Albemarle County Planning Commission

September 18, 2007


The Albemarle County Planning Commission held a work session, meeting and a public hearing on Tuesday, September 18, 2007, at 6:00 p.m., at the County Office Building, Lane Auditorium, Second Floor, 401 McIntire Road, Charlottesville, Virginia.


Members attending were Calvin Morris, Vice-Chairman; Marcia Joseph, Chairman; Duane Zobrist, Bill Edgerton, Eric Strucko and Jon Cannon. Absent was Pete Craddock. Julia Monteith, AICP, Senior Land Use Planner for the University of Virginia was absent. 


Others present included Greg Kamptner, Deputy County Attorney; Summer Frederick, Planner; Allan Schuck, Senior Engineer; Steve Allshouse, Fiscal Analyst; Mark Graham, Director of Community Development; John Shepherd, Chief of Current Development; Rebecca Ragsdale, Senior Planner and Wayne Cilimberg, Director of Planning.


Call to Order and Establish Quorum:


Ms. Joseph called the meeting to order at 6:05 p.m.


            Regular Items:


SUB-2007-00102 Warthen Estates

Request for preliminary plat approval to create five (5) lots on 102.559 acres, to be served by a private street. The property is zoned Rural Areas (RA).   The property, described as Tax Map 89 Parcel 72 and 72A is located in the Samuel Miller Magisterial District on Ambrose Commons Drive approximately 1.7 miles from the intersection of Ambrose Commons Drive and Old Lynchburg Road (State Route 631).  The Comprehensive Plan designates this property as Rural Area in Rural Area 4. (Summer Frederick)


Mr. Shepherd introduced the next item as a private street request.

§         In this particular application and in the future until further notice, staff has not made a recommendation either for or against the request.  Staff based that on the idea that the Zoning Ordinance Section 2.32 specifies that a private street may be authorized if one of 3 criteria is met.  One has to do with environmental degradation. The second criterion has to do with whether or not it is a non residential or agricultural lot.  The third criteria address general welfare.  Staff is clear on the findings that must be made to make a positive recommendation based on environmental impact. Staff is less clear on what the criteria for a positive finding regarding general welfare is. 

§         What staff has been doing in the review and also what the Commission has been expecting of the review and has considered in their deliberations have been requiring more than just a finding that there is 30 percent less degradation from a private road request and have applied general welfare criteria as well.  Until staff is clearer on how they do that they will offer these up as a special use permit is often submitted in terms of factors that are favorable and unfavorable to the request and not do the recommendation.  Staff will provide enough information so the Commission can make a good deliberation and good decision.  That is built into this report that is before the Commission.  Staff can discuss this process at a later time in a longer session.


Ms. Joseph noted that staff was going to leave it up to the Commission to look at more of the welfare aspect of it. 


Mr. Shepherd replied that staff addressed the general welfare, but is not going to be making a final recommendation.


Summer Frederick presented a power point presentation and summarized the staff report. (See staff report.)


·         SUB-2007-0102 Warthen Estates Preliminary Plat with a Private Street Request – The applicant requests preliminary plat approval to create 5 lots on approximately 98 acres, which is zoned Rural Area.  The property consists of 2 parcels on tax map 89, parcel 72 and 72A.  The property is currently accessed via an existing access easement from Ambrose Commons Drive, a public street within the Mosby Mountain and Mountain Valley Subdivisions which in turn accesses off State Route 631, Old Lynchburg Road approximately 2.5 miles south of its intersection with I-64.

·         This item is before the Commission because the applicant has requested that the proposed street for this subdivision be approved as a private street in accordance with Subdivision Ordinance Section 14-232 and 14-234.  The property southwest faces a heavily wooded mountainside.  She presented photographs taken by staff along the proposed mountain alignment and the existing driveway.    Currently there is an old forest road along the alignment. 

·         Staff has found the following factors favorable for this application.

1.       Construction of a public street would result in significantly more environmental degradation.

2.       A private street does not promote more development in the rural area than a public street

·         Staff has found the following factors unfavorable for this application:

1.       Long term private maintenance of the road is not guaranteed.

2.       Staff is unable to make a positive finding that the private street will serve the general welfare.

§         If the Commission should approve the requested private street, staff recommends the following conditions:

1.       The private street be designed in accordance with the preferred option described by the applicant on the plans as typical private street section.

2.       A maintenance agreement be approved as specified in Section 14-317 of the Subdivision Ordinance.


Ms. Joseph asked if there were any questions for staff.


Mr. Strucko asked how lots will the private street serve.


Ms. Frederick replied 5 lots.


Mr. Edgerton noted that he was a little confused about how the 5 lots were served.  He asked if the 5 lots would be served by the existing Ambrose Commons.  He asked if towards the south all the existing lots border the proposed private street.


Ms. Frederick replied that was correct.


Mr. Edgerton asked if the hatched area on the 5 lots was all critical slopes.


Ms. Frederick replied that was correct.


Mr. Edgerton said the staff report says that it appears that the critical slopes disturbances would be roughly the same when talking about environmental impacts.  Yet staff has made the statement that a private road as favorable would result significantly in more environmental degradation.  There seems to be a little conflict in those 2 statements.


Ms. Frederick noted that Mr. Schuck could address that better.


Mr. Edgerton said that it seems that critical slopes are the big issue here in either case.


Allan Schuck said that he did the engineering review.  Based on the proposed alignment they agree with the applicant’s proposed alignment that it disturbs the least amount of critical slopes for an alignment.  That is where the first comment came in.  Based on the disturbance of critical slopes this would potentially be the best alignment because they would be going along an existing road as opposed to going through other sections of the proposed subdivision to access the lots.  To the degradation part, it would be a lot more significant with the public street versus the private street in any alignment chosen because of the existing topography is heightened throughout the subdivision.


Mr. Edgerton said that was because the public street is going to only allow certain maximum grades.


Mr. Schuck replied that is correct.  The public street maximum grade would be a 10 percent vertical.  With the private street it would be a maximum of 16 percent. There is a 6 percent difference in grade allowance.


Mr. Edgerton said that some are showed as where it is 30 percent in grade or greater right not on the existing old lumber road.  They are going to have to bring that down if granted permission to do that.


Mr. Schuck pointed out that in the last picture shown it was an approximately 30 percent estimate on staff’s part when they did the field visit.  That would have to be cut down to 16 percent even for a private street and even significantly more.  With a deeper cut they would have to extend the grading out more to accommodate the future grades of the streets.


Mr. Edgerton noted that statement supports the second part in that the critical slopes impact would be about the same.


Mr. Schuck replied that was correct.


Mr. Cannon asked if a private street would take adequate care of the drainage issues that seem to be apparent in the pictures.  He asked if that would be adequate to manage the run off. 


Mr. Schuck replied that it would adequately take care of the run off whether it was a public street or a private street. With adequate ditches, erosion control, storm water management and the correct size of the pipes that would occur.  The only difference is that there is a potential for more erosion with the steeper slopes there would a higher velocity of the water.  Therefore, there would be a potential for more erosion with the private streets at final grade just because it was steeper.  That would be the major difference for drainage.  Otherwise, it would be taken care of with the final plans required for this subdivision.


Mr. Edgerton said that there is that other issue that was mentioned in the staff report.  The significant difference is that if it was a private street they must have a private maintenance agreement.  The enforcement of that would not be as easy to rely on as the enforcement of the public maintenance. 


Ms. Joseph said that the profile was showing 16 percent slopes.  She asked what would be the maximum slope on public road.


Mr. Schuck replied that right now it would be 10 percent.   Staff has not recent history where VDOT has approved the Mountainous Terrain Standard which allows the 16 percent grade.  The highest grade they have seen VDOT approve is the 10 percent grade for vertical.


There being no further questions for staff, Ms. Joseph opened the public hearing and invited the applicant to address the Commission.


Rob Cummings, with Kurt Hughes and Associates, said that he was present to represent Ben and Terry Warthen and Evergreen Land Company to request approval for Warthen Estates preliminary plat and the private road serving it. 

§         Warthen Estates would be a 5 lot rural by right subdivision lying on 98 wooded acres adjacent to a mountain valley.  It would consist of 5 lots, 4 of which are greater than 21 acres and the 5th being 13.5 acres plus or minus.  Warthern Estates would be accessed from Old Lynchburg Road via Ambrose Commons Drive.  The private road serving Warthen Estates begins actually at a point along an existing current 50’ private access easement 350’ from Ambrose Commons Drive.  The owner would also improve the existing access down Ambrose Commons Drive.  Their request for the private road is due to the following.

§         In designing roads he takes a logical approach when designing and comparing public roads and private roads.  First he tried multiple options to meet or exceed VDOT requirements for public roads.  Basically, he looks at it as if he was to build a public road with the least amount of environmental impact on a nearly balanced site and how he would do that.  He would take the same approach to private roads again with the least environmental impact on a nearly balanced site and how would he do that.  He would keep those separate and when they were all said and done he would review it and come up with the best public road and private road design for comparison. 

§         He presented the comparison in a power point presentation. In this case it falls in favor of the environment.  To break down the impact a private road would only create only 19,000 cubic yards of cut material as opposed to a public road, which would create a cut volume of nearly 48,000 cubic yards of cut material.  For the private road he would be able to balance the final design basically by lowering the road or increasing the fill slopes of the fill section 2 to 1 or trying to reduce some of the grades. Right now they are at the 16 percent.  He would look at trying to reduce that grade as Mr. Schuck brought up to reduce the amount of site erosion that could occur.  Of course, that would be their ultimate goal.

§         In doing so he also to try to give a better give an idea of what they are doing they have as seen in the exhibit he has multiple ones to follow.  The red hatched area in the exhibit shows the amount of area that would be impacted by a public road.  The environmental impact is shown to have a greater impact on the public road in the cut section.  With the use of a public road the site unfortunately cannot be balanced. Therefore, not only would a public road create a much greater impact on the environment, but approximately 31,000 cubic yards of excess material would have to be trucked over and across their roads.  They find that unnecessary and feel they have proved that in their exhibit.  He has additional plan profiles to be able to answer any other questions in certain areas along the design.  Ultimately, their goal is to limit the environmental impact.  This can be done through the Commission’s approval of the preliminary plat of Warthern Estates and the private road that serves it. 


There being no questions for Mr. Cummings, Ms. Joseph invited public comment,


Haley Finley, a Mosby Mountain resident, spoke in support of the private road both personally and professionally.  He worked for an environmental consulting firm in downtown Charlottesville.  When he was looking at this plan he felt strongly that the private road was the better option mainly from an environmental perspective because of the amount of trees that would remain standing.  Global warming is a big issue in our world and the more trees that can be saved the better.  From a personally perspective he supported this because the one thing he had found that have visited the Mosby Mountain area as well as Mountain Valley the main comment has been about how great it is because of the trees that were left in the development.  When he was considering the difference between the public and the private road and looked at the data it was clear that the private road would have a less environmental impact than the public road.  He was present as a resident of that area and neighborhood to support the Commission’s approval for the private road.


There being no further public comment, Ms. Joseph closed the public hearing to bring the matter was before the Commission.


Mr. Strucko appreciated the presentations and the arguments, but right now he was not ready to accommodate rural area development with exceptions to ordinance rules.  That is what acting environmentally is to not develop 5 sites in the rural area.   They need to develop something less that could be served with a common drive or a private driveway.  That is his inclination.


Mr. Edgerton concurred with Mr. Edgerton 100 percent.  With Mr. Cummings presentation there is no question if they just want to put on blinders and compare the environmental impact of the private road versus the public road that there is no question which is going to have more of an impact.  But, as Mr. Strucko points out to approve this would be encouraging the development of this property.  Frankly, he thought that this property should not be developed and the Commission should not do anything to encourage it.  Mr. Cummings worked out the cut and fill and determined the amount of waste dirt that would have to be hauled away as being 760 cubic yards versus 31,000 cubic yards of dirt for the public road.  There is a significant cost to that.  The Commission is being asked to reduce the cost of the development to the developer, which he was not comfortable doing.


Mr. Morris said that this was a by right development that could go in even though they have a public road.  The public road would cause more disturbances to the environment.  Therefore, he was in support of the request.


Ms. Joseph said that she was amazed to see all of the critical slopes that each of those 21 acre parcels had.  It did not look like it was something that is a positive development in the rural areas.  It is not something that she could support because it is not the Commission’s job to make it easier to develop the rural areas especially when it is on an incredibly sensitive piece of land as shown.


Mr. Cannon said that he persuaded to not support the request.


Mr. Zobrist asked Mr. Edgerton if it was economically not feasible if they have to build a public road.


Mr. Edgerton said that he was not sure.  As far as carrying away waste dirt he would have to do the math.


Mr. Zobrist said that if it was a right development and the applicant can do it anyway.  The applicant is going to tear up the mountain if they don’t give them the option to do a private road.  Therefore, the Commission needs to think about it.  The Commission has followed one very careful principle here.  They have permitted private roads where they felt that it would discourage further development in the area.  If they build a public road standard what impact is that going to have on other people that have property up there that are going to want to hook onto it and develop? They have a lot of competing problems here.  If it is going to get developed anyway he would rather see it developed with a private road.  He did not want to encourage development in the rural areas any more than the other Commissioners.


Mr. Edgerton said that there was no way around it as Ms. Joseph and Mr. Strucko have point out.  To give them an exemption to what is required by the ordinance they are encouraging development on very critical environmentally sensitive lands.   They are asking for a waiver.  The ordinance requires them to build a road to a standard that they don’t want to build. In the drawings that Mr. Cummings showed he went to great lengths to prepare to show the significant amount of dirt that would have to be removed.  Frankly, it boggles his mind that someone would consider this. Back to the economic question, he was not.


Mr. Strucko said that he did not know what would they were saving environmentally by going to a private road.   Right now they have 98 acres of rural area land. Then they will have 5 developments out there with a private road.  It looks like the road is stubbed out and is going to end at lots 21 and 1.  Therefore, he did not know what further development could happen out there.  He was not sure what they gain environmentally by going from public to private roads in this case.  Frankly, he was just listening to the argument made by the applicant.  If environmentalism is the concern, then the applicant should develop 2 lots instead of 5 lots and use a common drive.  That has the biggest environmental conservation impact than doing 5 lots and a private road.   


Ms. Joseph said that also in looking at the profile of this road it is 15 percent, then up 13 percent and down 16 percent.  So it is has a lot of movements.  The rescue folks have said that they are not worried about 16 percent grades.  But, she was worried about rescue vehicles getting out on a private road where they don’t know what the maintenance is going to be.  She did not want to put those rescue folks in jeopardy.


Motion: Mr. Strucko moved, Mr. Edgerton seconded, for denial of SUB-2007-00102, Warthen Estates, as proposed.


The motion for denial passed by a vote of 5:1.  (Mr. Morris voted nay.) (Mr. Craddock was absent.) 


Ms. Joseph stated that SUB-2007-00102, Warthen Estates was denied.  The applicant has ten (10) days from the date of the decision to appeal the decision to the Board of Supervisors.


The Planning Commission took a break at 7:26 p.m.


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