Board of Zoning Appeals (BZA) Meeting   11/12/2024

How do we feel?

Miss Alley, are you ready?

We can go left to right, my left to right.

I'm Ronald Rosenberg and I am present.

John Shepherd, present.

Kurt Burkhart, present.

Marsha Joseph, present.

but I'd actually like to request that we change the order of the agenda to do the old business closed meeting first and if you guys are not opposed to that I would request a motion.

I move that the Albemarle County Board of Zoning Appeals go into closed meeting pursuant to section 2.2-3711 for an A of the Code of Virginia.

Is there a second?

Second.

And to discuss the employment of legal counsel under the Board of Zoning Appeals.

Ms. Alley, would you please call the roll?

Mr. Burkhart?

Aye.

Mr. Carrington?

Mr. Rosenberg, would you please, we'll go down the list again, saying our names and present just to establish

again for the record, Ronald Rosenberg present, John Shepherd present, Kurt Burkhart present, Marcia Joseph present, and I'm Bo Carrington, I'm present as well.

I have a motion to return to the regular meeting.

I move that the Albemarle County Board of Zoning Appeals certified by a recorded vote that to the best of each member's knowledge that only public business matters lawfully exempted from the open meeting requirements of the Virginia Freedom of Information Act and identified in the motion authorizing the closed session were heard, discussed, or considered in the closed session.

Is there a second?

Second.

With a motion and a second, Ms. Alley, would you please call the roll?

Mr. Rosenberg?

Yes.

Mr. Carrington?

Suitable motion.

Is there a second?

Second.

Ms. Alley, would you please call the roll?

Mr. Burkhart?

Yes.

Mr. Carrington?

Yes.

Bowling.

Thank you.

Find it before they change their minds.

With that, I can turn it over to county.

And if it was the board's choice to grant the variance, we have a motion ready for that as well.

Thank you, Ms. Green.

Thank you.

I think Mr. Herrick, yeah, would you like to take any more of the 15 minute slot?

Okay.

We can welcome you up for 15 minutes.

Thank you, Mr. Coker.

Any questions from the board to Mr. Kilker?

You mentioned that in the past access had been granted to the existing house through Layton Drive?

Yeah, that was from a neighbor who told me that at some point when this house was originally built there was access from Layton Drive.

So you don't have any documentation of any agreement to do anything like that?

So, and that was accessed off of Layton Drive, not Marion-Athalene did not exist.

So the big house, the big house was accessed by Layton Drive.

That was my understanding, yes.

was planted.

I believe that's true, yes.

Thank you.

Is that correct?

I believe so, yes.

front door, does it face on Marantha Lane?

It does.

Well, which door are we talking?

We're trying to get this put back up in the picture so we can go through those.

Okay, if that's the front, that picture, that's the front door.

This might be more helpful.

This is the structure in question and the front door does face toward the drive coming off of Marienthalane.

This is not very helpful.

I'm sorry.

So Marienthalane is to the left of that front door.

I just want to remind you to speak.

Am I correct?

Correct.

Is that correct?

That's correct.

The front of this building is on Maranthi Lane.

I don't believe that that's our particular stance.

Do you know what that is?

It's roughly about 12 feet to the edge of pavement.

Would you say that's correct?

The easement is being used.

If there's any more questions for Mr. Kilker, I want to get those done now.

Absolutely.

I'd like to weigh in on that later, but I don't want to take your time.

Does my time come off from questions from yours?

We've got another five minute period for you to respond here in a few minutes, but I just want to get initial questions out right now.

And it was said to you that the structure had already been used on a homestay or short-term rental or something to that regard, correct?

Thank you.

Any other questions for Mr. Kilker?

Do you know when the construction was completed on this?

That's what it says in the record.

So it was, there were bedrooms in there and bathrooms in there in 2009?

So from 2009.

For sure, we know that there were bedrooms and a bathroom.

Yes, because if I look at the, I go on Redfin and you pull up my house, the actual pictures of the property include that cottage from at least five years ago.

Okay, thank you.

that probably would be best addressed now before opening it up to the public hearing.

I didn't have any other comments or prepared remarks, but I was mindful of the questions raised by Mr. Rosenberg, and I thought I could bring some clarity to that.

Yeah, just to be clear, I'm not intending to use this period for board member questions to you as your five minutes of closing remarks.

And so the application of the zoning ordinance isn't unreasonably restricting the remainder of the use of the property.

Would you field some questions?

I'd be happy to field questions if the board has any.

Are there any questions for Mr. Herrick?

I read my mind in terms of how to talk about the setbacks and the edges of the easement.

And that is considered a front setback, even though it's along the side of the subject structure.

I guess this would be a point to ask it, just to make clear, was the creation of Maranatha Lane a requirement of the subdivision ordinance, which required with that subdivision for the houses on that road to use Maranatha and would preclude using Layton Drive?

I'm not a hundred percent.

That's correct.

Okay.

How many development rights for the entire parcel are there?

And they did that with that subdivision that also created Marinette the Lane.

Okay, so how many are there now?

early on the attachments should be.

In the staff report, it says that the subject parcel was assigned three development rights.

So three goes to the lot one and two were assigned to lot two.

So five have been allocated that way, so lot one has a three, total of three?

Correct.

Well, then what happened to the development rights for the two extra units?

The two in the back are then up to however that individual would want to utilize them, then meeting the particular regulations that apply.

that in theory the maximum that could be built on these two lots one and two if this were approved would be one on each of the lots in addition if they met all the standards at the time.

I mean theoretically there could be five.

What I'm trying to establish is the maximum density if this were granted to demonstrate that the impact of saying yes finding a way to grant a variance would only allow for two more and there may never be two more but that that road would not be a major road with 10 or 15 houses on it unless some rezoning or something would permit that.

If I might address your question, so the development rights has to do with the number of lots, not the number of dwellings, so that if in the event that this variance were approved and this were allowed to be a bed and breakfast, or excuse me, a tourist lodging, there would still be the ability to subdivide additional lots and build dwellings up to a total of five.

All right, each one of those lots having one dwelling on them.

Three would be the density that would result.

Right.

That's why we tell folks they're theoretical in their nature and being able to utilize those development rights.

And while I appreciate the questions, those questions really have to do more with the application of the subdivision ordinance rather than the zoning ordinance and whether the zoning ordinance on recently restricts the utilization of the property.

However, it's a good way to mislead someone who's buying this lot and thinks that they have three development rights and really doesn't.

But the use of this structure as an accessory dwelling is not related really to the number of development rights.

It's just

which if I may respectfully point out that's not an issue that's before the BZA today.

So I won't stop.

Other questions for Mr. Herrick?

Was it a workshop as it's been described?

And just an empty.

Open, just open space, I see.

But this was applied for an accessory structure which was not at all different.

If the applicant in 2008 had said, I would like to build a house or whatever you want to call this, if that term of art that he's using now existed then for people to sleep in in a bathroom, what setback requirements, I may have missed it, would have been applicable to that kind of request?

And as we mentioned in the staff report and the presentation, that permit would have been denied because it did not meet the requirements.

That is correct.

OK.

and he built a breezeway.

I'm sorry.

It was approved under different conditions, which have different setbacks.

Thank you.

OK, but will you help us understand the analysis of front versus side in this case?

Despite its appearances is a private street and therefore requires a 25 foot front setback from it.

So are there two fronts on this property?

Yes, there would be one, there'd be a 25 foot setback required along Drybridge Road, and then there'd be a separate 25 foot frontage along both sides of Maranatha Lane since it's the right of way of Maranatha Lane since it's a private street.

That's correct.

I was just about to say, yep, 75 is the actual five.

OK, I stand corrected.

But this is not.

Layton Drive is a private road, right?

I don't know that for sure.

It is shown as a private road on the platform.

It may say private, a lot of times whether that's the case.

Road sign says it and it says it on the platform.

It's a 20-foot private road, correct.

Who is the grantor and who is the grantee?

I am not familiar with the specifics of the subdivision creating a lot to the rear.

I wonder if relocation of the easement might be another solution to this problem to eliminate the violation.

Yeah, I don't know the extent to which some sort of revised subdivision could continue to meet the access requirements for the rear lot.

So it would still need a variance if it were wanting to be a dwelling.

But it wouldn't be as large a variance if you see where I'm driving at.

The Layton Drive.

See, I couldn't spell that film with a color here.

Ms. Green, are you saying that the, well, the private road, the easement, whatever we want to call it, for these private roads, they overlap?

And again, they don't show the easement for that, but I was, we were, staff has looked at a lot of different things for this.

Layton Drive is 20 feet.

Interesting.

It's probably 10 feet from the center, I guess.

Or is that something that you just can't, you don't have enough information to answer?

go back through the subdivision.

I'm just trying to think of the mechanics of doing this.

The mechanics now involve the other property owner as well.

And that might be, I mean, easier.

Procedurally it would require an amended plan of subdivision to have to go through the subdivision process.

That's a factor we could take into account as we're thinking about the variance.

But whatever, if I might add, whatever variance is granted would be measured from the edge of the legal right-of-way rather than the edge of the pavement.

It's a relevant factor to the question.

That's a factor that would not be a heavy development farther down because they would only have one more down there.

Could it be fully permitted as an accessory structure today?

We could do the final zoning on that.

Right.

But even though it has a kitchen.

Well, the cooking element.

It would have to be.

I don't know if we're ready to get there yet or not if there's other questions.

And I'm waiting for that.

Any portion of that five minutes?

Thank you.

And with that, we can open it back up for five minutes of closing remarks from the applicant.

your time and honestly your effort my first time here at the Albemarle County Board of Zoning Officials meeting but honestly it was very informative even for me throughout this process so I just want to share my appreciation and I and I really hope that you could see that I hopefully provided much context and clarity for you all and hopefully if there's any further questions or any other information you need please don't hesitate to let me know so thank you.

I will open it up for board discussion.

So, I mean, can I consider an Airbnb a use that could be excluded in a variance?

And then that you want to, you want to restrict the use typically only allow certain uses and not others, correct?

Just a reminder for everyone to speak into their mics.

I'm sorry.

Can't hear you.

Right.

I think it is unfortunate that this was created the way it was, but I don't know.

But it has to be a dwelling unit before those things can come into play.

They are terribly concrete at this point.

I'm not trying to jump to that point, but it seems like that would be the point to where to see if the other conditions are met or could be met with the other criteria are met if we thought conditions were necessary to make that happen.

Thank you.

I start with those two points in my thinking.

Just hold off for a minute, Mr. Kilker.

I don't know what your discussions were, but this is kind of what troubles me in this whole process.

That's how I feel.

Mr. Carrington, could I ask a question please?

Of course, please do.

In your experience?

More than we like.

More than you like.

I can't give you a number right now, but it's, there's more than you would think.

So you're saying that this happens more often than I think it does, apparently.

I mean, I don't know if it's one a week, but it's definitely more than one a year, definitely.

There are a lot of expansions.

I know that's not a technical answer, but I don't have that data.

Okay.

Thank you.

But if so, that'd be great.

Well, I'll let you know that.

And I'm not sure all of them lined up perfectly.

They did not.

I don't know, but I would be interested in the board's take on that question and how that relates to a single family home and in this case an accessory dwelling unit.

Thoughts about that or not?

How does that?

Got it.

Thank you.

And perhaps, I don't know if there was a separate utility charge that would go to the structure, all of which I assume would have to get approved by the county at some level in the process to make sure it's up to code, right?

The power would have been approved as for the workshop during that initial permit, so that's how, if you're talking about utilities, talking about power.

sign off as part of the process, whether in those applications, it had clearly stated this would be an accessory woodworking shop thing only, or was there any mention of an accessory dwelling listed in the process?

So there were no inspections done at that time for a dwelling.

An accessory structure, right?

And I can't hear you.

I mean, are there different rules for

Yeah, I want to stay on track with the homestay thing and not... That's correct, but since it's not in the main dwelling where it's in an accessory structure dwelling, but it is still a dwelling because it meets all the definitions of what a single-family dwelling by ordinance.

So I don't know if that helps or confuses a little more, but that kind of trying to bring the modern terms together with what we know as older terms.

He set the 25-foot violation regardless of which category you put the structure in, right?

Right, I understand what you're saying.

I'm just trying to be clear that regardless of how we categorize this, it still has the same problem with the 25 feet.

It's then now since changed back to then require it to be 25.

That was part of the history of the report about the change in the ordinance.

But since that inspection was done and they built it in that location with that relying on the county's approval of that location.

That's a fine step.

I apologize for that.

Mr. Svoboda, would you be willing to just clarify for me the historical practice or any of the staff historical practice of determining what's reasonable use of a versus unreasonable?

You have reasonable use of your place with the single family house that you don't need a swimming pool or garage or an accessory structure to make that reasonable.

Correct.

So swimming pool is a good example.

And

So those are the different things that the ordinance is trying to protect.

Thank you, it's helpful.

And I don't know, in a variance, can I even think about health, safety, and welfare?

And then you have to enunciate what those findings in fact are to support your decision.

Thank you.

And you just can't say, well, this is in the public health and safety and welfare and call it a day.

Well, I could.

You could, but then I don't think you're going to be successful if the issue is appealed.

So, I don't know.

So could you explain that please?

Can you run that for me one more time?

And what was the intent?

Thank you.

Is that correct?

That's right.

And can we call the question on this?

Can we call the question?

Sure.

If somebody would like to make a motion, of course, we can hear that.

Would you recommend that we make individual findings on the crisis period?

That's what makes your job hard.

Bowling, would you suggest that that motion be focused on the specific line items in the state code or the county code or both?

and if you can't, then that goes to the issue too.

Would you help us understand whether the county has changed interpretation or posture towards reasonable use after 2015 or after the Louisa Valerie Holdings case?

And in the county's view, that's not an unreasonable restriction because you still have four plus acres of the property to locate that structure.

So what is different?

As it is, it's not on this lot, it's not an unreasonable restriction because there's still lots of buildable area.

And if you can't make those findings, then that really goes to the issue before you.

Thank you, Mr. Boeing.

Thank you.

Any further discussion, any motions that anyone would like to make?

under the second, if we don't vote.

We can go by one by one, that's fine.

So you'll be at four people here deciding after 4.30.

Thank you.

Would you like to suggest a motion, Mr. Rosenberg?

That is my motion and I'm reading what has been proposed.

Bowling is that we state the reasons because we can't rely on the staff report for those.

Bowling, should we discuss the reasons, the three reasons that the staff agreed with and thought were satisfying?

But that's evident for somebody who's reading the transcript of all this five months from now.

OK. Well, let's do that first then.

Mr. Shepherd, why don't you just go through that discussion right now.

by that, I think.

I don't think Mr. Rosenberg was disagreeing with you.

My intention here is to eliminate these three that the staff found satisfied and then go to the fourth one and discuss that because the staff did not find that was met and to try to find whether we agree or disagree with them and give reasons why.

Thank you for that.

Yes.

Yes.

Do we need a straw poll?

Are you still on the motion?

Who would like to start off?

So that's what I'm basing my thoughts on this first aspect.

Who else needs to speak?

The fact that that has even been mentioned that having family close, providing good quality of living and so on, I think that this being denied this would deny them the opportunity to take care of family.

that it would be unreasonable to deny the variance?

Yes.

Okay.

And it was a reasonable assumption to think that you could use a dwelling as a dwelling.

Where do you stand on this one?

So I can agree.

contain enough information for you.

It's difficult.

So I've made my motion.

You also have to make findings that the hardship that the landowner faces was or was not self-inflicted.

should I start and we go back this way?

You've got a red dot there, right?

So I think, I believe that under the facts and the record, this was good faith error and based on reasonable reliance of the applicant and it's not self-inflicted harm.

So they're not self-inflicted.

And I agree with my colleagues on other points raised.

and it would be I, the property interest for which the variance has been requested was acquired in good faith and any hardship was not created by the applicant for the variance.

He was ready.

Marcia Joseph had already seconded the motion.

Go ahead.

Has it been seconded yet?

It was seconded by Marcia Joseph.

Thank you.

Her hand was up.

Prior to that, Mr. Shepherd?

I don't want to do this in a sudden kind of curve out of the blue way, but I think you made some good points Ms. Joseph at the beginning, but I'm not committed to that.

Mr. Carrington, could we just have like a discussion, sort of a... You have a motion.

We have a motion on the floor.

Unless there's a second.

Have you made a motion?

Waiting for a second.

Right.

Yes.

I think we need a second on John's- Mr. Shepherd hasn't made a full motion yet, I don't think.

Let's withdraw this motion, end of story.

OK. Ms. Alley, would you please call the roll on Mr. Rosenberg's motion?

Mr. Shepherd?

It's written.

Vote aye.

Mr. Rosenberg.

Aye.

Mr. Burkhart.

Aye.

And Mr. Carrington.

Sir Rosenberg, you included the proposed structure being limited to the size described.

Exactly as it's written.

Does anybody have any discussion or edits to those minutes?

None.

But I would just wonder if that was a conscious decision if you all decided to do that and gave directions to the person making them to do in the minutes.

Transcriptions, yeah.

Otherwise, I found, I thought they were well done, and I want to approve them.

Well, there's more to come next for this meeting, and then more meetings coming up in a few months.

Ms. Alley, would you please call the roll?

Mr. Burkhart?

Aye.

Mr. Carrington?

Is there any?

So thank you.

I concur.

Thank you.

We appreciate staff's efforts, certainly.

Do I have any motion to adjourn?

We have two more minutes.

Is it seconded?

I'll second.

Ms. Alley, would you please call the roll?

Mr. Burkhart?

Aye.

Mr. Carrington?

Thank you very much for a long commitment of time and for all the work that went into this on the front end, especially on staff's part.