Albemarle County Planning Commission

June 19, 2007


The Albemarle County Planning Commission held a meeting and public hearing on Tuesday, June 19, 2007, at 6:00 p.m., at the County Office Building, Auditorium, Second Floor, 401 McIntire Road, Charlottesville, Virginia. Members attending were Bill Edgerton, Eric Strucko, Pete Craddock, Calvin Morris, Vice-Chairman; Duane Zobrist and Marcia Joseph, Chairman. Absent was Jon Cannon.  Julia Monteith, AICP, Senior Land Use Planner for the University of Virginia was absent.  Mr. Strucko arrived at 6:07 p.m.  Mr. Craddock arrived at 6:09 p.m.


Other officials present were Elaine Echols, Principal Planner, Mark Graham, Director of Community Development, John Shepherd, Chief of Current Development; David Pennock, Principal Planner; Sean Dougherty, Senior Planner; Joan McDowell, Principal Planner and Greg Kamptner, Deputy County Attorney.


Call to Order and Establish Quorum:


Ms. Joseph called the meeting order at 6:00 p.m. and established a quorum.


Deferred Item:


SP2007-00010 Cutright Development Right (Sign #111 & 112) Ė DEFERRED FROM JUNE 5 PC MEETING

PROPOSED: Special Use Permit to acquire two additional development rights

ZONING CATEGORY/GENERAL USAGE: RA -- Rural Areas: agricultural, forestal, and fishery uses; residential density (0.5 unit/acre)

SECTION: 10.2.2 (28) Divisions of land as provided in section and Section Where permitted by Special Use Permit

COMPREHENSIVE PLAN LAND USE/DENSITY:  Rural Areas - preserve and protect agricultural, forestal, open space, and natural, historic and scenic resources/ density ( .5  unit/ acre); Entrance Corridor - Overlay to protect properties of historic, architectural or cultural significance from visual impacts of development along routes of tourist access; Flood Hazard - Overlay to provide safety and protection from flooding


LOCATION: 3544 Red Hill School Road; southeast corner of Red Hill School Road (RT. 760) and Monacan Trail Road (RT 29) - North Garden



(Joan McDowell)


Ms. McDowell gave a power point presentation and summarized the staff report.


This item was deferred on June 5, 2007 to address the Fire Department comments regarding the land that Ms. Cutright proposed to donate to the Fire Department at the corner of Red Hill School Road and Route 29.   

The Fire Department gave staff different comments and expressed a desire to have an access to the pond and dry hydrant that they use.  Staff reviewed their comments and determined that access could be granted in other ways other than subdividing the property and granting additional development rights.  Staff retains its recommendation for denial of this application.


Ms. Joseph asked if there were any other questions for staff.  There being none, the public hearing was opened and the applicant invited to address the Commission.


Ms. Cutright said that she wanted to stay on the land she had lived on for 57 years.  Should tax rates escalate as they recently have that she would be obligated to the County of Albemarle for some $45,000 give or take in the next 10 years?  This is not practical right now because she only has a single fixed income.  She has had to pay taxes from other sources than from her monthly income.  There is one statement on the request that says she wants to give 2 acres of land to the North Garden Fire Company.  She wants to keep 2 acres.  With the selling of her present home with the required 2 acres there would be more than 2 acres for the Fire Company.  She has owned the property with her husband since 1978.  The area where she wants to build a house is not in a flood plain nor does she think it would make a visual impact on the Entrance Corridor.  She did not know who came up with the 3 building rights on the original 14 acres, but she certainly would not have wanted 7 dwellings on the property anyway.  She has difficulty with this and hopes that the Planning Commission will see fit to grant her the ability to use 2 acres so that she may continue to live in North Garden.  The only reason that the third development right was sold to someone else is that her husband was no longer able to keep it looking nice as he would have liked to.  Therefore, the decision was made to sell it rather than see it grow up to be an eyesore to the community.  Hindsight is much clearer than foresight.  She hoped that the Commission would see fit to grant this right.


Ms. Joseph invited public comment.


George Stevens, Chief of the North Garden Volunteer Fire Company, asked to point out that Ms. Cutright has indicated that she wants to donate more than 2 acres.  By his calculations it is somewhere between 4.5 and 5 acres of property.  The land in question has the dry hydrant that they have been using for about 25 years.  But, it also serves as the same area in which they use on an annual basis for their fund raising and it provides a place where they can do hose line testing, fire stream training and such as that.  It also is a place because of their rural setting they have to top off their water tanks on their fire engines at all times in the day and night.  It is the very accessible and gives them more area to work.  Many times adjacent property owners would not look very favorable on several fire trucks being outside of their home at 2 a.m.   Again, he pointed out that this property has been used without any fees at the graciousness of Mr. and Mrs. Cutright for about 29 years for all sorts of events.   This is a very unique application in the fact to the contrary of what item 1 says about being unfavorable.  Any time a citizen has a desire to donate 4 to 5 property in Albemarle with its current value is certainly unique to the situation.  It is instrumental in the operation of the Fire Companyís day to day operations at North Garden.  Again, they use it on a daily and weekly basis of topping off.  About 3 or 4 days when this was deferred they pumped about 30,000 to 40,000 gallons of water out of that pond for an adjacent hay fire.  It is critical for that.  Last year they used this land for training for not just our fire company, but throughout the region and County.  They do have a secure water site that they can lay out their lines with their trucks, which is essential to keeping up with their training.  It is very little for Ms. Cutright to ask just to keep 2 acres and sell off the other as far as the division rights.  That should be looked favorably upon by the Board.  He asked that the Commission look at it favorably.  The Fire Company is very much in favor of this.  Albemarle County Fire/Rescue is in agreement with this.


There being no further public comment, the public hearing was closed and the matter before the Commission.


Mr. Morris said that everything he has read says that this has a lot of appeal.   But, the problem is that it sets a precedent that goes outside of the Code and regulation.  Once a precedent is set, then everyone else steps up to the plate.  Because of that he was having a very difficult time with this.


Mr. Craddock said that he liked the idea of North Garden Fire Company getting this property.  It would be very useful for them.  He did not know if this is the avenue to how to do it.  He hoped that another way to work it out would have been found since it was deferred a couple of weeks ago.  He was also in a tough situation about setting a precedent.  But, his great sympathy is with North Garden. 


Ms. Joseph noted that due to the bad weather and the arrival of a couple of other speakers she opened the public hearing again and invited further public comment.


Kathleen Russell, a resident of North Garden, said that she lived right across Red Hills Road across from the proposed property.  She encouraged the Commission to accept this proposal.  It is an appeal in which there were situations where it was appropriate.  She did not see where this very unique situation is going to set a County wide precedent that will require them to base other appeals on.  This property has been used since she was a child for community events by the fire department.  It is an important community gathering place.  The generosity of Ms. Cutright to offer this property to the fire department rather than put it up for sale at which could be a very lucrative price in this area should be considered.  There is no justifiable reason for not allowing the appeal process to be appropriate when there is an appeal that would benefit the community, the property owner and the County and is an unusual situation.  That is what appeals should be designed to handle.


Wayne Russell, a resident of North Garden, pointed out that the residents do receive a discount on their fire insurance by having the dry hydrant in that location.  It is beneficial to all of the adjacent home owners.  If Ms. Cutright put the property on the open market another person could very easily deny the fire company the use of this dry hydrant.  Ironically two weeks before the previous hearing there was a fire just two days within site of the pond.  It is a comfort to know that they have a water source that the fire department can get to.  If they empty their trucks they can go right there and fill right up.  For our community to lose that advantage not only our insurance rates would go up, but there is a safety concern of not having this deeded to the fire department.


There being no further public comment, the public hearing was closed again and the matter before the Commission.


Mr. Zobrist said that he was trying to figure out where the lines are.  He asked if there is one existing house on the parcel now and they want to split a lot off to build a second house.  Or, will this be a third house.


Ms. McDowell replied that there is one existing house on the lot.  Ms. Cutright has asked to have a division of land for the existing house.  Lot A has a different owner.  It used to be the Cutrightís, but they sold it off.  They also sold another lot off in another area.


Mr. Zobrist asked if the intent is to sell one lot, build a house on one lot and give the other lot to the fire department.


Ms. McDowell replied that was correct. It is not a family division.  She noted that as Ms. Cutright indicated it would supplement her income and help pay the taxes.  Ms. Cutright would build her house next to it and then the front part would still be legally used by the fire department.  Ms. Cutright has not indicated whether she would give that piece of land with or without this additional development right.


Mr. Zobrist assumed that part of the purpose is to get that land off her tax bill to lower the taxes.


Ms. McDowell said that the only purpose was for Ms. Cutright to sell the existing house because it is too big and build a house right next to it so that she can stay in the same neighborhood.  If the property was conveyed to the fire department it would come off of her taxes.  There is currently one parcel and this would create a total of three parcels with one lot going to the fire company.  This would create an additional development right.  But, the lot going to the fire department would be conditioned that it would not have a building right on it.  There would only be one additional house.


Mr. Strucko said that they would be creating one additional dwelling unit.


Ms. McDowell replied that is correct.


Mr. Edgerton said that all of the development rights have been exhausted on the original property.


Ms. McDowell noted that the Cutrights inherited the property from her husbandís mother along with acreage to the daughter and another son.  The Cutrights have all divided it out and used all of the development rights.


Mr. Edgerton said Ms. Cutright has been very generous to the community and the fire company all of these years, but he could not break away from what their job is as a Planning Commission to make recommendations to the Board.  This is basically increasing the development potential of the existing zoning.  He was concerned about a precedent and the fact that the Cutrights have used up all of their development rights.  Even if there was a family member to give a family division to they would need a development right to do that as well.   If an exception needs to be made he felt the decision needs to be made at the Board level.  Unless the Commission is willing to compromise all of the hard work they have put into the Comprehensive Plan in trying to preserve the rural area, he thinks they would be working against everything that they stand for to approve this.


Ms. Joseph agreed. What she was hearing from Ms. Cutright that is disturbing is the raising taxes.  The Board needs to work on tax relief also for somebody that is put in a position like that.  She did not feel the answer is to just start carving up the rural areas.


Mr. Edgerton said that from a planning perspective it does not make any sense.  From a personal perspective there are all kinds of issues that really are not things that the Commission has any control over.


Mr. Strucko said that he was wrestling with what is the best thing for the community.  It is not simple just giving another development right.  Ms. Cutright is going to sell her house and build another one that is more affordable.  There is also this contribution to the fire company.  It is a donation/contribution that would make him pause and look at the merits of this proposal.  Four acres donated to a volunteer fire company increases the assets of a non-profit volunteer fire company, a public service entity.  If the community is committed to strengthening the volunteer fire and rescue services here and supplementing and supporting them, here is an opportunity to do that.  It is not just increasing an asset on the balance sheet for this non-profit entity.  It is also offering access to a water source that serves a public good.  That dry hydrant in that very rural area becomes a key issue especially with water management and water relay to fires.  They have a situation facing Albemarle County. Do they look at this 10 acre parcel and add an additional development right to it and if that in any way create a detriment on this particular parcel.  He did not think so, but he understands their concerns about precedence and the principal and concept of the thing.  But, he was weighing that against here is this contribution to a public good.  Is it worth an additional development right?  Frankly, he has not made his decision yet.  He was still debating the issue. 


Mr. Craddock suggested that they go along with Mr. Edgertonís recommendation, but in strongest terms say to the effect that between now and the Board meeting that all the parties involved try to look at it and see if there can be another solution to this.  It is the Commissionís charge to go with the County Codes.  Therefore, he would lean towards denying this with the hopes that there be a recommendation that the Board look at this and the two parties try to work out a compromise on this.


Mr. Zobrist asked Mr. Kamptner if to approve this that the Commission has to come to a finding.  Staff has provided a list indicated that the number of times that this has been approved in the County in recent memory is that there have been 19 applications and 10 were denied and 9 were approved for additional rights.  This would create one additional house that is going to be affordable.  He did not know what the division history was for the property.  But, they do have small lots in the County like this, which might be a single tax parcel that might have 5 division rights.  There are a lot of 2 acre development rights floating around in the County.  As he reads the finding they have to make it has to be found to be a unique or special circumstance.


Mr. Kamptner replied that the findings are found on page 7 of the staff report.  The first one is that the special use permit can be issued upon a finding by the Board that the use will not be of a substantial detriment to adjacent property.  The second one is the character of the district will not be changed thereby.  The third is that the use will be in harmony with the purpose and intent of the ordinance.  The fourth is that it will be in harmony with the uses permitted by right in the district.  Because it is a special use permit though the Comprehensive Plan also plays an important role in the consideration. 


Mr. Zobrist questioned if the Commission could make that finding under the Comprehensive Plan.  He asked if there is a provision in the Comprehensive Plan that states that they can move outside of it.  The Comprehensive Plan is a guide and in order to do something different than what it says they have to make a finding.  What is required for that finding to not follow the Comprehensive Plan?


Mr. Kamptner said that he did not think they necessarily have to make a finding.  Because it is only a guide the Commission has the ability to ignore it.  But, at the risk of setting an unfortunate precedent they would want to be able to identify unique circumstances that justify deviating from the policies and recommendations of the Comprehensive Plan in a particular situation. 


Mr. Zobrist said that is very helpful.  They have to make the circumstances so unique that there is no precedent value in the decision if they were to recommend it to the Board that they approve it.  If they want to obviate the issue with setting a precedent, which is one of the unfavorable factor, if they can create a circumstance special enough to not make it precedent setting and even say that if they wanted to approve it.  He was struggling because they need to stick with the rules.  It looks like about one-half of the parcel is going to the fire department, which would be the parcel right on the road.  He questioned if they condition the subdivision on the conveyance to the fire department.  How do they make sure it happens if they approve it?


Ms. McDowell replied that a condition would have to be added. But, she would also add that even though they are creating a development right that it does not create a building right.  There will be no structures.


Mr. Zobrist noted that it would be limited to no structures as a condition.

Ms. McDowell said that is what she would suggest.


Mr. Zobrist said that the unique circumstance would be that the property is going to the fire department.  It is located on Route 29, which will preserve the property without a structure forever.  So there is no real change to what would be visible from Route 29.  It gives the fire department an asset.  It gives the community the pond.  He felt that the Board would probably approve it because it is a unique situation.  If they could structure it in such a way as to make it non-precedent setting by saying that they donít deem this to be a precedent that he felt they should try to find a way to do it.


Ms. Joseph said that she could see a lot of people coming in asking for extra development rights because their taxes have gone up.


Ms. Zobrist said that he was looking at it strictly from the circumstances of a piece of vacant land on Route 29 forever and nothing getting built on it.  He recognized that there was always an economic impact when they take property and move it to a public entity and not have to pay taxes.


Ms. Joseph pointed out that right now the property cannot be built on.  Right now they have one dwelling on that 9 acres and they have used up the development rights.  So as far as not being able to build anything on there that right now they canít.  Therefore, she could not see that as an advantage.


Ms. McDowell asked Mr. Kamptner if they need two development rights.


Mr. Kamptner said that what is unique about this application is that the applicant is not seeking a development right simply to create the fire station parcel.  It is to create an additional home site plus the fire station parcel.


Ms. McDowell pointed out that one question was how the fire department could have permanent access to this pond through possibly an easement.


Mr. Kamptner said that the creation of that parcel is going to need a development right.  There are certain classes of lots that through interpretation now do not require a development right, such as a cemetery lot and a couple of others.  This use is not within that realm of special interest lots, which is the term that is being use.  So a development right is needed.  The access could be created without a division through the granting of an easement.  But, that is only granting an easement and a right to access the property.


Ms. McDowell noted that the applicant has not been asked if she would grant this parcel to the fire department without the extra development right for her new residence.  She did not know if the question has been posed.  If the Commission grants a development right for the fire department without granting it for the additional residence she did not know if Ms. Cutright would be willing to do that.


Mr. Edgerton asked if there would be a tax benefit to the applicant by granting an easement to the fire department.


Mr. Kamptner replied that he could answer that question.


Mr. Edgerton noted that they would need a tax assessor.


Mr. Zobrist said that there would be a benefit to the applicant to allow us to cut off the land even though they did not give her the right to build a second house.  She would still be able to move that tax over by conveying the property to the fire department.


Mr. Kamptner agreed if it was done in a fee simple transaction.


Mr. Zobrist asked if they want everybody in the County that is being pushed by taxes to come in with their rural land to cut a piece off and give it to the County for a park or something to lower their taxes.  He agreed that it was a decision to be made by the Board.  He felt that it was a great idea, but he was not sure if the rules were broad enough to allow them to do it.


Mr. Morris felt that the rules that they have to work on, however, are fairly clear.  Because of that he felt that the request should be denied.


Motion:  Mr. Morris moved, Mr. Edgerton seconded, to deny SP-2007-00010, Cutright Development Right for the reasons stated in the staff report.


Mr. Craddock asked to add the provision that the Board of Supervisors and all parties involved look at this as strongly as possible to see if they can make it work.


Ms. Joseph asked staff to get with the tax assessors to see if the 4 acres could be put in an easement to relieve the burden of taxes. 


Mr. Zobrist asked for an amended motion to deny SP-2007-00010, Cutright Development Right with a request to the Board of Supervisors to look at the request very carefully because the Commission would like to approve it, but the County rules donít give the Commission the power to do so.  


Amended Motion:  Mr. Morris moved, Mr. Edgerton seconded, to amend the motion to deny SP-2007-00010, Cutright Development Right for the reasons stated in the staff report with a request to the Board of Supervisors to look at the request very carefully.   The Commission could not recommend approval because it did not conform to the Comp Plan and would set a precedent.  Therefore, the Commission asked the applicant and Fire Department to find other ways to do this. 


The motion passed by a vote of 6:0.  (Mr. Cannon was absent.)  


Ms. Joseph stated that SDP-2007-00010, Cutright Development Right will go before the Board of Supervisors on July 11 with a recommendation for denial, but the Commission hopes that in the interim something can be figured out. 



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