BASIS OF APPEAL
Faulconer Construction Company (“Applicant”) is appealing the decision of the Albemarle County Planning Commission’s disapproval of its final site plan pursuant to SDP 04-023.
On September 23, 2003, the Planning Commission granted a Critical Slopes Waiver request with conditions and approved the Preliminary Site Plan with conditions (see decision on SDP 02-128). The Planning Commission required that the final site plan come back before it for review.
The planning staff reviewed each condition of the critical slopes waiver and each condition of the preliminary site plan. In the staff report prepared by Yadira Amarante and presented at the September 7, 2004 Planning Commission meeting, the staff found that Applicant met each and every condition.
Notwithstanding Applicant’s compliance with each condition of preliminary site plan approval and Planning Commission’s own staff’s concurrence that the conditions had been met, the Planning Commission denied final site plan approval for eight reasons. The Planning Commission did not defer the matter in order to give Applicant an opportunity to comply with the conditions, but simply denied the plan for the reasons listed (see page 33 of draft minutes submitted October 19, 2004).
While all eight reasons for denial of approval go beyond the conditions previously required, Applicant could comply with seven of them. The eighth condition is “Vehicles coming to the site shall be verified to be of a scale that may be safely accommodated by Morgantown Road as provided by Section 26.12.1” (see page 34, draft minutes).
The Planning Commission attempted to place a condition on Applicant that is unfounded in law. In fact, the Planning Commission was specifically told by the Assistant County Attorney that it could not do this. Mr. Kamptner, in response to Ms. Joseph’s question, “. . . if he was saying that their [Planning Commission] denial could never be based on the fact that the roads are inadequate for this particular use” replied, “. . . that was right because beyond simply the land use cases that he had discussed already the Courts have repeatedly said that the responsibility of State roads is the State’s. It is the State’s decision as to when public roads are upgraded and what the level of improvement is.” (see page 26, draft minutes)
When pressured by Mr. Rieley to allow the certification required in the eighth reason for denial (see page 31, draft minutes), Mr. Kamptner stated “. . . because it is a by right use and we cannot restrict a by right use based on external factors that the owner cannot control and which the County has not (sic) authority to require improvement.” (see page 32, draft minutes)
Even after being advised that such a requirement is illegal, Mr. Rieley said, “. . . he would like to include the language and see where it goes.” Mr. Morris “agreed to include the language noting that it could be thrown out.” (see page 32, draft minutes)
Where the language goes is before the Board of Supervisors. The law has not changed since the September Planning Commission meeting. The law as stated by Mr. Kamptner as cited above and expanded on page 25 of the draft minutes is clear. This is a by right use that cannot be restricted by external factors. This is not a re-zoning or a special use permit, but site plan approval for a by right use. The objections to this project are objections to the use more than to the site plan. The use has been determined to be valid under present zoning by the Zoning Administrator, the Board of Zoning Appeals and the Circuit Court. By using a standard out of the control of Applicant, the Planning Commission is attempting to relate a use question to a by right site plan. Again, there is no basis in the law to do this.
It is unfortunate that the majority of the commissioners chose to give in to public pressure as opposed to following its own ordinance. It is even more disturbing that they chose to refuse to follow the advice of their own attorney, while not disputing his advice, taking a cavalier attitude of “let’s see where it goes” and “it could be thrown out”.
Applicant received preliminary site plan approval. Applicant met all requirements for final site plan approval. Pursuant to Section 220.127.116.11 of the Albemarle County Code, the Board of Supervisors may affirm, reverse or modify in whole or in part, the decision of the Planning Commission. Applicant asks that the Board of Supervisors reverse the decision of the Planning Commission and approve the final site plan as submitted and verified by the staff report. In the alternative, Applicant asks that the Board of Supervisors modify the decision of the Planning Commission by deleting reason for denial number eight and requiring that the Applicant comply with the other seven items referring the matter to the staff for administrative approval.
Richard E. Carter
Counsel for Faulconer
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