COUNTY OF ALBEMARLE

 

EXECUTIVE SUMMARY

 

 

 

AGENDA TITLE:

Rural Areas Resource Protection

 

 

SUBJECT/PROPOSAL/REQUEST:

Rural Areas Resource Protection Issues Summary

 

 

STAFF CONTACT(S):

Messrs. Tucker, Foley, Davis, Kamptner, Graham, Cilimberg, Benish; Ms. McDowell

 

LEGAL REVIEW:   YES

 

 

AGENDA DATE:

May 2, 2007

 

ACTION:   X                        INFORMATION:   

 

CONSENT AGENDA:

        ACTION:                      INFORMATION: 

 

 

ATTACHMENTS:   YES

 

 

REVIEWED BY:

 

BACKGROUND:

Following the Mountain Overlay District (MOD) Committee’s presentation of their proposal, the Board of Supervisors and Planning Commission held two public input meetings and three work sessions to discuss issues related to those recommendations (See Attachments A & B).  As a result of the public input received, the Board requested that staff present an alternative proposal that would apply some provisions of the MOD Committee’s proposal to the entire Rural Areas.  That alternative proposal was discussed with the Board at December 13th and January 10th work sessions (Attachments C & D). At the conclusion of the January 10th work session, the Board directed staff to prepare a summary of the Board’s preference with respect to a proposal.  This work session is to verify the Board’s position, allowing ordinance amendments in support of that position to move forward.     

 

STRATEGIC PLAN:

Goal 2.  Protect the County’s Natural Resources

Goal 4.  Effectively Manage the County’s Growth and Development.

 

DISCUSSION:

This discussion will present a summary of staff’s understanding of each element with respect to the proposal.   The term “Rural Areas Resource Protection” was suggested to replace Mountain Overlay District, recognizing the proposal now encompasses the entire Rural Areas. The Board also directed staff to add the extension of ownership requirements of family divisions, as an issue to include in the review. Therefore, the discussion has been expanded to include all of the Rural Areas land use designation and Family Divisions.

 

1Critical Slopes – The Board agreed to reduce the impact on natural resources from Rural Areas development by removing the exemption for access ways (roads and driveways) across critical slopes.  Waivers, as described below, would be available to prevent property owners from being denied reasonable use of their property.  This provision would be implemented by amending §4.2. of the Zoning Ordinance to remove the access ways exemption from critical slope requirements.  Staff believes the administrative burden of this provision can be minimal for the County and applicants by providing digital maps depicting critical slopes in the Rural Areas.  This mapping has already been prepared and made available to the public using the GIS Web.  

 

2. Stream Buffers – The Board agreed to reduce the impact on natural resources from Rural Areas development by providing uniform stream buffer standards throughout the entire Rural Areas and expanded buffers in the MOD.  This would be accomplished by having stream buffers that extend 100’ on each side of all streams within the Rural Areas and 200’ on each side of all streams in the MOD. Rural Areas property within the Water Supply Areas already have all stream protected by 100’ buffers.  Thus, this change would simply apply the same standard to all Rural Areas property outside of the MOD and provide an expanded stream buffer in the MOD. The Board expressed interest in hearing from Stream Watch or others on the potential benefit of this buffer standard or even greater buffers. John Murphy, Director of Stream Watch, and Ridge Schuyler, Director of The Nature Conservancy Piedmont Program and a contributor to the Rivanna River Commission, have expressed support of the proposed buffer regulations (Attachments E and F). This provision would be implemented by amending §17-301, §17-302, and §17-317 of the Water Protection Ordinance.  Staff believes this change would reduce the administrative burden by applying the same standard to all Rural Areas property. 

 

3.   Safe and Convenient Access – To assure public safety, the Board agreed that safe and convenient access, as currently required by the Zoning Ordinance, would include assuring fire and rescue vehicles could safely access the residence. As a requirement for safe and convenient access already exists in the Zoning Ordinance, this simply requires an affirmation by the Board that this access requirement should include emergency vehicles and staff can rely on Fire/Rescue to define what they believe is needed with their vehicles.   

 

4.   Erosion and Sediment Control – To assure the three provisions described above were enforced, the Board agreed that Erosion and Sediment Control plans, rather than Agreements in Lieu of a Plan, would be required for all new single family houses in the Rural Areas.  This plan would allow staff to verify that critical slopes and stream buffers are not being disturbed, as well as assuring the driveway is properly designed.  Staff believes this provision could require applicants to spend upwards of an additional $1,000 per new house for preparation of plans and an increased permit fee. This change would require an additional Erosion Control Inspector/Reviewer to manage the increased workload.   

 

5.   Waivers and/or Modifications - The ability to waive or modify the above requirements would be necessary for circumstances where no alternatives are available for a reasonable use of the property.  To simplify the administration of this process, the Board agreed that waivers or modifications could be granted through a staff administered process, with appeals to the Planning Commission.  This process was part of the original MOD Committee’s recommendation.  

 

6. Family Divisions – While outside of the original MOD recommendation, the Board asked that this be brought back for review.   The length of ownership (both before and after family division) was an issue discussed with the RA clustering and phasing initiatives, as family divisions would have been exempted from those regulations. Staff believes the Board consensus supported ownership for 5 years before and after the family division.  The Commonwealth of Virginia has enabled localities to require family ownership of parcels 15 years before and after the division.

 

7.  MOD recommendations not being pursued -   The Board agreed not to further consider the recommendations related to height of buildings related to the ridgeline and clustering with Rural Preservation Development. 

 

8.  MOD recommendations pursued outside of ordinance changes - Through its Strategic Plan, the Board has an objective of adding at least 30,000 acres in conservation easements or qualified parkland and agreed to increase the budget for the Acquisition of Conservation Easements program.

 

BUDGET IMPACT:

Staff does not anticipate this proposal would impact property assessments, but some Rural Areas property may become more difficult to subdivide. Staff has determined the primary fiscal impact of this proposal would be associated with the required Erosion and Sediment Control plan and the need for an additional Erosion and Sediment Control Inspector / Plan Reviewer to support this change.  That position would have a first year expense of approximately $78,000 and subsequent year expenses of approximately $58,000.  That cost could be offset by additional fees.  By switching from Agreements in Lieu of a Plan to Erosion and Sediment Control Plans, the current fees would increase by approximately $29,000 (assuming an average of 290 new houses per year in the Rural Areas). The Erosion Control Permit fee for a single family house would need to be raised from the current $130 to $205 for the new position to be fully supported by fees.  It should be noted that the currently used Agreements in Lieu of a Plan requires a fee of only $30 while staff estimates the administrative cost of this permit is several times higher than the fee.   Thus, this fee change could eliminate some General Tax support for administration of the Erosion and Sediment Control Program.  

 

RECOMMENDATIONS:

Staff recommends that the Board of Supervisors review the discussion summary and, if no changes to the direction are required, adopt the attached Resolutions of Intent for the Zoning and Subdivision text amendments that will allow staff to bring forward the ordinance amendments. The amendments to the Water Protection Ordinance do not require a Resolution of Intent.

 

ATTACHMENTS

A          Mountain Overlay District Chronology

B          Mountain Overlay District Committee proposal

C          Executive Summary, December 13, 2006

D          Executive Summary, January 10, 2007

E          Letter, Stream Watch, John Murphy, dated March 28, 2007

F          Memorandum, Thomas Jefferson Soil and Water Conservation District, Alyson Sappington, August 10, 2000

G1        Resolution of Intent-Critical Slopes

G2        Resolution of Intent-Safe and Convenient Access

G3        Resolution of Intent-Family Subdivisions

 

* * * * * * * * * *

 

ATTACHMENT A

 

MOUNTAIN OVERLAY DISTRICT CHRONOLOGY

 

1971:    Mountain protection efforts began with the adoption of the County’s first Comprehensive Plan that described the mountains as “conservation areas.”  The provisions of the proposed Mountain Overlay District are based on concerns described in that Plan and successive Comprehensive Plans.

 

1980:    Steps were taken to protect mountains through regulation when the Rural Areas zoning district and the critical slopes provisions were adopted.  The critical slopes provision currently requires a “building site” (minimum 30,00 square feet less than 25% slope, critical slopes, for the location of the dwelling and septic system).  Driveways are not regulated on critical slopes.

 

1992:    The Open Space and Critical Resources Plan, adopted by the Board of Supervisors as part of the Comprehensive Plan, recommended a mountain protection ordinance and first defined mountains by contour elevations.

 

1995:    The Board of Supervisors appointed a twelve member Mountain Protection Committee to study mountain protection measures and to make a recommendation regarding an ordinance.

 

1996:    The Committee’s final report, the Proposed Mountain Protection Plan dated August 1, 1996, recommended that the Board adopt an ordinance to protect water quality, reservoir capacity, soil conservation, forest resources, plant and animal habitat, and scenic values with their associated impact to the economy, tourism, and public safety.  The Board of Supervisors received the report on September 4, 1996, and directed the Planning Commission to hold sessions on a proposed ordinance as recommended by the Committee.  The Planning Commission held three sessions that fall, leading to the resolution of intent adopted on October 15, 1996.  Staff was directed to prepare ordinance language. 

 

1996-

1998:    Following work sessions and a final public hearing, the Planning Commission recommended approval unanimously (6-0) of all three amendments (Comprehensive Plan Amendment CPA 98-01, Zoning Text Amendment ZTA 98-05, Zoning Map Amendment ZMA 98-10).

 

1998:    The Board approved The Comprehensive Plan Amendment (Mountain Protection Plan). The Zoning Text Amendment and the Zoning Map Amendment were tabled; thus, action on these amendments was deferred.

 

2002:    The Board of Supervisors determined that they would reconsider the Zoning Text Amendment, as revised by the Board in 1998, and the Zoning Map Amendment. 

 

2003:    Open House Informational Meetings held.

 

2003:    The Board of Supervisors determined that a new Committee should be appointed to consider the proposed Ordinance when the Rural Areas Comprehensive Plan work was further along.  The Board appointed a twelve-member Mountain Overlay District Committee and one liaison from the Board of Supervisors.

 

2004-   

2006:    Mountain Overlay District Committee met over two years before arriving at a consensus on a proposal to protect mountain resources.  The Committee arrived at consensus only after long, arduous debates, and extensive research that included visits from outside experts.   They strived to achieve a balance between individual property rights, retaining property values, and protecting finite natural resources.

 

2006:    May 10, the MOD Committee presented its proposal to the Board

            August 1 and 3, Public Input meetings held at Burley Elementary School

September 13, the Board held a work session to further discuss the MOD proposal

December 13, the Board held a work session to discuss the MOD proposal and directed staff to return with information pertaining to expanding the MOD proposal into the RA.

 

2007:    January 10, the Board generally indicated that it would not approve establishing a Mountain Overlay District, but instead it wanted additional information regarding provisions in the MOD proposal that could be utilized in the entire RA; provisions for a policy change for requiring an E &S Plan instead of an Agreement was directed to be placed on a future agenda.

* * * * * * * * * *

Proposal for Protection of Albemarle County’s Mountain Resources by 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.

* * * * * * * * * *

COUNTY OF ALBEMARLE

 

EXECUTIVE SUMMARY

 

 

AGENDA TITLE:

Mountain Overlay District and Rural Areas Resource Protection Work Session

 

 

SUBJECT/PROPOSAL/REQUEST:

Protection of Albemarle's Rural Areas Resources

 

 

STAFF CONTACT(S):

Tucker, Foley, Davis, Kamptner, Graham, Cilimberg, Benish, McDowell

 

 

LEGAL REVIEW:   Yes

 

 

AGENDA DATE:

December 13, 2006

 

ACTION:      X                        INFORMATION:   

 

CONSENT AGENDA:

  ACTION:                             INFORMATION:   

 

 

ATTACHMENTS:       Yes

 

 

REVIEWED BY:

 

 

 

BACKGROUND:

On September 13, 2006, the Board of Supervisors held a work session to discuss the Mountain Overlay District (MOD) Committee's recommendations for a three-part program to "protect the economic, cultural, and natural resources of Albemarle County's mountains."  The Committee's report advised, "several aspects of the proposal, such as enhanced protection for critical slopes, might be appropriate for general application in the County's Rural Areas."  The Board directed staff to investigate extending the protection measures recommended in the MOD framework to the rest of the Rural Areas and to schedule a joint meeting with the Planning Commission to review this report.  A copy of the proposed MOD framework is attached as reference (Attachment A). The Board did not vote on the Mountain Overlay District Resolution of Intent.

 

STRATEGIC PLAN:

Goal 2: Protect the County's natural resources.

 

DISCUSSION:

The Proposal for Protection of Albemarle County's Mountain Resources recommended by the MOD Committee consists of what the Committee referred to as a "three-legged stool." This three-part program includes: a) a mountain ordinance framework that focuses on protection of the MOD environment; b) principles that would mandate and govern Rural Cluster Subdivisions; and (c) public acquisition of interests in land.  The Committee stressed that all three "legs" would provide the comprehensive approach needed for protecting the lands in the Mountain Overlay District (Attachment A).

 

As the Board requested, this work session is to review an assessment of applying the MOD recommendations throughout the Rural Areas.  Staff’s analysis of applying the MOD recommendations throughout the Rural Areas is available in Attachment B. The format for this review includes the actual MOD framework quoted from the individual components, applicable comprehensive plan policies, existing ordinance regulations, and a question/answer segment to discuss some of the issues. 

 

BUDGET IMPACT:

When the Board has determined the direction regarding each of these regulations, staff will prepare a budget impact analysis. It is anticipated that additional staff resources would be required to process, inspect, and enforce many of these additional regulations. If the Board elects to do so, those additional costs may be recovered in permit fees.  Additionally, it is anticipated that providing accurate surveys and detailed plans, as well as any additional permit fees, would increase upfront costs to builders.   It is anticipated that all of the builder’s costs would be passed on to the future homebuyers.  While economic theory suggests these increased costs would constrain development activity in the Rural Areas, staff cannot speculate on whether the additional costs would have an appreciable effect on the rate of Rural Areas development.    

 

 

RECOMMENDATIONS:

The purpose of this work session is to provide an opportunity for the Board and Planning Commission to give staff direction. Based on direction given at this work session, staff would develop both a Resolution of Intent and ordinance amendments to comply with the Board’s direction.  To be able to proceed with that effort, staff needs answers to the following questions:

 

1.                Does the Board wish to proceed with any of the MOD Committee recommendations (Attachment B - Part A) and, if so, does the Board wish to limit all of these to a Mountain Overlay District or to expand this to include the entire Rural Areas?  If the changes were applied to all Rural Areas property in the same manner, the need to create a Mountain Overlay District is eliminated while creation of the district would be important if any provisions were to be limited to that district.

 

2.                If the Board decides to proceed with any of the proposed changes, which changes would they like brought forward? To assist the Board, the following list describes the possible changes discussed and provides staff’s position.

 

a.     Critical Slopes.   Staff believes applying the critical slopes provision over the entire Rural Areas would be effective at reducing development impacts and protecting natural resources.  Staff believes this would provide some, but not all, of the natural resource protection anticipated with the previously considered subdivision phasing and clustering provisions.  Staff believes limiting this provision to the MOD would also provide a benefit, but a much smaller one and would increase the complexity of plan reviews by creating two separate standards rather than simplifying with one standard.  It should be recognized that this provision can reduce the ability of some properties to exercise all of their development rights, but would provide for at least one dwelling on the property as it currently exists. If applied to the entire Rural Areas rather than the MOD, the number of properties potentially affected would significantly increase.         

 

b.      Erosion and Sediment Control Plan.  Staff believes there is not sufficient benefit for reducing the disturbance area to 2,500 square feet for all building permits, as building permits for new Rural Areas’ dwellings all fall within the current 10,000 square foot area threshold.  Reducing the area to 2,500 square feet would expand coverage to construction such as additions to houses and garages, which staff considers to have much smaller impacts. If there is interest in pursuing the critical slopes provisions and/or verifying safe access, staff will need to stop allowing use of Agreements in-lieu of a Plan and require complete E&S Plans, which include existing topography and all proposed grading.  Ending use of Agreements in-lieu of a Plan does not require any ordinance changes but will significantly increase the amount of work staff must do in both permit review and inspections.  It would also increase the cost to applicants for building permits in the Rural Areas.  

 

c.       Stream Buffers.  Staff has previously indicated a 200’ buffer width can be justified in the MOD, based on the increased sensitivity of those areas.  Staff does not believe water resource protection can justify a 200’ stream buffer for the entire Rural Areas.   Staff believes including stream buffers for intermittent streams throughout the Rural Areas, as is currently done in the Water Supply Areas, is a justifiable protection of natural resources and consistent with the County’s Strategic Plan Goal for enhanced protection of water resources. Including intermittent streams throughout the entire Rural Areas would potentially impact the ability of property owners to exercise all of their development rights, but provisions already in the Water Protection Ordinance allow at least some reasonable use of the property.     

 

d.       Building Heights.  Staff believes protection of ridges and crests provides benefit within the MOD, but there is little benefit in applying this to the entire Rural Areas.  Within the MOD, it should be noted that the benefit of limiting building height with respect to the ridgeline has been challenged as having unanticipated impacts, such as encouraging building on the slope near the ridge, which potentially increases both the natural resource impact and visibility.   Staff does not believe that

application of building height restrictions in relation to ridgelines should be applied to the remainder of the Rural Areas.

 

e.       Safe Access.   Staff believes this provision is already in the Zoning Ordinance, but the ordinance is not specific on what is required and difficult to enforce without seeing grading that demonstrates the requirement is being satisfied.   As discussed with E&S Plans, assuring compliance with this provision would require the County to stop allowing Agreements in-lieu of a Plan for new dwellings in the Rural Areas.  It should also be noted the Fire/Rescue Department has indicated that safe access is an issue throughout the County. Based on this, staff believes this must be uniformly applied across the entire Rural Areas.

 

f.        Waivers and Modifications.  Waivers, modifications or variances are available in the Zoning Ordinance.  The MOD framework provides clarification of the intent and offers administrative waivers, under certain conditions.  To simplify process and assure consistent application, staff believes waivers and modifications should be kept administrative whenever possible and limited to that needed to allow at least some reasonable use of the property.    

 

g.      Guidelines for Cluster Subdivision Ordinance.  The existing regulations apply to both the MOD and the Rural Areas.  Staff does not believe that the existing ordinance needs modification.

 

h.      Additional Protection for Mountain Resources.  Staff believes additional protection measures for the Rural Areas can be explored, but completion of the current efforts should take priority over starting any new effort. 

 

ATTACHMENTS

A-Proposal for Protection of Albemarle County's Mountain Resources

B- Staff analysis of applying the MOD recommendations throughout the Rural Areas

C-Discussion Points - Expanding the proposed MOD Stream Buffer provisions Countywide

D-Zoning Ordinance Sections 4.2.5 Waivers and 4.2.6 Exemptions

 

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COUNTY OF ALBEMARLE

 

EXECUTIVE SUMMARY

 

 

AGENDA TITLE:

Mountain Overlay District

Rural Areas Resource Protection

Joint Work Session

 

SUBJECT/PROPOSAL/REQUEST:

Mountain Overlay District Proposal for Protection of Albemarle County’s Mountain Resources

 

 

STAFF CONTACT(S):

Tucker, Foley, Davis, Kamptner, Graham, Cilimberg, Benish, McDowell

 

 

LEGAL REVIEW:   YES

 

 

AGENDA DATE:

January 10, 2007 Joint Work Session

 

ACTION:     X                      INFORMATION:   

 

CONSENT AGENDA:

  ACTION:                           INFORMATION:   

 

 

ATTACHMENTS:   Yes

 

 

REVIEWED BY:

 

 

 

BACKGROUND:

At its joint work session on December 13, 2006 with the Planning Commission, the Board of Supervisors continued its discussion begun at the work session on September 13, 2006, pertaining to the Mountain Overlay District (MOD) Committee’s Proposal for Protection of Albemarle County’s Mountain Resources (Attachment A).  The Board discussion focused on the MOD Proposal in order to obtain a sense of the willingness of the Board and Commission to move forward on each of the MOD provisions.  The Board also decided that it would take up the possibility of extending certain MOD provisions to the remainder of the Rural Areas after it concluded its discussion on the application of the provisions within the Mountain Protection Areas.  Following the discussion, the Board requested that staff schedule another work session to provide a two-hour time period for the Board to conclude its discussion. 

 

The Board reached general consensus to move forward with revised ordinance provisions for the following:

  1. Critical Slopes (restrictions for roads and driveways across critical slopes)
  2. Erosion and Sediment Control Plan (require a Plan instead of an Agreement in-lieu, in order to obtain a grading plan)
  3. Stream Buffers (200’ wide stream buffers, in order to protect steam head waters)
  4. Safe Access (ensure that safe access is provided to buildings)

 

Some Board members did want it understood that while they were agreeing to move forward, they were not committing to vote favorably for any particular provisions as they had not yet seen the particular details.

 

 

STRATEGIC PLAN:

Goals 4:  Effectively Manage the County’s Growth and Development. 

Objective 4.2:  By June 30, 2010, increase the protection of the County’s rural areas by implementing the key strategies of the Rural Area Plan.

 

DISCUSSION:

The remaining provisions of the MOD proposal to be discussed on January 10 are as follows:  

  1. Height Restrictions (building heights below the crests of ridges)
  2. Waiver or Modification (waivers available, if the purposes of the ordinance can be met; administrative or Planning Commission decisions should be discussed)
  3. Guidelines for Incorporation into a Future Rural Cluster Subdivision Ordinance for the MOD (existing Rural Preservation Development standards would be applicable to the MOD)
  4. Additional Protection for Mountain Resources (conservation easements, property tax adjustments, Transfer of Development Rights)

 

 

Also, if time permits, the Board will discuss the implications for extending certain MOD regulations throughout the remainder of the Rural Areas.  The December 13th Board Executive Summary (Attachment B) provides information regarding extending the MOD provisions into the remainder of the Rural Areas. 

 

A Power Point presentation to illustrate the progression of a subdivision through the application process will be given by staff at the beginning of the work session in order to clarify some of the issues raised at both the September 13 and the December 13 work sessions.

 

BUDGET IMPACT:

After the Board has completed its review noted above and provided direction, staff will prepare a budget impact analysis to accompany the proposed ordinance amendments as they are deliberated. It is anticipated that additional staff resources would be required to process, inspect, and enforce many of these additional regulations. If the Board elects to do so, those additional costs may be recovered in permit fees.  Additionally, it is anticipated that providing accurate surveys and detailed plans, as well as any additional permit fees, would increase upfront costs to builders.   It is anticipated that all of the builders’ costs would be passed on to the future homebuyers.  While economic theory suggests these increased costs would constrain development activity in the Rural Areas, staff cannot speculate on whether the additional costs would have an appreciable effect on the rate of Rural Areas development.    

 

 

RECOMMENDATIONS:

On September 13, 2006, staff recommended that the Board adopt a Resolution of Intent for the Mountain Overlay District based on the recommendations in the Comprehensive Plan and the recommendation of the MOD Committee (Attachment C). Staff continues to support proceeding with Mountain Overlay District provisions and recommends that the Board complete review of the provisions of the MOD proposal.  Furthermore, staff requests that the Board consider extending certain MOD regulations throughout the Rural Area as discussed in the December 13th Executive Summary (Attachment B).  Based on direction given at the January 10, 2007, work session, staff will develop the necessary Resolutions of Intent that comply with the Board’s direction and bring those to the Board for adoption at a subsequent meeting. 

 

 

ATTACHMENTS

A          Mountain Overlay District Committee recommended Proposal for Protection of Albemarle County’s Mountain Resources

B          Executive Summary, Board of Supervisor’s December 13, 2006, Joint Work Session with the Planning Commission

C          Resolution of Intent for the Mountain Overlay District

 

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April 5, 2007

 

Joan McDowell

Albemarle County Planning Department

401 McIntire Road
Charlottesville, VA 22902

 

Dear Ms. McDowell,

 

            It is my understanding that Albemarle is seeking advice from StreamWatch regarding stream buffering. StreamWatch is a partnership of the entities listed in the margin, and our mission is to provide data and information about local stream conditions and the factors driving those conditions. StreamWatch does not typically give management recommendations. However, when the science is clear, and if all StreamWatch partners are in agreement, we can participate in management discussions upon request. This is such a case.

 

StreamWatch has not performed a study of buffer effectiveness in Albemarle, and we do not believe such a study is needed in order for the County to make a well-informed decision about improving buffer protection. Buffering is perhaps the most intensively scrutinized aspect of stream management. Literally hundreds of peer-reviewed studies document the importance and effectiveness of buffers. Though this letter is not a comprehensive academic-style review of the literature, I, a number of StreamWatch technical advisors, and a number of StreamWatch steering committee members are sufficiently familiar with the literature to give us strong confidence in the comments that follow. The statements we make in this letter are supported by several representative papers and publications, including the Chesapeake Bay Riparian Handbook and an exhaustive review of buffer studies conducted by the University of Georgia’s Institute of Ecology. (Please see the list of references below).

 

A buffer, as you know, is a vegetated strip alongside the stream. The streamside zone, also called the riparian zone, exercises very strong controls over stream conditions. Our region’s natural vegetative condition is forest. Riparian forests serve to stabilize stream banks, control stream temperature, supply food (tree leaves) to aquatic organisms, facilitate reproduction for aquatic organisms that need forest habitat to complete their lifecycles, and filter runoff. Since local stream ecosystems are by nature“geared” to forested riparian zones, streams inevitably degrade when the forest is removed.

 

We base our recommendations on the assumption that Albemarle’s goal is to protect water quality and stream health throughout the County. We use the term water quality to refer to the physiochemical quality of stream water, where “better water” means water that carries fewer human-generated toxic, nutrient, and sediment pollutants and is less burdened by human-caused temperature increase than “poorer water.” We use the term stream health to refer to the ecological robustness of the stream, where “better health” connotes better water quality, better habitat, and richer biological diversity than “poorer health”. Water quality and stream health are interdependent. For instance, streams with poor biological diversity almost invariably have poor water quality.

 

Our recommendations are as follows:

 

1) Extend buffer protection to intermittent streams throughout the County. (Presently, intermittent streams are protected only in drinking water supply areas).

The protection of intermittent streams confers enormous water quality and stream health benefits to the entire stream system—not simply the intermittent streams themselves. Intermittent streams constitute the majority of stream miles in the stream network. Research shows that during stormflow, these streams can contribute large volumes of sediment and other pollutants to the system. Generally, the goal of good water quality and stream health cannot be met if intermittent streams are unprotected.

Most research indicates that a 100-foot buffer on either side of the stream is usually sufficient for water quality and stream health protection in non-hilly areas.

 

2) Increase buffer widths on sloping land, and in hilly and mountainous areas. As slope and runoff water velocity increase, buffer widths need to be increased. Formulae are available for calculating ideal buffer widths on sloping land. Minimally, a 200-foot buffer may provide an acceptable level of protection in most hilly settings, but on very steep land, buffers may need to be extended beyond 200 feet. Much research suggests that the target width of the buffer should not include land with greater than 25 percent slope. In other words, steeply sloping land does not provide buffering service, and these steep slopes should be subtracted when calculating the functioning width of the buffer.

 

3) Promote livestock exclusion. When given direct access to the riparian corridor, cattle and other livestock profoundly affect water quality and stream health. They do this by:

 

a) consuming buffer vegetation (thus diminishing the vegetation’s effectiveness as a pollution filter).

b) destabilizing stream banks, leading to erosion and sediment pollution.

c) wallowing in the stream and damaging stream habitat.

d) introducing excessive nutrient pollution by defecating in and near streams.

 

Livestock can undo most of the gains achieved by buffers, and a strategy that does not exclude livestock from the buffer will fail to meet many stream protection objectives.

 

4) Promote native forest in the buffer. Currently, a large portion of buffers in Albemarle is unforested, even in water supply areas. Grass buffers can help protect water quality by filtering runoff. But the natural condition of the Albemarle landscape is forest, and local stream ecosystems are adapted to this forested condition. Thus, buffers composed of native forest are essential for achieving overall stream health. Riparian forests maintain stream health by:

 

a) stabilizing stream banks with tree roots, thereby reducing erosion and associated sediment loading.

b) supplying essential food (i.e. the leaves of deciduous trees) for invertebrates. These invertebrates, in turn, support fish and other higher organisms.

c) serving as essential habitat for the aquatic invertebrates that need forested terrestrial habitat to complete their life cycles. Again, higher organisms depend on these invertebrates.

d) providing complex habitat for fish and other organisms in the form of woody debris (fallen trunks and limbs).

e) maintaining stream water temperature within the natural range of variation to which native organisms are evolutionarily adapted.

 

Buffers are not bullet-proof. Water quality and stream health are functions of conditions throughout the entirety of a stream’s watershed, and are also profoundly affected by flow alteration (e.g. impoundments and withdrawals for water supply; high stormflows caused by impervious surfaces). Effective watershed management incorporates many tools. Buffering is essential among these, and though buffers cannot solve all problems in all settings, the great majority of Albemarle streams would benefit tremendously if protected with a continuous, adequately-sized buffer of intact native forest.

 

On behalf of the StreamWatch partnership, I thank you for inviting these comments.

 

Sincerely,

John Murphy, Director

StreamWatch

 

 

 

List of References:

 

Allan, JD, Erickson, DL and Fay, J. 1997. The Influence of Catchment Land Use on Stream Integrity Across Multiple Spatial Scales. Freshwater Biology 37: 149–161.

 

Correll, DL. 2003. Vegetated Stream Riparian Zones: Their Effects on Stream Nutrients, Sediments, and Toxic Substances. An annotated and indexed bibliography of the world literature, including buffer strips and interactions with hyporheic zones and floodplains. Thirteenth Edition, April 2003.

 

Correll, DL. 2005. Principles of Planning and Establishment of Buffer Zones. Ecological Engineering. 24(5): 433-439.

 

Wenger, S. 1999. A Review of the Scientific Literature on Riparian Buffer Width, Extent, and Vegetation. Revised Version, March 5, 1999. Office of Public Service & Outreach, Institute of Ecology, University of Georgia.

 

Palone, RS, Todd, AH (editors). 1997. Chesapeake Bay riparian handbook: a guide for establishing and maintaining riparian forest buffers. Revised June 1998. USDA Forest Service. NA-TP-02-97. Radnor, PA.

 

Schueler, TR. 2003. Impacts of Impervious Cover on Aquatic Systems. Center for Watershed Protection. Ellicott City, MD.

 

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RESOLUTION OF INTENT

 

WHEREAS, the purposes of Section 4.2, Critical Slopes, of the Zoning Ordinance are to direct development away from critical slopes to more suitable terrain in order to protect and conserve critical slopes, public drinking water supplies and flood plain areas, and to reduce soil erosion, sedimentation, water pollution and septic disposal problems associated with the disturbance of critical slopes; and

           

WHEREAS, Section 4.2 establishes minimum requirements for the location of improvements and delineates several exemptions, including an exemption in Section 4.2.6 for accessways (driveways and roads) where no reasonable alternative location or alignment exists; and

 

WHEREAS, Section 4.2.5 allows modifications and waivers to be granted from the critical slopes requirements under prescribed circumstances, subject to reasonable conditions designed to mitigate the adverse impacts otherwise resulting from the disturbance of critical slopes; and

 

WHEREAS, in order to better achieve the purposes of Section 4.2, it is desired to allow the disturbance of critical slopes to establish an accessway only if the landowner obtains a modification or waiver, with reasonable conditions, rather than an exemption.

 

            NOW, THEREFORE, BE IT RESOLVED THAT for purposes of public necessity, convenience, general welfare and good zoning practices, the Albemarle County Planning Commission hereby adopts a resolution of intent to amend Section 4 and any other regulations of the Zoning Ordinance as described herein; and

 

BE IT FURTHER RESOLVED THAT the Planning Commission shall hold a public hearing on the zoning text amendment proposed by this resolution of intent, and make its recommendation to the Board of Supervisors, at the earliest possible date.

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RESOLUTION OF INTENT

 

WHEREAS, although the Zoning Ordinance requires safe and convenient access for developments subject to a site plan (Section 32) and parking lots (Section 4.12), and the Subdivision Ordinance imposes minimum design standards for public and private streets to allow safe travel, there are no such minimum standards for driveways to residences in the Rural Areas zoning district; and

 

WHEREAS, in order to better protect the public safety, it is desired to require that driveways in the Rural Areas zoning district be designed and constructed to assure that fire and rescue vehicles can safely access a residence.

 

            NOW, THEREFORE, BE IT RESOLVED THAT for purposes of public necessity, convenience, general welfare and good zoning practices, the Albemarle County Planning Commission hereby adopts a resolution of intent to amend Section 4 and any other regulations of the Zoning Ordinance as described herein; and

 

BE IT FURTHER RESOLVED THAT the Planning Commission shall hold a public hearing on the zoning text amendment proposed by this resolution of intent, and make its recommendation to the Board of Supervisors, at the earliest possible date.

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RESOLUTION OF INTENT

 

WHEREAS, one of the key purposes of the family subdivision regulations is to promote the cohesiveness of the family; and

 

WHEREAS, the Rural Areas Plan (the “Plan”) was adopted by the Board of Supervisors as part of the Albemarle County Comprehensive Plan on March 2, 2005, and it states that one way to discourage the transfer of lots created by a family subdivision to someone who is not a member of the immediate family is to increase the period the parcel to be subdivided must be owned by the family member before it may be subdivided, and to increase the period each family subdivision lot must be owned by the grantee of a lot created by a family subdivision before it may be transferred to someone who is not a member of the immediate family; and

 

WHEREAS, Albemarle County Code § 14-212 requires that the grantee of a lot created by a family subdivision not transfer the lot to someone who is not a member of the immediate family for two years from the date of recordation of the plat; and

 

WHEREAS, in order to better promote the purposes of the family subdivision regulations and to discourage their abuse, it is desired to amend the Subdivision Ordinance to establish a period by which a landowner must own a parcel before it may be subdivided by family subdivision, to extend the period prohibiting the transfer of a lot created by family subdivision to someone who is not a member of the immediate family beyond the current two-year period, and to adopt such other regulations to assure that these requirements are satisfied.

 

 NOW, THEREFORE, BE IT RESOLVED THAT for purposes of public necessity, convenience, general welfare and good land development practices, the Board of Supervisors hereby adopts a resolution of intent to amend Albemarle County Code § 14-212 and any other regulations of the Subdivision Ordinance deemed appropriate to achieve the purposes described herein.

 

BE IT FURTHER RESOLVED THAT the Planning Commission shall hold a public hearing on the subdivision text amendment proposed by this resolution of intent, and make its recommendation to the Board of Supervisors, at the earliest possible date.

 

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