Attachment B



History of the Work of the 2004-2006 MOD Committee


The MOD Committee met 27 times from April 5, 2004, through August 1, 2005.  During that time, attendance varied from 54% to 100% of the Committee’s 13 members; we had 100% attendance only once, on December 6, 2004.[1]  The work of the Committee was continued by a subcommittee consisting of Jon Cannon, Harry Levins, Joan McDowell, and Greg Kamptner, who met several times in late 2005 and early 2006.  Katie Hobbs moved to Georgia in the fall of 2005, reducing the Committee’s membership to 12.


The MOD Committee’s work over the last two years can be divided into four phases.


Phase 1 – Education, research, and discussion (14 meetings, April 5 through December 6, 2004).  In June 2004, the Committee chose two Co-Chairs and adopted a consensus process (see Attachment 1).  The Committee examined the 1998 ordinance and decided to write a new one instead of revising the old, although the 1998 definition of the area to be regulated was retained.  The Committee heard presentations on biodiversity, critical slopes, mountain access by fire and rescue vehicles, the Freedom of Information Act, lumber industry and forestry practices, parcels within the MOD, legal constraints limiting the Committee’s options, and many other topics.  The Committee reviewed maps of debris flows, topography, the 1998 MOD boundaries, etc. The Committee spent several sessions discussing the theoretical loss of division rights under the 1998 ordinance.[2]  At the December 6, 2005, meeting, the Committee asked a subgroup to draft a summary of the 2005 discussions for consideration by the full Committee.


Phase 2 – Summarizing framework (two meetings, January 10 and 24, 2005).  The Committee discussed and commented on a “Framework for a MOD Ordinance” that was designed to summarize the tentative conclusions the Committee had reached in 2004.  Most, if not all, members of the Committee agreed with a majority of the provisions of the Framework.  In fact, it is likely a majority agreed with all major provisions of the Framework.  However, we did not have unanimity on all provisions (i.e., consensus).


Phase 3 – Seeking consensus (11 meetings, February 7 through August 1, 2005).  Since the Committee did not achieve consensus with the Framework, it decided to build consensus from the top down in three steps:

  1. Choosing major elements
  2. Describing major elements
  3. Detailing the provisions

At a single meeting (February 7, 2005), the Committee quickly agreed on the following major elements, with one member “reserving assent”:

  1. Strengthening environmental protection
  2. Mandating Rural Preservation Development (RPD)/clustering
  3. Expanding programs to purchase easements within the MOD through negotiated agreements with landowners

From March through June, the Committee fleshed out most of second step (or “level,” as the Committee called it).  But it encountered two difficulties:

  1. The Committee learned that, for legal reasons, the County could not develop a clustering ordinance just for the MOD; it would have to develop one for the entire County.  That meant we could retain this element as one of our recommendations to the Board of Supervisors, and we could recommend how the clustering regulations should be tailored and applied in the MOD, but we could not develop our own ordinance.
  2. In July two members expressed opposition to one of the three level-one elements, “expanding programs to purchase easements within the MOD through negotiated agreements with landowners.”  Because the Committee had achieved consensus on this element in February, we could retain it as part of our recommendation, but the objections effectively stopped us from adding any flesh to it.

By August 2005, we had a three-legged proposal, but it appeared only one leg (strengthening environmental protection) could be developed in detail.  At the August 1st meeting, the Committee delegated the task of developing an environmental protection ordinance[3] to Co-Chair Jon Cannon with help from County staff.

Note:  The consensus document developed in Phase 3 is attached (Attachment 2).


Phase 4 – Drafting an environmental protection ordinance3 (September 2005 through February 2006).  Jon Cannon (with assistance from Committee Co-Chair Harry Levins, Deputy County Attorney Greg Kamptner, Principal Planner Joan McDowell, and other County staff) wrote the draft environmental protection ordinance3 (the “straw proposal”) you have before you today.  Jon met with each member of the Committee to review its major elements.  The proposal includes references to the other two legs of our original three-legged consensus:  mandating RPD/clustering and expanding programs to purchase easements within the MOD through negotiated agreements with landowners.  The Subcommittee is hoping this straw proposal will help the Committee bring its work to a fruitful conclusion.


Attachment 1 of History

Summary of the MOD Committee’s Consensus Process


1.       Definition of consensus.  Webster’s Dictionary defines “consensus” as “general agreement; unanimity; accord; collective opinion:  the judgment arrived at by most of those concerned.”  When the Committee makes a decision, it aims for unanimity, although that will not always be possible.


2.       Implementation

a.       Objection.  Participants may object to the emerging consensus.  Objections will require further discussion, as the goal is to make a decision that is acceptable to all (true consensus).

b.       Major objection.  If a decision acceptable to all cannot be found, those who object to the majority decision can go on record as having a major objection to the final decision.  In true consensus, a major objection blocks the decision from being implemented; if action is needed, discussion must continue until a compromise resolution is found.   However, using “major objection” that way could terminate the MOD Committee’s deliberations.  Therefore, the Committee will attempt to obtain true consensus but, failing that, move forward with minority opinions duly documented.

c.       Missed meetings.  The nature of consensus requires attendance by every Committee member at each meeting.  Since this is virtually impossible in an age of multiple responsibilities and conflicted schedules, the Committee must develop a way of continuing the consensus decision making process even when some members are absent.  The alternatives are endless delays (as we wait for 100% attendance) or decisions that absent members can later disavow—wasting all of the time the Committee spent making the decision, and derailing the effort to fulfill the Committee’s mission.  Therefore, if a member cannot attend a meeting, he or she must give his or her “proxy” to another Committee member who will be attending the meeting.  That Committee member will speak for the absent member, and the absent member will be bound by decisions made in his or her absence.


Attachment 2 of History

Albemarle County Mountain Overlay District (MOD) Committee

Development of a Draft Ordinance

Version Used for the August 1, 2005, Discussion


First Level

On February 7, 2005, the Committee agreed to the following high-level framework for a MOD Ordinance:

  1. Strengthening environmental protection
  2. Mandating RPD/clustering
  3. Expanding programs to purchase easements within the MOD through negotiated agreements with landowners


Second Level

  1. The new ordinance will use the MOD boundary lines established in the 1998 revisions to the Comprehensive Plan.  (approved Feb. 7 and modified May 2)
  2. The new ordinance will incorporate critical slope, stream buffer, and other regulations in order to minimize potential negative human impact on soils, water quality, native species, hydrological flows, etc. within the MOD.  These regulations could take the following form:
    1. Performance-based
    2. Design specifications
    3. Prohibitions/invariable requirements  (approved March 21)
  3. Rural Preservation Development (RPD) / clustering of houses will be mandatory.
    1. RPD regulations within the MOD will minimize the adverse impacts of development across a range of criteria tailored to the topography and other aspects of the MOD.  Determination will be made on a case by case basis. (approved April 4)
    2. A single dwelling unit is permitted in each preservation tract.  The dwelling unit will be subject to the RPD regulations mentioned in 3.a.  (approved April 18)
    3. Within the MOD, all residential construction and access thereto (that is not subject to the RPD regulations) will be subject to regulations that minimize the adverse impacts referenced in 3.a.  (approved April 18)
    4. For the third level, the Committee will develop directional bullet points (meaningful guidance).  (approved July 18)
  4. Citizen advisory committee.  Tabled—no further discussion planned.  Four possible roles discussed:  pre-application advice to applicants (on voluntary basis); technical advice to staff; review of process for implementing MOD ordinance; and recommendations for modifying standards for development in the MOD, once implemented.  (tabled May 16)
  5. FOR FURTHER DISCUSSION:  County-wide special tax district that could raise funds to purchase development/division rights within the Mountain Overlay District (MOD); lease payments in exchange for non-development (but no permanent preservation and politically unpopular); other.
  6. Virginia Code § 15.2.2286 does not appear to authorize transfer of development rights.  Tabled—no further discussion planned.  (tabled May 16)




[1] I do not have a copy of the minutes for the June 7, 2004, meeting, so I am unsure of the attendance.

[2] Legally, all division rights (which include development rights) are hypothetical until an attempt is made to exercise them.  Under specific circumstances, it is possible that some rights that would have been otherwise exercisable might not have been if the 1998 ordinance had been adopted.

[3] The elements of an ordinance, not the legal language.


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