be created.  If they are not in a right-of-way adjacent to it then that would be very issue that they are trying to look at with rural areas.

 

Mr. Rieley stated that was a concern on both sides.  Is it true that if the applicant comes before the Commission with a special use permit that they have to have their easements in place before making that application or can they make an application over raw land without easement in place.

 

Mr. Kamptner stated that an applicant needs to be an owner, but it can also be the owner’s agent.  So before an easement can be entered into he would assume that the City envisions a particular alignment for their pipe line would have at least contacted the owners.  They can get the authority to act as the owner’s agent to apply and identify all of the parcels that would be affected by the proposed alignment.  So they don’t have to have all of the easements in place, but they may need to at least have the owner’s consent to submit an application on their behalf for the special use permit. 

 

Mr. Rieley stated that he could understand that being an onerous part of the application process.  In this particular case, which is unlike a special use permit that is dealing with just one big piece of property, they would be dealing with a lot of landowners even before making the application because of the very nature of a lineal system. That may be a reason to look favorably on the ones in existing right-of-ways.

 

Ms. Higgins asked to comment on the existing language of less than 50 feet within an existing public utility easement.  If it was in the right-of-way she could understand that impacting the rural areas would not be an issue under any review.  But if it was 50 feet outside of it that she did not know if 50 feet was the right number.  But within an existing utility easement does not make any sense because if they already have an easement, then it exists.  She suggested that there be additional language that would be more win/win to address the issues of the rural areas impacts and may be more flexible.

 

Mr. Rieley suggested that staff work on the language over the next two weeks.

 

Mr. Benish pointed out that road right-of-ways would be included, and therefore they have to look at those impacts.  Route 29 might not be an issue, but it could be located on other roadways.

 

Ms. Higgins asked if the public utility have the right of condemnation for the gas line.

 

Mr. Rieley stated that he would assume that they have the authority, but it was a question of whether they exercise it or not.

 

Ms. Muller stated that the City has never condemned property.

 

Mr. Rieley made a motion to defer ZTA-2004-00009, Gas or Oil Transmission Line, for two weeks.  He asked staff to look at and carefully evaluate the proposal put forth by Mr. Brown to see if some language can be crafted and then bring the ZTA back to the Planning Commission in two weeks. (January 25)

 

Mr. Craddock seconded the motion.

 

The motion carried with a vote of (5:0).  (Joseph, Edgerton – Absent)

 

Mr. Thomas stated that the motion was unanimous and the request would be brought back before the Commission in two weeks.

 

 Go to January 25, 2005 PC minutes

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