COUNTY OF ALBEMARLE

 

EXECUTIVE SUMMARY

 

 

AGENDA TITLE:

Update on Cismont Zoning Violation (TMP 65-20)

 

 

SUBJECT/PROPOSAL/REQUEST:

Update on Cismont Zoning Violation: Illegal Junkyard on TMP 65-20

 

 

STAFF CONTACT(S):

Messrs. Tucker, Foley, Davis, Kamptner, Graham

Ms. McCulley,  Wyatt

 

LEGAL REVIEW:  Yes

 

AGENDA DATE:

February 8, 2006

 

ACTION:                            INFORMATION:      X

 

CONSENT AGENDA:

  ACTION:                         INFORMATION: 

 

 

ATTACHMENTS:        Yes

 

 

REVIEWED BY: 

 


 

 

 

BACKGROUND:  


 

This report relates to an existing zoning violation located at 195 Campbell Road (TMP 65-20) in the Keswick/Cismont area on property owned by Cecil and Doris Gardner.  The property is zoned RA, Rural Areas, and encompasses 16.0 acres.  County officials determined that an illegal junkyard existed on the property in January 2005, and have been pursuing compliance (clean up of the property) since that time.  This matter comes before the Board as a status update from staff and an opportunity for citizens to express concerns and questions.   

 

The County’s Zoning Division received a total of four citizen complaints regarding this property from 1969 to 2004.  No enforcement action was taken in response to the complaints because former zoning inspectors and other county officials mistakenly thought that the junkyard on the property was a legal non-conforming junkyard.  A nonconforming use is a use that lawfully existed prior to adoption of an ordinance that made it illegal.  This is sometimes (mistakenly) referred to as “grandfathering.”  A nonconforming use enjoys certain protections and in most circumstances the use is allowed to continue in its then-existing condition.  In fact, junkyards were not permitted on this property under the original 1969 Zoning Ordinance. 

 

As a result of a citizen complaint after the January 4, 2005 fire, the property was re-evaluated and after further research and consultation with the County Attorney’s Office, the Zoning Administrator determined that the junkyard was not a legal nonconforming use but was a zoning violation.  Aerial photographs taken soon after the 1969 Zoning Ordinance was adopted show that a junkyard did not exist on the property at that time.  Therefore, the junkyard could not attain nonconforming status when the 1969 Zoning Ordinance was adopted.  The Zoning Administrator’s determination was issued to the property owners in writing on February 8, 2005 and it is final and unappealable.  As a result, the junkyard is a zoning violation and the Zoning Division has been pursuing compliance.  Since the property owners were notified of this violation, they have been continuing to clean up the property. 

 

STRATEGIC PLAN:

Protect the County’s Natural, Scenic and Historic Resources

 

DISCUSSION:

On January 4, 2005, there was an outdoor fire on the property resulting from open burning.  Representatives from the Albemarle County Fire Rescue Department responded to this fire.  The day after the fire, the County’s Zoning Division received a citizen complaint and conducted a site visit to investigate.  As a result, the junkyard on the property was found to be an illegal junkyard.  The majority of materials found on the property included inoperative vehicles and metal of various types (fencing, old bicycles and the like).  In addition, tires, (non-asbestos) shingles, paint cans and various appliances were found.  There was no evidence of buried materials or actively leaking containers. 

 

After the fire, the owners received a Notice of Violation (see attached) and a schedule for clean-up.  The Virginia Department of Environmental Quality (DEQ), which had done an initial visual inspection on January 26, 2005, and the Albemarle County Fire Rescue Department were consulted to prioritize the removal of materials.  Those items which presented a potential safety or health impact were placed on the removal deadline list in the order of their potential impact.

 

The property owners were required to show that high priority items were disposed of properly by providing receipts.  So far, they have cooperated with all of the County’s requirements and continue to clean up the property.  This is being monitored and documented with photographs in weekly onsite inspections by Zoning.   

 

At the request of the County Fire Rescue Department, a representative from the Virginia Department of Emergency Management (VDEM) came to the property to investigate and to determine if this site should be referred to the Environmental Protection Agency.  It was VDEM’s conclusion that this site does not rise to the level of EPA jurisdiction.

 

Also at the request of the County, soon after the fire the Health Department came to the site with staff.  At that early date, the County was trying to determine if the materials on the property posed an imminent health threat, such as to area drinking water.  They assessed which area wells would be most logically impacted by potential pollution from the site and recommended three (3) wells for testing.  County Fire Rescue obtained necessary training and sampled those wells.  The water samples were sent to the State lab and were subsequently all found to not exceed the maximum levels for which they were tested.

 

As a result of citizen concerns, The County held a community meeting at Stone Robinson School on June 29th to provide information and receive comments.  In attendance were representatives from the County, DEQ and the Health Department. Since that meeting, the County has provided weekly email/mail updates to those citizens requesting them. 

 

Several speakers at the meeting expressed concerns about cancer resulting from materials on this property.  To address this concern, a Virginia Department of Health Industrial Hygienist reviewed the well tests and the incidence of cancer in the area.  A report from the Health Department in August 2005 states “data from the Virginia Cancer Registry suggests that a cancer cluster does not exist in zip code area 22947,” which includes the property in question.

 

Several citizens remained concerned about environmental impacts from this use.  DEQ is overseeing the environmental concerns related to this property.  DEQ has developed a soil and water sampling plan for the property to determine what, if any, threat to the environment the junkyard may pose.  It is important to note that neither Zoning staff, nor any other County staff, has the expertise or jurisdictional authority to assess the environmental impacts of the use, assess the draft sampling plan, conduct further soil/water testing, or to order such testing.       

 

The materials identified on the clean-up schedule that could have created potential health, safety and/or environmental hazards have been removed from the property.  Staff estimates that the property is approximately 50% cleaned-up at this time.  The current schedule for clean-up is included at the end of this report.  The schedule has been revised since it was originally issued due to the amount of materials to be removed (the scale of this project) and due to good progress shown by the property owners.  In addition, with abatement of any violation we typically set shorter deadlines to encourage continued progress and to give the County the opportunity to monitor progress closely.  Staff is monitoring the progress in this case with visits to the property every week.  It is possible that additional extensions, if necessary, may be given in the future, assuming that significant and timely progress continues.  This is the County’s standard operating practice and it is what the courts expect to have occurred before a judicial remedy is pursued. 

    

Representatives from the Zoning Division are in frequent consultation with DEQ.  Zoning also has a team with the County Fire Rescue Department and the Health Department with whom it can consult if issues arise.  Additional clarification about the roles and responsibilities of the various agencies mentioned is provided in Attachment D.  If progress with the clean up continues to be timely and significant, Zoning will continue pursuing voluntary compliance.  Our primary focus during this time period has been to get the site cleaned up appropriately and to get continued voluntary compliance from the property owners.  The County and DEQ will evaluate the nature of the materials removed during clean-up to determine if any additional action is necessary or if the clean-up is complete. 

 

BUDGET IMPACT:

There is no anticipated budget impact from our current course of action. 

 

RECOMMENDATIONS:

Staff recommends that it continue with the current course of action.  Staff will continue to work towards voluntary compliance with the property owners as long as they continue to make significant progress.  Based on what has taken place over the course of this past year, staff expects to see continued cooperation with the clean-up.  Zoning staff plans to continue providing weekly site visits and weekly email/mail updates to citizens.

 

DEQ will be present to speak at the Board meeting.  DEQ will proceed with implementation of a sampling plan for the property.  While enforcement and implementation of that plan are not within the County's jurisdiction, we will continue to use the weekly updates to inform citizens of any new information.

****

Staff wishes to acknowledge that this case involves an honest and inadvertent error in zoning analysis in the past.  We would like to point out several very positive results from our current work on the case:

 

  1. Zoning has instituted a new procedure that will reduce and perhaps eliminate errors made in finding a violation is nonconforming when it is not;
  2. Zoning has developed a system for monitoring cases and providing public information which can be used in other cases.
  3. Zoning has forged a strong working partnership with other relevant agencies such as County Fire Rescue, DEQ and the Health Department.  That partnership will assist us in other cases.
  4. County Fire Rescue staff has received training in state solid waste regulations as well as well testing.

 

 

ATTACHMENTS:

A – February 8, 2005 Notice of Violation

B – Progress Report and Deadlines as of 1/19/06

C – Frequently Asked Questions about TMP 65-20 Junkyard Clean-up

D – Roles of Various Agencies

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