COUNTY OF ALBEMARLE
Water Protection Ordinance – Stream Crossings
Worksession to review the Water Protection Ordinance with respect to stream crossings for road and driveways and to determine if an ordinance amendment is needed
Tucker, Foley, Davis, Graham, Brooks, Ambler
LEGAL REVIEW: Yes
March 12, 2008
ACTION: X INFORMATION:
The purpose of this worksession is to review section 17-321(4) of the Water Protection Ordinance, which allows stream crossings in protected stream buffers in specific circumstances and determine if an ordinance amendment is needed. As part of the public comment at the February 6, 2008 consideration of an amendment to the Water Protection Ordinance (WPTA2007-001, Attachment A), the Board became aware that the Program Authority’s interpretation of this ordinance requirement may be more restrictive than was envisioned by the Board. The Board agreed to consider how this section should apply at a future meeting. The issue was revisited at the February 13, 2008 Board meeting and staff was directed to schedule a work session for the Board to review its options.
Protect the County's Natural, Scenic and Historic Resources
The following is the relevant section of the Water Protection Ordinance:
Sec. B17-32117-321 Types of development which may be allowed in stream buffer by program authority.
Development in a stream buffer may be authorized by the program authority in the circumstances described below, provided that a mitigation plan is submitted to, and approved, by the program authority pursuant to section 17-322:
4. on a lot on which the development in the stream buffer will consist of the construction and maintenance of a driveway or roadway, and the program authority determines that the stream buffer would prohibit reasonable access to a portion of the lot which is necessary for the owner to have a reasonable use of the lot;
The issue is interpreting this ordinance section with respect to “…which is necessary for the owner to have a reasonable use of the lot” The Program Authority has taken a narrow interpretation of this language with the assumption it was intended to avoid issues of taking property. Typically, this means the development is only allowed a stream crossing when it is found necessary to establish the first dwelling on the property.
Next, the Program Authority is guided by Section 17-322 (D). in evaluating the approval of a mitigation plan, as follows:
D. Each mitigation plan shall be evaluated by the program authority based on the following criteria:
1. whether all reasonable alternatives to development in the stream buffer have been explored and exhausted;
2. whether the development in the stream buffer is the minimum necessary and is conducted in a manner that will be least disruptive to the natural functions of the stream buffer; and
3. whether best management practices will effectively mitigate adverse impacts from the encroachment on the stream buffer and its natural functions.
With this background, the
issue is whether the ordinance intent is to provide the minimum use necessary to
avoid a claim of taking property or whether the ordinance anticipates the
property owner’s ability to develop their property. From this, staff believes
the enforcement spectrum offers three approaches:
1. The current approach, which assumes streams crossings are prohibited except where absolutely needed.
2. A middle ground, where staff considers each circumstance on a case by case basis and provides some limited use of the property based on a balance of the desires of the property owner and protection of the stream.
3. An approach that allows stream crossings provided certain conditions are satisfied.
For convenience, these three approaches will be respectively called prohibition, discretionary, and allowed.
Many of the issues with a prohibition approach have already been noted by citizens and Board members. It is the most restrictive to the property owner and the most protective of the stream. One reason to support this approach is it recognizes that mitigation of impacts is an imperfect solution. While mitigation is intended to address impacts, there is usually a net loss to the stream’s value as a natural resource. For example, planting the outer perimeter of a stream buffer enhances the quality of filtering vegetation but it does not address the obstacle a culvert in the streambed creates for organisms moving up and down the stream. It should be noted the current ordinance does not limit stream crossings, or any other disturbance of the buffer, with agricultural or forestry operations. Thus, the Comprehensive Plan’s intended use of the Rural Areas for agriculture and forestry is not curtailed. In enforcing this approach, staff routinely looks to the Comprehensive Plan for guidance on reasonable use of property. Among the points to consider with this approach are:
· It prioritizes protection of stream over the property owner’s ability to develop the property. It provides for minimal relief to the property owner, but it does not consider the potential development value of the property.
· It is the easiest to understand and administer. The property owner and staff both clearly understand what is allowed and prohibited. Staff’s workload is the smallest with this approach. The property owner may not like the answer, but he or she has a firm answer.
· It recognizes that mitigation is far from a perfect mechanism and some net loss of stream function is a likely outcome.
A discretionary approach attempts to balance the protection of the stream and the property owner’s ability to develop the property. Staff finds this the most difficult approach to administer and applicants find it the most frustrating. For example, consider a property where all of the development rights could be exercised without crossing the stream if the applicant is willing to limit the septic fields to three bedroom houses and keep the lots at the minimum two acre size. Should staff be able to demand this limitation? Should staff be able to demand redesign of a subdivision plat if it appears possible to reduce impacts to the stream buffer but it results in fewer lots? Should staff be able to require the applicant to have a soil scientist exhaust all possibilities for septic fields without crossing the stream? All of these situations have staff exercise considerable discretion but puts them into direct confrontation with the applicant. In similar discretionary situations, staff finds each new project starts with the established standard as a starting point and the applicant argues for additional consideration based on the unique characteristics of their property. The end result is either an ongoing erosion of the standard or an ongoing confrontation where applicants complain of a frustrating process and portray staff decisions as arbitrary and capricious. Among the points to consider with this approach are:
· It attempts to balance protection of the stream with the ability of the property owner to develop their property.
· It is the most difficult to understand and administer, with considerable staff discretion based on the unique set of circumstances with each application. This translates into considerable staff time and applicant frustration.
· Property owners will need an approved plan to have assurance that an envisioned development is allowed.
An allowed approach starts with the assumption stream crossings are permitted and attempts to mitigate the impacts using approval conditions. Staff finds this approach easier to administer than the discretionary approach and applicants find it much less frustrating. With this approach, stream crossings could be added to the list of allowed uses in section 17-320 of the Water Protection Ordinance, with specific approval conditions. Under this approach, staff assumes the property owner has the right to cross the stream when there is intent to use property on the other side, provided certain minimum conditions are satisfied. To illustrate this approach, staff has provided Attachment B. Among the points to consider with this approach are:
· It establishes a balance point between the use of the property and protection of the stream that assumes use of the property and then attempts to minimize impacts to the stream.
· It can be relatively easy to understand and administer. While prohibition is easier to administer, having simple well defined conditions for approval removes much of the confrontation from the process.
· Property owners have some assurance as to what is allowed with their property. While staff will still need to verify the conditions are satisfied before allowing the activity, it is usually simple to determine if those conditions restrict the development potential of the property
No impact to the County budget has been determined. This provision primarily affects Rural Area property where land is typically taxed based on land use rather than development potential. As noted above, the discretionary approach requires additional staff resources and may impact staff’s ability to respond to other issues. The funding for staff’s review can be recovered through fees.
1. If the Board believes the intent of section 17-321 (4) is to provide the minimum relief necessary to avoid claims of taking of property, staff recommends the Board affirm the Program Authority’s current interpretation. Staff will then develop ordinance language to better clarify this intent.
2. If the Board believes a stream crossing should be allowed for the development of property, staff recommends the Board include stream crossings to section 17-320 of the Water Protection Ordinance as an allowed use, with conditions similar to those provided by staff in Attachment B. If this approach is selected, staff will proceed with development of the appropriate ordinance amendment.
3. If the Board believes it is more appropriate to consider the unique set of circumstances with each proposed development, staff recommends Board amend the language of sections 17-321 and 17-322 to provide for case by case evaluation of need in the development of property. If this approach is selected, staff believes language similar to that in Attachment C is appropriate and will proceed to proceed with an ordinance amendment using that draft.
Attachment A – WPTA 2007-001
Attachment B – Proposed conditions for stream crossings as part of section 17-321
Attachment C – Draft revisions to sections
17-321 and 17-322
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