Work Session:


ZTA-2007-00003 - Zoning Ordinance; critical slopes; safe and convenient access

Amend Sec. 4.2.3, Location of structures and improvements, Sec. 4.2.4, Location of septic systems, Sec. 4.2.6, Exemptions, and Sec. 4.6.6, Lot access requirements, of Chapter 18, Zoning, of the Albemarle County Code.  This ordinance would prohibit the disturbance of slopes of 25% or greater ("critical slopes") in order to establish or maintain a street, driveway, or a yard on a lot in the rural areas zoning district, and would reorganize the section (Sec. 4.2.3); would require that septic systems, including the drain field, be located within the approved building site for the lot and, in the rural areas zoning district, prohibit disturbing critical slopes to establish or maintain a septic system, including the drain field (Sec. 4.2.4); would eliminate for lots within the rural areas zoning district the conditional exemption allowing the disturbance of critical slopes to establish access ways (including streets, driveways and alleys) and storm water management facilities and the provision allowing such improvements to be located outside of the building site (Sec. 4.2.6); and would establish vehicular access requirements (minimum standards for grade, width, distance from dwelling unit, clear zone) for lots in the rural areas zoning district to assure that safety vehicles have safe and reasonable access to dwelling units (Sec. 4.6.6). (Joan McDowell)     




STA 2007-00002 - Subdivision Ordinance; family divisions; contour intervals; individual lot grading

Amend Sec. 14-212,  Family subdivisions; conditions of approval, Sec. 14-302, Contents of preliminary plat, and Sec. 14-309,  Soil evaluations, of Chapter 14, Subdivision of Land, of the Albemarle County Code.  This ordinance would require that a lot created by family division be held by a member of the immediate family for 15 years and recordation of a restrictive covenant prohibiting transfer of the lot to a non-family member for such period (Sec. 14-212); would amend the contour intervals at which topography must be shown on a preliminary subdivision plat and require that, in the rural areas zoning district, the preliminary subdivision plat must include the proposed grading showing all individual lot grading, including access, clearing and all other lot improvements (Sec. 14-302); and would require that in the rural areas zoning district, the soil evaluation to determine the suitability of the soil for septic systems with a conventional drain field be conducted within the building site shown on the approved preliminary plat (Sec. 14-309). (Joan McDowell)


After taking public comment, the Planning Commission took a 10 minute break at 7:55 p.m.   The meeting reconvened at 8:09 p.m.


Action on STA-2007-00002, Subdivision Ordinance; family divisions; contour intervals; individual lot grading:


Motion: Mr. Cannon moved, Mr. Craddock seconded, to approve the proposed amendments to the Subdivision Ordinance, STA-2007-00002, to include the proposals for changes to the contour intervals; individual lot grading provisions and to include the following amendments to the family division requirements:



Ms. Joseph asked if there was any further discussion.  She asked Mr. Brooks to give a brief overview of the contour interval and individual lot grading.


Mr. Brooks said that this had to do with the critical slope provisions, but not necessarily with the family divisions.  It is part of the Subdivision Text Amendment. 


Ms. Joseph said that there are two different things here. They have the zoning text and the subdivision text.  She wanted to make sure that it was clear what was going on.


Mr. Brooks said that in the contour interval they were looking at language less specific and referring to the actual topography that has been flown by the County instead of giving it a foot interval.  The current ordinance has a 5í minimum contour.  If their aerial topography that the County is supplying to the public is better than that, then they want to use it.   That is the change in the contour interval.


Mr. Cannon said that was not a substantive change.


Mr. Brooks noted that it changed the look of the application, but was not substantive in changing the regulation.


Mr. Cannon asked if the individual lot grading change was substantive.


Mr. Brooks said that this change has to do with the driveways and the other disturbances. Currently the way the ordinance is implemented and written is that in a standard subdivision the grading that is being done for the house, building or the driveways does not have to necessarily be shown.  It shows the general grading for the yards and that kind of thing.  Typically what is shown on the plat is only for the public or private road that has to be built.  This is actually being more specific with the language and saying that any grading that is planned in a subdivision needs to be shown on the plat, such as two driveways or areas planned to be graded flat.  It can show staff at the planning stage whether critical slopes are going to be disturbed or not.  Staff does not get that information currently.


The role was called.


The motion passed by a vote of 4:0.  (Mr. Strucko voted aye in the hopes that the Board of Supervisors review the minutes of this discussion and he encourages them to consider some of the provisions outlined in that discussion.)  (Mr. Morris, Mr. Edgerton and Mr. Zobrist were absent.) 


Ms. Joseph noted that it was a long discussion, but the Commission hopes that the essence of the discussion and how much they are concerned about the fact that they are creating these substandard lots was forwarded to the Board of Supervisors.  But, the Commission understands the need for that.


In summary, the Planning Commission held a discussion about their concerns about the proposal and requested the Board of Supervisors to consider the following provisions as outlined:


         Concerns made regarding the timing of the family division.  The proposal needs to protect and balance the rights of the family and land owner, but still protect the safety and welfare of the general public to avoid the potential sale of a substandard lot with an unsafe access. 

         Safety and welfare of the public that parcel hits market and the consumer has something less than safe access.

         All options (the 0 years before and 15 years following and the alternative 15 years cumulative) have limitations, which need to be understood.

         Concern about the parent parcel being under the ownership restrictions.

         When put parcel on public market, it needs to have certain safety standards (potential of having a substandard road).

         Need to assure with family division that there is a reasonable safe access and we need to make sure there is adequate access that turns it into a conventional development upon sale to a non-family member.

         Speed limit concern for safety for school buses and emergency vehicles.  Could speed bumps be used to set a speed limit appropriate for the road?

         Facilitate family divisions, but with some tradeoffs.

         Question raised on how to retrofit a family division to a conventional division upon sale of the lot.


Action on ZTA-2007-00003, Zoning Ordinance; critical slopes; safe and convenient access:


Mr. Cannon said that this is a good, carefully thought through proposal.  He appreciates very much the burdens it imposes on some property owners. He thinks that the County should only take such steps or impose such burdens where the benefits are clear. In this case they are clear.  This proposal grows out of a long process with a lot of folks from a lot of different points of view coming together and trying to figure out what would be the best thing to protect critical areas in the County. Those representatives included representatives of property rights groups as well as environmental groups.  It was a broad spectrum of the community.  They came up with the critical slopes as the proper focus.  Glennís presentation today made it clear that there is a sound technical basis for that focus, that these provisions are appropriate efforts to try to address the concerns here, and that there are appropriate relief mechanisms, including waiver provisions, for citizens where these regulations create an undue hardship.  He would be in favor of the proposal as it is being put forward here.


Ms. Joseph asked if that would include administrative approval of waiver requests.


Mr. Cannon replied that would include administrative approval of waiver requests on the terms that are included in the proposal as discussed earlier.


Mr. Strucko said that there is recourse for applicants that do not get the decision from the administrative review that they are hoping for.  They can appeal to the Planning Commission?  He asked if there was provision in there for that.


Ms. McDowell replied yes.


Mr. Joseph asked to see definition of the mitigation measures and whether it is confining the road to a certain area that is reasonable or it is removing excess trees or not. They need to make it easy to use for county staff and the public.  It is important because if they are talking about E & S measures for all kinds of things, they need to start thinking about how this is going to work in some of these very long driveways, if there is no other ways that it is accessible. The Mountain Overlay District Committee did decide that if someone had a perfect site that they had always wanted to place a house that they would have the ability to do so with some sort of mitigation measures to get up to the site.  She would like something like that worked out.


Mr. Cannon felt that the mitigation measures should be explicitly keyed to the purposes of the critical slopes ordinance that they talked about earlier, which are multiple purposes.  So mitigation should not focus solely on erosion, because there are other considerations that are behind and supporting the critical slopes ordinance. Mitigation should be focused to mitigate and protect those other interests.  He did not know if that was a footnote to this or just our suggestion to the Board and their proposed guidance to staff.  But, he would be strongly in favor of that. 


Mr. Brooks said that this is guidance on a policy that staff will put together on how to implement the ordinance. 


Mr. Cannon said that they canít write that in the ordinance.  They donít know enough.


Ms. Joseph asked if he was still talking policy and not ordinance language.


Mr. Brooks said yes, that is what he was clarifying.  If they have to now put it into the ordinance, it is a much more difficult order.


Mr. Cannon said that he was content to have it be guidance to staff, as long as they pay attention to it.


Ms. Joseph asked that they make sure that the policy is written down some where so that people coming in know what they are supposed to be doing.


Mr. Brooks said that staff can put together a section in the Design Standards Manual specifically for erosion control plans that come in for rural subdivision driveways and lots of disturbances which is being called for in this amendment.  It can go beyond erosion control.  They can address the 5 items such as the aesthetics, the storm water run off, the structural integrity and all those sorts of things.  If they also intent to address the safe and convenient access, then they should say so because that is not a mitigation.  It may actually be sort of counter-productive to mitigation if they have to make the driveway more accessible and less steep or more secure so to say.  They have some conflicting goals, if that is the case.  


Ms. Joseph said that they have changed the maximum slope to 16 percent as far as the driveways are concerned. 


Mr. Brooks replied that is correct.  For example, the driveway that they looked at would have to be a longer driveway. To get 16 percent they would have a few more turns.


Mr. Strucko said that he wanted to make sure there is no retroactive anywhere in the proposed changes, so they are going from a date certain moving forward.


Mr. Kamptner replied yes.


Ms. Joseph asked what happens if someone is in process and this amendment gets approved.


Mr. Kamptner said that it depends on where someone is in the process.  If they have a preliminary subdivision plat approval, under State law, if they have diligently pursued that preliminary approval and they have incurred extensive obligations or expended substantial funds they will have to go through a determination by the zoning administrator.  But, if they have satisfied those things they will be found to have vested rights.  They will fall under the current regulations that were in effect when the preliminary plat was approved.  They have to be certain that preliminary plat is still valid at the time they try to exercise their rights. 


Mr. Cilimberg noted that one of the things that have been done in the past was to put the effective date out a period of time.  On the Neighborhood Model it might have been 180 days on that particular ordinance provisions.  So the things that were in the pipe-line would have a chance to clear.  Everyone would know the 180 day effective date.  That is something that the Commission can recommend.


Mr. Cannon said that he was not sure if 180 days was the right period of time.  That is a long period of time.  He would be in favor of 60 to 90 days.


Mr. Strucko said that this one was more difficult for him to come to terms with on a variety of things and issues.  This is the one thing that he thought they received good substantial conversation on December 13, 2006, in a joint Board of Supervisors work session.  From the conversations that he heard among the Board of Supervisors he thought that this particular set of provisions received the most favorable review, but yet here it is back before the Commission for consideration.  Again, he was not sure if his recommendations have changed in the 9 months intervening.  But, he wanted to make sure there are appropriate details in here. His concern was retroactive application for existing roads, driveways and alley ways.  He felt that it would be unfair to force landowners that are currently there to suddenly upgrade to a new set of rules.  He was sensitive to those who have projects in the process while this thing is being considered and deliberated on. Some of the speakers tonight expressed a concern if they are going to have the courage to say that they are concerned with the rural area or not concerned with the rural areas.  Collectively the Commission expressed concerns that they are looking at Albemarle County in its entirety and are committed to a set of policies and principles to preserve and protect the Rural Areas while protecting property rights and to concentrate growth into the designated growth areas for a variety of good policy reasons.  In his tenure on the Commission he felt that a lot of their activities had been doing a lot of rezoning of growth area parcels, increasing the densities and the number of development rights all for the sake of this policy.  Yet they have done nothing to protect the rural areas other than to encourage the purchase of development rights and conservation easements. They have not advocated the dedication of additional resources.  They donít have the power of the purse.  The Board needs to step up and start allocating some resources towards the purchase of development rights. There is certainly something they can do here. He questioned why they donít require the same for other structures such as roads?  Some feel it is a loophole that needs to be closed.  Others ask how they can get to the parcel being developed unless they have access to a building that may not involve critical slopes.  Either way they are looking to protect critical slopes one way or the other.  He has come to the conclusion that here is a step they can take directly to do something to protect the rural areas small as it is.  There is still opportunity for exceptions, which he agrees with.  Therefore, he agreed with Mr. Cannon.  He asked that the Board consider this matter.


Mr. Craddock agreed with Mr. Strucko.  When working on the Mountain Overlay District Committee the critical slopes was one of the critical components of it.  The fact that the political will have to be there for this rural protection is yet to be seen.  He left the meeting in December fairly excited because the Supervisors brought it up that they wanted to extend the MOD provisions to the flat lands, also.  Then with Mr. Brooksí presentation about the history of the critical slopes, it made it even more imperative that they do move it to the Board of Supervisors and get it off the dead center. Then they can do what they want.


Ms. Moneith said that a lot of words have been passed. As long as there is a way for an exemption they should really try to protect the critical slopes.  It should be happening.


Ms. Joseph said that when they started about talking about the critical slopes, they talked about what goes on in the urban areas.  In the urban areas they do allow the exemptions and thought that it made sense to allow the exemptions in the rural areas also with mitigation. The other thing she would like to ask Mr. Brooks before the Commission takes any action on this is that she hears about the policy and realizes that staff is going to write this in the manual, but she wants to know more about that process.  Is there any input from the community before it gets into the manual?


Mr. Brooks replied that the way it was currently written there is a one month period of input, but they could expand that if the Commission would like.


Ms. Joseph asked if staff would put it on the web, send it out or call people in. 


Mr. Brooks said that, currently, staff has an email list that contains most of the local citizens.  He would send out a notice on the email list.  They also put it on the web site.  Staff has had an open forum on the web site in the past.  The manual is on the Countyís web site.  That is currently the process. In the past when there were big changes that staff feels has a large impact they held meetings.  In the recent Design Manual changes, he advertised an open discussion meeting that was held in the County Office Building.  They have not had a lot of participation in that, but they may have better participation now.


Ms. Joseph said that would be important so that everyone knows that they are listening and they hear.  They want to make sure that they are doing something that really protects what they want it to protect. The Commission has received a lot of good input tonight.  If staff could have at least one round table to let people know about the mitigation standards and provide it on email that would be great.


Mr. Brooks said that staff could do that.


Mr. Cannon asked if all of the administrative waivers proposed for the critical slopes were limited to lots that would be in existence at the time of the statute.  Or, does it apply only to waiver #3.


Mr. Brooks replied certainly not.  That is not in any of the writing.  That was one scenario that he could think of for #3, but there are many others.


Mr. Cannon wanted to make sure that the proposal they might be voting on would be that at least to waiver #3 there would be availability of that waiver only for lots that currently do not exist or would be in existence by the time that the ordinance would be adopted.  He asked if that was the intent.


Mr. Brooks replied that it was not, but they could add that.  It was sort of an open ended waiver. The way it was written was if they found a case in which staff agreed with the applicant that there was no alternative it would be allowed to be administratively waived.  He could not think of all of the scenarios.  One of the things he has learned in doing text amendments is that they can not think of all of the scenarios that might happen. 


Mr. Cannon said that makes this more important.


Ms. Joseph said that what they have been hearing from people is that not allowing the waiver would make any further subdivision of their property impossible.


Mr. Cannon said that he needs to understand Ms. Josephís comments about mitigation.  He understands by minimization and mitigation that there are two things that would be required.  First, all adverse impacts would be required to be minimized. Then those that could not be eliminated through that minimization process would be fully offset by mitigation. That minimization and mitigation would occur across the range of concerns stated in the critical slopes ordinance in the passage they looked at in the beginning.


Mr. Brooks replied that is clear.


Mr. Cannon noted that is essential if this is to work.


Mr. Kamptner asked to go back to Mr. Cannonís first question regarding waiver #3.  That is corresponding to waiver #C1 in the proposed regulations.  It is on page 2 of the September 5, 2007 draft. 


Mr. Cilimberg noted that it was Attachment 6 in the packet.


Mr. Kamptner asked to which lots that waiver would pertain.  It does include that it would apply to a proposed dwelling unit on a lot of record created before the effective date of the amendment to this section. 


Mr. Cannon asked if it would not be applicable to lots created after that.


Mr. Kamptner replied that the lots being created after that should not be creating the situation requiring a waiver.  There would still be a waiver that would be allowed.


Mr. Cannon asked if his initial understanding was correct, and Mr. Brooks replied yes.


Ms. Joseph noted that she felt the same when the Commission talked about the Rural Areas part of the Comp Plan.  They spent a lot of time talking about the residential use of the land itself.  That is exactly what they are doing here.  It is a little disconcerting to think that what they expect of our rural areas is to be residential.


Mr. Cilimberg noted that they might need to make one more recommendations that did not show up in the amendment.


Ms. McDowell said that one discussion held at staff level was about the concern on page 2 about the land disturbing activity, the waste and the fill areas authorized by Section 4.3.01.  They talked about removing that.  Mr. Brooks can address a little bit about what happens with fill and waste areas.  But basically, if they had 2 hills they could top them off, fill the area between and then put the house on the fill area.


Mr. Brooks said that was correct.  Fill and waste areas is an existing loophole in the ordinance.  It is a fairly broad definition.  It means that someone has to turn in an erosion control plan on an agricultural piece of property and they can fill.


Mr. Cilimberg noted that #7 is the reference that they are covering.  The suggestion is that would not be an administrative waiver.


Mr. Brooks agreed.


Ms. Joseph said that particular one would not be an administrative waiver.


Mr. Brooks said that was correct.  They would eliminate #7.


Mr. Kamptner said that under current Section 4.2.3 it is completely exempt anyway. So this would be shifting it over to a section 4.2.5 waiver.


Mr. Brooks agreed.  It would have to come before the Planning Commission.  It is difficult to do this because it is grading and it is disturbance.  It is just a matter of what you call it.  Instead of calling it a foundation for a house or a driveway or a future roadway, if they suddenly call it a fill and waste area no matter what its shape or appearance then it is exempt.  So it is difficult as a staff person to say no I donít believe you, I think it is a driveway if they are calling it a fill and waste area.


Ms. Joseph said that it came from the fact that they did not want to regulate the rural areas in this manner.  So now they are thinking about this in terms that it is more of a residential use.


Mr. Brooks said that staff does not see very many fill and waste areas that are of a rural nature.


Action on ZTA-2007-00003, Zoning Ordinance; critical slopes; safe and convenient access:


Motion: Mr. Cannon moved, Mr. Strucko seconded, to recommend adoption of the proposed changes of the Zoning Ordinance, ZTA-2007-00003, to the Board of Supervisors, which includes the proposals for changes to the critical slopes; safe and convenient access with staffís recommendations, as amended, as follows:


1.      Specific guidance be prepared on mitigation measures necessary to qualify for [section 4.2.3(c)(4)] and placed in the Design Standards Manual.

2.      Guidance by staff to be prepared after the adoption of the ordinance with opportunity for public input and written to be consistent and forward the concerns underlying the critical slopes ordinance that the Commission talked about earlier. 

3.      Subsection 4.2.3(c)7, as recommended by staff, should be deleted as listed on Attachment 6 regarding the land disturbing activity that occurs in a fill or waste area authorized by section 4.3.01.    


Mr. Cilimberg asked for a clarification when they were talking mitigation policy they referred to a particular waiver #3.


Mr. Cannon replied that it was to implement that waiver as he understood it.


Mr. Cilimberg suggested that they look at page 2 of Attachment 6 to make a reference to a section that they feel that is applying to.  There is a list of 6 administrative waivers since
#7 was deleted, which would not be included in the recommendation.  The question is where they connect the mitigation policy standards.  Do they connect them to all of the administrative waivers or to a particular one or more?


Mr. Cannon asked if other waivers involve mitigation.


Mr. Kamptner noted that [section 4.2.3(c)] #1, #4 and #6 require mitigation.  Subsection #3 requires reasonable conditions imposed by the County Engineer to assure that the erosion condition is corrected.


Ms. Joseph said that is where that policy needs to come in so that people wonít be worried and that Mr. Brooks has some guidelines to work with.


Mr. Cilimberg said that in #C3 they are looking for reasonable conditions.


Mr. Kamptner said that #3 that Mr. Cannon referred to on the screen does not correspond with the numbers in the ordinance. 


Mr. Cilimberg said that Ms. Joseph was mentioning this #3 and staff was trying to make sure they know which one it was connected to.  It is a detail that was important in order to understand what the expectation is.


Mr. Cannon noted that administrative waiver #3 [as it appeared on the screen] applies only to lots in existence at the time that the ordinance is adopted. 


Ms. Joseph replied that is in there.


Mr. Kamptner asked for discussion on the delayed effective date.


Mr. Cannon amended the motion that the delayed effective date be 60 days.


Mr. Strucko seconded the amended motion.


The motion passed by a vote of 4:0 with the following recommendations:  (Mr. Morris, Mr. Zobrist and Mr. Edgerton were absent.)

1.      Specific guidance be prepared on mitigation measures necessary to qualify for [section 4.2.3(c)(4)] and placed in the Design Standards Manual.

2.      Guidance to be prepared by staff after the adoption of the ordinance with opportunity for public input and written to be consistent and forward the concerns underlying the critical slopes ordinance that the Commission talked about earlier. 

3.      Subsection 4.2.3(c)7, as recommended by staff, should be deleted as listed on Attachment 6 regarding the land disturbing activity that occurs in a fill or waste area authorized by section 4.3.01.    

4.      The effective date of the ZTA should be 60 days after the date of adoption.


Ms. Joseph stated that ZTA-2007-00003, Zoning Ordinance; critical slopes; safe and convenient access will be sent to the Board of Supervisors with their recommendations for approval.  But, the Board date has not been set. 


(The Board of Supervisors has scheduled a meeting to hear these matters on October 10, 2007 at 6:00 p.m.)


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