The Albemarle County Planning Commission held a meeting, work session and public hearing on Tuesday, November 11, 2008, at 6:00 p.m., at the County Office Building, Lane Auditorium, Second Floor, 401 McIntire Road, Charlottesville, Virginia.
Members attending were Calvin Morris, Chairman, Thomas Loach, Linda Porterfield, Marcia Joseph, Bill Edgerton, Eric Strucko and Jon Cannon, Vice Chairman. Julia Monteith, AICP, non-voting representative for the University of Virginia was absent.
Other officials present were Gerald Gatobu, Senior Planner, Ron Higgins, Chief of Zoning; Scott Clark, Senior Planner, Claudette Grant, Senior Planner; Rebecca Ragsdale, Senior Planner; Wayne Cilimberg, Director of Planning; David Benish, Chief of Planning; Amelia McCulley, Director of Zoning/Zoning Administrator; Mark Graham, Director of Community Development; Bill Fritz, Chief of Community Development 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.
Public Hearing Item:
ZTA-2008-00003 Administrative Waivers
Discussion held on the Implementation of Development Review Task Force recommendations for certain Administrative Approvals in the Development Areas. (Ron Higgins)
Ms. McCulley noted that the results that are within the draft ordinance tonight show a lot of work and thought by the Planning Commission. She thanked the Commissioners for their valuable input on the draft ordinance language.
Mr. Higgins presented a power-point presentation and summarized the staff report. (See staff report and power-point presentation)
· One of the Development Review Task Force’s recommendations was to look at administrative waivers and administrative approvals. The fourth priority in the May, 2007 report to the Board of Supervisors recommended adoption of standards that would allow certain items to be handled administratively by staff, which would have a significant impact on streamlining the approval process, such as private roads, critical slopes in some areas and buffers. The fourth priority was “to establish staff authority for waivers and modifications in the development areas.” The Board endorsed the recommendation provided that staff considers the impact on the public input process and staff would receive policy guidance from the Planning Commission and Board regarding the implementation.
· Staff examined Planning Commission agendas to determine any recurring waiver requests that could be very clearly codified. Staff found several others, which made the total six. Those are certain 404 separate access requests, site plan waivers in certain cases and open space dedication. The 404 separate access requests occurred when there is a property split by a road, which would be a Subdivision Ordinance text amendment. Staff supported five of the six items for exemption or administrative review. The private road waiver was left out because staff found that it was not a frequent request in the development areas and the current subdivision ordinance already provides for administrative approval of the most common request. The few times that it came before the Commission it had already been handled in an administrative process in the current ordinance. Therefore, staff dropped that one.
· Regarding the public input concern, staff suggested providing written notice to adjacent owners upon submittal of waiver requests to allow for public comment prior to rendering the decision. The Planning Commission in a work session suggested that notice and provisions for call-up to the Commission be codified. That has been done.
· The Planning Commission has held three work sessions: November 20, 2007; March 25, 2008 and August 26, 2008. At each work session the Commission reviewed and refined staff’s concepts. The Planning Commission adopted a resolution of intent on February 20, 2008 agreeing with the five items suggested by staff. The Commission agreed to permit administrative approvals for:
o Limited authority to allow critical slope disturbance;
o Open space dedication;
o Buffer disturbance in limited circumstances;
o Waiver of drawing a full site plan.
o 404 exemptions for lots split by a public road. Note: The 404 exemption will be brought back to the Commission at a later date as a proposed subdivision ordinance text amendment.
The proposed ordinance changes include:
· Process for notice to abutting property owners – A new procedure is outlined in Section 2.5, paragraph B.
· Ability to call review up to the Commission – In paragraph C in the same section allows abutting owners and Planning Commissioners to call the item up for review in writing.
The Planning Commission had a great deal of concern over critical slopes and what they thought would be appropriate. They came up with two ways this could be done administratively:
· When the critical slopes were created as part of an approved site plan.
· When replacing an existing structure with a new footprint no larger than that of the structure being replaced.
There are benefits and implications of the proposed amendments.
· The public purpose is served as the time and cost to process certain applications is reduced. If they codify the criteria and make them clear they can be met and their history of actions can be carried out administratively in the same way that they were carried out when the Commission acted upon them.
· It provides a more appropriate level of review for such requests.
· It will allow the Commission and Board more time to focus on policy matters.
· Staff recommends approval of the draft zoning text amendments (Ordinance No. 08-18, dated October 3, 2008).
· The public hearing with the Board of Supervisors has been tentatively set for January 7, 2009.
Mr. Morris invited questions.
Ms. Porterfield noted that under Section 2.5 B it indicates that the agent shall send written notice of the waiver request. She was in favor of placing these notices on the applicant. She questioned if this would be a good place to start that instead of having staff do it. Staff can provide the list and the applicant send out the notifications. Secondly, in that same section it says mailed or hand delivered at least five days prior to the date by which the agent will act on the waiver requests. Personally, she did not think that was enough time because she had trouble getting her mail. She suggested they work with business days. If they want to keep it a shorter period of time she suggested ten business days. That would assure that anyone should get the notice prior to the action point. She questioned if something should be included if they were going to place the notification burden on the applicant that it should be sent by certified mail. The applicant can bring the certified mail slips in to show staff that they have done the mailings. She suggested that section D) be changed from 30 to 45 days to give staff additional time to get the item on the agenda.
Ms. McCulley pointed out that the comment about having the applicant mail rather than the agent is a valid comment and staff appreciates that thought. It would probably make sense for staff to address that issue comprehensively since there are a lot of other notice requirements in the ordinance. This one just relates to waivers. If they did that, then they would just be doing it piece mill. It would be best to handle all of the notice requirements at one time to put the burden on the applicant. She asked that they handle it that way, but that it was at the Commission’s discretion. This discussion about the number of days notice prior to the decision came up at the last meeting. She asked Mr. Kamptner to talk about that.
Mr. Kamptner said that he could not specifically recall how they came up with 30 days. But assuming that some of these are going to be brought in the context of a subdivision plat or a site plan they are already under a tight time frame to approve. Therefore, they wanted to be certain that the waivers would be addressed within the outer limits of the review time that is allowed for site plans and plats.
Mr. Graham pointed out that that they talked about notices with respect to the subdivision ordinance, which is coming back to the Commission in January. They are going to be doing the same thing as far as zoning ordinance fees. He encouraged the Commission to allow staff to work on that comprehensively where they can look at all of the notices as Ms. McCulley said for the rezoning, special use permits, etc. That way they can look at the whole thing and also assign fees as appropriate at that time.
Ms. Porterfield asked if they all require a five day notice.
Mr. Kamptner replied that five days is pretty much the standard. They begin with the notice requirements in the State Code, which require five days to the land owners who abut land that is subject to a rezoning application.
Ms. Porterfield questioned if it was five days and not five business days.
Mr. Kamptner replied that was correct.
Ms. Porterfield pointed out that the 24th of December is on a Wednesday. Then there is Christmas, the 26th and a weekend. She noted that five days would be over before anybody would get anything. She wondered if they want to continue this.
Ms. McCulley noted that this point came up at the last work session. Even though the ordinance language for notice is the five days our practice actually to do it is something like 21 days in advance.
Mr. Cilimberg said that the five days is really a safeguard in the event that something needs to be sent out that is a late comer or revised from the original mailing. Staff would have that period of time to still get something out and meet the time requirements. But, our actual procedures are to send out those letters much more in advance than five days.
Mr. Cannon asked if the five days were constrained by the overall schedule for review and approval. He asked if that is part of the constraint that they need to operate under to meet those deadlines.
Ms. McCulley asked Mr. Fritz to speak because his division handles these issues.
Mr. Fritz said that the current process is that the application is received and 24 days afterwards there is a Site Review Committee meeting. Prior to that meeting staff sends out a notice, which is about 10 to 12 days. The way staff envisions this working is that when they get applications they would simply include not only a description of the project but whether or not there was or wasn’t an administrative waiver that was included as part of it. There would be a distinction noting that two distinct actions would be taking place. The applicant would then go to the Site Review Committee meeting. Staff envisions setting the appeal date the same as the appeal date of the site plan. It makes little sense to grant a buffer waiver administratively only to have the project appealed and presented to the Planning Commission. That way staff would just give the Commission everything. That is how staff sees it happening. These timeframes are exactly the same and ensure that staff sends the notices out. There will be some cases where the request may not have to go to the Site Review Committee and staff will have to develop some sort of review process.
Mr. Cannon said that he had some concern with regard to Ms. Porterfield’s point that five days, which includes the time it takes to get from the mailbox into somebody’s hand, is not enough. He disagreed that it should say working days, but that ten days might give some assurance that people would receive the notice with enough time to read it and react if they were concerned. He asked staff if they have cases within this five day regime that seems to be standard where people come in saying that they did not receive the notice or did not have enough time to read it.
Mr. Fritz replied that staff does not generally get a lot of those comments. Staff generally gets the comment that they did not have enough time to look at it very near the end of the project and would not know how long they did or did not have the notice. The person may not have been an abutting owner and did not receive a notice. It may be because of the process they have set up where they have this review cycle. The most common response is that someone says they were out of town and could not respond to it. That will happen anyway regardless of what kind of time frame is set.
Mr. Cilimberg noted that the notification on site plans that would be subject to a waiver request would go out much earlier in the process because staff notifies them before the Site Review Committee.
Mr. Fritz said that the Site Review Committee meeting occurs 24 days into the process. Staff is notifying people of that meeting that includes the site plan project information and that there is a request for an administrative waiver of a certain section to allow disturbance of buffer or whatever it may be. Instead of sending out an extra mailing staff is trying to incorporate with whatever mailings they might have unless in those few cases where there might be something else. One other question the Commission had was in regards to whether staff could get the request to the Commission within the 30 days. With regards to the 30 days, staff is getting any appeal to the Commission within 30 days. Therefore, staff is already doing that.
Mr. Morris invited public comment.
Morgan Butler, representative for the Southern Environmental Law Center, said that at the last public hearing on this item he raised a number of questions and concerns about the way the critical slope waivers had been drafted. He thanked and commended staff for the way they resolved those issues in the draft that is before them tonight.
There being no further public comment, Mr. Morris closed the public hearing to bring the matter back to the Commission.
Ms. Joseph noted that the way this was written if the Commission wants to bring an item before the Commission they have to in writing request that the item be received by the Commission. She questioned whether that is something they want to do. She asked if they want to subject this Commission and future Commissions that if they would like the waiver request to come before them that they have to send Ms. McCulley a formal letter.
Ms. McCulley pointed out that the letter needed to include a justification.
Mr. Strucko asked if an email would be allowed.
Mr. Kamptner replied yes that an email would be sufficient.
Ms. Joseph said that a simple phone call would no longer work any more. It would have to be in email form.
Ms. Porterfield asked if has to be written.
Mr. Kamptner replied that the way the draft is written right now it does not have to be. In fact, when they were discussing it today by email one of the possible ways to deal with it was that any Commissioner could request it at a public meeting. Or, they could eliminate the requirement for Commissioners to submit something in writing altogether. There are options available as to how they want to do it. They wanted to have some kind of paper trail or an electronic trail as to the request actually being made.
Mr. Kamptner noted that there are options available as to the request being made.
Ms. Porterfield suggested that a request could be made by telephone and followed up with a written request, which would be more timely and helpful if someone were out of town.
Mr. Cilimberg said that sometimes staff receives telephone requests to defer an item, which they then know needs to be deferred in their scheduling. But, they require that there be a written follow-up. It is not changing the ordinance for the Commissioners to call first and then provide it in writing. The writing would be the assurance that it is being requested.
Ms. Porterfield asked if there was a time limit. If they don’t have the request in writing by a certain time does that make the other null and void?
Mr. Morris said that they were getting back into the standard business mode of if it is not documented it did not happen. He thought that was what he was hearing Mr. Kamptner saying.
Mr. Kamptner replied yes. They would need to adjust the ordinance unless the phone call and the request in writing fell within the period that is stated in the regulations. But, staff can do that.
Mr. Edgerton agreed that Ms. Porterfield made a good point that this would be a good place to start the notification by the applicant. If they address it holistically it might be a year or two before it comes back up on the agenda. He was not saying that in a critical way because it was just the reality of the pressure. He agreed that they should make the notification the applicant’s burden because they are requesting the service. He was inclined that it might be a good idea as they review this to make that change. He felt that there was some validity to that. There was a statement on the second page in the last sentence of B) under section 2.5 that talks about all of the different things and how the notice gets out. Then the last statement says the failure of any person who received the notice required by this section shall not affect the validity of a waiver. It shall not invalidate a waiver if granted. That is a catch-all phrase and worries him a little bit. He asked if it was necessary to have that in there.
Mr. Kamptner replied that the notice that they provide in this regulation is above and beyond what is required by law. If a waiver is granted they don’t want it to be invalidated simply because they made a mistake in doing something above and beyond what is required. That language is also used in the site plan ordinance and the subdivision ordinance and for the posted signs that the county posts for most zoning applications.
Mr. Edgerton noted that his read of this says we are going to do all of this stuff, but if they forget that it does not matter anyhow.
Mr. Kamptner said that if someone actually shows up at the public hearing and participates they are waiving all of the notice requirements that are required by state law. So there is a safety valve there, too. It is different, but even state law recognizes safety valves.
Mr. Edgerton noted that it just seems to be kind of a catch-all to cover our responsibility and he was a little uncomfortable with it.
Ms. Joseph noted that the only two entities that can request the review are an abutting owner and the Planning Commission. She asked that 2 C be changed to add the Board of Supervisors to the list.
Mr. Kamptner agreed.
Ms. McCulley asked if 2 B would need to be changed to require that they provide notice to the Board in addition to the Commission. Or, will they just assume that they will receive notice somehow and will have the right to appeal.
Ms. Joseph agreed since she just did not want to exclude the Board from this part.
Ms. McCulley noted that would make it less complicating doing it that way.
Mr. Morris asked for a recap of what changes were recommended.
Ms. McCulley noted that if the Commission decides to require the applicant to do this mailing, then they would have a mailing from the applicant and the county on the same site plan. They may be getting different messages that will confuse them. She did not know what timeline Mr. Graham was looking at for the zoning fees and getting the zoning amendment to public hearing. She would like to ask that they do it holistically if that was possible. She asked Mr. Graham what the time line was for getting the notice issue to the Commission.
Mr. Graham replied it was this fiscal year.
Mr. Cilimberg noted that staff appreciates the concept of going to that kind of mailing. But, he did not think this is the place to do it.
Ms. Porterfield suggested that the applicant have to pay the cost for the notification.
Mr. Cilimberg noted that would become a fee change.
Ms. Joseph noted that is a different section of the ordinance.
Mr. Kamptner said that is being addressed with another amendment that Mr. Graham is currently working on.
Mr. Fritz said that it would much more difficult if they had two mailings going on. It would be more difficult if the applicant is doing one and staff is doing another. Staff would develop the mailing list. Staff would give the same mailing list to the applicant and then ensure that they sent the letters out. That is one of the things they would have to be sure that they are doing. So staff would be doing more work if they had the waivers being sent out by the applicant and staff was still under the current ordinance sending out the notices. There is some work that they would have to do to verify and coordinate with the applicant. They have to make sure that the applicant has the right date and so forth. So either they should give it all to the applicant or keep it all with staff, which would make it much easier.
Ms. Porterfield asked if they could move that idea forward.
Mr. Cilimberg said that staff was already working on it.
Mr. Higgins reiterated the Commission’s suggested changes, as follows:
Ms. Porterfield asked to add what Ms. Joseph requested that the request be followed up by the date stated in the notice and if submitted orally will be followed up by a written confirmation.
Mr. Higgins added a modification to the request causing it not to be entirely and to only to be in writing.
Ms. Porterfield noted that it be so that someone could make a phone call and then follow it up in writing and be within the suggested time frame.
Mr. Kamptner noted that the issue of the five day mailing was that they would stick with it based on Mr. Fritz’s comments.
Mr. Morris agreed.
Ms. McCulley pointed out that would be reviewed when they codify the section on the applicant doing the mailings because they want the date much farther out than that.
Motion: Mr. Cannon moved and Ms. Porterfield seconded to recommend approval of ZTA-2008-00003, Administrative Waivers in Attachment A of the staff report with the modifications recommended by the Commission.
The motion passed by a vote of 7:0.
Mr. Cannon noted that the ZTA-2008-00003 Administrative Waivers would go to the Board with a recommendation for approval on January 7.
In summary, the Planning Commission asked staff to forward the draft ordinance language in Attachment A of the staff report to the Board of Supervisors with a recommendation for approval with the following modifications to the text.
· Under the section requesting Commission review (Sec. 2.5 C.) add the Board of Supervisors as an entity that can request the review.
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