Albemarle County Planning Commission

June 5, 2007


The Albemarle County Planning Commission held a meeting and public hearing on Tuesday, June 5, 2007 at 6:00 p.m., at the County Office Building Auditorium, Second Floor, 401 McIntire Road, Charlottesville, Virginia. Members attending were Jon Cannon, Calvin Morris, Vice-Chairman; Marcia Joseph, Chairman; Bill Edgerton; Duane Zobrist and Pete Craddock. Absent was Eric Strucko. Julia Monteith, AICP, Senior Land Use Planner for the University of Virginia was absent. 


Other officials present were Wayne Cilimberg, Planning Director; David Benish, Chief of Planning; Megan Yaniglos, Planner; Gerald Gatobu, Planner; Amelia McCulley, Zoning Administrator/Chief of Zoning and Current Development; John Shepherd, Chief of Current Development; Allan Schuck, Senior Engineer; Sean Dougherty, Senior Planner; Scott Clark, Senior Planner and Greg Kamptner, Deputy County Attorney. 


Call to Order and Establish Quorum:


Ms. Joseph called the meeting to order at 6:05 p.m. and established a quorum.


Public Hearing Items


SP2007-00014 The Rocks Sub Lot 1 Amendment (Sign # 107 & 108)

PROPOSED: Amend special use permit for Rural Preservation Development with more than 20 development lots to change condition of approval regarding location of development lots in relation to Ivy Creek. Proposed change would prevent development between Ivy Creek and Dick Woods Road.

ZONING CATEGORY/GENERAL USAGE: RA Rural Areas: agricultural, forestal, and fishery uses; residential density (0.5 unit/acre); EC Entrance Corridor: Overlay to protect properties of historic, architectural or cultural significance from visual impacts of development along routes of tourist access; FH Flood Hazard - Overlay to provide safety and protection from flooding

SECTION:, Divisions of land as provided in section

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: Dick Woods Road (Route 637), approximately 500 feet west of intersection with on-ramp to Route 64 East.

TAX MAP/PARCEL: Tax Map 74 Parcel 18D


STAFF: Scott Clark


Mr. Clark presented a power point presentation and summarized the staff report.



Ms. Joseph noted that it seems that they match in scale and proximity.  One of the comments was that they are all supposed to use the internal road.  That is a consideration here, too.  She asked if that was implied within the approvals.


Mr. Clark agreed and that the other conditions that already exist with this permit amendment would require that.  Practically speaking, assuming condition 5 is changed as recommended and the lots can’t go between the creek and the road, the only way they could access from Dick Wood’s Road directly would be to come back for another special use permit for another floodplain crossing.


Ms. Joseph said that they could also put in a small cul-de-sac to serve three lots from an internal road.  Is there anything written in the conditions that would stop them from doing that?


Mr. Clark replied no, he did not think so.


Mr. Edgerton questioned if they should be trying to tie down the final location of the houses on lot 1. He felt that the applicant needs to identify what they want to do first.


Mr. Clark said that this request is to fix an error.  Staff’s recommendation is not intended to tie down the final location of where those houses may go.  All this does for the moment is to clarify what the possibilities are.  The applicants will have to come back with a revised application plan and eventually subdivision plats to show exactly where they are to locate the lots and how they are going to access them.  It would be a mistake to get too far into that at this stage because there is so much detail that would have to be done at a much finer resolution than this map could show of exactly where the critical slopes are and where the practicalities are about access.  That is expected to come at a later stage.  All they want to do now is clarify the language so that everybody knows and agrees on what is possible.  The applicant would be expected to come back at least twice thereafter to establish where the lots would go.


Mr. Edgerton asked if the applicant would come back to the Commission or staff.


Mr. Kamptner replied that the applicant would have to come back to staff.


Mr. Edgerton said that he was not comfortable with that.  Before he could sign off on this he wanted to see what it is they are proposing to do.


Mr. Craddock supported Mr. Edgerton because he had previously brought up the issue that these development rights would just kind of sit out there and if they are not using them why can’t they dissolve away.  They were told that the development rights had to be assigned somewhere.  So he would like to see what is proposed before they move further.


Mr. Cannon asked if the Commission denies this request is the developer able to put the lots in places that they know they don’t want them without further review by the Commission.  He asked procedurally what their further involvement would be.


Mr. Kamptner said that this was a special use permit condition.  The condition was established by the Board of Supervisors for administrative review of the application plan.  He assumed that that plan was reviewed by the Planning Commission.  So ultimately it is the Board of Supervisors that has to decide whether or not it wants the review to come back to the Planning Commission.  The other thing to remember is that Rural Preservation Developments are not ministerial in nature.  The review is already by State law as they are trying to stay within their grandfather cluster ordinance as to what the County can do.


Ms. Joseph asked if normally they see where the lots are located.  They don’t look at a big parcel and say go ahead and do whatever they want.  They expect to see where those lots are.


Mr. Kamptner replied yes, that the Rural Preservation Developments that are today ministerial in nature do come to the Planning Commission for a ministerial review to confirm that they meet the requirements of the Zoning Ordinance.


Ms. Joseph asked if the preservation track was currently under easement.


Mr. Clark replied that the preservation track is roughly a 300 acre parcel and is under a preservation easement.  The lot in question is not.  It is effectively a very large development lot. 


Mr. Shepherd pointed out that it was possible that the Commission might see this again depending on the configuration of the access to the new lots.  If they are creating lots and extending the private roads, then that part of the subdivision would come back to the Commission.  The Commission could also look at a standard of that road.  But, he wanted to also back up and emphasize that since a new application plan would be required before they are establishing the access, location or size of the lot or dwellings it is hard to make any judgment about any of that absent a full plan. 


Ms. Joseph asked where the area is that staff thinks is east of the floodplain.


Mr. Clark pointed out that the entire area as being floodplain.  To his knowledge it was not discussed that area was preferred for future development.


Ms. Joseph recalled that the concept was that they did not want any stream crossings.  They wanted to make sure that there were no driveways going across the streams.  That is where the east of the stream came in.


Ms. Joseph opened the public hearing and invited the applicant to address the Commission.


Chris Halstead, representative for the applicant, said that what has been left out here is that the entire reason this proceeding is taking place is that the Zoning Department issued a letter stating that the area to the left is not subject to development.  In looking into it they spoke with Yadira Amarante who was the staff member who handled this project.  Ms. Amarante said that it was clear to her and everybody that what she was trying to do was prohibit development between Ivy Creek and Dick Woods Road for reasons that have already been stated.  It would be bad development.  That is it.  There is no plat in front of the Commission.  They know that any development is subject to the review of staff first.  If staff feels that they can’t pass on it, then they come to the Commission.  Of course, they would conform to any of those requirements.  When the owner received this letter he said that 17 acres of his land has just been down zoned.  That is why they are here.  His understanding is that there was no question among all staff.  It is clear that the cardinal directions were used inappropriately because the floodplain actually runs east at that point.  If they are trying to describe something that is occurring along the banks of a river one cannot say the direction of the river, but one has to say one side or the other.  Knowing I-64 to be an east/west road it is not unusual that she would have made that mistake.  The plat had been turned that it looked like east was actually south.  That is it.  They are subject to the rules of the road and are happy to conform to that.  But, he did not want with a stroke of a pen by zoning staff to reduce his rights to develop.  In the future he is subject to the rules.  There is no plan before them.  No plan has been advertised.  This is not a planning session.  It is simply the effect of condition 5 on the parcel and they submit that the language was incorrect the first time.  Otherwise, he accepts the wisdom of staff in this.


Ms. Joseph opened the public hearing and invited public comment.


Roger Byrne, a member of the Board of Directors of the Rocks Owner Association (ROA), said that he was appearing on behalf of the ROA to express its views towards the application of David and Connie Abdul who are owners of lot 1, The Rocks, for a change in special use permit 2003-79.  The effect of that change would alter the permissible placing of three lots that the Abduls may create within the boundaries of their lot 1.  The members of the ROA do not dispute the right of the Abduls to create the three lots within their property.  Indeed under the terms of the declaration for lot 1, tax map 75, lot 18D, when the Abduls subdivide lot 1 to create the 3 additional lots those lots will become subject to the terms and conditions of the declaration that contains the covenants and restrictions for the other 39 lots in The Rocks. With that event those lots will have to obtain approval of building and site plans from the Architectural Review Board of the ROA prior to the commencement of any construction.  Thus, the ROA stands together with the County in making sure that any development is consistent with the original intent of the County when The Rocks was approved. The County first considered the proposed Rocks development in 1991.  The original development request required a special use permit due to the number of lots as well as the proposed activity within the floodplain.  It was at this time that the first concerns were expressed regarding impacts on Ivy Creek, as well as the effect on the natural landscape vistas from I-64 and other public roads.  The County considered 8 factors in approving the subdivision plan.


Mr. Byrne noted that the ROA understands Mr. Abdul has no current plans to subdivide his property and create the three lots.  It is therefore troubling that this change is being requested at this time.  Although Mr. Abdul has indicated a desire to potentially site the lots on a knoll overlooking the community, which is visible from Dick Woods Road and within the view shed of a number of existing lots within the subdivision, he has not explored the technical feasibility of those lots given the restrictions imposed on the subdivision regarding effects on landscape, vistas, critical slopes and the water quality of Ivy Creek.  Indeed, a review of the file indicates that neither engineering nor planning for natural resources have been looked at for these potential sites.  It is difficult for us as a community to gage the effects of the proposed change without more concrete ideas of the specific placement of the lots and how access to those lots will be obtained. 


He continued that a visual review of the land involved and the potential access contemplated involves the crossing of a tributary to Ivy Creek and significantly steep incline to get up to the knoll.  An existing drainage easement stands in that same path.  It is unclear whether accommodating the drainage easement and an accessed driveway to that area is even feasible given the constraint on critical slopes and the likely erosion and effects on Ivy Creek. The plans for the community as represented to all of the current owners did not contemplate development in that area.  Representations were made to a number of residents that any development in lot 1 would be off of Rocks Farm Drive.  In fact, the building lot on lot 1 left of Rocks Farm Drive on the opposite side from the farm house is being occupied full time as a residence.  It is in that area that the home owners expected the lots to be located. 


For all of these reasons The Rocks Owner’s Association respectfully requests that action on this request be deferred until such time as Mr. Abdul has decided where he wants to locate the three lots.  It is unclear why action needs to be taken now.  With such plans in hand it will then be possible to ascertain whether the proposed lots are feasible and can meet the terms under which the original subdivision layout was approved.  At that time the conditions can be clarified if necessary.  They stand ready to meet with him to discuss any such plans in hopes that the interest of all members of the community can be addressed.  They appreciate the Commission’s consideration of these comments and request that they be included in the records of the Planning Commission.



Ms. Joseph noted that the three minute time limit was extended because Mr. Byrne represented a group of home owners and they were not all going to speak.


Mr. Byrne asked that all members of the community stand noting that they had met ahead of time.


Dr. Lucia S. Scentus, President of the ROA, supported Mr. Byrne’s comments.  In addition, on February 14, 2007 Albemarle County through their ACE Program purchased a conservation easement for Rock Mill Farm, which is located just to the left of this area between Rosemont and The Rocks.  It was an effort to preserve the rural character of the community. It seems contradictory if they were to allow this area to be developed with future development.


Darrell Gress, the newest property owner in The Rocks, said that he bought lot 15 adjacent to the proposed knoll that they were talking about.  He did so in part after looking at the letter from Mr. Shepherd that said that development would be east of the floodplain of the creek and the tributaries.  He encouraged the County not to reverse that view and preserve the farm that had just been put in preservation next to The Rocks.


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


Ms. Joseph suggested that the area be hatched so that they know which area they are talking about instead of looking at directions east, west or south.  When the Commission reviewed this she just wanted it to be on the other side of the floodplain that is almost parallel to the road. 


Mr. Clark replied that he could not provide hatching, but pointed out the area to the east where new houses could go.  Any areas east of the floodplain area are technically available to be developed subject to the other conditions.


Mr. Zobrist noted that he thought they were talking about the area east of lot 1, which had development rights.


Mr. Clark pointed out that lot one was located on both sides of the entrance.


Mr. Cannon said that precludes the area west of the floodplain.  Staff indicates that area was not to be precluded.  He asked if this was correcting an error or changing a subjective determination.


Ms. Joseph said that the other problem is that the Commission did not make the final decision on this.  The Board of Supervisors made the final decision.  They don’t know what the Board was thinking. 


Mr. Zobrist felt that the Commission is being asked to give an advisory opinion.  It appears to be premature or the issue is not ripe.


Mr. Edgerton noted that the County and the applicant want a resolution or a clarification of what has been represented to us as an honest mistake of reading the points of the compass.  He thinks the neighbors; Commission and the Board deserve a lot more information before they make a decision about where these lots should go.  The applicant could have offered to request a deferral until he was able to give us that information.  But, he did not make that offer.  He would take that to mean that he is not interested in asking for a deferral.  But, perhaps there is a way to solve both problems.  He thinks the Commission is empowered to grant an amendment to the special use permit as recommended by staff and at the same timer require that any future development come before the Commission and not be handled administrative.  That solves both problems.  That will allow for the public and the Commission to have some input in what really works or does not work. 


Mr. Cannon asked Mr. Kamptner if the Commission could do that.


Mr. Kamptner said that they were recommending the amendment of condition 5 as recommended by staff and also recommending that condition 3 be amended to allow Planning Commission review of the application plan.  He noted that it was in a ministerial capacity, but did not need to be in the condition.


Mr. Craddock agreed that it sounded appropriate.


Mr. Edgerton moved, Mr. Morris seconded, for approval of SP-2006-00014, The Rocks Subdivision Lot 1 Amendment, with the conditions recommended by staff, as amended, as follows:


  1. Except as otherwise provided herein development of The Rocks shall be in accord with the “Special Use Permit Plan…” prepared by Thomas B. Lincoln Land Surveyor, Inc. dated April 2, 2004. For purposes of these conditions the plan shall heretofore be referred to as “The Application Plan;”
  2. Except for minor boundary adjustments, (as determined by the Agent), the boundaries of Tax Map 74, Parcels 18C, 18C1, 18C2 and 18C3 may be modified only as shown on “The Application Plan;”
  3. Within the boundaries of Revised Lot 1, there shall be allowed a total of four (4) dwelling units or four (4) lots. Before a building permit is issued for a second dwelling unit, or before a subdivision plat is approved creating a new lot(s) within the boundaries of Lot 1, a new application plan shall be reviewed and approved by the Planning Commission administratively by the County authorizing the dwelling units or lots. Any future development shall come before the Planning Commission and not be handled administratively.  For purposes of these conditions the term “subdivision” shall also mean family divisions;
  4. All subdivisions within the boundaries of Revised Lot 1 shall meet the design standards and special provisions set forth in Section 10.3.3 of the Zoning Ordinance. This includes the requirement that it be demonstrated that the additional lots combined with the other approved lots do not exceed the actual number of lots that could have been achieved by conventional development of the total property;
  5. No dwellings or development lots within the boundaries of Lot 1 shall be located in the floodplain of Ivy Creek or between Ivy Creek and Dick Woods Road.
  6. All future development lots subdivided from Lot 1 shall be no larger than 3.26 acres in area, shall be located in a manner consistent with, and be integrated into the overall design of the other development lots in The Rocks;
  7. A minimum of ten (10) trees per acre shall be provided on the development lots, including those permitted by condition three (3), in accordance with Section of the Zoning Ordinance for the purpose of providing screening from Interstate 64 and Route 637. Trees shall be installed within two (2) planting seasons of the date of issuance of a certificate of occupancy for the dwelling on the lots;
  8. Clearing of land shall be limited to the minimum amount necessary for the construction of access roads, dwellings, and septic fields;
  9. Building siding and trim shall be of colors and materials that blend with the surrounding natural environment as determined by the Director of Planning. Highly reflective colors or surfaces, or light colored roofs, as determined by the Director of Planning, are prohibited;
  10. Concrete driveways visible from off-site shall be darkened to blend with the surrounding natural environment as determined by the Director of Planning;
  11. The bridge shall not be constructed until the approvals in conditions twelve (12) through fifteen (15) have been obtained;
  12. Department of Engineering issuance of an erosion and sediment control permit;
  13. Department of Engineering approval of bridge design;
  14. Department of Engineering approval of hydro geologic and hydraulic calculations to ensure compliance with Section 30.3. of the Zoning Ordinance;
  15. Department of Engineering approval of private road plans and drainage calculations. Private roads shall be designed to Virginia Department of Transportation mountainous terrain standards. This condition is only applicable to the private roads constructed to access and provide frontage to all the lots in the Rocks development except the Rural Preservation Tract and revised Tax Map 74, Parcels 18C, 18C1, 18C2 and 18C3 as shown on “The Application Plan;”
  16. The extension of Newcomb Mountain Lane as a private road is subject to Planning Commission approval. The Planning Commission shall establish the standard of the private road extension at the time of review;
  17. The existing road, shown entering from Rocks Farm Drive, parallel to Interstate 64 and meandering through the Preservation Tract shall not be improved or widened except for agricultural and/or forestry purposes. The need for such improvements shall be reviewed by the Public Recreational Facilities Authority. If the Public Recreational Facilities Authority deems that the improvements are warranted, construction shall not commence until a road plan and an erosion and sediment control plan has been reviewed and approved by the County Engineer;
  18. Prior to the approval of any plat modifying the boundaries of the Rural Preservation Tract, the rural preservation easement shall be amended to allow the modification; amendment to the easement is subject to the review and approval of the County and the Albemarle County Public Recreational Facilities Authority. Approval of this special use permit in no way implies or guarantees approval of a modified easement by the County or the Albemarle County Public Recreational Facilities Authority;
  19. Prior to the approval of any plat providing access to Newcomb Mountain Lane an amended road maintenance agreement shall be reviewed and approved by the County Attorney. This agreement shall be recorded with the plat; and
  20. Provide evidence to the County that the Rosemont Homeowner’s Association consents to the Newcomb Mountain Lane extension to serve as access to Tax Map 74, Parcels 18C, 18C1, 18C2 and 18C3.


The motion passed by a vote of 6:0.  (Mr. Strucko was absent.) 


Ms. Joseph stated that SP-2007-00014, The Rocks Subdivision Lot 1 Amendment was approved and will go before the Board of Supervisors on July 11, 2007 with a recommendation for approval.  The Planning Commission will be able to see this when it comes back as a subdivision.  The plat will not be administratively approved, but will come before the Planning Commission for review.


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