Albemarle County Planning Commission

July 22, 2008




            Public Hearing Items:


ZTA-2006-00001 Country Stores

Amend Sections 3.1, Definitions, 6.4, Nonconforming lots, 10.2.1, By right, 10.2.2, By special use permit, and 10.4, area and bulk regulations, and add Section 5.1.45, Country store and non-country store uses in historic country store buildings, of Chapter 18, Zoning, of the Albemarle County Code.  This ordinance would amend Section 3.1 by defining certain terms related to country stores; Section 6.4 by adding regulations pertaining to country stores on nonconforming lots; Section 10.2.1, by adding Country stores, Class A, as a by right use in the Rural Areas zoning district; Section 10.2.2, by adding Country stores, Class B, and non-country store uses in historic country store buildings as uses allowed by special use permit; and Section 10.4, by adding an introductory statement.  This ordinance also would add Section 5.1.45 to establish supplementary regulations for country stores, Classes A and B, and non-country store uses in historic country store buildings.  A copy of the full text of the ordinance is on file in the office of the Clerk of the Board of Supervisors and in the Department of Community Development, County Office Building, 401 McIntire Road, Charlottesville, Virginia. (Joan McDowell)


Mr. Benish presented a power point presentation and summarized the staff report to explain the background and intent of the ordinance.   Mr. Kamptner and Mr. Fritz will help with the mechanics of the proposed ordinance.  He pointed out that previously there has been an indication at the Board of Supervisors if the Planning Commission acts tonight it would be reviewed on September 10 as a public hearing. If it goes to the Board on September 10 it will go as a work session and not as a public hearing. 


Mr. Cilimberg noted that it would likely be at the day meeting, which is September 3 rather than September 10 as a work session.  It would either be that or the October day meeting.


Mr. Benish noted that the point was that the Board will not go directly to a public hearing, but will hold a work session first.   This is ZTA-06-01 which is a request to amend existing ordinances to allow for the sustainability and the economic opportunity for country stores in the County.  (See power point presentation.)


Staff has met with citizens and country store owners to get input on issues and concerns related to country stores and a frame work ordinance.  Staff has met with the Planning Commission in two work sessions on the text amendment.  There are approximately 83 known country stores surveyed.  Forty-nine of those are in the designated Entrance Corridors leaving 34 outside the Entrance Corridors.  When staff met with the Planning Commission last three primary areas were identified when looking at the frame work ordinance.  There was an extensive amount of discussion about alternative septic systems, which is an important issue in allowing country stores on small parcels to be able to sustain themselves on those existing small parcels.  The Commission requested staff to tighten up on those provisions.  Specifically what staff has done is establish a tiered system for review of alternative septic disposal systems on site, which first requires that the alternative system is needed solely for the country store use itself and not any other uses on the property or in the building.  It further requires that in the process of allowing for an alternative system that there is no other on site options for a conventional drain field or on adjacent properties.  So essentially there is no remedy other than an alternative system and that alternative system meet Health Department approval.  In the tier approach one would have to achieve all those levels in order to be allowed an alternative septic disposal system. 


The other issue discussed was the mix of uses within the country stores.  It was concluded that the country store use needed to be the predominant or primary use and the current ordinance requires that 51 percent of that use be the country store use.  That was the primary change. 


The Planning Commission supported staffís recommendation to make the process an expeditious one for country stores. There had been a number of classes identified for country store reviews.  Those classes have been consolidated essentially into two. 


There is the class A, which would be a by right or administrative approval for country stores that are located within historic country store buildings. Those are buildings that are 50 years old or older and had been used for country stores in the past.   They would then become conforming uses and would be exempt from certain standards in the ordinance, such as setbacks, parking and landscaping.  The alternative septic disposal option would be available to them subject to the three tiered review. 


Then there is a class B, which is in essence all other applications for country stores, which would be by special use permit for country stores located in non-historic country store buildings. 


In summary, the consistent standards that in common between both classes is a maximum square foot size of 4,000 square feet with potential for a mix of uses that includes office or residence, which has to be subordinate of 49 percent or less.  The country store use then has to be 51 percent.  Food service would be allowed within 20 percent of the country store area with up to 20 percent for outside dining/seating area.  VDOT standards for site distance would have to be met.  Gasoline sales would be by special use permit and the extent of that service is limited to a certain number of dispensers, essentially one multi-fuel type dispenser.  Entrance Corridor review would be provided for signs and stores within the Entrance Corridor.  Accessory uses would be allowed to continue for not more than two years if the country store use is discontinued. 


There is an issue that staff will address in more depth with the Board of Supervisors is that the implementation of this ordinance may create some staffing issues.  The primary impact envisioned is the impact of staffing for the additional work that this ordinance might create on the design review staff.  That staff right now is at full capacity, particularly given the status of some of the frozen positions within the department.  That is an issue that needs to be looked at in more depth to ensure that they can adequately implement this ordinance if adopted.  


Staff recommends that the draft ordinance be adopted.  This is an opportunity for the Planning Commission to hear from the public and address concerns with the draft.


Mr. Morris asked for some clarification.  Over one-half of the 83 country stores are on the Entrance Corridor.  Of that 49 how many are currently in use.


Mr. Benish replied that he was not sure he could give a rough answer to that question. He suggested that Ms. McDowell might be able to answer the question.  They donít have a lot of active country store. Some seen on the Entrance Corridor are not country stores, but actually commercial uses within old zoning. One example is the Shadwell Market, which technically is not a country store.  That is a use that is on a C-1 zoned property.  He estimated that there were 15 or 16 operational country stores that are probably within Entrance Corridors. 


Mr. Morris noted that there were15 plus country stores on the Entrance Corridor.  He asked if this is enacted if the Architectural Review Board would go back out and put new restrictions on signs or anything else.


Mr. Benish noted that any store within an Entrance Corridor is going to be subject to ARB review. 


Mr. Morris asked if the country stores are in conformity there are no further requirements that they would have to meet.


Mr. Benish replied that there were no further requirements.  These are only requirements for new stores.


Mr. Cilimberg note that there would be in any case an Entrance Corridor review for building permits, signs, site plans for any kind of development.  The additional consideration here, which Mr. Benish touched on, are some new standards regarding protecting some of the historical characteristics of those country stores that are beyond what are in the guidelines of the ARB right now. 


Mr. Benish asked to clarify the general number he gave because he was thinking of actual buildings that he know are country store and not necessarily operational. 


Ms. Joseph said that there were 34 country stores that were not on Entrance Corridors.  That means that they have about 49 country stores that will be subject to the Secretary of the Interior Standards and ARB review.  That can be a lengthy process.   Then they have the 34 country stores that are not on the Entrance Corridor.  So there would be no design review for those. 


Mr. Cilimberg noted that what Mr. Benish was referring to would be those who qualify as class A. 


Mr. Morris opened the public hearing and invited public comment since staff is the applicant.


Dave Wyant said he was the fourth generation owner of their country store in White Hall.  Joe Jones, who was in the audience, has the other store up the road about 150 yards.  They are both proud owners of their family stores.  The restrictions do concern them.  He felt that staff has done a great job on this, but he had several issues to discuss.  He has always said that their little country stores was not a place to get wealthy, but a place just to make a living.  It is extremely difficult to provide gasoline in the country due to the high prices.  Most people only buy a few gallons to get to town to purchase cheaper gas.  It does cost more to get the gasoline out to the country.  There are number of restrictions, which include DEQ that is getting extremely costly.  Having a special use permit considering the cost might put them at the point that they might consider taking out the gas.  They use to have two pumps.  It is very hard to find a pump that is fairly inexpensive and has a large number of dispensers. They have to have some monitoring systems.  There are more and more of that being required every year.  That is a major concern.  Another issue is with the food.  They have 20 percent gross seating and preparation area.  In their country store they have a large table that is used for gathering.  The real key to a country store for most is like a little community center.  It is not a restaurant, but it is a convenience to be able to pick up snacks or something for lunch or breakfast.  He agreed that a standard entrance would put them out of business.  There has to be some leniency on that because of the farm equipment and large trailers to make it a little easier on them in the rural area to make the business thrive.  He was asked that some consideration be given to increasing the 4,000 square foot area particularly due to the mix of uses proposed.  If they want mixed use staff might want to adjust that. 


Joe Jones, owner of a country store in White Hall, said that he had some of the same concerns as Mr. Wyant.  He felt that the 20 percent for accessory food sales was too limited.  He suggested that they raise it higher than 20 percent.  He felt that in other country stores in other counties that he knew of probably make up a third to one-half of a store.  He suggested that the percentage should be eliminated or increased.  He could foresee that as being a problem.  It states that a historic building cannot exceed 4,000 square feet.  Many country stores are already bigger than that.  They canít that class A.  If the building is already bigger than they he did not know why they came up with 4,000 square feet.  Many old stores had a food room, which was probably 15í X 20í.  A lot of the stores had a residence on top, a feed room and the store itself.  He saw the 4,000 square feet as being a limiting factor or a problem for some.  Obviously, they can control it with the class B stores.  It is hard to keep gas out in the country due to DEQ regulations.  They have to put up bonds and various things to keep gas available.  A lot of the community looks to the country store for gasoline sales as a public service.  He has to fill up his farm truck at the country.  He asked that the Planning Commission do anything possible to help the old buildings and relax the regulations so they can keep in operation is helpful.


Neil Williamson, with Free Enterprise Forum, said that he worked with Joe Jones on the Rural Areas Committee discussing country stores.  He is encouraged that they have recognized the resource, protecting it and encouraging enterprise.  He was troubled, however, by the continued conflicts that he sees between the Architectural Review Board and other goals of the Country.  Most recently it was with LEED Certification.  The Montessori School was the applicant in that case.  When the Entrance Corridors were set there was a limited number. He continues to be concerned that there are 22 Entrance Corridors to Albemarle County and a higher level of regulation in those areas.  He would encourage the Planning Commission to look at that at their earliest convenience.


Chip Hoyer, an attorney in town, said that he was also counsel and an owner of Boyd Tavern Market, which is in Keswick.  He appreciated the Commissionís interest in this.  He has specialized in economic redevelopment opportunities, which was exactly what this particular market is.  They bought it in January when it was going to be closed.  He has not been contacted yet for any discussion about this subject.  He would love to be put on the list.  These stores are an important part of the community, which was why they identified this for purchase.  There are a lot of disadvantages to these types of businesses. They are already restricted and almost self regulated by these buildings and the limitations that are there whether it is the sewer system, floor plans, footprints that simply canít be changed because some of these buildings are so old.  They also have the competition factor of the other folks that are out there.  Regarding gas, they canít take advantage of the economic as a scale of larger businesses.  They donít trade at high enough volume to get the best deals on gas.  Food is where the advantages are and he was very concerned to see the 20 percent number. Based on the footprint of his business, that number will not work.  If they want these stores to be viable long term they are going to need some flexibility.  The gas market is changing.  The consumer convenience market is changing even as people drive less distance for goods.  These stores in order to make it long term and preserve them as part of the County are going to need to be able to sell food and distinguish themselves whether it is at the deli counter or out of the refrigerator selling a Coke or Pepsi to passers by.  He was very concerned about that issue.  The last thing is that he would be concerned about work sessions being held in the day for a lot of folks who actually work these stores and canít be present.  He thinks there is a great opportunity for these stores to actually come together and share some experience with each other and continue to push along.


Mr. Morris noted that generally the Commission holds work sessions at 4 p.m.  But, it is a touch up because many people donít drive at night.


There being no further public comment, Mr. Morris closed the public hearing to bring the matter before the Planning Commission.


Mr. Morris noted that everyone that has spoken had a concern with the 20 percent.  He asked if they could make that a range rather than a solid 20 percent. 


Mr. Benish asked to first explain how the ordinance operates.  One of the changes discussed was to take the 4,000 square feet.  One of the issues was the size.  That use to be in the definition of the ordinance, and therefore could not be waive able.   That standard is now in the supplementary regulations, which allows the Planning Commission to waive or allow for a larger size.  That was a conscious decision that was made to give that flexibility to this process, but set some perimeters for what they thought was a reasonable size for a county store.  Along those lines the 20 percent is in that same category of the supplementary regulations that can be waived able in certain circumstances.  It is the issue of whether 20 percent is the best approach, which is a valid issue to discuss.  One of the primary goals is to ensure that the use is a country store use and not a restaurant use.  So much like the primary and accessory uses staff wanted to ensure that a country store did not in effect become a restaurant.  The idea was to keep some predominant use.  But, that does allow for a much broader range than 20 percent.


Mr. Cilimberg said that one thing to note is that if they look at page 3 of the ordinance under accessory uses where accessory food sales are listed it would be 5.1.45.b.2.a.  The 20 percent is actually for the seating area.  It is not for the full service area.  So the counter and the prep area is not part of the 20 percent.  It is just the area of seating once they had gotten what they will consume on the site.  It was intended to make sure that the seating area was a reasonable area within the operation of the total country store.  It also allowed outdoor seating for up to 20 percent of the gross floor area.  That was just to clarify what the 20 percent really applies to.


Mr. Strucko asked what the tipping point is to move from accessory food sales to restaurant.   He asked if it was a matter of square footage.  He was sure there are other criteria.


Mr. Fritz said that there are other criteria they could use.  But, they are very difficult.  They could use dollar sales.  But, it was problematic in terms of the enforcement.  So they have utilized floor area as their standard measure.  


Mr. Cilimberg noted that it can be modified by the Planning Commission as the total size of the store can be modified.


Mr. Morris asked if they do have flexibility there, and Mr. Cilimberg replied yes.


Ms. Joseph said that if they could modify the area her major concern has to do with these alternative septic sites.  When talking about restaurant use they are usually talking about large water users and the need for a larger septic site normally. She suggested that a restaurant might require more than a single family home.  


Mr. Fritz agreed that it probably does.


Ms. Joseph said that if the Planning Commission waives that then do they also have any control over whether or not an alternative drain field was used.


Mr. Fritz said that they put as a condition of granting a modification to specify that the opportunity for an alternative system not be available.  He noted that a modification is granted provided it utilizes a conventional system. 


Mr. Benish noted that the alternative system is going to be measured against that Health Department approval, which should be based on the plan for that new country store being approved.  The Health Department would need to know the level of the food service activity. 


Mr. Fritz pointed out that many of these country stores are on very small parcels.  If they start to use a substantial portion and want to go above the 20 percent it is very possible that they could also start to exceed the 400 gallons per acre per day requirement in the ordinance, which would kick in the need for a special use permit to consume more than 400 gallons per acre for a day.  So they might have multiple things going on simultaneously.


Ms. Porterfield noted that was her question.  She asked if this does not preclude that regulation from kicking in. 


Mr. Fritz replied no.


Ms. Joseph said she was not in favor of the Secretary of the Interiors standards.  They were talking about how to make this easier for people to use these and to place that more level of detail with ARB review she just feels really uncomfortable with that.  In emails Mr. Fritz talked about the current ordinance standards.  The current ordinance talks about allowing as an exemption if someone comes in with a property that is on an Entrance Corridor and wants to repair/maintain that does not require ARB approval.


Mr. Fritz replied that was correct because there was no building permit.


Ms. Joseph said that if they want to add on as long as they continue with the same style and same materials, then they would be considered exempt.  That is determined by the zoning administrator.  The country store in Cismont completely redid the property.  It does not look like an historic property, but it is in use and it is serving the public.  It is where she buys gas for her lawn mower and old truck.  These kinds of things are important.  She felt that they are putting a real stumbling block by requiring the Secretary of the Interior standards.  That part she cannot support.


The Commissioners agreed with Ms. Joseph about not requiring the Secretary of Interior standards.


Mr. Benish noted that there was concern expressed previously about granting country stores by right with great flexibility without any insurance that the historic resources are protected. 


Ms. Joseph said that it makes it so unfair because there are 34 country stores out there that are not on the Entrance Corridors and they can just keep maintaining whatever it is they are doing.  Then the other 49 country stores on the Entrance Corridor seems as if they are going to bear this incredible burden in one more level of review that the others donít. 


Mr. Cilimberg said that for signs they would not expect them to be considered under the National Park Service Preservation Brief, which would be in addition to the Secretary of Interior standards.


Ms. Joseph agreed with that because the signs in the Entrance Corridor are going to be reviewed by the ARB.


Mr. Cilimberg replied that was correct.


Ms. Porterfield suggested that they look again at the regulations for the gas pumps.  As someone who drives a diesel car and use to live on an island she understands what they are talking about.  If she canít get a diesel nozzle that fits into her car the truck ones wonít go in.  The diesel was in there, but it looked like it was removed from consideration.  But, she was not sure that the pumps for regular gasoline with the six dispensers with three on each side are economically prudent if they are buying one.  They need to be able to be in the economy that they can support still giving the buyer the ability to buy gas.  She would use the island as a good example of this.  They went ahead and used pumps that were up there rather than going because it was going to price it out of existence. 


Mr. Fritz pointed out that what they wanted to make sure that this did is fuels other than gasoline such as kerosene, diesel, propane, etc. that there are no limits to those.  It is only the gasoline that has a limit on it.  So it is limited to the single pump with the six products for gas only.


Ms. Porterfield noted that she thought that the diesel was not included in that.  She noted that in the rural area they were going to need diesel.  But, she was still not sure that what they see in their developed area with the six nozzles is something that is necessarily going to work well for some of these people.  She thought that the speakers spoke to this issue that they would prefer to keep the pumps they are using.


Mr. Cilimberg noted they could keep their old pumps unless they ask to upgrade.


Mr. Fritz noted that it would be more of an issue if they were attempting to expand.   If they were simply upgrading the pumps that they had to a new pump that would just be the maintenance of the non conformity.  If they wanted additional fueling stations, then it would be subject to that.


Mr. Cilimberg noted that was a special use permit, which he thought the Commission wanted to have. At the time of the special use permit if he Planning Commission felt they in their reasoning needed to have more than one dispenser with the six nozzles they could grant that.  Again, that is part of the supplementary regulations.  The Commission has done that with home occupations where they have granted modifications as part of special use permits.  Therefore, they can do that in that process.


Mr. Strucko asked for some clarification on the 20 percent restriction.  From the testimony it was compelling that the food is where the store keeps financially viable.

The regulation for the 20 percent restriction is just for the sitting area.  He asked one of the applicants to come up and say whether that is something they could work with.


Chip Hoyer asked that was okay as long as it was flexible in their enforcement and they keep in mind that these buildings are typically restricted to an age old space. There was a real concern around the preparation and service area because currently it was probably around 35 percent.  The food portion is probably about 60 percent of the revenues, which was not a restaurant.  That is where the margins are and the things that help pay to have the gas in the tanks at the station.


Mr. Fritz clarified that preparation area, storage, display and all those other things are not included in the 20 percent.  It is strictly the seating area.


Mr. Strucko said that he would be more comfortable if that number was 33 percent.  The store should have flexibility to emphasis that piece of their business that is lucrative at the time and have the flexibility to adjust their operation accordingly.  Therefore, he was throwing out a third.


Mr. Morris noted that if someone wanted one third they could come in and request it as a modification.


Ms. Porterfield suggested if they are going to adopt this that they need to send along with the recommendation that the Board should unfreeze historic planner position.   They need to have someone available to actually make it work.  It does not make sense to change regulations if they canít really make them work.


Ms. Joseph noted that a lot of that review is taken away by removing the review of the Secretary of Interior standards.


Mr. Cilimberg noted that one thing they should review with the Board is an expectation that they may have increased activity that will require ARB review because it is in the Entrance Corridor.  Having the standards or not they will still have the time they will need to spend on the review. The standards play a part because they are an additional consideration during the review.  It is going to be the volume of reviews that they have to do that has to be more of a driving factor in terms of staff implications.  It is hard for staff to project what it is going to turn out being.  If they base it on special use permits for country stores they have gotten two in ten years.  They think this is going to spur more activity, particularly in the first year or so, that will mean more review that they have to do in Entrance Corridors even under the architectural guidelines that exist.  Removing the historic standards from that review process will certainly simply the reviews and probably reduce some of the time the reviewers need to spend.  But, it is probably not going to make any difference in terms of the number that they get. 


Motion:  Mr. Strucko moved, Ms. Porterfield seconded to recommend approval of ZTA-2006-00001 Country Stores.


Mr. Kamptner noted that Mr. Jones had raised the point that there are a number of existing county stores out there that exceed 4,000 square feet.  As such they are now and will continue to be non-conforming, which allows them to continue as they are.  But, it also would impose some limitations on what they can do as far as expanding and things like that.  One of the things the Commission might want to consider, too, is the flexibility to consider grandfathering the existing country stores so that they are conforming for the purposes of the country store use, which would remove some of the impediments to whatever they need to do to remain viable. 


Amended Motion:  Mr. Strucko moved, Ms. Porterfield seconded to revise the motion to include the amendment as made by council.


Mr. Cilimberg reiterated the Planning Commissionís review noting that it was important for this to be in the motion to move forward. 


         The grandfather provision as stated by Mr. Kamptner to grandfather the existing country stores so that they are conforming for the purposes of the country store use.

         Remove references to the standards that are for preservation briefs of the National Park Services or the Secretary of Interiorís standards.

         Other than that, the Commission agreed to stay with the rest of the ordinance as recommended.


Mr. Strucko agreed that was his understanding when he made the motion.


Mr. Morris agreed as long as they fully understand that anyone can come in and ask for a waiver.


The motion passed by a vote of 4:0.


Mr. Cilimberg noted that most likely this item would go before the Board for a work session at the September day meeting.


Ms. Joseph suggested that the Board of Supervisors consider doing the work session at night so more farmers could attend.


Mr. Cilimberg pointed out that the September evening meeting has been cancelled for the Board at this point.


Motion:  Mr. Strucko moved, Ms. Porterfield seconded to recommend approval of ZTA-2006-00001 Country Stores as recommended by staff, as amended, with the changes summarized by staff, as follows:


1.       Include provision as stated by Mr. Kamptner to grandfather the existing country stores so that they are conforming for the purposes of the country store use.

2.       Remove the references to entrance corridor reviews by the architectural review board based on the Secretary of the Interior Standards for Rehabilitation and the National Park Serviceís Preservation Brief #25, The Preservation of Historic Signs.


It should be noted that there are resource implications to the adoption and implementation of the ordinance (as described in the staff report) that need to be addressed by the Board of Supervisors before this ordinance is adopted and put into effect.


The motion passed by a vote of 4:0.


ZTA-2006-00001, Country Stores was recommended for approval and will go before the Board of Supervisors on September 10, 2008.  The Commission asked staff to suggest that the Boardís hearing be held in the evening.



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