Albemarle County Planning Commission
February 14, 2006
The Albemarle County Planning Commission held a meeting and a public hearing on Tuesday, February 14, 2006, at 6:00 p.m., at the County Office Building, Room 241, Second Floor, 401 McIntire Road, Charlottesville, Virginia. Members attending were Bill Edgerton, Jo Higgins, Eric Strucko, Jon Cannon, Calvin Morris, Vice-Chairman, Pete Craddock and Marcia Joseph, Chairman. Julia Monteith, Senior Land Use Planner for the University of Virginia, representative for David J. Neuman, FAIA, Architect for University of Virginia was absent.
Other officials present were Wayne Cilimberg, Planning Director; Amy Arnold, Planner; Louise Wyant, Zoning Enforcement Manager and Greg Kamptner, Deputy County Attorney.
Call to Order and Establish Quorum:
Ms. Joseph called the regular meeting to order at 6:01 p.m. and established a quorum.
Public Hearing Items:
SP 2005-031 Edward P. Allen - Home Occupation Class B (Sign #33)
PROPOSED: Multiple businesses in S/F residential dwelling; four employees
ZONING CATEGORY/GENERAL USAGE: RA -- Rural Areas: agricultural, forestal, and fishery uses; residential density (0.5 unit/acre)
SECTION: 10.2.2.31 Home Occupation Class B; 5.2 Home Occupation
COMPREHENSIVE PLAN LAND USE/DENSITY: Rural Areas - preserve and protect agricultural, forestal, open space, and natural, historic and scenic resources/density (.5 unit/acre)
LOCATION: TM 41, Parcel 1B, 4746 Sugar Hollow Road (SR 614); approx. 600 feet west of the intersection of SR 810 and SR 614
MAGISTERIAL DISTRICT: White Hall
STAFF PERSON: Amy Arnold
Ms. Arnold summarized the staff report.
· The applicant currently operates two businesses at his residence at 4746 Sugar Hollow Road employing a total of four people, which is currently in violation of the Zoning Ordinance. The applicant proposes continuance of the Home Occupation, Class B with no more than two employees on the site at one time. On rare occasions when more then two employees may be present, the applicant has offered to reduce visibility of parking off site by arranging off site parking. The applicant has indicated that in addition to the activity associated with the business they expect to receive a single UPS delivery daily.
1. Support of small business activity in the County.
2. Continuing support by the applicant of maintaining 8.723 acres of the property in the production of livestock feed.
1. Inconsistency with the definition of Home Occupation, Class B.
2. Inconsistency with the purpose and intent of the Rural Areas ordinance.
3. Inconsistency with the Rural Areas section of the Comprehensive Plan in terms of scale and intensity.
4. The impact of increased local traffic to and from the residential location on Rural Area roads.
5. Increased presence of parked cars, above the quantity expected in a residential context, clearly visible from nearby Route 810.
6. The inability of the County to confirm and enforce the numbers of employees on site at one time.
Ms. Joseph asked if there were any questions for Ms. Arnold.
Mr. Morris asked if the applicant currently has a Class B license, and Ms. Arnold replied no.
Ms. Cannon asked if the action that is requested the issuance of a Class B license, which was in the form of a special use permit that ultimately was approved by the Board. Therefore, this was just a recommendation from the Planning Commission to the Board.
Ms. Arnold stated that was correct.
Mr. Morris asked that staff explain exactly what a Class B license entails.
Ms. Wyatt stated that Mr. Allen currently has a Home Occupation, Class A, which states that you cannot have any employees reporting to the premises other than those residing there. During staff’s two on-site visits to the property they saw three and four employees working at computers.
Ms. Higgins asked what the difference is between a Class A and Class B Home Occupation.
Ms. Wyatt stated that a Class A has no employees and a Class B can have up to two employees. There are some other differences as well. A Class A Home Occupation generally does not allow for any outdoor storage. Whereas, on a Class B outside storage can be a condition if there are certain things that are stored.
Ms. Joseph pointed out that a Class B Home Occupation can also have it in another structure.
Ms. Wyatt stated that the Class B Home Occupation would allow use of an accessory structure. She asked Mr. Kamptner to highlight some of the differences.
Mr. Kamptner stated that she had already highlighted the two main differences in the definitions.
Ms. Wyatt stated that a Class B Home Occupation would be required if there was any outdoor change to the structure indicating that a business is going on.
Ms. Higgins asked about signage, and Ms. Wyatt stated that would require a Class B Home Occupation as well.
Ms. Higgins asked if there was any signage at this location.
Ms. Wyatt stated that there was a small sign that says for deliveries to the site for the business to use the rear.
Ms. Higgins asked if there were any advertising signs, and Ms. Wyatt stated that there was not.
Mr. Cannon stated that the Class B Home Occupation would allow two employees. He asked how staff would interpret that. Would that be for two employees or two full time employees or two full time equivalent employees?
Ms. Wyatt stated that zoning staff does not think that the ordinance makes a distinction between full time and part time. In fact, in staff’s comments to Ms. Arnold we noted the fact that if someone had four part time employees it was almost impossible for staff to really monitor how many employees are on the site at any given time.
Ms. Higgins noted that was consistent with any home occupation license that is granted.
Ms. Wyatt stated that was absolutely true.
Ms. Higgins stated that was just an issue with home occupation license.
Mr. Cannon stated that to put a point on it that it was a matter of some uncertainty or dispute as to whether even if a Class B Home Occupation permit were issued that it would accommodate the operations as proposed by the applicant. He asked if that was correct.
Ms. Wyant stated that was correct. The Deputy Zoning Administrator has interpreted the ordinance to say that it would not meet the definition.
Mr. Cannon stated that it was a possibility that the applicant would still be considered by the County to be in violation.
Ms. Wyatt stated that was correct if he had more than two employees.
Mr. Cilimberg pointed out that supplemental regulations can be modified by the Commission’s action.
Mr. Kamptner stated that the limitation on the number of employees is in the definition and not in Section 5. Therefore, it is not subject to modification.
Mr. Edgerton stated that two employees is the maximum number.
Ms. Joseph stated that this whole business about part time employees is something that the Board of Zoning Appeals would decide and not the Commission in regards to the interpretation of the wording by the zoning administrator.
Mr. Kamptner stated that was correct.
Mr. Cannon stated that there is now no Class B Home Occupation permit. Therefore, that is not an issue that is ready to be decided before the decision is made to issue a Class B Home Occupation permit.
Ms. Wyant stated that was correct because there currently is no Class B Home Occupation permit. The Class A Home Occupation was granted a few years ago.
Mr. Cannon asked if there was any other special use dispensation that the applicant could seek that would accommodate without question on the part of the County being the number of employees that he would wish to have.
Ms. Wyant stated that is a good question. She felt that the deputy zoning administrator determined that the definition says two and does not say at any given time. So that is the interpretation.
Ms. Joseph asked if what he is doing fits in the definition of a home occupation.
Ms. Wyant stated yes, because he resides there.
Mr. Craddock stated that typically a home occupation is for one business with up to two employees. He asked if this is two businesses that could have up to two employees in each business.
Ms. Wyant stated that is a great question, but she did not have an answer.
Mr. Craddock asked if that was a violation.
Mr. Kamptner stated that there is a section in the ordinance that prohibits someone from obtaining multiple home occupations. Ultimately, it is a decision for the Board of Supervisors and with any piece of property and any number of special use permits you may grant one. But, the Board may decide that with two special use permits that the use is too intense and it is no longer consistent with the purpose and intent of the zoning district that the property is in. It is possible, but it is kind of a catch 22 for home occupations for two permits to be obtained.
Mr. Craddock stated that there was nothing outside that would even let anyone know if there were ten businesses going on inside other than the fact that someone complained that there were two going on.
Ms. Wyant stated that it was just the number of cars parked outside and the small the sign.
Ms. Higgins asked how many cars staff was talking about.
Ms. Wyant stated that the first time the inspector went on site there were four cars behind the house and two in front for a total of six cars. The next time it is not noted how many vehicles were there, but there were four employees on site. The final visit, which was on February 3, there were four vehicles in the back parking area. She noted that she was not sure if there were any in the front.
Ms. Higgins stated that no one noticed more than six vehicles at any one time.
Ms. Wyant stated yes, that was what the note seems to indicate.
There being no further questions for staff, Ms. Joseph opened the public hearing and invited the applicant to address the Commission.
Edward Allen stated that he would like to mention that the sign that has been mentioned several times was a 2’ X 3’ sign on his door bell on the house, which was about 150 feet from the closest public road. To see the sign one would have to be on private property. It is only there so the UPS man will not ring the front door bell and leave his packages in the rain. That is the sole purpose for that sign. As far as the cars parked, he wanted to go through the history and hit a few of the high points. The number of cars and their visibility seem to be the major issues. If you read the whole staff report it really comes down to their feeling that the intensity of the business is evidenced by too much traffic coming in and out of the property on a daily basis and too many cars being parked there. He objected to both of those characterizations of the business. Number one, he personally owns ten cars. At any one time there may be six or seven of those cars parked on his property. There may be three cars parked in his three-car garage. The cars happen to be antique collectable sports cars. So on a given day maybe three or four of the cars may be in repair shops in various areas of the state. But, there are occasions that he has a good number of cars parked at both the front and back of the house. He presented photographs showing the visibility of his house from Route 810 at 50 foot intervals. He failed to see that it was a visual eyesore from Route 810 for the cars parked at his residence due to the trees. Next, he would like to speak to the intensity of use and traffic. When he moved into his house three years ago he had three children who all attended local high schools and worked after school. Both he and his wife worked outside of the house. If you take their trips to and from work, it would be four trips. If you take their three children to and from school plus home to and from a job, it is sixteen car trips per day that they were doing as a personal family of five. Now he is an empty nester and all of the children have moved. Now in the worse scenario if there were four employees showing up that do not leave the premises, it is a total of eight vehicle trips per day. That is one-half of the traffic generated when they moved in there as a personal family. So again, he fails to see what he is doing now in any way rises to the level of increased intensity. It is a decrease in intensity. He presented photographs of other properties in the area where there were businesses in people’s front yards with trucks, trailers, dump trucks, trash trucks, etc. within 50 to 100 feet from the road with no screening. The photographs show what the rural area looks like. Many people in the rural areas make their living in their back yards. Many people park a dump truck in their side yard. This type of activity takes places all across the county. All he is asking is to be treated like any other property owner. In fact, if they will look at these pictures of usage right around his house within a mile that all are far in excess of what his property shows in the previous pictures from Route 810. It is obvious, in his opinion, that he should be the poster child for a low intensity home office occupation and not the scapegoat to be censored for doing what has been done traditionally in rural areas of this county and every other county in this country for the last 100 years. With computer technology it is being done more and more. It is being done with a very low intensity level inside the house and he was not disturbing anybody.
Ms. Joseph asked if there were any questions for the applicant.
Mr. Craddock asked if he would point out where those neighbors live.
Mr. Allen stated that there were only two neighbors that had physical sight of his house. One of those neighbors is Mr. Fitzgerald who has written a letter stating that he has not objections. The other person who has any views whatsoever cannot see his house. He pointed out the Old Piedmont house was the only other house that has a physical view of his property. There is also a letter from that property owner, the Durbins, stating that they have no objection. These are the only two neighbors that would have any standing to say that they object to what he is doing because no one else can see it.
Mr. Edgerton asked who made the complaint.
Mr. Allen stated that he did not know, but would love to know because it was a phoned in anonymously.
Ms. Higgins asked if he would tell them about his operations. She asked if there was any equipment involved.
Mr. Allen stated that there was no equipment involved. He has had a graphic design magazine publishing business for over 20 years. That was business on which the application was made. In September he purchased a second business for a driveway resealing franchise called Jet Black. He bought it because it was such an easy overlay. His bookkeeper, who was one of these four people being discussed as being part-time, was already in his office. He gave her additional duties to answer another phone line and to bill for the services that his foreman performs doing driveway resealing. That is the only thing that is done on the premises. His foreman does not even report to that site.
Ms. Higgins asked what the other three people do.
Mr. Allen stated that the other three people are all graphic designers and his wife is the chief graphic designer. They actually sit in front of four computer terminals.
Mr. Strucko asked if his wife was considered as part of the three employees.
Mr. Allen stated that his wife was not counted in the three part-time employees.
Mr. Cannon asked if it was his assumption that the businesses shown in the photographs were operating illegally.
Mr. Allen stated that he had no idea and did not care. He noted that he took the position that within a mile of his house that this is the natural background look of Albemarle County. He did not believe that what he is doing can in any way be considered high intensity.
Mr. Strucko asked if they have a daily UPS delivery.
Mr. Allen stated that has changed because they now receive about 90 percent of their materials directly on line. Therefore, their average UPS delivery might be twice a week.
There being no further questions, Ms. Joseph invited public comment. There being none, she closed the public hearing to bring the matter before the Commission.
Mr. Edgerton stated that he had a question for Mr. Kamptner. Mr. Allen has made a rather passionate plea for the Commission to ignore the law. Does the Commission have the authority to ignore the law? It seems that the law is very clear.
Mr. Kamptner asked if he was referring to the law regarding putting the limitation on the number of employees, and Mr. Edgerton agreed.
Mr. Kamptner stated that the Commission did not have that authority because the limitation was in the definition. He pointed out that the Commission’s recommendation is for a Class B Home Occupation permit that cannot have more than two employees.
Mr. Edgerton stated that the applicant has more than two employees.
Mr. Kamptner stated that in order for the applicant to comply that number would have to be reduced. That determination would be through what is an employee and that decision starts with the zoning administrator. He did not think that employees in the context of home occupations have been nitpicked to the point where they are looking at part-time and full-time equivalencies and things like that. But, the zoning administrator has a history of interpretation of these regulations. So she is better equipped to make that decision.
Mr. Strucko asked if it was possible for two Class B Home Occupations to be issued for the same residence.
Mr. Kamptner stated yes, he thought that it was possible. But, that will be up to the Board to decide whether or not more than one is too much.
Mr. Strucko stated that the issue seems to be hinging on the number of employees. He questioned if the two businesses could have two employees each.
Ms. Joseph pointed out that it was the rural areas and not a commercial zone. It is a zone that one would expect rural activities and not commercial activities. That is why the Home Occupation Class B is limited to two employees. It allows people to get a start in the business, but not allow full blown commercial activities in the rural areas.
Mr. Strucko stated that if the Commission does recommend issuance of a Class B Home Occupation, the connotation is two employees and no more.
Mr. Kamptner asked to clarify one thing because he did not know if zoning has made the decision. But, zoning may perceive various activities as comprising a single occupation for purposes of the permit. So the applicant might not have to get multiple permits to do what they are doing in their home. But, he was not sure if zoning has made a call on that yet.
Ms. Wyant stated that she believed that they would treat it as two.
Mr. Edgerton asked if one home occupation would be limited to two employees, and Mr. Kamptner stated that was correct.
Ms. Higgins asked if any interpretation of that would go before the Board of Zoning Appeals.
Mr. Kamptner stated that it would be up to any person affected to appeal it to the Board of Zoning Appeals.
Ms. Higgins stated that the Commission could not make any decision about the number of employees because it was in the definition.
Ms. Joseph asked if the Commission wants to take an action on this request.
Mr. Cilimberg asked to lay out a scenario. If there were a Home Occupation Class B approved for this location it would be required to meet all of the requirements of the zoning ordinance. Anything that an individual would want to do beyond the requirements of the zoning ordinance either would require a variance from the Board of Zoning Appeals or request for a modification of supplementary regulations, which does not include the two employees because it is part of the definition. If there is a Home Occupation Class B here and if they want to have four employees they are only going to be able to have four employees and be legal through the issuance of a variance. It really boils down to that.
Mr. Kamptner stated that the Board of Zoning Appeals could not grant a variance to change a definition of the zoning ordinance. It would require a change to the zoning ordinance by the Board of Supervisors to change two to four employees. An appeal to the zoning administrator’s determination as to what constitutes an employee is what they discussed earlier. That decision could be appealed to the Board of Zoning Appeals.
Motion: Ms. Higgins moved, Mr. Strucko seconded, to approve SP 2005-031, Edward P. Allen, as stated with the limitations only with the Class B, Home Occupations license as defined in the ordinance.
Ms. Higgins amended the motion to add the condition that all employee vehicles shall be parked behind (to the north) of the residence.
Mr. Strucko seconded the motion.
The motion passed by a vote of 7:0.
Ms. Joseph stated that SP-2005-031, Edward P. Allen, would go before the Board on March 15 with a recommendation for approval.
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