The Albemarle County Planning Commission held a meeting and public hearing on Tuesday, April 22, 2008, at 6:00 p.m., at the County Office Building, Lane Auditorium, Second Floor, 401 McIntire Road, Charlottesville, Virginia.
Members attending were Marcia Joseph, Bill Edgerton, Eric Strucko, Jon Cannon, Vice-Chairman; Thomas Loach, Linda Porterfield and Calvin Morris, Chairman. Julia Monteith, AICP, non-voting representative for the University of Virginia was absent.
Other officials present were Wayne Cilimberg, Planning Director; Elaine Echols, Principal Planner; Summer Frederick, Senior Planner; Bill Fritz, Chief of Current Development; Megan Yaniglos, Planner; Jay Schlothauer, Director of Inspections; Mark Graham, Director of Community Development; Glenn Brooks, County Engineer; Amelia McCulley, Director of Current Development & Zoning and Greg Kamptner, Deputy County Attorney.
Call to Order and Establish Quorum:
Mr. Morris called the regular meeting to order at 6:00 p.m. and established a quorum.
Mr. Strucko left the meeting at 8:58 p.m.
The Planning Commission took a break at 8:58 p.m.
The meeting reconvened at 9:11 p.m.
SUB-2008-00022 Bellair #5- Preliminary
The request is for preliminary plat approval to create 2 lots on 2.066 acres. The property is zoned R-1 Residential. The property, described as Tax Map 76C-02 Parcel 5 is located in the Samuel Miller Magisterial District on Deer Path Road [Route 809] at the intersection with Old Farm Road [Route 846]. The Comprehensive Plan designates this property as Neighborhood Density in Urban Area 6. (Megan Yaniglos)
Ms. Yaniglos presented a power-point presentation and summarized the staff report. (See Staff Report)
- This is a request for preliminary plat approval to create 2 lots on 2.066 acres. The plat was called up for review by an adjacent property owner. The plat has been reviewed by the Site Review Committee and has been found to meet all of the requirements of section 14-206a of the Subdivision Ordinance. Staff recommends approval of this subdivision.
- Some questions have been brought up concerning the access for the adjacent property parcel 4. An access easement is proposed off of Deer Path Road that does not disturb critical slopes. This easement is allowable and will cross the proposed lot A, but will only serve lot 4. There have been some questions raised by the public concerning the drainfields for the proposed lots. A representative from the health department is here to answer any questions after the public has spoke regarding the item.
Mr. Morris asked if there were questions for staff.
Mr. Edgerton asked if this was the replacement driveway for the one put in on critical slopes that has to be taken out, and Ms. Yaniglos replied yes.
Mr. Edgerton asked why the proposed driveway went all the way around the property.
Ms. Yaniglos replied that in order to avoid critical slopes the driveway comes around and joins into the existing drive.
Mr. Fritz noted that gives access from parcel 4 to Deer Path Road. There is no way to get from Deer Path Road without going onto adjacent property without going on critical slopes.
Mr. Edgerton asked if there was any concern about using part of the development area or building envelope with that easement. There is 33,000 square feet of buildable area shown and this easement is going right across it.
Mr. Fritz replied no that there is no prohibition because driveways and other such amenities can be located within the buildable area.
Mr. Edgerton questioned if that included driveways to other properties.
Mr. Fritz replied yes, that in some cases it included shared driveways.
Mr. Morris opened the public hearing and invited the applicant to address the Commission.
Justin Shimp, representative for Mr. Bonner, noted that he did not have a presentation. He asked if the easement would be a condition of the plat approval since he was not sure how it would affect their subdivision.
Mr. Fritz replied that staff had received some questions about the easement and was just trying to show where it is located.
Mr. Shimp agreed with staff’s assessment noting he did not have anything further to add.
Mr. Morris asked if there were any questions for the applicant.
Ms. Porterfield suggested making it a condition of the plat approval since they were having trouble with the next lot and don’t want to close off access from Edgemont Road with the new proposal. They need to know that they can get to the other lot without a problem because there is a house on it.
Mr. Shimp replied that he would prefer to tackle that issue at another time. He did not think that this parcel should be burdened with the access to a separate parcel and a separate application that is reviewed under its own guidelines to provide a shared driveway for these two lots.
Ms. Porterfield noted that they had a major problem with the other lot because the driveway was put in without authorization and has to be taken back out again. Now they want to close the access to that lot that it has had for years. She asked how they would get to that lot.
Mr. Shimp replied that it has been their intention to provide an easement through this lot in one manner or another around the critical slopes to serve the neighboring lot. He questioned how this could be attached to this preliminary plat approval.
Mr. Fritz noted that a condition could be placed on the plat approval that might address everybody’s concern that read provision of an easement to provide access to tax map 76C, block 2, parcel 4 and this easement would serve only tax map 76C, block 2, parcel 4.
Mr. Morris invited public comment.
Katherine Almy questioned where the drainfields would be located since this is the first time that she has seen this proposal.
Ms. Yaniglos noted that the drainfields are located in the rear of the property. The driveway does not go over the drainfields.
Ms. Almy said that specifically the neighbors have had concerns from the beginning about the drainfields and the seemingly conflicting regulations between the state and county in regards to residential sewage treatment systems. They have asked Mr. McDaniel of the health department to use the general provisions of the Code to revoke its approval of the drainfields. They do not believe that what is being approved complies with the minimum requirements of regulation 15.2.-2157. They asked Mr. Fritz to have the county attorney review this to see how it would affect the county ordinance. This Virginia Code, which was adopted in July, 2007 and is in effect until July 1, 2009, defines long conventional systems and references other regulations. But, it also requires counties that have a record of these systems to have notified their owners of their maintenance responsibilities and civil penalties. To try to interpret the county’s ordinance has left them very confused. Their understanding of the county ordinance is that if a conventional drainfield were to be required to handle effluent and drain lines in what is absorbed in the soils and pressure distribution drift systems and in addition other non-conventional systems are allowed it would not hold up under current Code. By default this definition would fall into a non–conventional or non-traditional category. In fact, it is almost stating that anything goes. They do not believe that the County Code is consistent with the law that was signed last year. To add to the confusion they noticed that with every cover letter that comes with the accepted drainfield approvals from health department for approved drainfields says this subdivision approval is issued in reliance upon a certification that approved lots are suitable for traditional systems.
Ms. Almy continued that because of some unforeseen argument that may challenge this she would like to express some further concerns. Traditional septic systems have been around for over 100 years and if properly installed they will work for decades without maintenance except for a periodic pumping of the tank. Alternative or non-conventional systems are used normally in areas not served by public sewer systems or on soils that cannot support conventional septic systems. These original three lots can support a conventional septic system, but the county seems to be using non-conventional alternative systems from a long planning perspective. Is this technology going to drive the current development trend? Are these systems going to be regulated and what will their impact be? Most of this technology is less than ten years old. Is there enough history to show how these alternative systems work without major problems? The most common cause of failure is lack of maintenance. But, it would be mandatory after July 1, 2009. The annual maintenance of these systems cost between $150 and $400 a year. If someone has limited financial resources the cost of maintenance could be a problem. She asked how these systems would affect neighboring properties and the environment. She asked if they should be required to post a bond. She asked who is maintaining the follow up records for these alternative systems and should it be used as a growth management tool. There should be a permitting process in place and maintenance requirements process and there are none.
Joe Loving, of 17 Deer Path Road, said that they are all back here once again considering another small piece of this larger development with no plats for the adjoining owners to review. This is the first time that they have seen this. There is no clear understanding of non-traditional septic systems that would be going into these tiny runway-style proposed lots with wetlands, critical slope problems and illegal driveways. The list of unsettled items goes on and on. They have been here before making this same song and dance. The neighbors who have to live with the decision forever have only three minutes to convey how seriously flawed each of these proposed subdivisions are. This becomes obviously once you look at the big picture. Mr. Bonner purchased a house on a 6 acre lot about a year ago. Rather than renovating and moving in his family, which he assured the seller that he was going to do, he immediately developed the property. He started by adjusting lot boundaries to create three lots of two acres each. Through separate proposals he divided each of these lots again. Each split adds more stress to the environment. There would have been plenty of room for legally placed single residence driveways, traditional septic systems, and avoidance of critical slopes and greenway that would muffle the sounds from the very busy freeway. These desirable outcomes become impossible if this property is totally subdivided as proposed. If they would consider each of these poorly planned proposals but carefully planned proposals as a whole it would be easy to see what is going on. The developer is playing the system here. He felt that by not reviewing this big ugly plan as a whole that they were getting the short end of the stick. He asked that the Planning Commission look at the complete packet. When the puzzle was put together it was no pretty picture.
Marie Mojoe, of 39 Old Farm Road, said that she saw no reason to accommodate Mr. Bonner’s request since he has not resolved the last order and has made no effort to remove that driveway. As of this afternoon the driveway still exists. She believed that the development on Deer Path needs to be addressed as one whole parcel as Mr. Loving said. She asked how the subdivision of parcel 5 could be approved when it directly affects another parcel’s access. The request for maximum density created the problem to access both the old Priest house and the two proposed lots on parcel 5. Therefore to access all three potential lots contained in parcels 4 and 5 should be considered prior to the subdivision of lot 5. They need to figure out how to get to all 3 lots if they want to do all 3 lots. She contended that this lot should not be subdivided. It is at maximum density and could fit driveways for all parcels. She requested that the Commission deny this request since parcel 5 is already saturated.
Frank Featherson, of 15 Deer Path for 30 years asked to read a letter he wrote to Ms. Yaniglos yesterday. As an abutting property owner he asked the Commission to deny Mr. Bonner’s request.
Thomas White, of 12 Deer Path Road, noted that he did not have much to add to what his neighbors have said. He expressed his concern about the report that says that he has complied with the technical minimum necessary to get this application before the Commission. He viewed this type of behavior as lot poaching. He asked the Commission to deny the request. Down stream of the intermittent stream, which he felt was not an intermittent stream, is a major drainage of Observatory Mountain. There is a very large flow that comes down there, which has not occurred in recent years. That means that the development of these lots could cause serious drainage problems for those who live down stream. All of the lots that face on the south side of Deer Path are a part of that floodplain. In his view the Commission should take a caution approach to the approval of these kinds of applications. Those who live there have the right to rely on the previous subdivision that was there when they did this activity.
There being no further public comment, Mr. Morris closed the public hearing to bring the matter before the Planning Commission.
Ms. Joseph requested to ask Mr. Kamptner a question about the right-of-way access. When the Commission looked at the critical slope request last time she thought someone said that it was impossible to use the existing driveway to get to the house. She asked if they could consider that to be a valid easement even though it had not been platted because it has been used for so many years for the house. She noted that it was a separate parcel.
Mr. Kamptner replied that it would be a prescriptive easement, assuming that there is nothing of record, and that it would have to be established at this point through a conveyance to grant a right that way or through a court proceeding to establish a prescriptive easement, which requires certain findings to be established. In it is 20 years in Virginia. There are one or two other requirements as well. It may or may not be an enforceable easement by the dominant estate.
Ms. Joseph noted that issue is not before us, but she did not want to dissolve that easement if it still exists. She felt that is what is being asked when the Commission looks at that plat.
Mr. Edgerton said that it is before the Commission and for whatever reason that original driveway shows on the soils maps and subdivision plat before them. He asked if it is not to be used then why is it there. It does exist. There was some earth moving behind the house, but obviously they think they can get back with that same access as shown on the drawing.
Ms. Joseph noted that they were looking at two more stream crossing to access that and they have one existing road that does not cross the stream. She could not ignore that.
Mr. Edgerton said that the access to all three lots is already there.
Ms. Porterfield agreed with Ms. Joseph that they could get to these a different way. She was concerned with closing that easement, which is what they would do if they accepted this.
Mr. Edgerton asked staff why the buildable areas are required to be shown and what is the purpose.
Mr. Fritz replied that it would be the all inclusive area for the location of a house, the driveway, the parking areas, the drainfields and septic systems and areas not served by public water for the wells, accessory structures, gardens, etc. He noted that 30,000 square feet is required by ordinance.
Mr. Edgerton said that he had a great deal of trouble with the existing right-of-ways cutting into the 30,000 square foot area. There is a 25’ road easement that goes up the old driveway to Edgemont Lane that cuts through and reduces the 30,015 square feet by 15 square feet.
Mr. Friz said that has been brought up as an issue in other cases. He noted that the ordinance reads in determining the building site that it is exclusive of certain things and easements are not exclusive of the building site. For example, easements for sewer, water, access or power lines can be included in the 30,000 square foot building site. The ordinance says that a building site cannot include critical slopes, areas within stream buffers and areas that are under water in certain areas around the reservoir. All other areas can be included.
Mr. Edgerton asked what right the future owner of this lot would have to use the existing driveway that remains showing on this plat to Edgemont Lane.
Mr. Fritz replied none because condition 3 as noted in the staff report would require its closure.
Mr. Edgerton asked that the health department representative address the concerns expressed about by Ms. Almy about the septic studies. He asked if Mr. Craun was present.
Ms. McCulley pointed out that Jeff McDaniel was present for the health department.
Mr. Edgerton asked if there is any relationship between William Craun and the person that did the soils study.
Jeff McDaniel replied that Michael Craun is William Craun’s nephew, which was one reason why he was present tonight.
Mr. Edgerton asked if it was because of the perceived conflict, and Mr. McDaniel replied yes.
Mr. Edgerton noted that they were being asked to make decisions based on representations from William Craun that Michael Craun’s study is appropriate. He noted that he had some problems with that as a potential conflict of interest.
Mr. McDaniel said that he took that into consideration and went and did some review on these lots.
Mr. Edgerton asked if he was willing to put his engineer seal on this.
Mr. McDaniel replied that he was not an engineer, but has worked with the health department for 30 years. He had their regional soil’s consultant from the Richmond office, which was out of Virginia Tech and completely independent of the local health department come out with him yesterday to look at some holes on one of these lots. He said that he would be happy to answer questions.
Mr. Edgerton said that in the staff report on page 24, which is part of the soil’s study, Michael Craun shows drainfields on the two proposed lots. He saw six boring locations on parcel Z, but no boring locations on 76C residue. He asked if borings were taken on both.
Mr. McDaniel replied yes, that there is another submittal on the next parcel. This is the first time that he has seen this staff report. He had with him information on the soils on the two sections or two halves of this lot. He noted yes, that there were soil studies made on both sections.
Mr. Edgerton asked that he explain some of the concerns raised by Ms. Almy that the soils study are requiring some type of alternative system or non traditional septic system.
Mr. McDaniel said that these soils are showing that it is shallow to either rock or the water table. In this area there is a question about the water table. The design criterion includes a pre-treatment before dispersal into a drainfield. What they understand and what they have been doing with similar things during past seven to nine years is following those procedures in Albemarle County. They have been approving the same type of systems in Albemarle County over the past seven years or longer.
Mr. Edgerton asked if there have been any problem with those systems.
Mr. McDaniel replied no that there were none that he was aware of.
Mr. Edgerton asked if he was not aware of any of the issues stated in Ms. Almy’s report about the annual maintenance and the additional costs involved.
Mr. McDaniel replied that he was aware that there are concerns if you look at completely alternative septic systems going in that it would be a good idea to look at monitoring and maintenance agreements. A house bill was passed this last year that is going to address that. There have to be regulations in place by 2009. They are working on that right now. The bill will require operation and maintenance performance information for alternative systems. The purpose is that it will continue to function well into the future.
Mr. Edgerton asked if by the General Assembly passing that bill that it indicated that there have been problems.
Mr. McDaniel noted that bill handles traditional systems as well. There is a risk every time a drainfield is put into the ground.
Mr. Edgerton said that there are requirements of the health department on how close a well can be to a septic site. He asked if there were regulations on how close a house can be to a septic site.
Mr. McDaniel replied yes that that for footings and basement they would have some setbacks. It would require the septic site to be 10’ from the footings and 20’ from the basement. It would generally require 100’ to the well from the septic site.
Mr. Edgerton noted that he had a problem a number of years ago on his property where septic sites were proposed along his property line where the 100’ requirement for a well meant basically the development on the adjoining property basically took away 100’ of his property that could not be used for a well. He asked if there is a current regulation on how close it can be to a property line.
Mr. McDaniel replied that is true when it comes to farm land. This is all served by public water and there are not any wells infringing on this.
Mr. Edgerton said that the adjoining land is rural and that does not mean they might prefer to have a well. He noted that the subject lot is served by public water, but he questioned if the adjoining lot or tax map 76C -10E2 was served by public water. He asked if it did.
Mr. McDaniel replied that he did not know.
Ms. Yaniglos said that she did not know.
Mr. McDaniel noted that the setbacks being proposed for the subdivision sites are adequate according to current standards. He said that it would be a potential problem if the adjoining land was agricultural or farm land.
Mr. Loach asked if the health department has done any studies or evaluations on these non-traditional septic systems since they have been using these systems for the last seven to nine years.
Mr. McDaniel said that the State Health Department and their district have. They have looked into some in Louisa County. They did a small study and the results of that showed that they could not find any evidence of failures or problems. Even some of the systems that had gone beyond the factory maintenance monitoring agreements some of them had kept those in place after that time. Others did not. That was not a formal study, but something that they did in their office.
Mr. Loach asked if the system requires pre-filtering.
Mr. McDaniel said that what is being proposed on these lots is a treatment system that cleans the effluent up to limit as opposed to what comes out of a septic tank. Therefore, it can be put into the ground either closer to the water table or maybe in a little smaller footprint area.
Ms. McCulley added that in Albemarle County they do not allow experimental or provisional systems. Since 1989, since she has been zoning administrator, they have allowed only systems with general health department approval. Before it can obtain the health department’s general approval status it has to have been through a study and testing period.
Ms. Joseph noted that one of the requirements of the Subdivision Ordinance is to have all of the easements shown on the preliminary subdivision plat. She thought that an easement exists there and was not comfortable with this.
Mr. Kamptner asked if all three parcels are under the same ownership.
Ms. Yaniglos replied no, that parcel one was owned by Mr. Harding.
Mr. Edgerton noted that parcel has already been subdivided into two.
Mr. Fritz noted that during the review of the critical slope waiver for parcel 4 the applicant’s attorney provided information that it was his conclusion that there was no easement on parcel 5. It was staff’s recommendation to the Commission that the property was under the applicant’s control and even though no easement existed he had an opportunity to address the situation. That is what he is now attempting to do. The applicant is going to come back and say there is not an easement based on their understanding. He pointed out that he did not know.
Mr. Morris asked if this is an item that needs to be cleared up before they take action.
Ms. McCulley said that perhaps they should discuss to what extent this affects what is being proposed. If there is a recorded easement it is required to be shown on any final plat. It is required in the ordinance and State Code. If it is material to your decision here and they need further information she suggested that they ask the applicant if they have it.
Mr. Edgerton asked if the easement they saw for the first time this evening accessing the other lot would have to be shown as well.
Mr. Fritz said that if it were an easement that it would have to be shown.
Mr. Edgerton said that it has been represented that is the way they will access the other lot without getting into critical slopes. When the applicant was asked about it he said it should not be part of this review.
Mr. Morris asked if the applicant would like to address this.
Mr. Shimp said that originally he looked at this, knowing the issue with the neighboring lot and the critical slope disturbance; it was his intention to share a driveway between the new lot and the existing house. He would use the existing driveway off Edgemont lane to the parcel to the west. The problem is that would require a waiver in accessing two driveways to one subdivision. If the Commission is willing to grant that they would be willing to provide one driveway for the existing house around the critical slopes to access the parcel to the east and maintain the existing driveway to the parcel on the west side.
Mr. Morris asked if there are existing easements on this property.
Mr. Shimp replied no that they have just completed boundary survey and research on this piece for the final and did not find anything.
Mr. Edgerton asked if it was with the exception of the 25’ road easement along the far western corner that parallels Edgemont Lane.
Mr. Shimp replied that is an easement, but not as far as a driveway easement.
Mr. Edgerton asked if Edgemont Lane is a state maintained road.
Mr. Shimp replied that it is not.
Mr. Edgerton asked who that easement is to.
Mr. Shimp said that he understands that this parcel has access to that easement. It is for access to the parcel behind on tax map 76, parcel 10E2.
Mr. Fritz noted regarding a prior question that tax map 76, parcel 10E2 has no dwelling or structures and is in the jurisdictional area for both public water and sewer.
Mr. McDaniel asked to clarify that there are regulations for where wells can be sited, but none for where drainfields can be sited other than 5’ from the property line. He wanted to clear that up.
Ms. Joseph said that even though the easement was never recorded that driveway that may be a prescriptive easement may be there since it has been used for so many years. She could not support the request since this plat shows that removed.
Mr. Morris invited Ms. Featherston to address the Commission about the easement.
Jane Featherston, of 15 Deer Path, said that she could see the driveway that Mr. Bonner put in out of her window. The driveway is dangerous because the slopes are so severe. She did not know why Mr. Bonner had to do that because the Priest property had its own driveway. This Priest property has existed for a long time.
Mr. Kamptner requested to ask several questions. He asked if at any point Mr. Bonner owned all three of the proposed parcels on which the driveway exists.
Mr. Lane Bonner said that he still owns all three parcels.
Mr. Kamptner noted that he was not an expert on prescriptive easement. But, it may be possible that if anybody ever had a claim prescriptive to a prescriptive easement over this property when the title was held by Mr. Bonner any claim would be extinguished. That is something they would have to research. If he still owns the property and owns the house to which any claim could be asserted over this driveway, if any such claim exists it could be cleared up by recording an instrument tomorrow. He encouraged them not to hang their hat on that issue because Mr. Bonner owns all of these lands right now. Whatever it is may or may not exist. The Subdivision Ordinance does not necessarily lead to good planning but establishes minimum standards for development.
Mr. Morris asked that the Commission concentrate on the preliminary plat.
Ms. Porterfield asked if Mr. Bonner was still using the driveway that was put in without authorization.
Mr. Bonner replied that they have removed the dirt from the critical slopes as requested and are not using that driveway to access the house right now. They are using the old driveway until they build a new driveway.
Ms. Porterfield was concerned that they are going to close off the access to the house and wanted to avoid the same situation occurring again. She wanted something that shows exactly how they would take care of that other lot.
Mr. Bonner noted that this driveway has been looked at by engineering and Ron Higgins and they have been given permission to put the driveway in as shown in pink on the drawings.
Ms. Porterfield suggested that the pink drive should go on the plat.
Mr. Fritz said that approximate alignment can be done if it avoids the critical slopes.
Mr. Edgerton said that he heard staff say loud and clear that all easements have to be shown. If that needs to be part of this plat, then it needs to be shown with something more than a magic marker. He would like some assurance that it really has been looked at a little bit more than the critical slopes if there are other issues. With that in mind he was going to recommend denial. Mr. McDaniel has given us an interpretation how it is against the regulations to have a septic site any closer than 5’ to the property line. It is hard to determine that from the free hand drawing that shows the potential septic site. He asked that the Commission be provided with some clear engineering on that. He would very much like to have both Mr. Crauns here to explain exactly what sort of engineering they have done on this.
Motion: Mr. Edgerton moved, Ms. Joseph seconded, for denial of SUB-2008-00022, Bellair #5 Preliminary as the plat does not comply with the ordinance. It needs to show all of the easements and clear engineering needs to be provided for the potential septic site.
The motion carried by a vote of 6:0. (Mr. Strucko was absent.)
Mr. Kamptner noted for the record that the denial was because the preliminary plat does not meet the requirements of Section 14-302.a.4 showing the location and dimensions of all private easements.
Ms. Joseph noted that it also included the septic location.
Mr. Morris stated that SUB-2008-00022 Bellair #5 Preliminary was denied.
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