Albemarle County Planning Commission

October 6, 2009

 

The Albemarle County Planning Commission held a public hearing, work session and meeting on Tuesday, October 6, 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, Don Franco, Calvin Morris, Bill Edgerton, Linda Porterfield, Thomas Loach, Vice Chairman 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; Elaine Echols, Principal Planner; Mark Graham, Director of Community Development; Scott Clark, Senior Planner; David Benish, Chief of Planning; Bill Fritz, Director of Current Development; Francis McCall, Planner; Amelia McCulley, Director of Zoning/Zoning Administrator and Greg Kamptner, Deputy County Attorney. 

 

Call to Order and Establish Quorum:

 

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

 

Public Hearing Items:

 

ZTA-2009-00015 Nonconforming Lots

Amend Secs. 2.1.4, Reductions of lot areas below minimum prohibited, 3.1, Definitions, and 6.4, Nonconforming lots, of Chapter 18, Zoning, of the Albemarle County Code.  This ordinance would amend and rename Sec. 2.1.4 to clarify the regulations pertaining to reducing the size, width and frontage of lots existing on December 10, 1980 below the minimums standards for those lots under the applicable district regulations; amend Sec. 3.1 to amend the definition of "nonconforming lot" to expressly add lot frontage, width and the presence of a building site as elements determining whether a lot is nonconforming, and to cross-reference the lot requirements of section 4; and amend Sec. 6.4 to change the regulations pertaining to subdivisions, lot combinations and boundary line adjustments involving nonconforming lots, and to reorganize the section.  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. (Francis McCall)

 

Mr. MacCall summarized the staff report.   (See Staff Report)  He noted that Ms. McCulley would handout revisions that have happened since the packets went out.  (ATTACHMENT B) 

 

·ZTA-2009-00015, Nonconforming lots amending the definitions and regulations regarding lot combinations and boundary line adjustments.  This amendment deals with some recent variances that have occurred and that have been coming to the Board of Zoning Appeals with regards to these nonconforming lots and boundary line adjustments that happen.   The language is being proposed in regard to three different sections.  Specifically Section 6.4 is where the heart of the changes that they are actually going to be discussing is located.  The other changes are grammatical and definition enhancements. 

 

PUBLIC PURPOSE TO BE SERVED:  The proposed change would:

 

  1. Allow for the nonconforming lot section of the ordinance to be more easily understood by staff and the public.
  2. Allow the public to adjust the boundary line(s) of their property without the need for variance granted by the Board of Zoning Appeals (BZA).  This has become a recurring variance; therefore, we are directed by Virginia Code to review our regulations. 
  3. In many cases, a nonconforming lot combination or boundary line adjustment better serves a public purpose.  Examples of this public purpose include a) combining two lots that are below the minimum lot size to create one larger lot; b) adjusting boundary lines to 1) allow the septic system serving the house to be located on the same lot; 2) allow the house or other structure which does not meet structure setbacks to be setback further from the property lines and 3) allow acreage shifts between lots such that property can be placed into conservation easements or land use.

 

Zoning Ordinance Section 6.4 allows for boundary line adjustments (BLA) between conforming and nonconforming lots.  Currently there are two ways the Zoning Ordinance allows the property lines of nonconforming lots to be adjusted.  First, there needs to be at least one lot that is a conforming lot and the “…adjustment does not make the conforming lot nonconforming or the nonconforming lot more nonconforming.”  Second, if both of the lots are nonconforming, the adjustment must either make all lots conforming or must be determined by the zoning administrator to “more substantially conform to the requirements of section 4.0 (general regulations) of this chapter and the area and bulk regulations applicable to the district in which the lot is located, and comply with all other applicable requirements of the Albemarle County Code.”  This high standard for adjustments to nonconforming lots has precipitated variance requests.  When variances are repeatedly requested for the same reason, the locality must then look at the regulations that are being varied and determine if those regulations need to be amended.  In addition, the current high standard does not adequately serve the public interest (see #3 in public purpose to be served by the ordinance amendment).  Staff has reviewed our current nonconforming lot regulations and has determined that the sections proposed are the appropriate sections for amendment.

 

The draft ordinance amends Zoning Ordinance Sections 2.1.4, 3.1 and 6.4.  This amendment will establish consistent requirements for combination and boundary line adjustment involving one or more nonconforming lots.

 

The proposed ordinance establishes regulations for four different scenarios that can arise when nonconforming lots are altered:  1) subdivisions that include nonconforming lots, 2) combination of nonconforming lots, 3) boundary line adjustments between conforming and nonconforming lots and 4) boundary adjustments between two or more nonconforming lots. 

 

1.     A lot is proposed to be divided into new lots.  One or more nonconforming lots may be included in the subdivision provided that the resulting lots fully comply with the applicable regulations.  The nonconformities would no longer exist thus the purpose and intent of the ordinance is met.

 

2.     Two or more nonconforming lots or a nonconforming lot and a conforming lot are combined into one.  This essentially eliminates a nonconforming lot and makes the resulting lot more conforming than the individual lot(s). 

 

3.     A conforming lot and a nonconforming lot lines are adjusted (BLA).  This is permitted as long as the nonconforming lot does not become more nonconforming. 

 

4.     The property lines of two or more nonconforming lots are adjusted (BLA).  This is permitted as long as neither lot becomes more nonconforming. 

 

Staff is constantly looking at our language that staff put together with the help of the County’s Attorney’s Office.  After the packets went out staff was in further discussions and came up with a particular section that was brought to their attention.  That is one reason they have multiple people looking at the text.  Staff found that in Section 6.4, Section D2 and E2 the actual language  that was in the packet where it says the boundary line adjustment does not result in an increase in the number of  lots or dwelling units that may be established.  The unintended consequences was when you have zoning districts that are not rural area districts the potential there is the R-1 or R-2 during a boundary line adjustment may preclude that from happening because there might be additional lots or dwellings.  Staff recommended text additions to Sections 6.4 D2 and E2, this added "If the lots are in the rural areas zoning district," to the beginning of the sentences.  The change would not increase the development potential of the RA parcels.

Staff recommends adoption of the draft ordinance found in Attachment A. 

 

Mr. Strucko invited questions for staff.

 

Mr. Edgerton asked if there was a case for a third bullet under each one that would mimic the boundary lot adjustment for all areas other than rural areas.

 

Mr. MacCall replied no because the other zoning districts are governed by the density and the rural areas is governed by density and development rights. 

 

Ms. Porterfield asked if it was four different areas outlined in the country store subsection F.  If so the four areas should be separated by semi-colon and separated differently.  In addition side yard should be hyphenated.   She would take out the semi-colon after nonconforming lot in the next line and take out the comma in the second to last line after located.   She felt that it should all be together.  She questioned what would happen if the country store ceased to exist.  She asked if they need to deal with it other than just the ownership.

 

 Ms. Joseph asked to talk about septic sites once more concerning if they are talking about making the lot more conforming to add suitable soils for septic. Because this lot does not have suitable soils for septic that by changing this and making it nonconforming thereby they are creating a buildable lot.

 

Mr. MacCall noted that is the reason they are adding building site to the definition for the rural area.  They were looking at other parts of Section 4.0 where there are other requirements under the 30,000 square foot definition that talks about Health Department approval.  If they don’t have suitable soils it makes it nonconforming and nonbuildable.

 

Ms. Joseph asked if she did not have suitable soils would they allow a boundary line adjustment to get suitable soils and thereby making that lot buildable.

 

Ms. McCulley replied that the two dwellings on the lot is a totally different situation.  She felt that this language would mean that they would need a variance.  With the kernel rule they would be achieving an additional lot by that boundary line adjustment. 

 

Ms. Joseph asked if she had one vacant lot without suitable soils if she would be allowed to do a boundary line adjustment to get suitable soils to build.

 

Ms. McCulley replied that the existing nonconforming lot language with regards to building sites would let you actually build on critical slopes for the first dwelling.  But there are no exemptions from the septic requirement.   They would still have to on the nonconforming lot provide septic either on site or off site the primary and reserve based on a three bedroom house.  In that situation there would not be adequate septic on the existing lot that is nonconforming. 

 

Mr. Franco noted that they could not restrict them from building so would allow them to put the septic field off site on the adjacent parcel.  Therefore he should be allowed to adjust the property line to bring that on site because he was now taking a nonconforming lot and making it conforming. 

 

Ms. Joseph questioned if they were doing anything different than what they are doing now.   It sounds as if they can do that boundary adjustment then they are doing what they can now if they can have a septic site off site with an easement.

 

Mr. Franco said that they would not be allowing any more building.

 

Mr. Edgerton said that the adjustment of the language on the handouts really locks it in that within the rural areas there are a certain number of development rights based on the parcel configuration right now and they would not get more.  

 

Ms. Joseph noted that there are alternate means of septic that she discussed with Mr. MacCall.  So it is possible that they don’t need suitable soils and can provide other means of providing that.

 

Ms. McCulley said that they could use marginal soils and smaller sites through the engineered systems.  She noted that since there is no definition of kernel rule in the ordinance that makes this amendment very helpful

 

Mr. Kamptner noted that they have a consistent and long standing interpretation.

 

Mr. Strucko invited other questions or comments.

 

Mr. Kamptner asked to respond to Ms. Porterfield’s questions.  The term side yard is a defined term in the zoning ordinance and it does not have a hyphen.  For consistency they will leave it as it is. Staff will take it into consideration when codifying the ordinance.  Regarding the country store question if the country store use ceases that lot would not qualify under subsection F.  It would be subject to the general nonconforming rules in the other subsections.  The country store use in the zoning ordinance is fixed in time.  The lot is entitled to the fairly flexible standards which apply while the lot is used for the country store uses.  So the country store regulations do envision that it is possible that a lot that is used for a country store have that country store use to stop.  Country store regulations allow the accessory uses that have been established, such as the small office uses, to continue for a period of time.  For the nonconforming lots it is a little simpler.  The country store use is in effect and they do one of these types of boundary line changes, they qualify under F.  If the country store use stops they no longer are entitled to proceed under subsection F.

 

Mr. Strucko invited public comment.

 

Roger Ray, land surveyor and land planner, said that the present ordinance wording of boundary line adjustment and division of nonconforming lots is really complicated and unjust to the property owners.  Most of the nonconforming lots are larger parcels out in the rural areas.  If two lots are nonconforming they cannot do boundary line adjustments.  It allows the property owners to correct boundary line adjustments and improve the use on the property.  It may allow the moving of the driveway on two nonconforming lots.  He felt that this rule change has been long overdue.  He commended the staff on their rewording of Section 6.4.  He supported the ordinance change.

 

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

 

Motion:  Ms. Joseph moved and Mr. Morris seconded for approval of ZTA-2009-00015 Nonconforming Lots, with the changes recommended by staff and Ms. Porterfield, as follows:

 

  1. PC recommended grammatical changes to Section A2, Section F, and Section H

 

  1. Staff recommended text additions to Sections 6.4 D2 and E2, this added "If the lots are in the rural areas zoning district," to the beginning of the sentences.

 

The motion passed by a vote of 7:0.

 

Mr. Strucko stated that ZTA-2009-00015 Nonconforming Lots would go before the Board of Supervisors on December 2, 2009 with a recommendation for approval.

 

ATTACHMENT 2

 

ZTA-2009-00015 Nonconforming Lots

 

 

By a vote of 7:0, the Planning Commission recommended approval of ZTA-2009-0015 Nonconforming Lots with the staff’s and Ms. Porterfield’s recommended changes.

 

 

ORDINANCE NO.  09-18(   )

 

AN ORDINANCE TO AMEND CHAPTER 18, ZONING, ARTICLE I, GENERAL PROVISIONS, AND ARTICLE II, BASIC REGULATIONS, OF THE CODE OF THE COUNTY OF ALBEMARLE, VIRGINIA

 

BE IT ORDAINED By the Board of Supervisors of the County of Albemarle, Virginia, that Chapter 18, Zoning, Article I, General Provisions, and Article II, Basic Regulations, are hereby amended and reordained as follows:

 

By Amending:

Sec. 3.1                        Definitions

Sec. 6.4                        Nonconforming lots

 

By Amending and Renaming:

Sec. 2.1.4         Reduction of lots or areas below minimum prohibited

 

Chapter 18.  Zoning

 

Article I.  General Provisions

 

Sec. 2.1.4  Reduction of lots or areas below minimum prohibited

 

No lot or parcel(s) existing at the time of passage of this ordinance The size, frontage and width of any lot of record existing on the effective date of this chapter shall not be reduced in dimension or area below the minimum requirements set forth herein of the zoning district in which the lot is located and section 4 of this chapter except for the purpose of meeting or exceeding standards set forth herein or as a the result of the dedication of land to public use to or the exercise of eminent domain by a public agency entityLots or parcel(s) Any lot created after the effective date of this ordinance chapter shall meet satisfy at least the minimum requirements established by this ordinance of this chapter, except for lots created for usage use by a public agency entity to the extent that the same public use may be justifiable under the powers of eminent domain.  (Amended 9-9-92) 

 

Sec. 3.1  Definitions

 

. . .

 

Nonconforming lot:  The term “nonconforming lot” means a lawful lot of record existing on the effective date of the zoning regulations applicable to the district in which the lot is located, that does not comply with section 4 of this chapter and the minimum applicable size, frontage, width, building site or other lot requirements of that zoning district.  (Added 6-14-00)

 

. . .

 

Article II.  Basic Regulations

 

Sec. 6.4  Nonconforming lots

 

            A nonconforming lot may continue, subject to the provisions, conditions and prohibitions set forth herein.

 

            A.         Physical changes to a nonconforming lot.   A nonconforming lot may be changed as follows:

 

                        1.         Area or width.  The area or width, or both, of a nonconforming lot may be increased to make the lot less nonconforming.

 

                        2.         Boundary line adjustments.  The boundary of a nonconforming lot may be adjusted provided that one lot sharing the boundary to be adjusted is a conforming lot and the boundary line adjustment does not make the conforming lot nonconforming or the nonconforming lot more nonconforming.

 

                        3.         Public dedication or eminent domain. The area of a nonconforming lot may be reduced by dedication for a public purpose or by the exercise of eminent domain.

 

            BA.       Uses allowed on a nonconforming lot.  A nonconforming lot may be used as though it satisfies the zoning regulation that makes it nonconforming, provided that:

 

                        1.         The use is either a nonconforming use or is a use that complies with the zoning regulations applicable to the district in which the lot is located; and

 

                    2.  The zoning administrator determines that the lot may be occupied consistently with the public health, safety and general welfare.

 

            C.         Division, combination, or adjustment of boundary line of nonconforming lot authorized.  A nonconforming lot may be divided, combined with any other lot, or have one or more of its boundary lines adjusted, provided:

 

                        1.         The resulting lot or lots comply with the requirements applicable to the district in which the lot is located and all other applicable requirements of the Albemarle County Code; or

 

                        2.         In the opinion of the zoning administrator, the resulting lot or lots more substantially conform to the requirements of section 4.0 (general regulations) of this chapter and the area and bulk regulations applicable to the district in which the lot is located, and comply with all other applicable requirements of the Albemarle County Code.

 

            B.         Subdivision that includes a nonconforming lot.  A nonconforming lot may be part of a subdivision provided that all of the resulting lots comply with the requirements of the zoning district in which they are located and all other applicable requirements of the Albemarle County Code.

                       

            C.         Combination of a nonconforming lot with another lot.  A nonconforming lot may be combined with a conforming lot or a nonconforming lot provided the size, area or frontage of the resulting lot is increased to make it conforming or not more nonconforming.

 

            D.         Boundary line adjustment between a nonconforming lot and a conforming lot.  One or more boundary lines between a nonconforming lot and a conforming lot may be adjusted provided:

 

                        1.         The boundary line adjustment does not make the conforming lot nonconforming or the nonconforming lot more nonconforming; and

 

                        2.         If the lots are in the rural areas zoning district, the boundary line adjustment does not result in an increase in the number of lots or dwelling units that could otherwise be established on each lot.

 

            E.         Boundary line adjustment between nonconforming lots.  One or more boundary lines between two or more nonconforming lots may be adjusted provided:

 

                        1.         The boundary line adjustment does not make either nonconforming lot more nonconforming; and

 

                        2.         If the lots are in the rural areas zoning district, the boundary line adjustment does not result in an increase in the number of lots or dwelling units that could otherwise be established on each lot.

 

            F.         Subdivision, combination, or adjustment of boundary line of nonconforming lot used by country store.  A nonconforming lot may be subdivided, combined with any other lot, or have one or more of its boundary lines adjusted provided: (i) the resulting lot or lots serve a country store, Class A or B; (ii) the subdivision, combination or boundary line adjustment is required to allow the country store use to meet the requirements of the Virginia Department of Health; (iii) the location of all structures on the resulting lot or lots will not become nonconforming or more nonconforming; (iv) the size of the resulting lot or lots will not become more nonconforming.  

 

            G.         Change to nonconforming lot resulting from public dedication or eminent domain. The area of a nonconforming lot may be reduced by the dedication of land for public use or by the exercise of eminent domain.

 

            DH.      Setbacks applicable to a nonconforming lot.  The current front, rear and side yard minimum setbacks applicable to the district in which the lot is located shall apply to a nonconforming lot; provided, that, if any such setback is thereafter reduced as a result of an amendment to the setbacks applicable to the district in which the lot is located, and is in effect when an existing structure is extended or enlarged, then that reduced setback shall apply.

 

            EI.        Effect of change of ownership.  A change of the ownership or occupancy of a nonconforming lot shall not affect the status of the nonconforming lot.

           

(§§ 20-6.1.1, 6.1.2, 6.5.1, 6.5.2, 6.5.4, 12-10-80, 4-15-81, 9-21-88, 6-14-89, 9-9-92; § 18-6.4, Ord. 98-A(1), 8-5-98; Ord. 00-18(4), 6-14-00; Ord. 08-18(7), 11-12-08)

 

            State law reference – Va. Code § 15.2-2307.

 

I, Ella W. Jordan, do hereby certify that the foregoing writing is a true, correct copy of an Ordinance duly adopted by the Board of Supervisors of Albemarle County, Virginia, by a vote of _____ to _____, as recorded below, at a regular meeting held on _________________________.

 

 

                        __________________________________                                        

                        Clerk, Board of County Supervisors

                                   

Aye      Nay

Mr. Boyd                      ____     ____

Mr. Dorrier                    ____     ____

Ms. Mallek                    ____     ____

Mr. Rooker                    ____     ____

Mr. Slutzky                    ____     ____

Ms. Thomas                  ____     ____

 

 

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