Albemarle County Planning Commission

May 19, 2009


The Albemarle County Planning Commission held a public hearing and meeting on Tuesday, May 19, 2009, at 6:00 p.m., at the County Office Building, Lane Auditorium, Second Floor, 401 McIntire Road, Charlottesville, Virginia.


Members attending were Don Franco, Linda Porterfield Marcia Joseph, Calvin Morris, Bill Edgerton, Thomas Loach, Vice Chair and Eric Strucko, Chairman. Julia Monteith, AICP, non-voting representative for the University of Virginia was absent. 


Other officials present were Gerald Gatobu, Principal Planner, Joan McDowell, Principal Planner; John Shepherd, Manager of Zoning Administration; Rebecca Ragsdale, Senior Planner; David Benish, Chief of Planning; Steward Wright, Permit Planner; Sherri Proctor, Permit Planner; Ron Higgins, Chief of Zoning; Bill Fritz, Director of Current Development and Andy Herrick, Deputy County Attorney. 


The Planning Commission recessed 7:20 p.m. and reconvened at 7:28 p.m.


ZTA-2009-00006 Accessory structures in required yards Amend Secs. 4.11.2, Structures in required yards,, Accessory structures,, Public telephone booths, and, Fences, mailboxes, and similar structures, and add Sec. 4.11.4, Structures within easements, of Chapter 18, Zoning, of the Albemarle County Code.  This ordinance would amend Secs. 4.11.2,, and by reorganizing them into a single section, prohibiting accessory structures within required front yards with exceptions, revising the types of structures allowed within required yards currently delineated in Secs. and by deleting signs, which are subject to other yard requirements and adding automated teller machines, and by requiring that accessory structures be physically separated from the primary structure up to 6 feet or it be subject to primary structure yard requirements.  This ordinance would also add Sec. 4.11.4 to prohibit structures within an easement without the consent of the easement holder and provided that the structure does not adversely affect the easement purpose.   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. (John Shepherd)


Mr. Shepherd presented a PowerPoint presentation and summarized the staff report.  He introduced Steward Wright, Permits Planner, who has worked hard with this process.


ZTA-2009-0006 is to:

·         Restore the requirement that accessory structures meet the primary front setback in the residential districts and the rural areas. 

·         Establish a minimum separation between the primary structure and an accessory structure that is allowed in a required yard.

·         Reorganizes and clarifies sections 4.11.2,, to provide a clearer ordinance.


The Planning Commission held a work session on this proposal on April 21, 2009. The Commission adopted the Resolution of Intent and advised staff as follows, which are covered in the proposed changes:



Taking that discussion into account staff comes to the Commission with these revisions all together.


Section 4.11.2.a restores the prohibition to locate accessory structures, including detached garages in front yards.  Section 4.11.2.b really makes no changes but continues to provide for side and rear setbacks for accessory structures that are next to alleys.  4.11.2.c includes retaining walls and ATM’s in the list of structures that are permitted in required yards.  4.11.2.d is the section that will increase the distance between the two structures from 1’ to 6’. 


The 6’ separation will limit the area that will be available for locating sheds and other accessory structures on small parcels.  They are thinking particularly of a mobile home lot since a mobile home itself is a small structure relatively speaking and it needs storage and the 6’ separation limits the ability to locate these things on those parcels. Staff would ask for another discussion about an appropriate distance between structures.


Lastly Section 4.11.4 just reiterates and clarifies the requirement that any structure places in an easement requires the written permission of the owner of the easement.  The language requires an easement holder to approve in writing the location of an accessory structure in their easement.  An example is putting an accessory structure in a power line easement.


Staff recommends approval of this amendment to the ordinance as provided.  He highlighted the sections that have been changed.


Ms. Porterfield asked if they have always required written permission or confirmation from the easement for mailboxes placement.  She wondered whether they really want to do that because in her area a lot of the utility easements are in the front yards by the road.


Mr. Shepherd said that it is not a change.  They have always carefully restricted the location of any structures in easements.  As far as mailboxes in the public right-of-way along a road he did not know how that works.


Ms. Porterfield said that she was more concerned about including mailboxes for written consent.  She questioned whether they want to include mailboxes for written consent.


Stewart Wright noted that a mailbox would not require a permit whatsoever from the county. They may look at it as a structure, but it is not something that the county has ever regulated in the past.


Ms. Porterfield asking for people to have the written consent which she did not think they did before.


Mr. Shepherd pointed out that he would go back and find exactly what they are thinking about changing.


Mr. Edgerton said that Ms. Porterfield had a good point in that part of the ZTA staff is proposing to eliminate Section fences, mailboxes and similar structures.  On page 2 of the draft section that actually addresses mailboxes, but what is being proposed here is that is being deleted.


Mr. Shepherd replied that was correct.  Staff does not regulate mailboxes now, which can be located on a person’s property without our regulation.  If people are locating mailboxes in a VDOT right-of-way it would be a VDOT issue.  A permit is not required by the county for the location of a mailbox.


Mr. Edgerton asked why staff wanted to delete that whole section.


Mr. Herrick clarified that the new proposed section 4.11.2.c does allow mailboxes.  The old is being replaced by 4.11.2.c.2.  The bigger issue may be the potential conflict with 4.11.4 which is new.


Ms. Porterfield pointed out that she was suggesting it say except for mailboxes in 4.11.4.  The other ones require it in an easement, but if a mailbox is in an easement they don’t have to jump through that hoop.  She was not talking about VDOT.  Just in case somebody’s mailbox happens to be in the easement that their electric or gas line is running through, etc. it could happen.  She was not sure if they want to start having them get permission to put in a mailbox.  Obviously they have to get it blue staked if they are smart before they put it in.  A mailbox has to be put in certain places if one wants to get their mail.


Mr. Shepherd suggested that in locating a post for a mailbox which is sunk into the ground it might be wise to know if t here are buried cables or pipes that go to an easement.


Ms. Porterfield questioned if they were going to create a problem if they required an actual piece of of paper from the easement holder.


Mr. Loach noted that the postal authorities designated where mailboxes could go because that is where they will deliver.  Once they have made that designation does it supersede this because it is the federal government designating where mailboxes go.


Mr. Franco asked why they want to have 4.11.4 in there.  He asked why the county wants to enforce that if it is a private easement that the county is not involved in.


Mr. Wright replied that a lot has to do with the whole public safety and welfare.  If someone wishes to build a shed that is within a power line easement.  The power company wants to know what that structure is going to be used for just in case a power line did fall.  They run into this more often with sign permits because signs are also out by the road where the utilities are.  The sign permit application requires written approval from the easement holder all the time.


Ms. Porterfield said that they have removed signs from this portion of the ordinance.  So if they have done that could they get rid of 4.11.4.  She thought that if they put something in an easement it was at her own peril.  If she was asked to remove it by the easement holder then she had to take it out.  She has always understood in places she lived before that she needs to make sure that she knows where the easements are and need to bring in the utilities to know what is in the easement.  In some cases she has to get permission to do it.  But it is her peril and not the county’s peril for whatever she had put in the easement.  She agreed with Mr. Franco that it is not needed particularly if it is only for signs, which is no longer in this section.


Mr. Edgerton felt that they need something in there.  He had utility easements running across the front of his property that if he was to put a post in that it would not be in his peril but at the peril of everybody down the street that are being served by that easement.  If he was the people down the street he would like to be protected against that and require anybody who wants to put something in an easement to check with the easement holder and make sure that they do it appropriately. 


Ms. Porterfield noted that her point is that she did not have the right to build a shed in an easement that she does not own.  She would have to get permission.  If she did not get permission and went ahead and put in the shed, then she could be asked to take it out.  Since everybody has a mailbox she questioned if they would be creating a monster that they don’t want to have.


Mr. Strucko said that this final section also requires submitting the written consent to the Department of Community Development for a file.  He asked if the purposes of that are just to simply have a record and that the county may not be a party to it.


Mr. Shepherd said that it would be verification that the easement holder had granted permission.  It is part of a definite enforcement mechanism for what was the first sentence in the original - no structure shall be permitted in an easement in a way that adversely affects the easement. This makes that clearer and provides a mechanism to enforce that.


Mr. Franco suggested that the language be rearranged so that if there is an easement on the property and he was allowed to have a fence that is now a structure and he would have to come in and present evidence.  Even though his easement that someone else holds on his property permits him to put the fence in by right it is excluded as one of the things that one can control. If you did not like the fence coming in he has now given them an extra power by having the county say he needed to get written consent to have the fence in there.  It does not talk about the condition of the easement like use to.  It talks about needing that written consent.  It is written so to potentially give someone more power than the easement may give them.


Mr. Shepherd suggested that they could address this by going back to the existing language to say no structure shall be permitted in an easement in a way that adversely affects the easement.


Ms. Joseph and Mr. Edgerton agreed.


Mr. Strucko noted that would be the concluding sentence and replace all of the proposed language in 4.11.4.


Ms. Porterfield noted that the Commission previously said that ATM machines should be accessed from within the property.  She wondered if they should add that in the language so that it is clear that somebody can’t put an ATM on the edge of the property and have it accessed off the property.  The Commission asked that it be added to this group.


Mr. Shepherd pointed out that could be handled at site plan rather than a requirement at this point.  He suggested that it be made subject to a site plan so it could be evaluated so that the traffic circulation around it or pedestrian traffic to it could all be accommodated.  He suggested that they preclude the opportunity for that in any and all cases. 


Ms. Joseph suggested that if it was confusing they should take it out and continue doing what they have been doing. 


Mr. Fritz noted that there may be some cases where they want to have ATM’s closer to the property line, particularly in the Downtown Crozet District and in some planned developments where they are trying to focus on pedestrian focused development.  It may make sense particularly if they have a pedestrian wall where the property line is they would want it right on the property line or within close proximity.  If it was a drive through ATM it would require a special use permit.


·         It was the consensus of the Planning Commission that ATMs are acceptable as portrayed in the proposed language.


Mr. Franco responded to staff’s request for discussion on the 6’ separation.  As last time he was comfortable with something smaller on the order of 3’.  He was not comfortable with the 1’ that staff originally proposed. But he thought that that 3’ is plenty of space to maintain something.


Mr. Loach suggested that staff check with the Division of Fire Safety since he thought that it would matter on the height of the building.  If he had to ladder a building in that space between the buildings to get to somebody to make a rescue he had to get a ladder up and get several people on that ladder with air packs on their backs.  He would have fewer problems with the single story than if he did it with two- or three-stories.  He suggested that staff check with Fire Division to see if less than that would be adequate on a multi-story building.


Mr. Shepherd said that he checked with the building official who is looking at the Fire Code as well.  He reported that on a residential parcel there is no requirement to separate two structures except in cases where there is a garage with motor vehicles in it that does have some fire separation requirement. 


Mr. Loach noted that the Building Codes do not respect fire fighter’s safety.  He supported a 6’ separation when the building is above one story if only to make sure that they can get in to get a rescue.


Mr. Edgerton supported the 6’ separation.


Ms. Porterfield noted that a shed potentially could have a lawn mower and can of gas. 


Ms. Joseph agreed with the 3’ separation.


Mr. Morris agreed with a 3’ separation in some areas, but would stipulate if it was over one story then it has to be a minimum of 6’ separation.  He did not want to put the fire fighter in jeopardy.


Ms. Porterfield agreed with Mr. Morris for a 3’ separation unless the primary structure is higher than one story it is 6’.


·         The 6’ separation was agreed upon by the Planning Commission.


Mr. Strucko opened the public hearing and invited public comment.  There being none, the public hearing was closed and the matter before the Commission.


Mr. Strucko reiterated the comments and edits recommended by the Commission:


·         In the last section scale back the language to a single sentence to read, “No structure shall be permitted in an easement in a way that adversely affects the easement.”


·         The ATMs are acceptable as portrayed in the proposed language.


·         The 6’ separation should be kept.


Motion: Mr. Edgerton moved and Mr. Morris seconded to recommend approval of ZTA-2009-006 Accessory structures in required yards to the Board of Supervisors with the one edit to the proposed language, as follows.


1.       In the last section scale back the language to a single sentence to read, “No structure shall be permitted in an easement in a way that adversely affects the easement.”


The motion passed by a vote of 7:0.  


Mr. Strucko said that ZTA-2009-006 Accessory structures in required yards would be heard by the Board of Supervisors on a date to be determined with a recommendation of approval.


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