Proposal for Protection of Albemarle County’s Mountain Resources


The Mountain Overlay District (MOD) Committee


On June 4, 2003, the Board of Supervisors appointed a Mountain Overlay District Committee.  The Board asked the Committee to craft “an acceptable and effective ordinance to protect mountain resources and implement the Mountain Protection Plan” (a section of the Comprehensive Plan adopted in 1998).[1]  The Committee’s diverse membership was also asked to use a consensus process.[2]  The Committee worked for two years, from April 2004 through April 2006.  All 12 of the Committee’s members support this proposal.[3]



The Mountain Overlay District (MOD) Committee recommends a three-part program to protect the economic, cultural, and natural resources of Albemarle County’s mountains.  The recommended program includes:  a mountain ordinance focused on protecting the MOD environment; principles that would mandate and govern Rural Cluster Subdivisions in the mountains; and public acquisition of interests in land.  Each of these elements is outlined below.


The program, as a whole, is designed to get development off critical slopes and out of stream buffer areas and to protect habitats and watersheds, scenic and historic resources, and agricultural and forestal uses of the mountains.  It is also designed to conserve properties and their values both within and outside the MOD.  Several aspects of this proposal, such as enhanced protection for critical slopes, might also be appropriate for general application in the County’s Rural Areas.  Because the Committee’s charge related to the MOD, however, we have not included broader applications in our proposal. 



A.  Outline of a Mountain Overlay District Ordinance


1.  Findings


  1. Ensuring public safety is of particular concern in Albemarle’s mountains.  In a few clearly defined areas, unstable mountain slopes are a clear threat to life and property, as evidenced by past debris flows.  More generally, difficult access can make successful fire and rescue operations problematic in the mountains.
  2. The mountains of the County are almost entirely in forest cover with the remaining acres in orchards and pasture.  They support a viable forest and agricultural industry that is important to the County’s economic well-being.  Mountain areas provide critical services in collecting, storing, filtering and releasing water for human consumption and other uses at lower elevations.  Maintaining forest cover and protecting headwaters and stream buffers in the mountains are necessary for adequate quantity and quality of water.  The mountain forests (like all forests) also protect air quality and help stabilize climate.
  3. Mountain landowners have important interests in maintaining the use, enjoyment and economic value of their land.  Landowners, businesses and citizens throughout the County have important economic and quality-of-life interests in preserving the natural, historic and scenic qualities of the mountains.  These economic interests include a substantial tourism industry.
  4. Mountain areas are a system of slopes that extend for greater distances and may be considerably steeper than slopes at lower elevations.  Disturbance of steep slopes in these areas is of particular concern because of the presence of more erodible soils than in other areas and the length of the grade on such slopes.
  5. The mountain areas support native biological diversity and offer prime habitat for hunting and wildlife observation.  Declines in diversity are threatened by fragmentation of habitat – the dividing of large areas into smaller parcels – and the resulting disruption of forest cover.
  6. The mountains provide an important and unique aesthetic and cultural resource.  The relatively pristine, wooded character of the County’s high elevations – the blue backdrop of the mountains – defines much of the character of Albemarle County and has served as an inspiration and cultural landmark for residents since colonial times. 


2.  Purposes of Ordinance


Based on these findings, the Committee proposes an ordinance to achieve the following purposes in mountain areas:


  1. Protect public safety
  2. Protect headwater streams, water quantity and quality, and public drinking water reservoir capacity 
  3. Reduce impacts of development on native biological diversity (natural heritage)
  4. Preserve properties and their values both within and outside the MOD
  5. Protect agricultural and forestal soils and uses
  6. Protect scenic qualities and cultural and other historical resources


3.  Definitions


  1. Mountain Ordinance District (MOD).  The ordinance would use the same lower boundary lines for the MOD as the proposed 1998 ordinance.  It would apply to parcels that lie wholly or partially within those boundary lines.
  2. Ridge Area.  A “ridge area” within the MOD would be defined as within 100 vertical feet or 250 horizontal feet of a crest, whichever is more restrictive.[4]



4.  Terms of the MOD Ordinance


a.  Critical Slopes


No residential construction or related road or driveway construction, except for the improvement of a road or driveway that existed on the date of the ordinance, would be permitted on critical slopes.  This ban on construction would not apply to roads built for forestry, agricultural, and horticultural purposes.[5]  Neither would this ban apply to lots of record created on or before December 10, 1980, in order to establish the first single family residence, provided there is no alternative building site and no alternative route for the road.


Any roads built on critical slopes for forestry, agricultural, or horticultural purposes after the date of the ordinance would not be convertible to residential use after the date of the ordinance.  This limitation would not apply to lots of record created on or before December 10, 1980, in order to establish the first single family residence, provided there is no alternative building site and no alternative route for the road.


b.  Erosion and Sediment Control Plan


Land disturbing activities exceeding 2500 square feet will require an effective erosion and sediment control plan explicitly designed to address erosion control and water infiltration for the long term.  Guidelines for drafting these plans should encourage flexible and innovative approaches.


c.  Stream Buffers


No residential construction would be permitted within 200 feet of an intermittent or perennial stream or river or other body of water shown on a U.S. Geological Survey 7.5 minute quadrangle topographic map.  No hard-surface or impermeable surface roads, including gravel on compacted base, or driveways would be permitted in this area except by special use permit. 


When disturbance is necessary to cross streams to access a portion of the property as set forth above (or as otherwise allowed in the MOD), best management practices would be imposed.


Development in a stream buffer may[6] be authorized in the following circumstances, provided that a mitigation plan[7] is submitted to, and approved, by the program authority: 



d.  Height Restrictions


No building within the ridge area would be permitted to exceed 35 feet in height or to exceed the height of an adjacent crest, whichever is more restrictive.[9]


e.  Safe Access


Building sites within the MOD will not be approved unless the applicant can demonstrate that fire and rescue vehicles will be able to safely access the site.

f.  Waiver or Modification

An administrative waiver or modification from one or more of these requirements would be available.  Such waiver or modification could be granted only upon a finding that alternatives proposed by the developer would advance each of the purposes of the ordinance to an equivalent or greater degree than strict application of these requirements.[10]  In making this determination, the appropriate body—the Program Authority or the Planning Commission—would take into account the effects of the developer’s overall plan for the property (including residential construction and related road or driveway construction or road or driveway improvement), and if a waiver were issued, it would include any conditions on development necessary to protect the purposes of the ordinance. 


A variance would be available in cases of undue hardship under existing regulations.[11] 


Application of the Ordinance may result in inability to use all division rights[12] that have been allocated to properties in the MOD – that is, because of measures in the Ordinance, parcels may not be able to be developed as extensively as they would without these measures.   Property owners would have the ability to moderate the effect of these measures through waivers and modifications.




B.  Guidelines for Incorporation into a Future Rural Cluster Subdivision Ordinance for the MOD


For Rural Preservation Developments (RPDs) in the MOD, rural preservation parcels (RPPs) will include any ridge area in the RPD or as much of it as feasible consistent with utilization of all development rights otherwise available to the parcel.  The RPP will retain a development right.  The RPP will be configured and conditioned to minimize adverse impacts on hydrology, biodiversity, aesthetics, cultural and other historical resources, agricultural and forestal soils and uses, public safety, and to preserve property values within and outside the MOD.  


Development lots outside the RPP will be configured and conditioned to minimize impacts on these same resources and property values.[13] 


Construction in RPDs in the MOD will also be subject to the generic requirements in the MOD Ordinance, as above. 



C.  Additional Protection for Mountain Resources


The County’s Comprehensive Plan makes specific provision for acquisition of property interests, such as purchase of development rights (PDR), to protect the mountains.  The Committee proposes expanded efforts within the MOD to:



More specifically, beyond the ordinance and clustering proposed in this document, the Committee believes the Board of Supervisors must develop innovative and flexible approaches to protecting Albemarle’s mountains.  It has generated the following list of ideas, although it is not endorsing any single one.  The list is certainly not intended to be exhaustive; rather, the Committee encourages the Board to think creatively.



Enactment of one or more of these approaches would not be designed to compensate landowners for the impact of the proposed ordinance.  Instead, they would create additional protections for the MOD beyond what may be accomplished by regulation.


It is the Committee’s desire to avoid adverse impacts on the viability of the ACE program as well as on any other similar program or regulatory provision in the County.


[1] “Mountain Overlay District” memorandum from Joan McDowell to the Mountain Overlay District Committee, March 16, 2004.

[2] Ibid. and “Mountain Overlay District Committee Meeting Notes,” April 5, 2004.

[3] A 13th member, Katie Hobbs, moved to Georgia in late 2005.

[4] Virginia Code § 15.2-2295.1 defines “crest” to mean “the uppermost line of a mountain or chain of mountains from which the land falls away on at least two sides to a lower elevation or elevations.”

[5]  See Albemarle County Code § 18-4.2.1 (definition of “building site”). 

[6] Albemarle County Code § 17-321 provides that the activities “may” be authorized by the program authority, but the authority does not have to permit the activities in all cases.

[7] The mitigation plan mandated by Albemarle County Code § 17-322(C)(2) requires, among other things, that the activity be located so that it is the least disruptive to the functions of the stream buffer.

[8] See Albemarle County Code § 17-321.

[9] It is the Committee’s intention that “adjacent” refers to a crest on which a residential dwelling could be constructed.

[10] Compare with Albemarle County Code §§ 18-4.2.5 and 18-5.1(a).

[11] See Albemarle County Code § 18-34.2.

[12] The term “division rights” includes “development rights.”

[13]  See Mountain Design Standards, Natural Resources and Cultural Assets Plan, which is a component of the Albemarle County Comprehensive Plan, pp. 116-117;  Strategies, Rural Areas Plan, which is a component of the Albemarle County Comprehensive Plan, pp. 37-38;  and Memorandum to Planning Commission from Stephen P. Waller (May 24, 2005) (Ragged Mountain Farm RPD).

[14] § 58.1-3666.  Wetlands and riparian buffers.  Wetlands, as defined herein, that are subject to a perpetual easement permitting inundation by water, and riparian buffers, as defined herein, that are subject to a perpetual easement permitting inundation by water, are hereby declared to be a separate class of property and shall constitute a classification for local taxation separate from other classifications of real property. The governing body of any county, city or town may, by ordinance, exempt or partially exempt such property from local taxation.  "Riparian buffer" means an area of trees, shrubs or other vegetation, subject to a perpetual easement permitting inundation by water, that is (i) at least thirty-five feet in width, (ii) adjacent to a body of water, and (iii) managed to maintain the integrity of stream channels and shorelines and reduce the effects of upland sources of pollution by trapping, filtering, and converting sediments, nutrients, and other chemicals.  "Wetlands" means an area that is inundated or saturated by surface or ground water at a frequency or duration sufficient to support, and that under normal conditions does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, and that is subject to a perpetual easement permitting inundation by water.  (1998, c. 516.)

[15] Approved by the Governor—Chapter 573 (effective 7/1/06).  Transfer of development rights.  Allows localities to provide for the transfer of development rights from a parcel of property located in the locality to another parcel of property located elsewhere in the locality.


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