Albemarle County Planning Commission

July 21, 2009


The Albemarle County Planning Commission held a public hearing and meeting on Tuesday, July 21, 2009, at 6:00 p.m., at the County Office Building, Lane Auditorium, Second Floor, 401 McIntire Road, Charlottesville, Virginia.


Members attending were Don Franco, Linda Porterfield, Marcia Joseph and Bill Edgerton, Acting Chair. Absent were Calvin Morris, Thomas Loach, Vice Chair and Eric Strucko, Chairman. Julia Monteith, AICP, non-voting representative for the University of Virginia was absent. 


Other officials present were Wayne Cilimberg, Director of Planning; Philip Custer, Engineer; Elaine Echols, Principal Planner, Summer Frederick, Senior Planner; Judy Wiegand, Senior Planner; Claudette Grant, Senior Planner; Eryn Brennan, Senior Planner; David Benish, Chief of Planning; Amelia McCulley, Director of Zoning/Zoning Administrator; Bill Fritz, Director of Current Development and Greg Kamptner, Deputy County Attorney. 


Call to Order and Establish Quorum:


Mr. Cilimberg called the regular meeting to order at 6:00 p.m. and established a quorum.


Election of Temporary Chair:


Tonight the Commission needs to elect a temporary Chair for this meeting. He asked for nominations.


Ms. Joseph nominated Bill Edgerton for temporary Chair.


Mr. Franco seconded the motion.


The motion passed by a vote of 3:1.  (Edgerton voted nay)


Mr. Cilimberg noted that Mr. Edgerton was Chair for this meeting.


ZTA-2009-00011 Definitions, including Home Occupations

Amend Sec. 3.1, Definitions, of Chapter 18, Zoning, of the Albemarle County Code.  This ordinance would amend Sec. 3.1 by amending the definitions of Home Occupation, Class A and Home Occupation, Class B, by expressly requiring that the home occupation be conducted within the same dwelling unit in which the members of the family conducting the home occupation reside.  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.  (Amelia McCulley)


Ms. McCulley passed out two versions of the revised text. One version had strike outs with underlines to show what is new and the other a clean copy. (Attachment)  The revision is to reorder some of the words so that it is clear and won’t create problems in the future.  She summarized the request, as follows.


·        This amendment is limited to the definition of Home Occupation, Class A and Home Occupation Class B.  The whole purpose is to make sure that the words on the page say what they have always intended and actually what they have practiced until the recent case in which the Commission is familiar.  That is the business is to be conducted only the dwelling unit in which the family, the business owners reside. Several public services are served. One that she talked about in terms of better reflecting the intent and practice.  Also the by-product is that it is better assuring that the residential character is being preserved and they don’t have residences that are then converted to purely businesses. 

·        No negative impacts have been identified.  In terms of process and clarity staff thinks this amendment should improve clarity for both staff and the applicant and avoid some interpretations that would take a lot of time. 

·        The current text amendment is just about the two definitions.  There is work underway on the home occupations for the rural areas.  The Commission may recall in the joint meeting with the Board about the rural area initiatives that one of the two rural area uses identified to have staff go back and look at allowing for more administrative approval is the home occupations in the rural areas.  That is something staff is working on.  It is a much more comprehensive analysis and staff will be bringing that back in the future. 

·        She read the specific language for the Home Occupation, Class A:  An occupation conducted for profit within the dwelling unit in which the members of the family conducting the home occupation reside, where the members of the family residing in the dwelling unit are the sole persons engaged in the occupation.   This definition would not change the requirements that are currently in the ordinance. In other words the Class A, Home Occupation is a by-right use as accessory to a residence.  The Home Occupation, Class B is allowed only by special use permit. The difference between the two is that either employees are allowed in a Class B or an accessory structure is involved or both. 

·        Staff recommends that the Planning Commission recommend approval of this zoning text amendment to the Board of Supervisors.  Staff has scheduled the public hearing for the Board on August 5. 


Mr. Edgerton invited questions for staff.


Ms. Joseph asked to go over what this allows.  For a Home Occupation, Class A she has to live in the house where she is having this business and it has to herself or some other family member that is operating this business in the house. 


Ms. McCulley replied that is correct.


Ms. Joseph said that she could not have another house on the site and operate the business out of that other site.  She asked if she would have to reside in that dwelling.


Ms. McCulley replied that was correct because the business would have to be conducted where she actually resides.  There could be another house on the site, but she could not conduct a business from it unless that became a special permit for a Class B.  


Ms. Joseph said that if it was in an accessory structure or other dwelling it is a Class B and if she hired anyone that is not a family member.


Ms. McCulley replied that is correct. Just to clarify she noted that employees are people who come to the site.  There are plenty of people that have businesses and those employees never come to the site.  They would not count those as employees that would then need a special use permit. They are really dealing with the land use on that residential property. 


Ms. Joseph said that if she had a landscape crew that meets on site and not at her house she was okay.


Ms. McCulley replied yes, but they would have to look at where they were storing their equipment and materials because that in and of itself may take it to a Class B, Home Occupation.


Ms. Porterfield asked in the Class A if the two items one had to have is that they are working within the dwelling unit in which they reside and where the members of the family residing in the dwelling unit are the sole persons it seems like instead of a comma they want an “and” in front of the where.  If it was that one was not subjective to the other and they both have to happen it seems that it should be and. 


Ms. McCulley replied that is true.  That is what they intend.  If there is any lack of clarify they can make that revision.  She asked Mr. Kamptner to look at that to see whether they should make it and since they both have to be true. 


Ms. Porterfield noted in the Class B she had a problem because they put for profit way down in it.  It seems that they ought to be parallel.


Mr. Kamptner agreed that is a good point and was going to suggest that change as well to the two definitions would have a very parallel structure.


Ms. McCulley noted that they would mirror each other.


Mr. Kamptner agreed.


Ms. McCulley said staff can make those revisions before it goes to public hearing.


Ms. Porterfield asked if the reason staff had for profit in there was that they were basically saying that one was earning money to do this and it was not a volunteer activity.  She noted that it was always questionable about how much money anybody makes.


Ms. McCulley replied that was correct.


Mr. Kamptner noted that their recommendation was to leave for profit in for now.  Staff will look at that as part of the other home occupation text amendment.


Ms. McCulley noted that staff was concerned about unforeseen consequences of taking that out and all of a sudden it applies to den mothers and things not intended for it to apply to.


Ms. Kamptner noted that one of the Commissioners raised a question about the employees and the home occupation use classification focuses on the activities taking place in the dwelling unit.  In both of the definitions he was wondering if it would be clearer to eliminate any question about that if looking at the Class B definition where the last line would read, “The sole persons engaged in the home occupation in the dwelling unit or the accessory structures or on the site or maybe on the site.”  Similarly he suggested in the Class A where it would end in the home occupation in the dwelling unit. 


Ms. McCulley replied that is a good point.  That would be much truer to the practice and the intent.


Mr. Edgerton opened the public hearing and invited public comment.


Neil Williamson, with Free Enterprise Forum, said while they sincerely appreciate the clarity that staff is striving for they can’t help but recognize the applications that have come forward that kind of drove this amendment forward and had to question the intent of differentiating between a dwelling unit that may serve as a mother-in-law suite and a family room over a garage that would not be a dwelling unit.  The question he had was what the true impacts are to the community of differentiating between Class A and Class B.  He believed it was the intent of the Commission to ensure the residential neighborhood feel of these mixed use communities that are being designed.  He did not think that in general Class B, Home Occupations have been incredibly difficult to attain.  However, he would be concerned if he was someone who was looking at this from a property owner’s standpoint whereby he had a separate dwelling unit and had always operated it as a business to now be out of compliance.  He was curious how the grandfathering may be and if it is really as necessary as staff sees fit or if the dwelling unit is not that different than a family room over a garage.  He appreciates staff’s patience with clearing up that difficulty for him.


Ms. Joseph asked staff if in the past up until the Belvedere case always considered anything that was a separate building, whether a dwelling unit or not, as a Class B.


Ms. McCulley replied yes.


Ms. Joseph pointed out that this Commission has reviewed those and approved most all of those home occupations that have come in that have been in another building and not the dwelling unit or the person who receives the home occupation.  So this is not anything new.  It is just clarifying that process and making sure that they have the correct words for what they intend.  In what they have been doing since 1980 it has treated those buildings as a Home Occupation, Class B by special use permit.  Because someone had determined that the language that was currently in the ordinance was questionable that is when they started treating those in Belvedere as a Class A instead of a Class B.  That is what happened?


Ms. McCulley replied that was correct because the current language says on the premises, which would include any of the buildings on the property.  In the case of a situation such as Belvedere there is more than one actually dwelling unit on the lot.   One could be conducting a business in a dwelling that they don’t reside in.  That has not been their intent previously. 


Mr. Franco questioned if in a place like Belvedere they think that is really important.  With the things that have come before the Commission since he has been here he had not seen a problem with those uses being there.  He was not sure that having to jump through a special use permit is really important.


Ms. Joseph felt that it is important since the Commission looked at the rezonings and it might be the same amount of vehicle trips and the same amount of activity and use.  She did not have a problem with that happening in that area since it was an interesting way to use that extra unit on the site.   But she did not think it was contemplated that it would be something that would come to the Commission three at a time.  She thought that it was something that the neighborhood itself might want to know what is going on.  If they are neighbors and also have a unit she thought that they would want to know that there are these businesses being conducted that are outside.  The intensity when it is outside the house versus inside can be a bigger intensity.  This also gives the person with a Class B an opportunity to have more vehicle trips per day.  There is a plus side to this, too.  She asked what staff allows for a Class A as far as people coming to the site if she had a massage office.  She asked how many clients would be allowed                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                per day.


Ms. McCulley replied seven clients were allowed per week.  The idea is they are coming individually.  It is not a group of seven people at one time as in a class because it has a different impact. 


Ms. Joseph said that with a Class B she could have more per week instead of seven.  It is that sort of intensity that she felt that the neighbors have the right to know what is going on. 


Mr. Franco asked if there is a different notification process for a Class A, Home Occupation.


Ms. McCulley replied that Class A is an administrative approval. It is either done instantly or within 24 hours as long as they meet all of the requirements of the ordinance.


Mr. Franco said that there is no notification to the public.


Ms. McCulley replied that there is no notice.  If they have some kind of chemicals such as our former zoning person, John Shepherd who is a photographer and had a dark room he had to do an engineer’s report before they could approve his Class A. 


There being no further public comment, the public hearing was closed and the matter before the Commission.


Motion:  Ms. Porterfield moved and Ms. Joseph seconded for approval of the draft ordinance presented by staff with the editorial changes as noted below that staff and the County Attorney will make. 


·        The two definitions should have a very parallel structure.

·        In the Class A if the two items that one had to have is that they are working within the dwelling unit in which they reside and where the members of the family residing in the dwelling unit are the sole purposes it seems like instead of a comma they want an “and” in front of the where.  If it was that one was not subjective to the other, then they both have to happen. 

·        In the Class B there was some concern expressed because they put nonprofit way down in the definition.  It was suggested that the two definitions should mirror each other or be parallel.

·        A question was raised about the employees and the home occupation use classification focusing on the activities taking place in the dwelling unit.  Both of the definitions might be clearer to eliminate any question about that - if looking at the Class B definition the last line could possibly read, “The sole persons engaged in the home occupation in the dwelling unit or the accessory structures or on the site or maybe on the site.”  Similarly, in the Class A, the wording could read “where within the home occupation in the dwelling unit.”


Mr. Edgerton asked how those edits will be made.  He asked if the edits will be made between now and the time it goes to the Board.


Mr. Kamptner replied yes and since it is going to the Board on August 5 the new draft will be made tomorrow.


Ms. Joseph asked staff to email the new draft to the Commissioners.


The motion passed by a vote of 4:0.  (Mr. Franco voted aye in the interest of moving this ZTA forward to the public hearing.)


Mr. Edgerton said that ZTA-2009-00011Definitions, Including Home Occupations would go to the Board of Supervisors on August 5 with the recommendation for approval as edited.


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