Board of Zoning Appeals (BZA) Meeting   3/12/2024

It's two o'clock and as chair of the Albemarle County Board of Zoning Appeals, I'd like to call the meeting for March 12th, 2024 to order.

Our first order of business is to establish a quorum and I've been asked to do that a little bit differently than we've done it in the past.

What I'd like to do is just move from my left to the right and I would ask you to say your name and then followed by the word present.

Jim Bowling here.

We have Deputy County Attorney Andy Herrick.

We have Bart Svoboda and Francis MacCall from the zoning administrator office.

And Miss Marsha Alley.

I think that's it.

So I'll move right into the public hearings.

We have one on the agenda today, AP 2023-4, challenger way setback determination.

And the way this will work is we're going to give the staff county attorney team 15 minutes to present their case and then we will give the appellant and their team another 15 minutes after that.

Thank you, Chair Carrington, Francis McCall, Deputy Zoning Administrator.

My presentation here should be fairly brief as flayed out staff's, the case for the staff's analysis of this in the staff report.

And once I've finished, take questions or further discussions.

So just to give you some context here, the property that we are discussing this afternoon is tax map 6101C1.

It's a total of 3.51 acres.

It's 442 Westfield Road, and it fronts obviously there on Westfield Road.

The parcel is zone C1, as you can see here.

I've identified on this particular slide the particular setbacks that are in question, and I've noted them here along the property line.

So if you want to come back to slide number three for any discussion,

Slide three or four, you'll see here in just a second, that has the aerial photography of the particular site that has those lines on them.

So if you want to come back to those, just let me know.

I'll go back to those particular slides.

So the purpose here of this meeting is to determine whether the zoning administrator's decision was correct and whether the zoning ordinance was applied correctly.

This appeal does not consider whether the proposed use is appropriate, whether it is in the public interest or whether the zoning regulation is invalid or needs to be amended.

Here's the slight history of the property and not slight history, but just the history of the property that was identified in the staff report.

I'm not going to go over these particular dates, but these are outlined in the staff report.

The first says it approved ZMA to rezone the parcel to neighborhood model.

So the setbacks, the grounds here for the,

The decision that was made are outlined in the code sections 18-21.7 and 18-4.20A.

And those sections are outlined in the staff report as well, the specific language.

Staff's response to the appeal, again, is in the report in a little more detail, but we do not agree with the appellant's claim, which is in attachment D.

So because of that zoning administrator's determination, LOD 202310 was correct.

The Board of Zoning Appeals should affirm the determination.

I have some motions.

The particular one outlined right now is to affirm the determination.

And if there are other decisions, we can present those motions as well, at least the starter language for those motions.

So that's that first motion.

So Mr.

Chair, members of the board, Andy Herrick, I'm the deputy county attorney here on behalf of the county zoning administrator.

I just wanted to focus, re-emphasize a couple of the points that Mr. McCall raised in his presentation.

If you go back to slide five, the basic purpose of the hearing today is not to determine the perceived fairness of the ordinance, whether the ordinance needs to be amended or not.

It's simply given the ordinance that the county has,

Did the zoning administrator make the correct determination?

And specifically, we're looking at County Code Section 18-4.20A, which talks about what the setbacks are if a neighboring property is zoned residential, not whether it's used for residential purposes, not where the structures on that neighboring property are located.

But whether the property is zoned residential.

And given the fact that we've got a neighboring property that is zoned neighborhood model district, the challenge for the zoning administrator is to determine whether or not this category of neighborhood model district fits within what the zoning ordinance would consider zoned residential.

That's the challenge for the zoning administrator.

And that's the challenge that you all have been asked to decide today as well, whether a property that's zoned neighborhood model district constitutes being zoned residential.

Again, it's not about perceived fairness.

It's not about the structure with the location of the structures.

It's not about actual use.

It's about the zoning of the property.

and I would suggest to you that given the fact that this neighboring property is zoned neighborhood model district that based on past practice and the way that the zoning ordinance has been applied previously that in fact that type of zoning does satisfy residential zoning for purposes of the setback.

On some related points, as the

Staff report calls out the existing structures on that neighboring property, the appellant's property, do not become, are not illegal at this point.

They are legally nonconforming.

They can continue in their current state as legally nonconforming uses.

And if the applicant wished to construct new properties or new structures within that 50 foot buffer, they could seek a special exception from the board of supervisors.

I think that the practice that Mr. McCall was referring to in the staff memo is that there's actually been a scenario where this has arisen in the past where an applicant has wanted to construct additional structure, where an applicant has wished to construct additional structures within that buffer and staff has recommended and the Board of Supervisors has approved a special exception to allow those structures to be sited within this 50-foot buffer.

I think that the effect of that 50-foot buffer is not draconian.

Again, there's the right to continue the existing building as a nonconforming structure.

There's the ability to come before the Board of Supervisors for special exception.

That has not yet been sought in this case.

And it would be something, again, that staff would look into and make a recommendation when we're another to the Board of Supervisors.

That's about all the prepared remarks I have to say.

I'm happy to answer any questions that you have, Mr. McCall and I are.

So happy to answer.

Are you saying that the property in question that we're looking at now could change its zoning?

That's correct.

The timeline generally for any zoning map amendment is six to nine months, or I think nine to 12 months is approximately what that is.

Expediting it, I don't think that that option is in the, there's a standard

Thank you.

I believe that is in the range of $500.

It's $500, $600, somewhere in there.

I don't have the file.

I can look real quick.

Mr. Chairman, a couple of questions that I have.

Reading the report, which was an excellent report,

Yes, it is.

It's a zoning district.

It's in County Code Section 18-20A.

And at the outset of that section is a statement of the intent or the purpose of that district.

I'm not sure whether the word residential is used, but I know that Mr. McCall has looked into that intent section of 18-20A.

And that definition

Maybe I missed it when I read.

Would you like me?

Yeah, that's fine.

It's defined as a planned development district with traditional neighborhood development and which established in the county's neighborhood model, which is part of their comprehensive plan.

So if they rezone something, they're utilizing that model to basically evaluate

those, what they're asking to do as far as the mixture that they might have in there, which does include having a, actually requires a mixture of uses, residential and commercial in that, as far as the uses of that.

Is it possible to put that definition up on the screen?

So there's not so much a definition.

There's a statement of purpose and intent.

Just one more follow up question.

So in the report, you say, and

and Mr. Herrick said that by consistent and longstanding practice, the NMD zoning district is considered residential for consideration of cultural setbacks like our case here.

Bart Svoboda's zoning administrator, Albemarle County.

We've had a number of these rezoning, so typical with any type of rezoning, whichever district that the board approves that zoning map amendment to, it affects

the adjacent properties one way or the other, the adjacent districts, right?

So typically we see where a residential piece or agricultural piece is rezoned to commercial.

And then there's effects as far as light, noise, marking hours of operations, things like that.

This is a particularly a kind of a different case that we don't hear much about, but it happens a lot if you look at

Are there neighborhood developments?

We have some in Crozet, even straight zone developments like Forest Lakes, where I rezone something from residential, from either commercial or ag to residential, those new setbacks are now imposed on whatever the district is that already exists.

So if we think about 84 Lumber as an example on the corner of Proffit and 29, that's a commercially zoned piece where that has an NMD next to it.

So when the NMD was adopted, it affects those existing commercial lots.

And so there's some, as we go through that in different rezonings, that's kind of something to keep in mind.

So with the neighborhood model, this is a,

and neighborhood is the term.

And so it's majority of neighborhood models are residential.

Yes.

Can you scroll to the bottom of, yeah, cause I could, yeah, okay, okay.

And these are examples of characteristics of this NMD.

Those listed indented,

Oh yes, I'm looking at what you're seeing now and I'm looking at that indented list of characteristics of the NMD and mixture of housing types and affordability would suggest residential.

So I see that, but the way this is written, it says, so let me just be clear, by consistent and long standing practice, so have there been other situations analogous to this one where the person is affected by the 50 foot setback?

but the planning staff says, but you're, you know, it affects a residential use, which is, or residential zoning, I guess is what you're characterizing this.

You know, one that comes to mind that's the most recent and it was a couple of years back is the old condyle plant.

There's a picnic shelter out back that needed a special exception for the 50-foot setback.

They're adjacent to Stonefields.

And that particular area is actually closer to the Costco and that part of the NMD than it is the residential.

But we applied the 50-foot setback there, the condyle owners,

So can I clarify, Bart, just after looking at that again, that actual special exception, there was the disturbance in the buffer that they got, but it's more or less essentially an action, something that is required by that district.

that the board is permitted to reduce that requirement and allow them to do that.

Yes, sir.

And to your point, it doesn't explicitly say that here and that as far as it being just solely a residential district.

With that ambiguity in there, that is what our particular jobs are as far as the zoning administrator is to make that interpretation.

and that interpretation had been made in the past with I don't know all the conversations that have had or if anybody moved forward with those but I'm fairly certain that there were other conversations with other properties.

There aren't very many.

that we have that actually are abutting some commercial district that hasn't say already been rezoned itself, whatever it might be.

to clarify for myself on this.

I think I understand what you're saying, but basically you're saying that there is no exception to any neighborhood model to calling it a residential district.

So now, it doesn't seem to be determined case by case, it's across the board that that has been the longstanding practice.

I wonder if that's your understanding of it, or if I'm exaggerating there, and has there ever been a determination that clearly gets into all of this stuff that we're talking about now?

You know,

There's a lot that I could continue here with the distribution of commercial uses within the neighborhood model.

And if there's actually a residential use within the neighborhood model against a commercial use outside versus commercial uses on that portion of the neighborhood model, we can get way into that.

But with that being the context, is there no

I'm not sure that there's an official letter of determination on that subject previously.

So there's not a reliance on a prior letter of determination.

And this letter of determination is based on this particular site.

So the issue before the zoning administrator and then the issue before you all is the application of that

I understand that we're confined to that.

Right.

But in my mind, it's irrelevant.

I'm going to connect the dots later.

I have one question, and it's maybe dovetails with Mr. Shepherd's.

The determination says with previous, this is about halfway down the front page of the determination, which is attachment C, says with previous decisions on setbacks from properties zoned NMD, it has been determined that the NMD is a residential district for setbacks noted in section

4.20A of the zoning ordinance.

And my question is whether or not when it says it has been determined that the NMD, does that mean this NMD, the premier circle NMD, or does it mean NMDs in general?

Because each NMD is a planned development district,

which is governed by its own code of development.

So Mr. McCall can correct me if I'm wrong, but again, the way that that sentence reads from previous decisions on setbacks from property zone NMD, I would assume that that's regarding neighborhood model districts in general, because to my knowledge, this would be the first time that it had risen in the context of the premier circle property.

And so it would follow then that all NMDs are considered residential?

Is that appropriate?

And to apply 4.20 where it talks about residential or whatever the remaining

or rural area or Monticello, those three zone districts.

That hasn't been part of the past analysis.

I would say that in this case, if you look at the code of development on this particular property, block two of the code of development on this property is what abuts the Challenger Way property and that block two on the code of development in this particular case.

There it is on the screen in blue.

And you'll note that the Challenger Way property, the Appellant's property in this case is the very top of the screen.

It's the one that, and the hand is over it right now, that that's the property.

Excuse me, but I think that the rest of the code of development designates that block two, you're able to do all sorts of commercial activities in there too.

I agree with you, but we don't know what the preponderance of uses could be in the future.

The only way to have those limited mixed uses in that Block 2 is for that Block 2 to be developed residentially.

I can agree with that, but it gives you an opportunity to have a commercial activity or use, which we're not supposed to talk about, I guess, that would be directly adjacent to this particular parcel.

Well, I would say that 1% commercial and 99% residential doesn't make a property commercial.

And I look at the definition of transient lodging,

and I wonder if that's actually residential development.

If we're talking about transient lodging, I think that's it into a few things.

It's various things that fall under the umbrella of transient lodging.

I don't believe that that's actually what the use is.

It may be short term, but it is not considered transient lodging in that same sense of the definition with taxes and things like that.

I'm not aware that that's what the purpose of this.

There may be further slides that show their proposed development, but nothing has actually come to us yet as far as how they actually are going to use it.

I understand that, and I know I'm on the edge of what is within the confines of this discussion, but if an identified use of this is transient lodging, which is what the special exception was for, remember there's a rezoning and a special exception, that was mentioned, and that is in the code of development.

and if you try to understand, it's hard for me to understand what transient lodging is as a use.

It's not a buy right or special permit use in the ordinance as far as I can tell.

But I think it's including things that are clearly commercial.

So there's a, to me, there's a commercial element to what's happening in this

So, I mean, I appreciate the thoughts as to the perspective uses that might be occurring on the premier circle property, but again, focusing back on the setbacks, the setbacks are whether it's zoned residential, not what the potential uses are, it's how is it zoned?

And again, we would say that it's zoned residential.

Well, if we're not going to say the zoning is neighborhood model, I think we have, if we're trying to bring the residential characteristics into play, then we have to talk about the uses, I think.

Otherwise, they just say it's zoned neighborhood model.

That's just my thought pattern.

Yeah, it feels a little bit unwieldy to, you know, the staff report, I think is correct when it says, you know, rather than use, the proper focus is on zoning.

And I think that's what I hear you saying.

And yet I also am struggling to wrap my arms around whether or not this code of development, which lists uses is considered in the determination and

I mean, if the board feels that it's necessary to take a look at the code of development on a property specific basis, we wouldn't object to that.

Okay.

Thank you.

So there's a couple of notes just to bring your attention to those charts that talk about the transient lodging.

So table B talks about that it's multifamily, it's in the proffers, and I believe it is page 14.

So it talks about multifamily or transient lodging.

When this rezoning went through,

transient lodging had to do with a strict definition about how long somebody stayed there right so as a permanent shelter with folks staying anywhere from zero to maybe a year in order to be able to accommodate services for folks that were there less than

30 days, that's where the transient lodging definition comes into play in this particular rezoning.

Also, if you look at, I believe it's note two, it talks about the non-residential square footage of the project has to be in block one, right?

And note number three, the maximum gross density not to exceed 140 dwelling units.

However, the total density may be allowed in block two only.

So that's 140 units in block two.

So that's where the part, if you're looking at the code of development to talk about what's residential and what's not, that's where that comes from.

80.

80 in the chart.

Thank you for that.

Thank you.

Good afternoon, members of the board.

I appreciate your time this afternoon.

With me here is Sue Steinmark, who's one of the owners of the property.

And I am counsel for the owner and we'll give you a brief presentation and we can both answer any questions that you might have.

We don't disagree with some of what was said in the context of

You know, this isn't about a specific use.

It is about the zoning.

You know, those types of things.

We 100% agree with that.

Yeah, I'm sorry.

My name is Pete Karamanis.

Thank you.

I should have said that at the outset, and I apologize.

I signed the sheet and I thought everyone would know who I was, so it's my fault.

So, you know, the first thing I want to point out is that, and this had been mentioned, but the neighborhood model district is a planned development district.

That's how it is categorized in the zoning ordinance.

It is not categorized as residential, it is not categorized as commercial, it is categorized as a planned development district, along with several other districts that

have their own names, PUD, PRD, the Monticello District, all planned development districts.

That's the category that we're operating under here.

The section of the ordinance that staff has relied upon talks about if a property is adjacent to residential rural areas or the Monticello Historic Districts.

So Monticello Historic District is one of these planned development districts.

It is specifically referenced.

So that's, you know, they pulled that one district out to say this planned development district is subject to what we're talking about here.

The other things mentioned are residential, which there are districts called residential.

I mean, that's literally the name of them, the residential districts.

And rural areas, which again is the name of a district.

So what you've got here are three categories, residential, rural areas, and Monticello Historic District.

Each one has that name in the zoning ordinance.

Not mentioned here is neighborhood model district.

So to try to stretch and say, well, the word residential also applies to neighborhood model district, which is what has been done in this interpretation.

I think is inappropriate.

Had they wanted neighborhood model district to be included here, they would have named it just like they named the Monticello Historic District.

Both are planned development districts.

Why name one specifically and not name the other one when you meant that other one to also be included?

I mean if they wanted it to be planned development, then say planned development.

So I think

As both Mr. Herrick and Mr. McCall have said, we're not here to decide whether the ordinance is right, whether it's fair.

I mean, we obviously think that this interpretation creates an unfair result for the applicant.

But regardless of that, what we're here to do is look at what it actually says.

And it doesn't say that the neighborhood model is part of this zoning section that says that the setback has to be increased.

the other thing that the zoning ordinance doesn't say anywhere in it is that neighborhood model district is in fact a residential district there's no way that it says that they couldn't point to it because it's not in there and the only thing in the staff report related to that just says it's you know they've determined that it's residential based on consistent and long-standing practice

I'm not sure exactly what that means, but we all know that just because something has happened a certain way in the past doesn't mean that it needs to continue that way.

It doesn't mean that it's right.

So, you know, I don't think the fact that in the past, maybe that's the way that things have been determined is at all controlling in this circumstance.

And that's why we're here to determine officially how this should be viewed.

And the neighborhood model district, again,

is not in any way labeled a residential district in the zoning ordinance.

In fact, going to what was up there before with the actual sections that deal with the neighborhood model, it talks about it being mixed use, mixes of uses and use types.

But one particular paragraph that stood out to me is it said the neighborhood model district is intended

to provide for compact mixed use developments with an urban scale massing density and an infrastructure configuration that integrates diversified uses within close proximity to each other within development areas identified in the comprehensive plan.

That paragraph does not sound at all like a residential district to me in any way that it's described.

Certainly it doesn't use the word residential, but just what it's described isn't how you would envision

a residential district.

And of course it also references the comprehensive plan for what it's worth.

The property in question here, the comprehensive plan designation for that property is office R&D flex and light industrial.

So there's nothing about this property, not the way that it's zoned, not the way that it's used, not the way that it's listed in the comprehensive plan.

I mean, if you look at the real estate tax records, its name is homeless shelter, its use code is motel, its house type is motel, its primary land use is commercial, and its zoning is neighborhood model.

So where is the connection to residential?

I just don't see it.

Finally, if we wanna look at the code of development, I don't think we have to, for all the reasons I just said, I don't think we need to get there.

But if you wanna look at the code of development, as they say, block one is non-residential completely, block two is labeled as mixed use or residential, single-family detached and attached are not allowed anywhere.

The only types of residential use that are allowed

would be sort of commercial style residential uses, assisted living facilities, transient lodging.

But looking at it, I mean, if you wanna look at it overall, I mean, the huge proportion of uses that are permitted in this code of development are non-residential uses.

And there's a very limited scope of residential uses that are, again, I don't think that's where our focus should be in analyzing this.

I don't think we get to the code of development.

What we're supposed to be doing is looking at what the zoning ordinance says.

and it doesn't say anything about neighborhood model being residential and it doesn't include neighborhood model in the section that's relied upon here for increasing the setback.

So for all of those reasons, I don't think there's any basis for determining that this setback needs to be increased here.

I do think it creates an unfair result, not just for this property owner, but for that entire section that abuts this property from 29 all the way up to the property of the applicant.

and you know there's no basis for it and it's clearly not creating any benefits so I'm not sure why anybody should want to stick with that determination but we are obviously respectfully asking that you find that there is no basis for that determination and reverse the interpretation of the zoning administrator and allow the setbacks to remain as they have been without that increase.

Thank you, Mr. Karameos.

Do you know what the setback would be?

Whatever it was before, I'm not sure.

Yeah, that's going to depend on the style of construction type, right?

So in the zoning ordinance, the setback would be zero.

Whether or not the building can be there is will also be subject to building code.

Thank you.

I'd like to ask a question on Westfield.

I mean, I think if you pull up that map, Francis, if you don't mind the overhead, it shows you what's in that area now and all along, all of those properties that abut it right now do have structures within and even maybe the one before that

So it would be this lot, this lot, 450, this one, and then the front one.

But that's, again, there's no other.

but there are a number of buildings there seen, the 442, 450, 490, there's like that other building.

So going back, if any of these buildings needed to be replaced because they're rotting out under the current NMD, they would not be able to replace that, correct?

Right, and we acknowledge what was said earlier that there are other things that could be done here.

We could do the special exception thing, we could do the rezoning thing, but why should we have to when this isn't right?

The main thing here is whether or not this determination is right.

It's not whether we have alternatives.

So, there might be alternatives to ask for a special exception, to ask for a rezoning.

Of course, both of those things are discretionary.

It doesn't mean we get it.

also means it takes a bunch of time and money to do.

Yeah, of course, please.

Susan Steinmar, applicant.

So I'd add to Mr. Burkhart's question.

There are oil storage containers at 450, which are not related to the building.

so that's technically non-conforming and I don't know if they could put it back and then the Comcast folks who are in the adjacent parcel have equipment that they periodically store there as part of their operations, bundles of wire and things like that so technically I guess that's not a building

but it's just also to keep in mind that none of those buildings have the ability to expand under this condition.

That was a concern for us is we wanted to put in a storage shed for storing some of the oil filters.

And we're not talking about anything very big but that's where we realized the limitation of the circumstances.

We didn't have any ability to build anything.

Staff had advised us that we could put a storage shed but it would have to be in the middle of the lot.

So I don't know, Francis, if you wouldn't mind putting a mouse cursor right in the middle of the lot.

And of course that affects how we park vehicles awaiting repairs or pickup.

It adversely affects the circulation of vehicles.

and there is another automotive repair adjacent to us who would have a similar problem if they wanted to put in a storage shed.

It would have to go in the middle of their lot, again, affecting parking circulation.

It would effectively shut down their ability to park, presumably because it is a very narrow lot.

The other question.

Council,

You make an interesting interpretive argument about specific and general provisions of the ordinance and with three specific categories being listed in the ordinance, residential,

Right, right, those three.

And so I would assume your argument is that anything that doesn't fit within those three specific categories is excluded from application.

Yes, that's right.

I mean, the section that's relied upon here by staff

only it says if the property abuts one of these districts.

So what I'm saying is it doesn't.

I mean, it's not saying neighborhood model.

So therefore the property does not abut one of those districts.

So hypothetically, if the ordinance did say that heads one, two, three, four being the NMD and abuts the NMD district in your view then,

That's your position.

Yes.

Okay.

Which is an interesting thing.

The reason I asked my question about past interpretation of the NMD being a residential, having residential

is that it's kind of an unusual category.

Use designations are specified in R1, R2, have very specific use designations.

And so my feeling right now is I wasn't persuaded at first by what you had said, but I'm kind of leaning your way.

But let me ask a couple practical questions.

Your property owner says, or you say, this is based on principle.

And what principle is it that you're trying to vindicate?

That's the first of the two remaining questions.

Well, I mean, I would say the principle is you've got to stick with the zoning ordinance.

I mean, what the zoning ordinance says is what is permitted and what needs to happen.

And if that isn't followed, then

Okay, so what I hear you saying is the precision of the drafting of the ordinance should not be expansively defined to include residential when it doesn't say that explicitly in the NMD definition.

I understand what you're saying.

I'm coming to my final question.

Should the board agree with you, and I have no idea whether it would or wouldn't, but should it, what are the limits on what you could do with your parcel?

Well, the only impact that your decision will have here today is whether or not we're subject to the 50 foot setback or not.

It will not change any use characteristics of what's permitted on any of the parcels.

I mean, really the impact here is whether or not, if the NMD parcel is considered residential,

Our parcel is subject to a greater setback.

That is the problem.

So if you all determine that NMD is not residential and then therefore this increased setback does not apply, then we're essentially back to where we were before.

Okay.

Well, the reason for my question was not that one second.

I'll be happy.

Yeah.

You're saying the only issue here is the application of the 50 foot setback.

So if we were to agree with you,

This is C1 property, I assume.

So what else could happen on this property, on this site?

You said your position that if we agreed with you, that you could do anything that a C1 property owner would do or could do?

Are there any NMD limitations on you that would continue?

Let me be more specific.

You're trying to get us to decide that the NMD is not a residential property category.

I understand your argument.

And if that were our conclusion, then I wonder if there are other limitations that the NMD category

would apply not just, you know, if it's not residential, then is it just C, is your property C1 and you can do anything a C1 under the C1 rules, of course?

Is that what you're saying?

See, I'm trying to figure out if this is really only about a storage shed.

Whether it's a storage shed, which is how it came up, because as Ms. Steinhardt said, that was what they were trying to do and what they wanted to do, and that's how this issue arose.

Of course, because that was the plan, then that is one example.

But it really limits that entire corridor that you see in red from any

So- I'm not concerned about the other properties.

I'm concerned about your property.

Let me be more specific.

I would say, subject to any other approvals that would naturally be required from the county to do so, then yes, of course it would make that extra space usable.

I've used too much time.

I'm also happy to elaborate.

So one thing that's really important to keep in mind, and you may even see it from the graphic above, there is a 10-foot buffer.

and that is the area from the property line into the 50 foot setback.

So Francis was kind enough to denote that in this graphic you see here.

So that is in play regardless of what happens with the 50-foot setback.

The buffer cannot be disturbed, period, end of story.

The other thing that's interesting to note for your own perspective, Mr. Rosenberg, is that there is a certain topography here that you're not going to see from these graphics.

The building on Westfield Road is approximately 10 feet, 15 feet below the property level of the adjacent homeless shelter.

below the property line really because you brought me out there to see this very same thing there's sort of like a hill in between the two properties that's a natural dividing line I mentioned this only to say there's an important reason for that buffer it's in the county code it's not to be disturbed and it would be a lot economically to go in there and dig out all of that dirt

also.

If it were just a C1 parcel.

That's correct.

I'd have to defer to my husband on that but the things that we do are store oil filters and some equipment so it's not much larger than a garden shed.

I think he had brought in the application to place the shed on a concrete pad

That is existing and it's just outside the parking asphalt and that's what essentially was denied.

So that was like 10 by 10, 12 by 12, something like that.

10 feet by 12 feet.

I have to say that over the weekend I did a drive-by on the street as I tried to do with every case that comes before so I can get orientation on that.

I would find it very, just in terms of what would happen, do you plan to expand?

You're right, the topography is, there's quite a slope there.

It'd be a tremendous expense.

I think you can reasonably accommodate a small shed.

It's not gonna be huge, right?

I mean, it's not big.

It's just the challenge of putting the shed in the middle of the parking lot that creates the traffic flow issue I spoke of earlier.

And I appreciate all those questions, but I don't think those types of things are the relevant decision-making points here.

The issue is whether or not

and MD as residential and whether or not there should be an increased setback.

And regardless of what they wanna do with the property, how big the shed is or how, you know, those types of things, those are all obviously practical issues that are gonna be very important.

Yeah, I guess a correction on the setback as we talk about this and we think about this line of thinking.

If the NMD is

can't be declared residential, then it also can't be declared commercial.

So I am not sure what that setback would be.

It appears it would be 20 feet in the ordinance because it's from the district line, which would be what that property is zoned if NMD is different.

So I want to make sure that that setback is clear on that.

So I will tell you that we have not made a determination like this and how that applies.

That's one of the reasons

for when we look at like a PUD or a PDMC, right?

Those aren't listed in this particular section as like the Monticello district and that Mr. Caramanos was referring to earlier.

So I wanna say that I don't know what the zoning setback would be.

We would have to look at that, but it appears by ordinance that it would be 20 feet if this would not be residential.

Just want to be clear, again, I'm not making a determination from the microphone, right?

We would have to evaluate that time.

I would have to determine if the district boundary line is the property line.

If it is the property line, then that would be correct.

If it is not, I don't know.

So without knowing how this property got rezoned, I can't tell you where the boundary line is.

Well, I'd like to move into our public hearing portion of our meeting.

And this is when anybody from the public can come speak to us and take up to three minutes.

Members of the board are reminded that we're not supposed to discuss things in between members of the public, should there be any.

All right.

Sounds like there are no members of the public that would like to speak.

So let me pick up where Mr. Karamanis has left off.

I am in complete agree with Mr. Karamanis that issues like topography,

the size of the structure and that sort of thing, while perhaps interesting, are not really what's before the board today.

I will pick up though with some of the other comments that Mr. Caramanis had made about, for example, the neighborhood model district being a type of plan district.

The way that the zoning ordinance is structured, there are a variety of different district listings.

Monticello historic district is one, rural area zoning district is another,

There are a variety of different residential districts.

There are a variety of different industrial commercial districts and so forth.

But it's important to note that the neighborhood model district, despite being 20A, is not a subsection of the general plan unit development district that is section 20.

So there's a section 20 that is a planned use development, but 20A is not a subsection.

Those are different districts.

And I would also note that the Monticello Historic District, which is section 11, is not a planned district.

And I would also note, looking specifically at the language in question, I've asked Mr. McCall to call it up.

And so we're looking at section 420, and you can see that there's a table

that follows the following shall apply within the C1, CO, and HC districts.

So that would be C1 commercial, commercial office, and highway commercial, which the challenge away property is.

So then we go down to the side and rear minimum because the side and rear minimum is what we're looking at in this case.

and you can see in the side and rear minimum block of the table that there are two alternatives there are two paragraphs two sub-paragraphs within the side and rear minimum the first alternative is if the abutting lot is zoned residential rural areas or Monticello historic district and you'll note that the only one of those that's capitalized is Monticello historic so residential and rural areas are both lowercase so that's more of a general sense that's not

the residential zoning district, it's not the rural area zoning district, it's residential districts in general, rural area districts in general.

I'll stop there and go down to the next part of that cell.

If the abutting lot is zoned commercial or industrial, again, small C, small I, both of those are general commercial districts, general industrial districts.

They're not identifying specific zoning districts.

But those are the only two alternatives.

Those are the mutually exclusive alternatives that the zoning administrator faces.

Is it zoned residential, rural areas, or Monticello Historic District on the one hand?

Or is it zoned commercial or industrial on the other hand?

Those are the only two alternatives that were before the zoning administrator in deciding which of those two alternatives to apply.

And when faced with the facts and the past practice, this property was more

appropriately judged to be residential.

And that's the basis of the determination.

So again, I'm happy to answer any follow-up questions that you might have.

No setbacks?

Yeah.

No, I don't think so.

It says it.

Oh, sorry, maximum, yeah.

It's side and rear maximum.

I see.

There's no colon.

Mr. Herrick, I have a question.

reading over 4.20a which you posted here.

Now, maybe you weren't responsible for this, but why is it written if the abutting lot is zoned residential small r, rural area small r, or the capital M HD, why do you think it was written like that as opposed to some mention of mixed use that includes residential?

to be responsive to the council's comment about exclusive categories here.

Well, I certainly, I mean, if I were drafting the ordinance knowing what we know now, it certainly would make both the zoning administrator and the board's job easier if mixed use were specifically mentioned, or if it were defined with capital words for the,

OK, let me see if I understand.

Common?

In the sense of the use of common nouns versus proper nouns.

Those are common words.

I see.

So a more general, but you say zoned residential.

See, that's where I'm getting caught.

And maybe that's just an impossible problem.

And that's the reason a council in the back that I asked the question of prior consistent interpretations.

and first of all, I view this as being from the county's argument and ambiguous interpretation.

You know, it could be specifically tied to residential categories.

It could not, it could be as the county argues it more general to mix uses is what seems to be your argument.

And then implications of the effect are not,

irrelevant to interpretation of ambiguity, counsel.

And administrative law teaches us that prior consistent interpretations by the administrative body are relevant to interpreting the quality of their consistent interpretation and reliance that flows from that.

And that's why I asked the question of prior cases.

So I understand your attempt to categorize this, but I don't believe what I was trying to show was irrelevant.

Mr. Herrick, you said that Monticello historic districts are not planned development districts.

Sorry, the Monticello historic district is not planned development district.

and I came to this meeting thinking that that was not true and that there were seven distinct planned development districts and that in 8.1, section 8.1, Monticello Historic District is listed as the first one.

All right, so I stand corrected.

You are correct that Section 8.1 does include that listing, which includes both of them.

I was looking at the structure of it.

And it's not, my point is it's not a subset of the planned unit district.

But I appreciate the correction.

You are correct that Section 8.1 does list them together.

And so I stand corrected.

I just wanted to make sure I was clear.

But thank you.

All right.

Any further questions for Mr. Herrick?

I think I have much more to say, but I appreciated that.

The one thing I wanted to say was to point out section 8.1, which you just did for me.

that does show, you know, lists the planned development districts.

That's what I was relying on when I made that comment initially.

Obviously included among them are the Monticello Historic District, which was specifically mentioned, and the neighborhood model district.

You know, whether or not the words residential and rural areas are capitalized, I honestly don't

Find all that important because you have to read the ordinance as a whole.

And having done that, I still don't see any place that says neighborhood model district is residential.

So that's the bottom line.

That's what we were, you know, relying upon.

These are the types of things, you know, the reason that this types of decisions are important is that, you know, when that property

was applied for rezoning.

And you as a neighbor, you see that the property next to you is being rezoned and it's being rezoned neighborhood model.

And you think, okay, fine, I don't have any problem with that.

I don't have any problem with what they're trying to do over there.

But if you have no idea that the end result of what they're gonna do is to take away 50 feet of your property, that's a problem.

And so,

The clarity here is very important, not just for this matter, in my opinion, but just in general for people to understand this distinction.

Honestly, if a rezoning like that is going to affect the setback on a neighboring property,

You know, I feel like that needs to be part of the notice that goes out to that neighbor to let them know that that's a potential impact.

That's a different story, but it is related to this determination.

And so, you know, that's why I think that this is, it's very important.

And I don't think that it is fair.

And I know we're not just, there's so many things on fairness here, but Mr. Rosenberg said, you know, the impacts are important, but it's only fair for everybody to know

what the ordinance says and that what it says is what's going to be done.

And if that's not what was intended, then obviously there are processes for that.

I mean, the Board of Supervisors can go back and rewrite this.

If they don't like the determination here and they want it to be a different way, then the ordinance can certainly be cleared up to make it however they want it to be.

But based on what it says today, we don't believe that this is the right interpretation.

And we would ask that you rule that same way.

Thank you, Mr. Karamanis.

I'll say something here.

I think I'm heading in the direction of finding that the determination was incorrect because

the property because well 420 applies to the residential rural areas and Monticello district.

It does not mention the NMD district.

So just sort of like to me, the clear plain meaning of those words completes for like sort of the beginning, middle and end of my thinking about this as far as my final decision goes.

I also would just toss in there that a lot of the discussion about is residential versus commercial.

I feel like there are a lot of commercial uses within the neighborhood model district.

I think transient lodging is a commercial use.

Off to the side, but I want to say that.

Thank you.

Agree with what John has said, but I also want to, a little aside to you, I don't know if I'm going to pronounce your name right, Mr. Karamanis?

Close, okay.

We do go down in the weeds because we do think it's really important for us to

to really understand what's going on.

So when we look at the code of development and we look at the map that shows the blue that shows residential, it occurs to us, yeah, that's what staff was looking at.

But then when you look at the code of development, the probably cost premier circle a lot of money to have somebody create for them.

I mean, it really does open up the possibility to have lots of commercial activity there along with the residential.

for that reason and because I was around when the neighborhood model was created it's supposed to be flexible it's not supposed to create burdens for itself or for adjacent owners so for that reason I do appreciate the work staff has done and I do understand that this is very confusing the words in the ordinance and

And what you were trying to do is make some sense of it.

I believe questions and ambiguity of the definition about the residential characteristics of the NMD and as such, because this needs to be further clarified, which

I have no further comments.

I would just offer a moment of commentary that, you know, I kind of did the high level take that Mr. Caraminas was suggesting, which I think is found in section seven one, which establishes districts and it establishes 26 total districts.

Six of them have the word residential in front of them.

And then there's the rural areas.

And there are others, seven of which are defined plan development districts.

And so I don't find that those planned development districts fall under the heading residential.

I find that they need to be called out just like the Monticello Historic District was as a planned development district that the setbacks would apply to, the increased setbacks.

And just to take it a level further, I think when we get down into the weeds, as my board members have said,

I don't have clarity on whether we should or not consider this specific code of development.

I think that's a good question that we could all wrestle with for a long time.

But this specific code of development allows for lots of buy right uses that are outside of what I think all of us would define as residential.

Mr.

I'm hesitant to say something because I'm afraid I'll confuse the issue further, but I feel like that it would be important to point out a couple issues here.

Regardless of how you vote, as the county attorney said, the issue of fairness is not before you.

The posture of this case is you have an appeal of a zoning official's official determination and under the statute that you operate under he's entitled to a presumption of correctness that just that means that all things being equal he wins that doesn't mean he can't lose but all things being equal he wins so you have to keep that in mind

and the other thing that's here too is I think you do have to consider the code of development because it's part and parcel of what you're involved with.

Your task is made more difficult because unfortunately there is no definition in the zoning ordinance of

the NMD district.

There's just a statement of intent.

And it'd be nice if we had before us a nice little statement for everybody saying the NMD district is a residential district, but we don't.

So we're left with what we're left with.

And I'm gonna stop there.

I think I've said enough.

Thank you.

Yeah, I would suggest the same to the board members that in my opinion, it doesn't matter whether this is a small five by five shed or XYZ of the most intensive use in C1.

And then I also found just to put a cap on my statements, I found it interesting that the NMD district could not include any residential.

that would take an active board of the board of supervisors assessing that there are residential uses within a quarter mile that satisfy that.

But if that was done, an NMD district could include just commercial and industrial or just industrial and institutional as long as it has two different types.

You didn't type it up.

So Mr. Carrington, just as a clarification, it's three different motions you can do, modify, sorry, affirm, modify, overturn.

I move that we overturn the zoning administrator's determination on

LOD 2023-00010.

Ms. Joseph.

Aye.

Mr. Rosenberg.

Aye.

Mr. Shepherd.

Aye.

Mr. Burkhardt.

Aye.

Mr. Carrington.

The determination is overturned by a vote of five to zero.

And we can move into the next item on our agenda.

That's the approval of our January 9, 2024 minutes.

I would like to add one thing on a new business.

It's just a point of clarification.

I've been following the legislation.

I understand that the bill is before Governor Youngkin.

I believe he has until either April 8th or 11th on the revision or the amendments to the virtual meetings.

Yes, sir, that's my understanding as well.

Thank you, Mr. Herrick.

Move to be approved.

Hearing a motion and second to approve the minutes as submitted.

Mr. Shepherd?

Aye.

Ms. Joseph?

Aye.

Aye.

Minutes are approved from January 9, 2024.

A vote of five to zero.

So we can move on to old business.

We have one item on our agenda, which is the discussion of possible appointment of alternate BZA members.

I think many of you will remember the history here.

And I think that a draft letter was sent out yesterday for consideration.

First of all, I know I asked Ms. Alley to send it out and I have my name at the bottom, but much of the legwork, all of the legwork was done by Mr. Burkhart.

You're welcome.

To put it in another way, I think our discussion has been good on this, I think.

Particularly, I think it was vastly improved by Mr. Rosenberg, who asked us to put this in a larger context to look into it further.

And I think that the letter reflects a

You know, the benefits of it that we sort of took, you know, that I think that many of us sort of just assumed were good from the get go in terms of, you know, covering absences, serving to, as an incubator for future members, that sort of thing, but also the,

It reflects looking into what other localities are doing, their experiences.

I mean, we know that that's behind the request.

That's why I say I thought it was good.

Mr. Carrington, I was initially not enthusiastic about it, but I was persuaded about the utility of it.

And today's case is a good example.

If we had three people here who had a quorum, and then three of us would have to make a decision, a complicated decision,

And I think it's important that we have as many of the five people to make these questions, ask these questions, make these comments that we heard today in deciding cases.

And as I said, when we discussed it, I think earlier, I think that's what the person who comes before us expects kind of a full

amplified discussion of their case, because they've gone a long way.

They're challenging what the staff has said.

And so I think if this, you know, I'm not wild about spending more county money, but keeping it to one person, I think is a wise limit on it, probably necessary.

And it allows the applicant to be fairly confident that there won't be three, there'll be at least four, if not five people here.

when Mr. Carrington is on his vacation or the rest of us.

I'd like to add one small point to your remarks and that is

A two to one finding is bad, but a two to two finding I think is worse.

I mean, the possibility of a tie is a very unsatisfactory conclusion to one of these matters.

Just quickly on that point, I see Mr.

It's not the board, it's the applicant has the right to ask for a deferral.

And then when I wrote you, Mr. Chairman, I forgot that.

to point out the most important effect of that.

Even if a deferral is requested and granted, it tees everybody up to have to do it over again.

Understood.

Thank you.

It took us a long time, didn't it Kurt?

It did take us a long time, but we finally got through it and I just wanted to say something about the letter is that I sent a draft to Mr. Carrington and it came back changed and I was so thrilled because oftentimes when you send somebody something they don't read it, they just say they're going to sign it.

So I was thrilled that he read it, he edited it, so this is

this is I mean he's signing it so he better believe in what he's signing so this I think was a really good exercise and Kurt did most of the work and really talking to other boards I just got a couple he misunderstood and did some that I was supposed to do so I was very happy with that but but anyway it was interesting to talk to people because they really did

feel as if they benefited as a result of this.

The guy from Green, you know him.

I mean, what he talked about is that they had a turnover quite often.

And so it was really good to have somebody to be able to just step right in.

Well, the other thing is, I don't know if you read through, but some boards are salaried.

Yeah.

Some are salaried.

But I thought, Oh, hmm.

But anyways, I expect that those localities have a lot of

projects and issues coming before them.

And you also need to know Charlottesville, they don't pay those people, so don't spread that around either.

Let me just say it was great working with Marsha on this project.

Fairfax County was the last one that I contacted.

You probably know Leslie Johnson up there.

They had a whole new zoning ordinance that they previously had passed and then was held unconstitutional and they had to go back and so they were presenting that I think last week.

The big challenge for them is that the longevity on the BZA is such that you've got some members that have been on literally for decades and then you've got people that you know have termed out they've got some more that are terming out up here and it's like any other kind of volunteer organization they're just trying to get applicants to apply and vet them out and get people seated so it came at a time while they had vacancies on their existing board where they were just trying to get

I would just arc back to what Mr. Shepherd said about Mr. Rosenberg's early comments.

I think your skepticism produced a better request so I appreciate that and

grateful for all of this board's discussion and certainly the legwork by Ms. Joseph and Mr. Burkhart.

Oh, I didn't catch that.

And I apologize.

And we will correct that.

So with that edit, that's some serious editing.

Are there any motions to send the letter with that correction?

Thank you very much.

Andrews, not Anderson, okay.

Aye.

Ms. Joseph?

Aye.

Mr. Rosenberg?

All right, motion passes five to zero and I will work with

Valley, and any other staff members that we need to work with to get that letter out.

And certainly, we'll keep you fellow board members apprised of the status.

We can move on to new business.

And we have no items on our agenda.

Okay, I'll just quickly add that we can, as a board, be prepared for next meeting to discuss the representation agreement with Mr.

Bowling.

And I think that Ms. Alley will tee us up to have a closed session for that discussion.

But in the past at least couple of years, that agreement has been on an hourly basis of $350 per hour.

with a cap of $5,000.

And I know there's been some tension on hitting that cap recently.

And I'll tell you that the work ebbs and flows, and it's largely dependent on how many public hearings you have and how many people participate and how big the packages are you get.

And in some years, I have been well under the cap, the $5,000 cap.

For the last two years, I think a year and a half, year before, I was right at it.

And then last year, I was about four hours over it.

So that's money on the table.

One thing that causes me concern is that there

At the end of February, there was a major sea change in zoning law in Virginia, which I'll be sending you some information on.

Mr. Shepherd will be happy to know that his opinions and view of what happened in 2015 for the variance law were correct, at least for the Court of Appeals side of things.

That's what I don't remember.

This was Moss's case and the gentleman who constructed the office within the setbacks but in any event the the court of appeals determined that the amendments to the variance law that took place in 2015 indeed were a substantial change from the previous law and that are at least

Yeah.

Mr.

Bowling, I read that case today as a matter of fact and I had the 2015 statutory amendments

I think we're very property oriented, property owner oriented in terms of changing the rule structure.

And maybe we'll see a lot more cases because of, if lawyers are aware of the changes.

But I read that opinion and there's, you know, it was a pretty well done opinion.

Okay, give us a synopsis because I can't read that.

That's all I'm talking about.

You do know what the variant statute says and basically it's really been focused on is there a substantial hardship and now they've changed that to the second prong and they put an emphasis on the reasonableness of the facts that are an issue and the way they wrote the opinion

It seemed to be if you spent enough money on what you needed to do to get around the hardship, you were okay.

That's the cynical view, but that's one way of reading the opinion.

I'll send out a copy of the opinion, but it's certainly a different way of looking at the law than

was present before this opinion came down.

Now, the Court of Appeals, any decision of the Court of Appeals is subject to appeal to the Supreme Court of Virginia, but the rub is that takes a long time.

And it may not be appealed to.

Well, thank you.

And I'll just add, first of all, thank you, Mr.

Bowling, for all your years of service.

And we certainly look forward to trying to extend that.

The way that agreement is written is it is subject to the Board of Supervisors allocating those funds.

Didn't we approve something earlier?

Because we were trying to do that on an earlier basis so that it would get into their budget.

I think the goal was to have it on the agenda today.

I just keep thinking.

So we're in the budget cycle.

The amount that we have set now is currently in the proposed budget.

So any changes, it's not that we didn't carry it forward.

So we know as staff that the Board of Zoning Appeals was interested in retaining Mr.

Bowling.

So the current contract funding is in place and is requested

in the budget, the board hasn't approved it yet, so that's where we are.

I don't anticipate that coming out, but at this point, again, it's still under review.

Thank you.

I've lost track of what the cycle was periodically.

The clerk, Marcia, you want a letter from me.

I believe the last time was in January.

So at least this gets it gets it the issue before you all even you know it doesn't matter with the current the current budget is the current budget so be it but it gets it before it gets your attention.

We had discussed the last time when we when you all made the agreement and signed the agreement to try to get that discussion to take place earlier in the year so we tried to put it on the

We didn't try to put it on there.

My intention was to put it on the January agenda for the election of officers and just an organizational meeting and get that covered in that somehow.

And it was an oversight on my part, I believe.

It did not get added to new business.

So we knew we were having this meeting.

We wanted to try to get it at least addressed here to see how you wanted to handle it.

If it was something that you wanted to go ahead and just move forward on, we were prepared to go ahead and have that ready today.

If it was a brief discussion,

Thank you.

Sorry, that's where I was going.

So based on what we have schedule wise, right?

So we're talking about timeframe with this.

is that we're not anticipating another item until June.

I don't understand the process very well in terms of- What he's saying is that June, it's already too late, isn't it?

To get the budget increased.

And is there an avenue to

Kind of, yeah.

What I can do is send out the case and just tee it up and I don't mind, I'll copy Andy too to show you how the case, because it is going to, once this case comes well known in the legal community, it should lead to a substantial increase in your variances and your workload.

Yeah, how long that'll take, who knows?

So I can do mostly that.

Well, I don't think that's what I'm hearing because what the zoning administrator says is it's too late, the boat is sailed.

that the budget is set and sewn and the only way to get around it is to have a special issue for the Board of Supervisors which generally is frowned from the staff side of things on the zoning budget process.

Yeah, once we find out what's going on and review the case a little bit, probably after the review takes place here or what we anticipate,

and after the discussion about Mr.

Right, because I'm just a small cog in this process.

So Mr. Svoboda, is today too late?

If there was a motion or a desire on the board to act right now, change that request without going into closed session because it doesn't sound like that's available.

Sure.

and that would just mean we read the thing about, you know, pursuant to such and such a code, we're gonna go into closed session to discuss Mr.

I think it doesn't matter because from what I'm hearing

It was part of the discussion.

It would just be out of sync with everything.

I hate to say it from my economic perspective,

Well, Mr.

Yeah, I think we'll look at our process also, and maybe when we do our final meeting of the year, also put that on there as a reminder.

to make sure that we don't extend that first meeting too far beyond either January or February, but make sure it gets on that agenda.

Great, thank you.

I did withdraw the motion.

The motion still stands.

Hearing a motion and a second.

Ms. Joseph?

Aye.

Mr. Rosenberg?

Yeah.

Mr. Shepherd?

Yes.

Mr. Burkhart?

Yes.

Aye.

Motion to adjourn passes five to zero.

We are adjourned at 3 48.

Listen, you're going to get together because Oh, okay.

Well, but just good for good for me.

Thank you.

Thank you.

And you look fabulous.