Albemarle County Planning Commission

February 3, 2009



SUB-2008-00240 Little Yellow Mountain - Final Plat

The request is for final subdivision plat approval to create 2 lots on 75.65 acres; associated with this request is a request for a waiver to allow access to these lots, as well as 2 additional existing lots, via a private street. The properties are zoned RA, Rural Areas described as Tax Map 55 - Parcels 40D and 44 are located in the Whitehall Magisterial District on Mint Springs Road [Route 684] approximately 0.45 miles southeast of the intersection with Railroad Ave. [Route 788]. The Comprehensive Plan designates these parcels as Rural Areas in Rural Area 3. (Megan Yaniglos)


Ms. Yaniglos presented a PowerPoint presentation and summarized the staff report.  She provided clarification on what the existing parcels look like and how they are being proposed to be divided with the boundary line adjustments.  The proposed lot 40d is having property added form parcel 44.  Lot 40E is staying the same shape and the blue and purple colors are the proposed lots.  She noted the location of the proposed private street.  Parcel 40D has an existing dwelling.

·         The applicant provided justification for the approval of the private street under Section 14-232A1 to alleviate significant degradation to the environment.  The applicant provided sections and earth work computations that showed the total volume of grading for the construction of a public street would be 300 percent greater than that of a private street in the same alignment.  Staff found that the construction of a public street would require significantly more earth work and disturbance of critical slopes to the Powell’s Creek stream buffer than the construction of a private street. However, the private street does cross over Powell’s Creek using an existing bridge.   Section 14-234(B) states staff shall consider that absence a compelling circumstance that private streets should not cross over dams or bridges. Staff has found no compelling circumstance in this case.   

·         Factors Favorable – A public street would require significant upgrades and grading in the Powell’s Creek associated stream buffers and therefore a private road would alleviate a clearly demonstrable danger of significant degradation to the environment.  A private street does not permit more development than a public street in the rural area.

·         Factors Unfavorable – The private street would cross a bridge over Powell’s Creek that would be reasonably prohibitive to maintain. Therefore staff recommends denial.

·         If the Commission grants approval staff recommends the conditions again listed in the staff report with a change in condition 3 to omit the word “or” and just have “and.”


Mr. Strucko invited questions from the Commission.


Mr. Edgerton asked if their denial of this were to mandate that the only way the applicant can develop this land would be to go with a public street, which the Commission has not seen the alignment of, he was assuming that the 300 percent increase in impact was along the same alignment.


Mr. Yaniglos replied that the applicant provided information regarding the public street, which was in an attachment to the staff report.


Mr. Edgerton asked if it goes in the same location.


Ms. Yaniglos replied that it goes further back and crosses the creek.


Mr. Edgerton asked if there would be a bridge, and Ms. Yaniglos replied yes.


Mr. Fritz noted that it was a favorable factor.


Mr. Edgerton asked why the 300 percent would not be considered a compelling circumstance.  He asked if there was a definition as to what is allowed to be considered or is it discretionary.


Ms. Yaniglos pointed out that the referenced section said considering the request for the approval of a private street that the private street should not cross over dams or bridges.  That is what that is referencing.


Mr. Fritz noted that the specific answer to his question was no that there is no definition to what a compelling reason is.  As he had stated before staff takes a very conservative view when they are looking at these and staff is looking to the Planning Commission for guidance.  Staff has not had cases like this.  So what the Commission says here will provide more guidance to staff for future decisions.  This was a very difficult one for them.  Staff noted it as a favorable factor because with the denial of this the applicant could still develop the property which would involve some potential significant environmental degradation.


Mr. Edgerton said that the denial could force a more environmentally intrusive development of the property and then a burden on the taxpayers to pay for the maintenance of it.  That is the down side.


Ms. Porterfield asked what the weight limit is on the bridge, and Ms. Yaniglos replied she had no idea.


Ms. Joseph noted that Attachment C shows a couple of different profiles of the roads.  She asked if one side is a private road and the other a public road.


Ms. Yaniglos replied yes.


Ms. Joseph asked which was the public street or the private street.  It is showing 20 percent slopes in some areas, which was a little confusing.


Ms. Yaniglos replied that one that states the disturbed area of .45 acres is the private road. 


Ms. Joseph noted that is only showing up to the turn around.  So it is not showing all the way up to the cul-de-sac.


Ms. Yaniglos replied that the cul-de-sac is what the applicant would need to do for the public street.


Ms. Joseph asked why there are two of these with a cul-de-sac and one that shows a 16 percent slope and the others are showing 20 percent slopes.  She questioned what she was looking asked.


Mr. Fritz replied that the one showing the disturbed area of 1.45 and is the one going with a private street meeting the 3 to 5 lot standard all the way back.  The applicant did not take advantage of the break point where the driveway breaks off and he carried a 3 to 5 lot road standard all the way back to the same point as the public street.


Ms. Joseph noted that she was surprised because she did not know they allowed 20 percent slope.


Mr. Fritz replied that on the 3 to 5 lots under the current ordinance there is no maximum slope. It simply says when one goes over 7 percent it has to be paved.  But there is actually no maximum slope for a 3 to 5 lot road right now.  That is in the proposed Subdivision Text Amendment.


Ms. Joseph asked if staff has received any comments from Fire/Rescue on that one.


Mr. Fritz said what they are proposing is an amendment to the ordinance.  The Commission has recommended approval on the proposed amendment and it is before the Board now.  It went to the Board and they referred it to a Round Table, which is going to be February 26.  One of the things being proposed is that the maximum grade of 16 percent be put on for the 3 to 5 lot subdivision.


Ms. Porterfield asked if they did a public street they would have to bring that bridge up to public standard.


Mr. Loach asked if what staff was saying was that they were going to put more houses in there on 3 to 5 lots plus the existing house and that bridge would not have to come up to a state standard.  He asked if the bridge could hold emergency vehicles.


Mr. Fritz said that if they did it as a private street he did not know if they have a standard for the bridge as to what the weight limit would be.


Mr. Loach noted that they would be adding another 3 homes to an area that may not be accessible by emergency vehicles


Ms. Yaniglos said that there were 2 existing residences, which makes a total of four.


Ms. Joseph asked to clarify that there are still development rights available on these 2 parcels beyond what they are asking.


Ms. Yaniglos replied yes that is correct.


Mr. Strucko opened the public hearing and invited the applicant to address the Commission.


Rob Cummings, project manager with Kirk Hughes & Associates, said that he was present to answer any comments or questions regarding the property division they propose in a private street to be constructed along a 465’ portion. 


·         This access is intended to continue where it has been since 1952 along Mint Spring Road and to serve not only the 3 existing parcels but also the new parcel noted as parcel A on the preliminary plat.  They have looked at multiple designs regarding the improvement of the access to these parcels and what they have before the Commission tonight is the best design with the least amount of impact as supported by the engineering staff and VDOT.  As shown in the staff report a public road would nearly increase the disturbance by 300 percent.  Whereas a private road as they have demonstrated while using an existing farm road and recently improved bridge reduces greatly not only the environmental impact but will keep the aesthetic impact at a minimum.  The entrance and bridge crossing Powell’s Creek has been in place since 1952. 

·         An engineering study was done on the bridge abutment in the stream bed by a structural engineering firm of Dunbar, Milby, Williams, Pittman and Bond of Charlottesville on April 23, 2007.  Their observation in report on the then wooden bridge channel and abutments was the channels profile was fairly level and displayed little evidence of movement or undermining of the abutments.  The substructure showed low evidence of settlement and displacement.  They further added that improving the bridge’s characteristics would be a substantial undertaking possibly including adjusting the roadway grade and increasing the bridge span.  They further noted that the current configuration appears to be functioning adequately.  However, their recommendation to replace the wooden deck with a reinforced pre-cast concrete slab consisting of four 3’ X 16’ slabs as shown on the attached plans.  In that design the load would meet or exceed the Virginia legal truck load.  The installation was performed by R.V.I. Constructors of Madison, Virginia as per approved plans.  They further recommended continuing the monitoring of the channel around the abutments for any signs of damage or undermining especially after high water flow events and keeping debris clear of the bridge.

·         It is with this recommendation that the owner will include provisions within the road maintenance agreement that the expense for repair, replacement and monitoring will be borne equally among the members of the home owner’s association.  It will be further noted on the final plat that a private street and bridge within this subdivision may not meet the standards of acceptance into the secondary system of state highway and will not be maintained by the Virginia Department of Transportation or the County of Albemarle.  Again, the bottom line is at the end of the day they would like to place a private road where a private street exists and create only one additional parcel to access Mint Springs at the same point where it nearly has for almost 56 years with no impacts within its streams or its banks.  The undertaking of a public street in this area will do nothing but go against what ordinances are intended to protect and that is the rural character of Albemarle County.  He invited Mr. Bowling up to join him at this time to better answer questions regarding the historic nature of his property or questions about the bridge and the bridge installation that recently occurred.   


Richard Bowling said that he had been familiar with this property since he was five years old.  His grandparents and aunt owned the farm about 1/10 of a mile downstream along Powell’s Creek and on the opposite side of Mints Spring.  His motive in acquiring this property when James Seal died was preservation or to preserve the farm like character along Mint Spring and restore the working pasture and maintain the houses with their existing look and feel.  With respect to the bridge he had to replace the deck.  At that time he contacted a structural engineer to inspect it.  He gave specific instructions that they wanted a bridge that would support the heaviest fire truck in use in the state of Virginia, which is 81,000 pounds.  The heaviest commercial vehicle permitted on Virginia highways is 54,000 pounds.  So this bridge exceeds the commercial truck level as well as more than adequate for a fire truck.  The other part is about prohibited expense.  He has replaced the deck of the bridge.  He grandparents lived on a property where the sole access is across Powell’s Creek.  So he certainly was familiar with that situation. He pointed out that James Seal assessed the two houses on the property over this bridge for over 50 years. Therefore, he felt that they have addressed to all practical extent the adequacy and functionality and of the bridge. 


Mr. Edgerton asked if the decking has been replaced as recommended by Dunbar, Milby and Williams.


Mr. Bowling replied yes that was done in 2007.  There are two existing houses and he wanted to be able to access them with a fire truck.


Mr. Edgerton asked if their analysis was based on the numbers that he just gave based on the weight of the trucks.


Mr. Bowling replied yes that the 81,000 pounds was the number that they based their design on.  The slab is 16” thick with reinforced steel.


Ms. Porterfield noted that he was basically showing a turn around at the end of the private street.   She asked how far distance are the houses now going to be with their driveways from that point.


Mr. Bowling replied that two of the houses will be within 100’ and possibly less.  There are two houses further up at the top of the mountain.  If it is a requirement it makes plain common sense to have a turn around based on the top of the mountain.  If that is a condition he had no problem with it.  He asked that it be worked out at the staff level since he preferred not to do it now.


Mr. Cummings pointed out the topography does allow for a couple places for that actually to already happen.


Mr. Bowling noted that the top of the mountain was actually fairly level.  There are slopes getting there.  He had no problem with putting in a proper turn around with a proper easement at the top.


Mr. Strucko invited public comment on this matter. 


David Wayland, resident of Powell Creek and a member of the Crozet Community Advisory Committee appointed by the Board of Supervisors said that he had lived in this area since 1935.  Therefore, he was fairly familiar with the property.  He watched the bridge being built day after day.  He thought that they did a good job.  They put in a new mailbox anticipating a lot of new houses going across there.  He noted that his concern is the critical slopes.  That property is very steep.  They used to have an expression in Crozet that there was land that if you plowed it the dirt would go down your shirt collar. This property is that steep.  It is so steep that the hillside is actually terraced.  There used to be apple trees or fruit trees of some nature on it and it was terraced so that the trees could be maintained.  They spent a lot of time worried about an electronic tower that would be visible.  He asked what about two houses built on the high side of Little Yellow Mountain that would be very visible.  He asked why people built houses on sides of mountain.  Of course, it is for the views.  He voiced concern with the visibility of the proposed houses from Crozet because it was very close to being ridge top construction up on the side of Little Yellow Mountain.  He urged the Commission to be very careful because once they allow this to happen it would be opening up to future development.  The people in Crozet have been backing the master plan because that is containing new development within a certain limit.  This would be an invasion of the rural properties that many residents don’t want to see happen.


Charles Mitchell, resident of 1645 Mints Spring Road, noted that this property was diagonally across from the subject property.  If the property were to be developed leaving the two houses and the property up at the top that would be fine.  But this is a change.  This property abuts Mint Spring Park, which is a very special place.  He hated to see development in this area.  They know that the mail boxes have already been set up across street. It looks like it will hold as many as five mail boxes, but maybe as many as ten.  That tells him that this property is being set up to be developed.  This property is outside the growth area,    

which should be part of this consideration.  They would like to see this waiver not granted because it takes away from the area. The Albemarle County website shows this area having 25 percent slopes.  He did not see how these houses could be developed sitting on top of a mountain given everything they have talked about regarding slopes, growth area and Mint Spring Park.  He asked the Commission not to grant the waiver.


Mr. Strucko asked Mr. Bowling to come forward and respond.


Mr. Bowling asked to respond to some of the points and obvious concern. One of these parcels, parcel 44, has the only two house sites on that property at the top of the mountain.  Basically if they did nothing they would have to build a driveway to access it, which would cross Powell’s Creek and would proceed up the hill.  They have looked at that alternative. But it did not make any sense.  He suggested that they use the existing road that has served the property for 50 years.  The other is the slope of the road.  The top of the mountain has been timbered for quite some years.  Part of his motive was to restore the timber at the top of the mountain.  Cattle grazed up there for a long time.  The mountain road was used by logging trucks on many occasions as well as farm vehicles.  He walked up there.  His neighbor jogs up there.  It is steep, but accessible.  Certainly considering some of the other developments in Albemarle County it is consistent.  As far as are they going to get ten houses up there it is shown there are actually three legal house sites at the top. That is the maximum.  There are a total of 8 development rights.  If that is of interest to limit the number of housing up there he would be happy to accept that condition. There are only a limited number of house sites at the top.  


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


Ms. Joseph asked if the white area shown on the map was in the Mountain Protection Overlay District and was where all of the house sites are, and Ms. Yaniglos replied yes.


Mr. Loach said that they talked about what is going to be allowed in the new ordinances.  What they had done in the past with the Neighborhood Model before it was accepted was to use that as a gold standard which they were judging some of the developments coming before the Board and Planning Commission.

If they applied those same standards now what would be the outcome.


Mr. Fritz replied that it would simply require that the road from the public street all the way to the house site everything in between would meet the standard of Section 4.6.6, which is the driveway standard that they have for maximum grade and minimum clearance zones.


Mr. Loach asked if the plan exceeds that now.


Mr. Fritz replied that the maximum grade showing now is 16 percent as shown on Attachment C for the private street.  The applicant is within the maximum grade.


Mr. Morris noted his only concern was the heavy disturbance of critical slopes in the rural areas, which is one of the things they are trying to avoid.


Motion:   Ms. Joseph moved and Mr. Morris seconded for denial of the waiver request for SUB-2008-00240, Little Yellow Mountain – Final Plat.  The denial is based on the recommendation from staff within the staff report.


Mr. Kamptner noted that it would be based upon staff’s identification of the unfavorable factor that is set forth in Section 14-2-34b which discourages the private streets crossing bridges or dams.  In this case the Commission found no compelling reason to vary from that standard. 


The motion for denial passed by a vote of 6:0.


Mr. Strucko said SUB-2008-00240 Little Yellow Mountain – Final Plat was denied by a vote of 6:0.


Mr. Kamptner noted that the applicant has the ability to appeal the decision within ten days to the Board of Supervisors.



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