Albemarle County Planning Commission

August 11, 2009


The Albemarle County Planning Commission held a public hearing, meeting and work session on Tuesday, August 11, 2009, at 6:00 p.m., at the County Office Building, Lane Auditorium, Second Floor, 401 McIntire Road, Charlottesville, Virginia.


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


Other officials present were Wayne Cilimberg, Director of Planning; Amelia McCulley, Director of Zoning; Francis MacCall, Senior Planner; Bill Fritz, Director of Current Development, David Benish, Chief of Planning; Elaine Echols, Principal Planner and Judy Wiegand, Senior Planner.


Call to Order and Establish Quorum:


Mr. Strucko called the regular meeting to order at 6:01 p.m. and established a quorum.


Work Sessions:


ZTA-2009-00015 Changes to the Property Lines of Nonconforming Lots

Review and Discussion about Changes Allowed for Nonconforming Lots Related to Adoption of Resolution of Intent to Amend the Zoning Ordinance. (Amelia McCulley)


Ms. McCulley presented a PowerPoint presentation and summarized the executive summary.  Staff distributed the following information:  1) List of Key Counties on how other counties treat redivision of nonconforming lots and 2) Copy of PowerPoint presentation. 


This proposal is limited to a discussion of redivision of one or more nonconforming lots.  They are not talking about the situation where it is a subdivision and as a result additional lots will be created.  Staff is trying to limit this discussion and provision to the case where no new lots are created.  It would include the kind of situations where there are three lots and end up with two lots or two lots and end up with two lots.   It is a redivision or a combination through two nonconforming lots.  There are specific regulations in the Zoning Ordinance where one of the lots is conforming and the other nonconforming.  That is working well and addressed pretty adequately in the ordinance. 


A nonconforming lot predates regulations and it does not comply with the regulation in a couple of different ways.  For example, the minimum size, the lot width, and the frontage.  The road frontage has two components, which is a common one.  One is that one has to have a certain measured distance along one of the sides of the lot that it fronts along a road.  The second component is a requirement for it to be eligible to count as road frontage it has to be a road that the county has approved.  Therefore, all of those old roads in the county that never came through for any kind of subdivision approval those donít count as a road for the purpose of road frontage, which means that all of those lots on those roads are nonconforming to the zoning ordinance.  Another example of an aspect of nonconformity for a lot is lot width.  This is just about the lot and it is not about nonconforming uses or structures.  That is a whole separate discussion.    


The latest amendment to our ordinance on nonconformities happened in 2000.  The focus was on the situation where they were getting recurring variances where people had existing nonconforming houses and wanted to do additions.  So they really addressed how that worked in terms of setbacks.  Then they inadvertently made some changes that they did not intend.  There have been some recurring variance requests for lots that are on roads that never went through any county approvals. The Code requires them when there are recurring variance requests to look at our ordinance to see if it is reasonable or whether it needs amendment. 


The proposed ordinance changes, several examples and options to address the issue were reviewed.  Two questions raised were:


1.    What are the extent and the standards whereby we will allow redivisions and boundary line adjustments.


2.    Are the standards that they chose to set applied to all of the lots in the transaction or to at least one lot.  Is it good enough that they have an improved situation for at least one of the two lots in the transaction.


The options to address the issue include the following:


A.    Exclude lots on unapproved roads from the definition of nonconforming lots.

B.   Return the language to what was intended by the 1989 ZTA.

C.   Allow redivision that is more conforming to the zoning ordinance in general.

D.   Allow redivision as long as the resulting lots are not in any respect LESS conforming.


After consideration of these options staff recommends option B, a return to the prior ordinance standard.  This allows redivision only after positive findings that the resulting lot or lots better meets certain key standards and goals of the Comprehensive Plan.  Staff recommends limiting the scope of these amendments to the combination of redivision of nonconforming lots.  The division of nonconforming lots would remain subject to more rigid standards.


Mr. Strucko invited questions for staff.


Ms. Porterfield asked what happens to the person trying to get the septic field on their lot.  She asked if they have to come in to get the variance in the three examples given if they go with Option B.


Ms. McCulley replied that with Option B it can be done administratively.  If the applicant can confirm that the purpose for the boundary line adjustment is to accommodate the septic field on the property that it serves, then staff would approve that administratively.  That is something that would make sense and staff would want to approve it.  The problem is the language sets the bar high.  In the case of the septic field example the property that is acquiring the septic field is improved in terms of meeting the general regulations.  It is hard to prove that the property that is losing the septic field is improved in terms of its nonconformity.  So any way they go they need to clean up the language to better allow the things that they intend to allow.


Ms. Porterfield noted that she leaned towards option D with the other caveats put in.  She felt that might be more useful in a county that has so many private roads.


Mr. Loach agreed with option D with the proviso.


Ms. McCulley noted that obviously more boundary line adjustments would qualify under option D because they would not have to prove that they were better meeting some standard.


Ms. Joseph disagreed and supported option B because it gives staff standards to look at based on all of the work that they have put into the Comp Plan and Zoning Ordinance. 


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


Roger Ray, land surveyor and land planner for 37 years, supported the ordinance amendment.  It has been a great injustice to rural property owners to not be able to adjust boundary lines for many reasons.  It is only when you have two nonconforming lots that you have problems.  He has surveyed many boundary line adjustments in the county and has encountered many times encroachments across boundary lines such as fences, driveways and sometimes even houses.  They are able to readily fix those problems if one of those lots is conforming.  But the rule in Albemarle County is such that if both lots are nonconforming that most of the time they canít adjust lines because of the way the ordinance is written.  He encouraged them to make this change.  He had been working with staff for five years because it is an injustice for property owners not to be able to take care of these matters.  Sometimes it is to adjust building sites.  He encouraged the Planning Commission to adopt option D with the suggested change that they canít create additional lots by doing that.  He felt that would catch all situations.  He could not see any harm did by allowing boundary line adjustments as long as it does not make an issue more nonconforming. 


Neil Williamson, with Free Enterprise Forum, asked the Commission to consider the options to address the issue, the staff implications between B and D, the demands on staff, the cost to impact these issues and the benefit.  Allowing the division as long as the resulting lots do not in any respect become less nonconforming and with the addition of not creating a buildable lot as a result of the redivision seems to be a reasonable response to what is an issue between neighboring property owners trying to work it out without having to make the case for finding support in the Comp Plan to support the boundary line adjustment. He suggested that they keep the kernel rule simple.


There being no further public comment, the matter was before the Commission for further discussion and action.


Mr. Strucko noted that staff needed a sense of direction from the Commission on which of the four options they prefer.     


Mr. Loach and Mr. Morris preferred the modified D option. 


Mr. Strucko reiterated that Ms. Joseph preferred Option B because of the requirement to comply with the Comprehensive Plan and other regulations.  


Ms. Joseph agreed since that option made it clearer and easier for staff and the applicant to understand the process.    It sounds as if that option would make it cleaner for staff to be able to make a decision based on some of the documents that the Commission works on.


Mr. Morris said that he heard Ms. Josephís argument, which was an extremely good one. When he read over the options initially assuming that they wanted to clean this up he questioned why not go all the way to Option D.  However, he heard staff say that could lead to problems.  He asked staff if he that was correct.


Ms. McCulley replied that she was not sure that it could lead to problems with the proviso staff has added in the modified D as long as they are making sure they have building sites and are not creating building sites where they donít exist except theoretically.  Option D is not a problem to administer because they donít have to go through a lot of analysis.  However, just in terms of planning principles they have most commonly historically followed Option B.  That is what staff is more turned into by finding out the story and why they want to do it.  It is improving the situation, which makes sense.  Therefore, they should accommodate that.


Ms. Porterfield preferred the modified D option.  She felt it would be hard for someone with one lot who wanted to build their house and have a little bit more land.  She was not sure they could find something in the Comprehensive Plan that says yes that they should be able to have two more acres on that side of their house. 


Mr. Franco preferred the modified D option.  He suggested some modification to the language so that there is no net increase amongst the lots for buildable areas.  He could see reason why he might want to buy additional acreage from his neighbor to build a second home on his property.  Potentially the way this is written he would not be able to do that.  He would want to make sure that if he gained an extra lot on A that it would be lawful as far as buildable area so it would be no net increase in lots amongst the two. 


Mr. Strucko noted that four Commissioners are in favor of the modified D option, but he was indifferent.   If he was forced to choose he would probably side with Option B and go with staffís recommendation.  He thought that there was a substantial number of Commissioners here in support of the modified D option.


Ms. Monteith noted that she was indifferent, also. 


Mr. Strucko noted that the majority was moving towards a modified D option.


Ms. McCulley noted there was just one last point of clarification in the question of whether it was at least one lot or all lots involved in the transaction.  If they are going with option D then that is irrelevant because there is no increase in the nonconformity.  So that decision does not need to be made, but she may need to explore with Mr. Franco how they would administer the no net increase in the lots.   But, she liked that idea.


Mr. Franco asked how staff would administer it for one lot with no increase in buildable lots.


Ms. McCulley replied that the most flagrant situations donít come up very often.  An example is 20 acres of floodplain with five development rights and no building site that then adds land from an adjoining property that has the building site that they use their development right with.  That is a lot easier to see.    It is going to be a little tricky.  Staff will have to look at the critical resource mapping for both parcels and make sure staff can follow what they are doing so they are not picking up buildable area without transferring development rights.   She asked if that what he was talking about.


Mr. Franco replied yes.  What he was trying to say was they were not trying to increase the number of building sites in the county by doing this.  He certainly thought that they should allow property owners to trade properties so if someone wants an extra building right and it was available on the adjacent lot that they can purchase that right and the acreage that went with it.


Ms. McCulley said that she had the Commissionís direction.  She pointed out that the Commission needs to take an action on the resolution of intent in order for the staff to go to public hearing with the text amendment.


Mr. Franco asked if staff needs to bring the revised text back to the Commission with Option D as the option now.


Ms. McCulley noted that the resolution of intent is written broadly enough so they can go straight to drafting ordinance language and doing the public hearing.  She will check with Mr. Kamptner.  Staff needs the Commissionís resolution of intent approval in order to take that next step.


Motion:  Mr. Franco moved and Mr. Morris seconded for approval of the resolution of intent for ZTA-2009-00015 Changes to the Property Lines of Nonconforming Lots.



            WHEREAS, Section 6.4, Nonconforming Lots, of the Zoning Ordinance establishes regulations pertaining, among other things, the division, combination, or adjustments of boundary lines of nonconforming lots; and


            WHEREAS, the County has received a number of variance applications pertaining to the division, combination or adjustment of the boundary lines of nonconforming lots in recent years; and


WHEREAS, Virginia Code ß 15.2-2309(2) provides in part that when a condition or situation of a property is of a general or recurring nature created by the zoning regulations, the recurring condition or situation should be addressed by amending the zoning regulations; and


WHEREAS, County staff has found that the current regulations pertaining to the division, combination or adjustment of the boundary lines of nonconforming lots can lead to results that are contrary to sound planning principles.


NOW, THEREFORE, BE IT RESOLVED THAT for purposes of public necessity, convenience, general welfare and good zoning practices, the Albemarle County Planning Commission hereby adopts a resolution of intent to amend Zoning Ordinance ß6.4 and any other regulations of the Zoning Ordinance deemed appropriate to achieve the purposes described herein; and


BE IT FURTHER RESOLVED THAT the Planning Commission shall hold a public hearing on the zoning text amendment proposed by this resolution of intent, and make its recommendation to the Board of Supervisors, at the earliest possible date.

                                                                        * * * * *


The motion passed by a vote of 6:0.  (Edgerton absent) 


Mr. Strucko noted that the resolution of intent for ZTA-2009-00015 was approved.


In summary, a majority of the Planning Commission (4:2) supported Option D with the proviso added by Mr. Franco that there would be no net increase in the number of allowable lots.  Staff will develop zoning text incorporating the Commissionís comments and schedule the public hearing.


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