COUNTY OF ALBEMARLE
SUB 2007-102 Warthen Estates Private Street Waiver
Appeal of Planning Commission’s Denial of Request for Private Street
Messrs. Tucker, Foley, Davis, Kamptner, and Graham; Ms. McCulley, and Ms. Frederick
LEGAL REVIEW: YES
December 5, 2007
ACTION: X INFORMATION:
The appellant appeals the Planning Commission’s September 18, 2007 denial of his request for approval for a private street over an existing thirty (30) foot access easement for a 5-lot subdivision to be created from the subdivision of two existing parcels. The proposed street would serve one additional lot outside of the proposed subdivision. The property is identified as Tax Map 89 Parcels 72 and 72A and is located northwest of Ambrose Commons Drive, a public street within the Mosby Mountain Subdivision in the Samuel Miller Magisterial District. The property is 98.364 acres in size and is zoned RA, Rural Areas.
A private street in the Rural Areas may be approved by the Planning Commission if the applicable criteria in Section 14-232(A) are satisfied, the policy in Section 14-232(B) is considered, and the findings required in Section 14-234(C) can be made. The appellant brought his request for a private street under Section 14-232(A)(1), which allows a private street to be approved if a subdivider demonstrates that a private street would alleviate significant degradation to the environment.
Goal Four: Effectively Manage Growth and Development
On September 18, 2007, the Planning Commission denied the applicant’s request for approval of the private street. The general consensus of the Planning Commission was that the approval of the private street would encourage development of the Rural Areas. Although the private street would have resulted in less earthwork than a public street, the majority of the Commissioners noted that the property was environmentally sensitive with significant amounts of critical slopes. (See Attachments B and C).
Section 14-232(A)(1) provides that a private street may be authorized in the Rural Areas to alleviate significant degradation to the environment when the subdivider demonstrates that five criteria are satisfied, only two of which are at issue in this appeal (ordinance text below in italics, staff discussion in regular text):
(ii) the private streets will alleviate a clearly demonstrable likelihood of significant degradation to the environment of the property or any land adjacent thereto resulting from the construction of a public street in the same alignment.
The term “significant degradation” means either:
(a) The total volume of grading for construction of a public street would be thirty (30) percent or more than that of a private road in the same alignment; or
The applicant provided the result of calculations showing that a public street along the same alignment would result in approximately 4,000% more land disturbance. Staff agreed the land disturbance required to construct a public street along the same alignment as the private street would significantly exceed 30%. After a verbal review, VDOT staff concurred that more
extensive earthwork would be required for the construction of a public street along the proposed alignment. (See table on Attachment A, pages 2-3).
(b) environmental impacts including, but not limited to, erosion and sedimentation, stormwater runoff, surface water pollution, loss of tree cover and/or the loss of indigenous vegetation resulting from a public street, which would be substantially greater than that of a private street in the same alignment, based upon evidence submitted by the subdivider and reviewed by the County Engineer and other qualified staff.
Because the appellant sought approval under subsection (a) above, subsection (b) was not considered.
(v) the proposed private streets demonstrably promote sensitivity toward the natural characteristics of the land and encourages the subdivision of land in a manner that is consistent and harmonious with surrounding development.
There is insufficient information in the record that the proposed private street would demonstrably promote sensitivity toward the natural characteristics of the land. Other than the difference in volume of earthwork required, Staff concluded that environmental impacts would not be significantly different between a public street and private street along the same alignment. The extent of critical slope disturbance would be roughly the same. Although a private street would address drainage in the same manner as a public street, there would be more erosion from a private street resulting from the maximum 16% grade allowed for a private street, as compared to a maximum 10% grade for a public street. Members of the Planning Commission also noted that the property was environmentally sensitive with significant amounts of critical slopes and could not support the proposed private street alignment and was concerned about its proximity to a large area of critical slopes. Commissioner Strucko suggested the possibility of reducing the number of proposed lots.
As an alternative basis for approving a private street in the Rural Areas, a private street may be authorized:
if the general welfare, as opposed to the proprietary interest of the subdivider, would be better served by the construction of one or more private streets than by the construction of public streets.
Because the appellant sought approval under Section 14-232(A)(1) (alleviate significant degradation to the environment), he presented no evidence that a private street would better serve the general welfare than a public street. Staff is concerned about the long term maintenance of this proposed private street, even though a maintenance instrument satisfying Section 14-317 would be required.
In considering a request for approval of a private street, Section 14-234(B) requires that the decision maker consider that private streets are intended to be the exception to public streets. For the reasons stated above, the appellant failed to sufficiently demonstrate why an exception should be granted in this case.
For the reasons set forth in Attachment A, page 4, the findings required by Section 14-234(C) can be made.
The appellant demonstrated that the total volume of grading for construction of a public street would be thirty (30) percent or more than that of the proposed private street in the same alignment, and this is sufficient to show that the proposed private street would alleviate significant degradation to the environment under Section 14-232(A)(1)(ii). However, the appellant has not produced sufficient information to show that the proposed private street demonstrably promotes sensitivity toward the natural characteristics of the land, as required by Section 14-232(A)(1)(v). As a result, the appellant also has failed to demonstrate why a private street should be approved in this case.
If the Board finds that the appellant has failed to show that the proposed private street demonstrably promotes sensitivity toward the natural characteristics of the land and encourages the subdivision of land in a manner that is consistent and harmonious with surrounding development, then the Board should uphold the Planning Commission’s decision of denial of the private street request.
A- Staff Report to Planning Commission and attachments
B- Draft Minutes – September 18, 2007 Planning Commission Meeting
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