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

OK, it is 2 PM.

And as chairman of the Albemarle County Board of Zoning Appeals, I call this meeting to order on December 3, 2024.

First order of business is to establish a quorum.

John Shepherd, present.

I'm Bo Carrington and I'm present.

It moves us to our public hearing portion of today's meeting.

I understand that the appellant would like to make a request and like to invite them forward to make that request.

I'm Summer Kostelek.

I'm Nathan Kostelek.

If it would please the court, we'd like to ask for a deferral.

The children have not really had a chance to prepare for this case very well.

We didn't realize until I think last night when I was sent an email by Andrew Herring that he would not accept us speaking in the BZA, me speaking for them in the BZA court.

And so they did not have a chance to find their own counsel.

From there, I'd prefer to move into the public comment portion of today's meeting so that the board has the benefit of the opinions of those that have chosen to be here today before voting on that deferral request.

So the way this works is each member of the public that wishes to do so can come up and speak for up to three minutes.

There's been a signup sheet passed around.

We would ask that you sign up if you can.

But if you have not gotten a chance to sign up, certainly we'll still give you some time after anyone that has signed up has done so.

So Miss Alley, have you got that list?

This meeting is recorded and later transcribed into minutes approved at a later meeting date.

Each item set for public hearing will begin with a presentation of the staff report.

Next, the applicant or appellant for that item will be invited to speak.

During the course of the process, the chair will open the public hearing to comments from the public.

At the end of these proceedings, the chair will announce

that the public hearing is closed.

Once the public hearing is closed, no further public comments will be allowed unless the board asks for additional information from the applicant or appellant.

The BZA preserves the right to digress from these guidelines in any particular case.

Public comment is welcome during public hearings.

A sign-up sheet will be available in Lane Auditorium prior to the meeting for anyone who would like to comment on the scheduled public hearing.

If you wish to comment on those matters for which comments from the public will be received, please list your name on the appropriate sign-up sheet.

When your name is announced for comment, please come to the microphone and state your name for the record.

For uncommon spellings, please spell your name for the recording clerk.

If you are with a group of people, you may want to have a spokesperson present your position to the board.

In order to give all speakers equal treatment and courtesy, the board requests that speakers adhere to the following guidelines.

Come forward to the speaker's podium and state your name.

Address comments directly to the board as a whole.

Open public debate is prohibited.

State your position and give facts other than data to back it up.

Keep in mind that there is a three minute time limit for public comment.

Give written statements and or other supporting material to the recording clerk.

Written comments are also welcome if you do not wish to speak.

Here are a few additional guidelines for applicants and appellants while they address the board.

Please contact staff in community development ahead of the meeting to make any necessary arrangements for your presentation.

The recording clerk will also need copies of any handouts given to the BZA members for the official record of the meeting.

Be clear in stating your position and do not repeat information that has previously been submitted to the board.

Stay on topic by addressing the questions in the application or by responding directly to staff's determinations.

Focus on presenting facts and data that support your position.

Keep in mind that there's a 15-minute time limit for presentations and a five-minute time limit for rebuttal comments.

The board will ask any additional follow-up questions to clarify points made during the presentation.

Understand that the Board of Zoning Appeals cannot change county ordinances.

The BZA reserves the right to place additional time limits on speakers as necessary.

And I have a list here of five people that have signed up.

Okay, thank you very much.

I will state, since it's a small list, and there's five, I'll mention the first two.

David Schmidt and Letty Bain.

Thank you.

My name is David Schmidt.

That's TT, we know D. I live at 2308 Walnut Ridge Lane off of Polo Grounds Road.

I think it could be either.

Clock is ticking.

This is really about disrespect and contempt for both the neighbors and for the board and for the county.

Polar Grounds Road is a lovely rural residential road, sees a lot of traffic people, residential and moving through the area.

People in this area have a great deal of respect for one another.

We pause at one lane underpasses and bridges.

We have cleaned up the street twice a year.

People keep the fronts of their public part of their properties clean and tidy.

Except for Kostelak.

Kostelak dropped a bunch of decrepit, dilapidated trailers on a piece of property and has basically filled them with junk and has done nothing to improve the property in the two and a half years since that was done.

He's allowed invasive vines and plants to grow, and it is really a shabby eyesore.

So we've thought, why would Kostelak do this?

What is his motivation?

It's clearly not for revenue.

He bought the property for a song because it's undevelopable under the codes of the county.

And second of all, he spent more on consultants and big city lawyers to defer the actions on this than he has on the property itself, which was quite inexpensive.

It hasn't earned him a dime because as he said himself in his pleadings, no activity of significance has occurred on that property in the two and a half years since he made the placement.

If he were a good citizen, he would have improved the property or done something to mitigate our displeasure, but he has done nothing.

I understand that he's also contesting another area of property with the same kind of problem elsewhere in the county, representing his attitude toward the county and showing him to be essentially a scofflaw.

In short, he asserts that our behavior is, as he puts it, administrative harassment, infringing on his right as an individual.

but he believes that his right to be obnoxious and to defy the county's regulations is his right and superscedence over the rights of the other community.

In the past week before this meeting, he has decided to put in a chicken coop.

There are no utilities whatsoever, no electricity or water, just a bunch of chickens and he has now apparently decided that this is an agricultural undertaking.

which would give him the exemption.

Good afternoon.

My name is Letty Bien.

I live at 2308 Walnut Ridge Lane in the Bent of our development off Polo Grounds Road.

Please understand that many of the 100 Bent of our households, as well as those who live on Polo Grounds Road and Proffit Road, wanted to be here today, but 2 p.m. and it is a workday precluded their attendance.

And now we're talking about a deferral, which seems to be the MO for Mr. Kostalek and his two children.

For almost three years and practically every day, I have witnessed the molestation of a land parcel that sits in a floodplain.

I have seen trees that exceeded six inch in diameter were cut down.

Unfortunately, I have no proof of that other than to say that I would state that under oath.

I've seen the installation of a gravel driveway leading to Polo Grounds Road and perhaps the most egregious action I've witnessed was the placement of three derelict trailers that for the past two and a half years have been open to the elements, mold, mildew, and vermin.

over this period of time we have all observed the close and personal the degradation and diminished appearance of the property and the buildings there was never an observation of any action on the part of the owners during this time now miraculously 10 days from the date of this hearing which they now seek to defer

We see a bad faith effort to become an agricultural site.

Significant activity has ensued with the clear intent to sway this board.

Workers have removed much of the furniture from at least one of the industrialized buildings.

They installed wooden frames on one of the derelict buildings and deposited over 20 chickens in the trailer, chickens that appear to be totally exposed.

That in and of itself poses numerous additional questions, which I will defer to others.

This property was purchased for $1600.

One has to wonder exactly why the owners have since expended so much capital to maintain this eyesore that violates zoning rules.

Please do not let this ruse sway your decision.

And should you decide to rescind the violations as a taxpayer and as a homeowner, I have to ask, does that mean the blatant disregard for almost three years carries no negative consequences?

That would be a terrible precedent for our wonderful Albemarle County.

I request that this board deny this deferral and affirm the determination made in the notice of determination of violation.

Behind me sits many of our neighbors, if they'd all raise their hand if they are in agreement with what we've just said.

And to ask them to defer just seems to be such an unfair and in noble thing to do.

Since we only have three remaining speakers, I'd like to ask Christine Riley.

And I'm sorry if I missed this name.

I can't, the writing is like Christian or Christine Salem.

No, Christine Riley is next.

Christine Salem and then Joseph Noonan.

My name is Christine Riley.

I live at 1859 Polo Grounds Road.

My driveway opens directly across the road from the trailers that are in question today.

There has been no activity there before the last week or so and all of a sudden there's a lot of scurrying around going on trying to, I don't know what they're trying to do to tell you the truth.

Sometimes when I check the mail, I stop and look over there, but it really is,

a mess.

I mean there are these buildings, these trailers had been wrapped up in plastic for over two years.

All the plastic is torn off the front now.

It's just they're open to the elements and they could never have been used for anything.

They've been there for three years wrapped in plastic.

They're probably so moldy inside that they're not even usable.

During the time that the trailers have been there, when the driveway was put in, they cut the underground cable for my internet and phone.

That was not fixed for four months because the landowner refused to let

The utility come on his property.

He told them that they were trespassing.

They couldn't come on and fix that.

So for the whole summer, for four months, I had no internet except where I could do on a hotspot on my phone.

He also told my son that his intentions were when he put the trailers in because he wanted to teach his children about flipping homes.

He wanted to become some kind of an entrepreneur who was flipping homes and selling them to people.

I believe it's like 1.3 acres, which would not even allow him to have a home on the property.

The more important thing though, I think is that it's in the 100 year floodplain and it's right on Powell Creek.

There's no running water, there's no electricity, there are no utilities to the property.

And in terms of every time I come out of my driveway, those trailers are right across from my home.

um he has not done any work to improve them he has not done anything at all with property and it's really just a trash pit it should not be allowed to happen there's no building permitted anywhere in the hundred year flood plain and so i think that should end the inquiry that we're having today he didn't apply for zoning permits he didn't apply for building permits nothing has ever been approved by the county

for him to use that land the way he has.

And this has gone on long enough.

I mean, we've all been to hearing after hearing.

And yet he comes today and says, he's the one that appealed, but he's not ready.

I don't buy it.

I really appreciate your time.

And I hope that we can bring an end to this situation.

Thank you, Ms. Riley.

Christian Solum.

Is this working?

Can you hear me?

OK. My name is Christine Solum, S-O-L-E-M. And I'm a budding property owner to these horrible trailers.

I would ask one question.

You're looking at the deferral.

Are you looking at the right facts with regards to the deferral?

I thought they should be whether there was a problem with the son and the daughter.

And I wonder what that has to do with the facts of the case, so to speak.

I moved to that property right abutting his in 1973.

I have farmed there up until about 40 years.

I've farmed 40 years and I stopped about 10 years ago.

But we had animals down there where it was.

There's nothing other than that that can be used and it is real residential.

And the trailers really have nothing to do with it.

Trailers are an industrial,

type of equipment.

And that is defined in Black's Law Dictionary as having to do with large scale business and industry.

The trailers were just put there because he was going to decide what to do with them later.

And then other things got in the way, as I understand.

I am not opposed at all to using that land.

If you don't like it used as an agricultural business, it's not.

It is agriculture.

Chickens are agriculture.

If you don't like it, don't look at it.

I don't like the mess at the end of Polo Grounds Road that looks like Northern Virginia.

I don't agree with that at all.

I don't like it.

But they have the right to do with it as they see fit.

And he is doing with his property as he sees fit.

and I think he's well within his bounds and so do his lawyers.

So to say you don't like it, my answer is don't look at it, then you don't like my property either and I had a goat farm there for 40 years and I'm still there and I have buildings and maybe I would like to change some of those to a metallic building but I'm not going to do it but I have the right.

Thank you.

My name is Joseph Noonan

Just briefly going back to Christine's comments, no one can see Christine's farm from the road.

That's a huge difference.

She's got a long driveway that kind of wiggles into the woods and then you don't see anything.

The exposure to the trailers is evident to everyone.

and I commute on that road twice a day every day and I saw them when they were first installed there nothing's been done and then they just slowly started to fall apart.

I think and I hope I'm not being redundant but one of the main concerns that I have is that if they're going to be using this for a farming site especially growing chickens

I mean, there's real requirements for growing chickens if you want to breed chickens the right way.

They need to be kept in a temperate condition, somewhere between 58 and 75 or 78 degrees.

There's got to be water, and most importantly, there's got to be power for ventilation.

If there's no ventilation, ammonia, carbon monoxide, and carbon dioxide can build up.

and also the debris that chickens can accumulate is gonna end up in that creek.

There's nowhere else for it to go.

So it is a big concern to me environmentally as a neighbor.

And I applaud their efforts for trying to make a business out of something there.

It's just not the right place.

And that's,

primarily what I would like to voice, but really the utilities are something that you're not gonna get around.

I mean, if you don't have certain requirements, growing requirements for chicken farming, you're gonna fail and the chickens are gonna suffer for it.

They're probably gonna freeze tonight.

I mean, if there's nothing in there to keep them warm.

Okay, thank you so much for your time, gentlemen.

I appreciate that.

Is there anyone else that would like to speak to the board?

Please come forward.

There's two of you, so take turns.

Good afternoon.

My name is Ana Chitla.

I live in Bentivar.

It's clear that this application has not been made in good faith and the same goes for the appeal.

There are no facts to support the request.

There's no agricultural activity on the land.

There's absolutely no indication that there will be any agricultural activity in the future.

Let's not mince words here.

This entire application, the entire request is a sham.

The applicant is making a mockery of our county zoning laws, a mockery of this process, and a mockery of our community.

The appeal should be denied not to encourage this kind of behavior from our fellow citizens.

The same goes for the deferral request.

It's complete nonsense too.

There's no evidence that the applicant's children have anything to do with this property.

They've just been introduced at the 11th hour as just another gay menship and delay tactic.

And this should not be tolerated either.

Thank you.

My name is Fred Gerke, G-E-R-K-E.

I live up in Proffitt, up the tracks from here.

I've lived there for 40 years.

I'd just like to give some historical concept, background to this absurd situation, which I don't think we're really talking about what's going on here.

This is just a step that has to be gone through with this process, and I have no idea what the

their motivations.

But anyway, I own a lot comparable to this one myself up on Proffit Road across the street from me.

It's two thirds of an acre.

And like this lot, it existed and was plotted before the county's ordinance.

So these lots are grandfathered in.

And therefore, in theory, you can develop them.

Now this two thirds of an acre lot, I tried to give it to my son and his daughter when they were looking for a house, but you can't build on it because of well and septic if nothing else.

So this is just beyond all reason.

I just wish the defendants or what the costal acts would come up here and explain what they're truly up to because I mean, what they're saying just doesn't make any sense and it's not a use you can do.

You know, I'm sure they bought the property and they want to do something with it, but I've had this two thirds of an acre for 40 years.

I just dropped the check off in the kiosk outside, you know, to pay the property taxes on it.

And that's all I've done is pay property taxes on it for 40 years.

You know, and I realized that going in, but you know, that does not justify it.

It's just in this lot before Dr. Hurt bought it, my understanding was there was a little hunting lodge on there.

And that accounts for some of the junk that is there.

Previously, we do the road cleanup, but I remember someone doing the road cleanup 20, 30 years ago saying, pointing out the tires and some of the junk that's on the back of the lot, which three days they're buying it, you know, but that was there, you know, and there's the remains of the hunting lodge.

But this is just, this is a first, you know, that's all there is to it.

Thank you.

Is there anybody else that would like to speak?

Okay, seeing none, I can close the public comment portion of today's meeting.

With that, prior to the board's consideration of the deferral request, Mr. Koslak or some other representative from the land ending entity, would you all just clarify what you're requesting in terms of a date of deferral?

Yes, I'm not sure procedurally how to move forward with this because I was advised by Attorney Herring that I could not speak for the group.

Originally, we asked for January 7th, we advised that that was another date.

Upon reflection, it's very hard to get an attorney to come in between now and January 7th to become a privacy date.

If it would please the court here it would be preferable that it's after that on your next available hearing.

I don't know how often the BZA meets but it would be very hard to get an attorney to actually look into the matter between now and January 7th to be prepared.

Attorneys are very backlogged and they're especially backlogged over the holidays so

If there was a date, I'm not aware of what the next opportunity would be after that.

If the BZA only meets once a month and perhaps the first week in February, if that would be an opportunity.

At the time we suggested January 7th, I did not have the notice from Herring that I could not speak for the children.

So that came in I think last night or a night or two ago.

I think we're scheduled to meet on February 4th.

Yes, because that would give our attorneys a chance in February to, I mean, January to actually go over the significant amount of zoning, coding, law in question here.

There's a lot at stake at this case.

So, yes.

Thank you.

Thank you, Chair.

My name is Richard DeLoria.

I am the interim deputy county attorney for Albemarle County and representing the county's interest.

I just want to put on the record.

that the county does oppose the request to defer this hearing.

And in looking over the board's bylaws and rules, I see there's five factors to consider.

The first is whether the deferral would promote fairness in the process.

And I would suggest it would not promote fairness in the process.

In fact, it would be a disservice.

The Kostelaks, and in this case, the Hippology LLC, which Dominique Kostelak may have an interest in,

and also Sumner and Nathan Kostelak, both are record owners of this property.

They certainly are positioned to represent themselves in this hearing.

This is an issue, as you've seen, that has been going on for several years.

This is not new to the Kostelaks.

And in fact, well over a year ago, Dominique Kastelak knew that he had to have an attorney to represent the interest of the LLC.

So to the extent that the public has suggested that it's a delay tactic, the county joins in that.

Would it be solely for the convenience and personal benefit of the appellant or the applicant?

And the answer clearly is yes.

There's no way around that.

Would it defer to delay the enforcement or abatement of the violation that's adversely affecting or abutting property?

You've heard from Christine Riley.

The answer to that is an absolute yes.

Would it allow the appellant or applicant to resolve the underlying issues?

It hasn't been resolved in three years.

It's not going to be resolved in two months.

Finally, whether the deferral would allow the BZA to make the decision within 90 days.

It would be shortly outside the 90 day limit.

However, that limit is procedural.

It's not a jurisdiction or substantive issue that would affect the authority of this board to act.

Although Mr. Kostak had suggested

And Mr. Herrick had sent him a note regarding the unauthorized practice of law.

He's unable to represent the interest of the LLC.

Additionally, he cannot represent the interest of his son or daughter who are co-owners on this property.

Again, I reiterate that he is known that the LLC needed to be represented by attorney for well over a year through the prior general district court proceedings.

this is nothing new to the Kostelaks.

So based for those reasons we would ask the court, the court would ask the board not to grant the deferral.

Would also ask, I think it's important to have Nathan and Summer Kostelak approach the board and to make the request for a deferral in person and not through Mr. Kostelak.

Yes, we'd very much like a deferral.

We didn't have enough time to prepare for this.

Me and Summer just found out about it, and I have a shift I have to get to at work later today.

And yeah, it's just a tough time.

And for clarification, the request is for February 4th, 2025?

I wasn't sure if you're also asking for me because the county has always let me represent the LLCs historically.

And so I was surprised that they took that position.

As you know, I was here in July last year as well.

February 4th, 2025.

Correct.

Okay.

We can move to the board's consideration of the deferral request to defer this item to February 4th, 2025.

I guess I was just taken back by the previous comment.

by Mr. Nathan Kostaluk, and he said they just found out about it.

I'm a little curious about that.

I mean, the appeal has been filed as of September 26th, 2024, correct?

I'm just wondering whether or not correspondence, et cetera,

Well, I'd like to, there has been a question in the last, it's been discussed in the last 10 days or so of having to do with the standing

of Mr. Dominique Kostalak in this.

And there was a lot of discussion between Mr. Herrick, Mr. DeLoria, and Mr.

Bowling, who is the attorney that represents the board here.

And it was my understanding just from just getting a peek at that and not knowing the full story and the history of this is that

It was only yesterday, well, yesterday, Mr. Herrick sent an email to Dominique, just to clarify which coastal like we're talking about, stating that he could not act as an attorney in this case, but I think, but I understood that in the past, it's been,

understood that Mr. Dominique Kasolak had standing to appeal a matter like this.

So Richard DeLoria with the County Attorney's Office.

So in the course of those discussions, counsel for the BZA had reached out to the Virginia State Bar for an advisory opinion as to whether this body constituted a forum such that if you represented another party,

Would that be considered the practice of law?

And he received an opinion from the State Bar that this is a forum, that it comes under the rules of professional conduct and under the Virginia Code.

and such that if you're to represent the interest of another, then you need to be a licensed attorney at law.

This appeal was brought in the name of the owners of the property, Polo G LLC, Nathan and Summer Kostelak.

Nathan and Summer aren't an issue because they certainly can represent themselves.

That's called proceeding pro se.

They're permitted to do that.

The LLC is a separate legal entity, so it needs to be represented by an attorney at law in a proceeding before a tribunal such as this, and I think I used the word form, is a tribunal under Virginia law.

And for a third party to represent another party's interest would be constituted on an authorized practice of law, which is a class one misdemeanor.

So there is significant concern amongst Mr.

Bowling and then, of course, the county attorney's office that somehow we would be allowing a criminal act to occur if Mr. Kostelak was to be able to represent the LLC's interest before this body.

Thank you.

Could you all just basically repeat and to make clear the basis for

saying that Dominique Kussilak knew about the requirement about representing these entities, not as an attorney.

As part of the appeal materials, it's been relayed to this board that the county had previously issued a notice of violation and then it had not been appealed to this board.

And so the county took enforcement actions as it usually does in the general district court.

That case, as that case proceeded to a hearing, Mr. Kostelak was advised by the general district court judge that he was not permitted to represent the LLC, that it needed to be represented by an attorney.

and that did cause some delay, although an appropriate delay in the general district court.

And he was able at some point to hire an attorney to represent him in those proceedings.

Ultimately that was dismissed without prejudice because of a failure of the county to mail the package to the LLC's registered agent.

Thank you.

Nothing more.

So the board is...

referenced some communications that have been happening between council and the board this past week.

And I think it's important to distinguish the issues of standing and unlicensed practice of law.

Those are two different things.

The BZA, in my opinion, is charged with determining whether someone has standing to appeal to this board.

whether or not the BZA is charged with governing the unlicensed practice of law or not.

I think that's a very different issue.

I feel personally ill-equipped to make that determination and would like licensed attorneys in the Virginia Bar to make that determination.

So I think it's an issue of standing for me.

Mr. Kastelak, Dominic Kastelak has mentioned that he is managing member of Polo G LLC.

And so in my opinion, that gives him standing to appeal the determination.

And in responding to the request for deferral, two of our five conditions or criteria for a request for deferral stand out to me.

In particular, number three, whether the deferral would delay the enforcement or abatement of a violation that is adversely affecting an abutting property or a neighbor, the neighborhood or the public.

This has been a long road.

I think that the request for deferral is pretty clearly in conflict with that guideline within our rules of procedure.

Page four.

Is there a second?

I will second that motion.

Hearing a motion and a second to deny the request for deferral for this hearing, AP 2024-05.

Mr. Shepherd?

Aye.

Aye.

Motion to deny the deferral of that item has succeeded unanimously, three to zero.

And so we can move now into the hearing portion of AP 2024-05.

The way this will work is county staff will be given 15 minutes, up to 15 minutes to present.

I would ask after that presentation for the board to make any preliminary questions known at that time prior to the county sitting down.

After those questions are dealt with, if there are any, we'll move to the applicant, the appellant, and give them 15 minutes and ask any preliminary questions after they're done.

and then we'll move into a five-minute rebuttal period for each party.

That's a procedural question before we get started and that is

Do we expect the owners of the property to make the case or how many coastline can make the case?

I'm sorry.

Are we making or

I wish we, we normally have, we are represented by an attorney ourselves.

Our attorney is not here today.

So we're, it's, and this, we're really dealing with legal questions here that the three of us are really not qualified to deal with.

But with that disclaimer, I want to just, I'd like to decide now, understand now, and before we get into the middle of the hearing, whether or not we are going to hear

Mr.

Chair, I'm happy to address that as well or if you've already said what you want to say.

Yeah, I'm happy for you to jump in.

So Andy Herrick, Interim County Attorney, in response, Mr. Shepherd, to your question, I think as was pointed out earlier, Dominique Kostalak may have standing to appear to represent his own interest.

He does not have standing to represent the LLC.

So if the board determines that it wishes to hear from Mr. Kostalak in his personal capacity, it can entertain that.

without him engaging in the unauthorized practice of law.

I would point out pursuant to the board's rules that public comment would be accepted in addition to the county's comments and the appellant's comments.

The board's rules of procedure do allow for three minutes of public comment during the public hearing period.

Again, in addition to the comments of the county and the appellant's.

Would the county like to start the presentation?

Thank you.

Thank you, Chair Carrington and board.

My name is Lisa Green, and I'm the manager of Code Compliance.

I'm here today to present the staff report for AP 2024-0005, an appeal of the zoning administrator's determination of violation ZVIO 2024-19.

dated August 26, 2024.

With me here today is Bart Svoboda, the zoning administrator, and Richard DeLoria, the interim deputy county attorney.

This appeal relates to the determination of whether industrialized buildings placed on the property within the 100-year floodplain are allowed.

My presentation summarizes the facts of the case that were laid out in the staff report.

Once I have finished, Mr. DeLoria has some comments and then we will take any questions you may have.

The subject property, Tax Mount 46, Parcel 101, is adjacent to Polo Grounds Road, Route 643 in northern Albemarle County and is owned by Polo GLLC, Nathan Kostalak, and Summer Kostalak.

The appellant is Dominic Kostalak.

The property is only 1.13 acres in size, zoned rural areas, and is primarily forested vacant land.

Brief history, as you can see here, the county staff has been working with the property owner for some time to gain compliance.

Initial complaints began in May 2022 when the industrialized buildings were placed on the property.

This followed an exploratory meeting between the county staff and the property owner who expressed interest in using the property as a private school.

A determination of violation was issued leading to multiple court appearances which ultimately resulted in the case being dismissed by the judge without prejudice.

This is not that appeal.

A new case has been opened, inspection search warrants obtained from the magistrate.

New inspections along with a new determination of violation have been issued.

That is why we're here today.

The appeal today is based on the findings from the investigation and determination made in August of 2024.

The following slides contain several photos of the evidence collected while investigating, executing the investigative search warrant.

These images are referenced in the staff report and serve as a basis for the official determination of violation.

This photo was taken of the industrialized buildings as staff entered the property.

Here you have a photo of the different modular sections.

This is a close-up of the conference room and this furnishings.

Here's a close-up of the exit door and a file cabinet area, a nurse office complete with plumbing, the hallway from the nurse's office with artwork and a time clock at the end, an exam room.

And inside that exam room is exam table

and then you have the sign for the restrooms and the thermostat for heating.

These are two photos of the modular sections of the industrialized buildings and this is the electrical panel of the industrialized building and the industrialized building label that is attached to the front of that electric panel.

This label is a requirement by state code.

The last two photos were taken from the VDOT right away on November 21st, 2024.

As you can see, the industrial buildings are still situated along Polo Grounds Road and they remain on the property in the same condition.

If you look close, you can still see the conference room table overturned as in the previous photo.

This is the same day looking west at the modular sections of the industrialized buildings on Polo Grounds Road.

There is no change in the property since August inspection and the determination.

As this relates to the determination of violation regarding the rural area district regulations, the relevance is clearly outlined in the zoning ordinance.

As I review this definition, please think back to the photos that you were just shown.

Section 3.1 of County Code Ordinance defines industrialized buildings as a combination of one or more sections or modules.

subject to state regulations, includes electrical, plumbing, heating, and ventilation, and other systems that are manufactured offsite and transported to a site.

This definition clearly aligns with what you observed in the previous photos.

Furthermore, the industrialized manufactured label is a requirement for any structure that is manufactured offsite and transported for installation.

It's important to note that in the zoning ordinance for our rural area district section 10.1, industrialized buildings are not permitted by right, nor are they permitted by special use permit.

Moving on to the second determination per county code, it is clear that these structures are prohibited in the flood hazard overlay district within the 100-year floodplain.

This satellite imagery taken in early February 2024 clearly shows that the industrialized building situated very close to Polo Grounds Road on the property in question.

This observation is also evident in the photograph you saw a moment ago.

In this image, you can see the property in question along with the outline of the 100-year floodplain highlighted in blue.

And when those two images are superimposed, it is clear that the industrialized buildings are located within the 100-year floodplain.

You will hear from the appellant today that these structures are permitted in the 100-year floodplain because they are agricultural.

This argument is plainly wrong.

The zoning ordinance clearly outlines the placement of structures within the flood hazard overlay district.

Referring back to county code definitions again in 3.1 for floodplain management purposes, a structure is defined as a walled and roof building which includes gas or liquid storage tanks and primarily consists of above ground elements such as well as manufactured homes.

The earlier photographic evidence clearly shows that these structures on the property meet this definition as defined by the county code.

Even if these structures could be permitted under some interpretation of the code, the property owners would first need to apply for a permit.

No permit has been applied for and none exist.

Therefore, it has been determined that these are unpermitted industrialized buildings.

Today, your role as a BZA is to determine two things.

First, whether the zoning administrator's decision was correct, and second, whether the zoning ordinance was applied correctly.

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

In a moment, the appellant will try to convince you that he is farming this 1.3 acre parcel.

However, if the board were to consider Mr. Kostelak's use of the land as agricultural, he has not provided any evidence to demonstrate that the industrialized buildings on the property support farming activities.

While the appellant may wish to use his property for farming in the future, he admitted in the appeal documents that no activities were currently taking place on the parcel.

Additionally, the three industrialized buildings that have been placed on this property in the 100-year floodplain are not permitted under any circumstance.

In closing, I want to refresh your memory with the photos and the definitions we previously discussed

Here are two modular structures.

The county code definition of industrialized building means a combination of one or more sections of modules, subject to state regulation, the required industrial label, and also including the necessary electrical, plumbing, heating, and other service systems.

manufactured offsite and transported to the point of use.

There's a frame underneath that sitting on a log or something to keep it held up in the photograph, sorry, at this point right here.

Manufactured offsite and transported to the point of use.

Here is again the tongue of the frame where that was transported.

Then going back to the county code definition of structure.

For floodplain management purposes, where these buildings sit is a walled and roofed building.

Here are walls and the roof.

And I think we can all agree these are walls and here's a roof of the manufactured industrialized buildings.

And that the industrialized buildings are indeed located in the 100-year floodplain.

Thank you for your time.

I want to apologize.

I also have Michael Dellinger, the building official here, if you have any questions for him at the end of our presentation.

So again, again, Richard DeLoria with the County Attorney's Office.

It's difficult to summarize the facts and the issues any better than Lisa Green has done.

I'll try to be brief.

In fact, I have to be brief.

But in essence, there are two issues presented, either which is dispositive in this case.

Number one, if there were buildings and that is a structure with a roof supported by walls in the flood hazard overlay district on August 20th of this year, then they're prohibited.

The code is clear that structures, accessory, even agricultural use or recreational use in the flood hazard overlay district

are prohibited.

So that almost brings this inquiry to an end.

Secondly, if the buildings present on the property as of August 20th were industrialized buildings, then clearly under county ordinance, they are unpermitted.

And Ms. Green had referenced you to code section 18-5.8.

It requires site plan approval, skirting, time limited zoning clearance, finding that the buildings are necessary to provide additional space for employees, students, and others as an activity area.

All that is missing in this case, no permits, no applications.

In fact, industrialized building inquiry is more focused than it really needs to be because any building present on this property required either a zoning permit or a building permit and none of that has been applied for, none of that has been obtained.

and I refer you to County Code Section 18-31.3 which provides prior to, so before establishing any buildings or structures for which a building permit application is not required under the building code, the applicant shall, meaning they must, request a zoning permit.

No zoning permits requested or obtained in this case.

None of the prerequisites for having these buildings on this property in that location have been met.

and you've seen essentially the incontrovertible evidence, three halves of industrialized buildings, their mobile classrooms for the most part are sitting there deteriorating, the roofs are supported by walls, they're buildings, they're modular, there's outfitted for electric plumbing, HVAC.

And there's no evidence of any use up to August 20th for any purpose other than just storing them on this rural area district property.

Again, I reiterate no permitting has been applied for and none has been obtained.

And so that makes them in violation just by virtue of that.

Again, the labeling in terms of support that these are industrialized building.

Michael Dellinger was part of this investigation, our building code official.

He concluded they're industrialized buildings.

You've seen photographs of the Virginia Administrative Code required labeling.

And also you've heard corroborating statements from Mr. Dominique Kostelak saying he wanted to use the mobile classrooms for school.

That's part of the record.

and there's been other I think in public comment that they were to be used for other uses for flipping but again that's not a permitted use so there's no evidence of any use of these buildings other than just storing them on this property to deteriorate over time and I think it's been over a three-year period.

So for these reasons, and those included in the record and the staff's report, the county asked that this board affirms the zoning administrator's notice of official determination of violation.

It's dated August 24th, 2024, based upon observations on August 20th of 2024.

Thank you.

I have a couple.

Ms. Green?

Yes.

Once the notice is provided, as referenced in the August 26, 2024 letter that you wrote, in that letter it states, this letter also serves to notify you to stop the activity or use outline above immediately, end of quote.

My question is, once the owners have received good delivery of this notice, an appeal has been filed, does this

The first activity that should have occurred was a permit if the applicant would like to keep the structures on the property.

They would not be allowed, if a permit was applied for, then it would go through the permit review process and then we could walk through with the applicant and let them know the constraints of the property and that that particular location, those structures would not be allowed because it's the 100-year floodplain.

even if they wanted to be farm structures there's farm buildings there's specific language about what can be there so can't have walls and roof that's what's in the code and so while work has been done maybe as preparation for this meeting then that we don't preclude that

Okay and my second question is the original intent we just heard it was to use these buildings for an educational purpose a 4,200 square foot private school

and we learned a little bit more about how to flip properties and so on.

Now we've heard about the agricultural use of this property.

So when was the county informed that there was going to be a change of purpose in the use of these structures?

So at the time that the

The educational request was a meeting, a pre-application meeting that we offer for anybody that wants to talk about what they'd like to do on their property every Monday.

And so that meeting happened.

And there was a conversation about the constraints of the property at that point.

and then we heard nothing else and the buildings just showed up, no permits.

Okay, thank you.

Thank you.

Any other questions for county staff?

I have none either.

I'm not sure how to use this equipment.

I've had a handout here and my children would like to see their time to me as a spokesperson.

Is that allowed?

Yes, yes.

Thank you.

Do I need to somehow put that up on my computer or can I open my computer here?

I see our staff working diligently to try and help.

I'm not sure what our technical capabilities are.

Okay, I just started the clock so I can keep track as well.

Thank you.

Before I begin, I must set aside some key associations and searches in the evidence packet recently received from Abemarle County that came in recently.

Number one, I never met with the county regarding the possible use of the properties of school.

It was my children, Nathan and Summer, who, having purchased the property with their savings from waitressing and appliance repair, looked into whether zoning would permit a school to be built on the property as their high school had been locked down and they, like others, wanted to support non-shuttered schools.

That was in 2022.

Our family did not act as scofflaws as we operated under the clearly written codes.

We met in advance with the county and VDOT of any activities.

The county and VDOT did act improperly.

The court cases and ordinance were decided in our family's favor on all fronts thus far.

The courts also found that the COSLACs were not properly served notice and the zoning case was dismissed.

We tried to resolve the issues immediately upon realizing that there was a court case afoot.

Unfortunately, the county resorted to just trying to proceed with the default on that and not looking at it as the merits.

We tried to resolve the issues with the county zoning immediately upon

receiving that paperwork late after the 30 days response period had expired, and VDOT both ahead of conflicts and during them.

Both concurred verbally that our family was correct in its position as to the entrance and the mobile agricultural equipment being situated on the property.

I need to point out, and I want, we've been cross-examination a question to be put to Mr. Bart Svoboda as to how early we had talked and showed him images of

the agricultural use on that property and our intentions.

It has taken years to have the courts rule on this at great cost to our children and family.

VDOT made repairs to our damaged property at its expense and certified the driveway as legal.

Albemarle County withdrew its associations of violations or otherwise lost in court.

Number four, in a separate zoning case in July 2023, the BZA board ruled that this mobile equipment is not a structure under county code.

Number five, as was the case ruled on in our favor in January 2024,

where it was dismissed for lack of service, the two children may not have been legally served in this determination and must be served to be a party in this case.

That bears some examination.

in the attached file, which shows none of the two children ever having been addressed with a certified letter.

Only Polo G was served as a registered agent.

The evidence pack intended by the counties does not include a copy of the letters allegedly sent.

Now, that bears some inspection.

There's conflict on that.

It would be insightful if one of the board members asked the county staff the following questions in cross-examination today.

If the cost-like family built this exact equipment themselves on site from scratch, would the county be able to apply the term industrialized building to the wheeled equipment in question?

It would not.

It would be classified as building code exempt for agricultural use as per Exhibit A, which is the state's position on agricultural structures or buildings.

Number two, would the wheeled equipment be exempt from any building code review if used for an agricultural activity such as raising chickens as in a chicken tractor, it would be exempt as per exhibit A. I've included in the handouts commonly used wheeled vehicles, wheeled mobile farm equipment that is fully exempt from the building codes and zoning approvals.

Now I can't pull that up now, but it's on page one, two and three, I believe.

As you can see, they vary in size and use and many are fully 50 feet long or more and pulled by heavy hauling engines.

The Virginia Department of Motor Vehicles defines trailer as per exhibit G in the definition.

A trailer means every vehicle, every vehicle without motive power designed for carrying property or passengers wholly on its own structure for being drawn by a motor vehicle, including manufactured homes, which was the subject of the July, 2003, 23 hearing.

What you see here is equipment clearly fitting the description of a trailer no matter what parts are salvaged from other equipment.

It has been fitted with wheels, axles, lights, and a tow hitch.

Pictures show it legally being driven down the highway by professionals.

Additionally, the mobile equipment came under the BZA review in July 2023.

The county's position on it, defining as a structure, was overturned.

Notwithstanding the entire body of evidence and code interpretation by Albemarle County, their entire position rests on whether wheeled mobile chicken farm equipment on the subject property is or is not industrial building.

Additionally, this type of mobile agriculture has been deemed by the BGA board as not a structure under county ordinances.

As such, it cannot be an industrialized building since it is not defined as a structure.

And you can see in pages two, three, four,

and five of the evidence package and more, six maybe, that there's numerous examples of walls and roofs on wheeled vehicles and they're clearly a separate distinct category.

Let's see, it should be noted that this matter came up previously in July 2023 in the case number AP-2023-0003 wherein numerous pieces of wheeled agriculture equipment were parked on agricultural property were determined by this board not to be a quote structure and not to be quote a manufactured home.

See exhibit C and E. Following is the official vote reversing the determination in which it was three to one

and also they overturned the ordinance relating to structure and manufactured homes.

The Corney failed to appeal the decision within the 30 statutory days after the verdicts and the cost legs were asserting a quote vested interest in the zoning interpretation as to wield mobile farm equipment being disqualified as structures in the county ordinance.

Below are images of the equipment tenored by the county, etc.

that these non-structures are identical to and come from the same operations and were stripped of their salient equipment and the equipment currently on Polar Grounds Road.

And there's some pictures about that.

In testimony given to the BZA board member Carrington, board member Carrington asked the following questions when the zoning department head, Mr. Zoboda, did not read the full definition of manufactured building into the record at approximately minute 55.29, the hearing.

Zoning department head,

Svoboda was asked to actually read the definition of the manufactured building into the record.

Mr. Svoboda stopped short of reading the entire definition and included a clearly disqualifying language.

Board member Mr. Carrington asked Mr. Svoboda, those who please read the rest of the definition, here's the actual exchange.

Mr. Carrington asked Mr. Svoboda.

quote, but you stop short of the section in the middle that defined the definition that says, quote, double quote, and includes plumbing, heating, air conditioner, electrical systems contained in a structure, unquote.

I'm curious as to whether you read the break in the definition that somehow separates the utilities from the definition.

Ultimately, after some, unquote, ultimately after some additional queries pressing the point of legal definition as applied to the wheel of vehicles, Mr. Svoboda said, quote, it could not be defined as a single family home as required under the clear language in the definition.

The prevailing point successfully made here by the BZA board is that the subject equipment did not meet the obvious and complete definition after examination of each word in the full text, as the head of zoning surely knew.

The following insights, as per Virginia's law states the following, courts are required to interpret statutes based on

not, quote, what the statute says, not by what the court thinks it should have said.

Also, the doctrine of judicial restraint dictates that we decide cases on the best and narrowest grounds additionally, and there's a case supporting that.

Your task in statutory interpretation is to, quote, give reasonable effect to each and every word in a statute, end quote.

We will not read a legislative enactment in a manner that renders any portion of the enactment useless.

So it's important that every word is in there.

Here is the definition of industrialized building.

As read before, industrialized building means a combination of one of the more sections or modules, quote, importantly, subject to state regulation and including the necessary electrical, plumbing, heating, ventilation, and other systems, manufactured onsite, et cetera, to comprise the finished building.

That's important.

The first point to be made is that a mobile chicken coop.

And I want to show you that.

that we have abated those issues.

We were given an opportunity to abate.

We surely did.

That it is certainly being used as a chicken coop.

It was outfitted as a chicken coop.

And it has chickens and pigs in it.

The first point in the picture show that.

The first point to be made is that mobile chicken coops are not subject to state regulation.

And therefore, such agricultural equipment does not meet the definition of industrialized building, which must be, quote, subject to state regulation.

And C is exhibit A for agriculture exemptions.

The second port is the board in July asked the same objects to be looked at the same objects moved from the same Chambersburg site to Albemarle County and overturned the position and asserted it was not a structure.

The equipment going on, it says, here's some of the amendments that were made to the salvaged architectural in Chambersburg before it arrived at the site, notwithstanding observations made by the county.

Number one, its roof was removed, and this shows you in the exhibits here,

Its roof was removed making it no longer waterproof from the rain.

That's obviously been seconded by the county.

The plumbing was removed as per photo.

You can see the pecs on the ground cut off and the PVC.

These were not complete buildings.

They were all not set not complete.

You can see a picture of the removal of.

the plumbing system, et cetera, both the water and sewer.

The walls were removed and replaced with plastic and chicken wire where needed.

Okay, you can see several pictures of that.

The HVAC equipment and flex ducts were removed and you can see the receipts from Fowler HVAC and the communications about that.

You can see the receipts for that.

Wheels and extra axles were installed to make them mobile and certified for highway travel.

You can see pictures of that.

You can also see

that additional affidavits from the contractors and workers in exhibit B and F. What we're showing here is it's a subtractive process to take something away from what the definition of industrialized building is notwithstanding what you think it looks like, what it's defined as to make it not fit the definition.

And that was already a vested interest as per the case of July last year.

Given that this board has previously ruled that these are not structured, it follows that quote, there is no structures in the floodplain whether wheeled vehicles are allowed in the floodplain and regularly across the floodplain and also park on polar grounds roads, floodplains thousands of times per week.

Parking is shown here occurring in the floodplain at nearby soccer fields on polar grounds road, both zone RA,

And there's a map showing that.

Additionally, it shows also at Brookhill River Park at the intersection of Highway 29 and Polar Grounds Road.

You see cars parking on that.

It's also in the floodplain.

To be clear, this agriculture has been stripped of water, sewer, HVAC connections, leaving only the open air shell suitable for chickens and animals.

It is not subject to state regulation, and it no longer meets the definition of an industrialized building.

Also, here are some affidavits in my possession in exhibit F. An affidavit of Joe Page, regardless of stripping and transforming of salvage building materials in December of 2024.

I, Joe Page, managed, witnessed, and fired some contractors to transform salvage architectural elements into the mobile agricultural equipment previously located in Chambersburg, PA, and moved to Albemarle County at both Shadwell Road and Polo Grounds Road.

The process took many months and was quite expensive and time consuming.

Activities I participated in were adding and wielding wheels, fames, axles, and tow hitches, removing a roof, and also rainproofing, HVAC ducts, electrical wire, plumbing, infrastructure, insulation, and drywall, among other components.

Truly, it says I can testify that the agricultural modules arrived at the sites in Albemarle County unfit for any use except for agricultural purposes.

It must be noted that Bart Svoboda in the private meetings.

I can't see how much time I've got.

Shut off my phone.

Okay, I got a few minutes.

As you can see here, it's clearly a mobile chicken cart at Polo Grounds Road.

The county gave us time to abate their perceptions and we certainly have.

The delay was caused by VDOT putting a barrier on our property for nearly a year and the county litigating a default judgment from 2022 to 2024 instead of allowing us to move ahead after review of the merit.

the matter of whether such equipment of structure has been settled by the BZA in the case of July 2023.

Now since I only have two minutes I just want to make a few ad hoc mentions okay that there's although the community here has not outreached any of our family in the three years we've been there not a single person is actually

came over.

We did establish a relationship with Christine.

My children baked her bread and offered her maple syrup from our harvest.

We have over 300 acres in agriculture.

We have $50,000 per week coming in for a number of years from our agriculture activities, and we are featured on two pages of the Washington Post for our agriculture activities.

It also, so we actually do know how to take small parts of the land and drive income from there.

I see I have a minute left.

Oh, by the way, in terms, when I first approached Bart Svoboda about this, after getting the notice of determination in 2022, he acknowledged that the abate, the

nuisance that was caused by people looking at these structures.

I said, well, what about the honking?

We've been reaching out to VDOT and the county to try to put a signal at their bridge.

Those honking are clearly a tremendous nuisance that makes the property uninhabitable.

And he said, yes, that is ironic.

No help from any of the neighbors or any of the county to remove that honking incessantly.

And just the Constitution is here to protect individual rights, chief among which are property rights.

There are no collective rights.

I do look forward to making communication with the neighbors, none of which have reached out to us in any way.

We do expect to continue with agricultural use of this property, and we will work with the county to abate these issues to the degree that they survive this challenge today.

It is a legal home site, and we have

And I think that's it.

It's 15 minutes.

I'd like to say more, but I think I'm at 15.

That means you're in your last minute.

I see 14 seconds.

Well, you know, it's unfortunate that so much ill will has engendered here.

It's unfortunate that we're in a community where people don't reach out and talk to each other, where they're easy to find every day.

Things said by other people are not our position.

We very carefully, we very carefully understand the law.

It's very different than the community.

Thank you.

Does the board have any questions for the appellate?

Thank you.

Since we're back in dealing with the actual appeal, we can move back into our public comment portion of the meeting.

So same rules as before, if somebody would like to come up and speak for up to three minutes, I would invite them to do so now.

Obviously, we haven't been signing up for a second time.

So if you'll just raise your hand if you'd like to respond and come address the board for up to three minutes.

As far as reaching out to these individuals, they're never there.

in fact we haven't really seen any kind of activity until this week when all of a sudden these workers started showing up and they were there last night until seven o'clock plus anyway and as far as Christine's comment goes about if you don't like it don't look at it you can't not look at it I mean it's everywhere down there and the other thing about

just this gentleman mentioning that their neighbors haven't reached out to us or anything like that it's there's a reason for that it's it's a terrible sight it's been neglected it's covered in plastic that's flapping all over the place nothing's been done to it so i think that we've you know we've tolerated a lot of this too and i'm not quite sure what that is about the honking of the the horns you know

The bridge has always been like that.

Everyone has this common knowledge that you toot your horn a couple of times and you wait and then you proceed.

It's been like that forever.

And those are just some thoughts that I had.

Thank you for your time.

Again, board members, I'm David Schmidt.

Mr. Kostelak has described putting dilapidated, decrepit, falling apart structures on the property, waiting for almost three years to deconstruct them even further so that they no longer meet his definition of an industrialized building.

What they are are ramshackle shacks.

They may have the appurtenances of a building, but there is no plumbing supply.

There is no electrical supply.

And the animals that are placed in it put the neighborhood at risk for attracting predators like coyotes, which we occasionally hear in the area.

His description of the delay

is really entirely his doing.

He has delayed.

He has asked for deferrals.

He has been granted them.

His statement that the court proceedings were found in his favor is incorrect.

They were simply dismissed and not adjudicated.

So almost everything that Mr. Kostelak has said has been self-serving and incorrect.

He can put wheels on a piece of trash.

It remains a piece of trash.

He can put

animals in a building a week before the end of the third year or thereabouts before this meeting so that he can then claim industrial use.

The idea that that property could have ever been a school is laughable.

Almost everything that he has said has been questionable if not an outright misservice to this board and

Again, disrespect and contempt for the community.

His statement somehow that the rights of the individual always exceed the rights of the community is very questionable.

And given he's flouted so many regulations and put such trash in our face, it really speaks to his true intent.

Letty Bien, B-I-E-N.

So we've heard of all kinds of uses that Mr. Kostelak has noted he would be turning this agricultural area, alleged agricultural area into.

and yet what we're looking at today with regard to the zoning violation is not what it is today because we still don't have a permit, we still don't have any of those things that Ms. Green pointed out and so it doesn't matter what it is today and that in and of itself will be open for discussion and issues as we go forward.

It's what it was for the last two and a half years and what it was on the day of the inspection with regard to its zoning violations.

If you let this go, this would be a terrible precedent for the county.

This has been, this is plain and simple, a significant zoning violation, and I hope you will see it as such.

For seeing so long speaking again, I would just like to say that once all the facts are owed, a good lawyer is gonna have a ball with this case as opposed to the governmental lawyers.

This is terrible legal precedent and it's gonna have to cost lots of money, but the good lawyers are gonna get it.

You've got to look at the law and you've got to follow the law.

Again, Christine Riley.

I'm the neighbor directly across the road from these, I guess they're not buildings.

What are they?

Chicken coops.

I see this place every time I go in and out of my driveway.

There's no one there working on anything.

There have been people there for the last week and I feel really sorry if there actually are chickens in that building because it's going to be in the 20s tonight and they're going to freeze to death unless the coyotes get them first.

He's never applied for a permit.

He's never done anything that he should do.

If he intended to use these for

Any of the three or four purposes that he's given to us over the last three years.

As I said, the first purpose I heard from my son was he told him that he was going to flip these trailers and teach his children about flipping homes.

That was his first intention.

I don't know when we would have seen him there to speak to him.

I just I'm really

He's never followed up on anything legally, even if his intention was.

to have something there.

He's not gone through the permit process.

He's done nothing.

And he's up here again speaking like he is a lawyer, that he knows anything.

So I would suggest to my brethren in the law that maybe we do have a class one misdemeanor going on in the presence of the board today.

He doesn't have a right to be quoting the law and telling anybody here what the law is.

But I'll tell you,

Just in terms of being a neighbor, he's not a good neighbor.

This place is full of trash.

It's full of like decrepit trailers.

And I'll have to, when I go home, maybe I should go check on the chickens.

I'm not sure.

Thank you, Ms. Riley.

Hello.

Catherine Otterbein, Catherine with a C, Otterbein, otter like the animal, B-E-I-N. Mr. Kostelek makes it sound like he's done magic on the mess that's out there.

And maybe he has done something, but bottom line, he's done it all without a permit, correct?

Now, as far as the honking at the tunnel, we don't really have a choice.

The tunnel is owned by the railroad and they're not going to do anything about it.

So you have to honk on either side rather than run into someone.

And someone was involved in an accident there with someone coming through the tunnel without honking several months ago.

So what he's complaining about is something that we have put up with and dealt with for years and years and years.

And I've lived in the area for 24 years.

That's about all I have to say, but if we ever saw somebody there who was friendly, we would have gone up from the neighborhood and asked what was going on and shook a hand and introduced ourselves.

Would anybody else like to speak?

Joseph Noonan, I would just like to make one final comment.

In regards to their children, since they are the legal owner, is that correct?

Is that what I understand?

So no one as far as I'm concerned, and including myself, and like I said, you know, I drive in and out of there twice a day, I run that road.

I have never ever seen either of those two kids at that property and if they're so concerned about the development of it and being a good neighbor you would have thought that they would have gone in they would have cleaned up those tables they would have ripped that plastic down there's there's debris and trash everywhere I mean

a pickup truck and a couple of contractor bags would have gone a long way they really could have done something and no one has ever made that effort so

And when they brought in, when they first put that road in, there was some talk about that.

They brought in unclean fill.

So there were chunks of cinder blocks strewn across Polo Ground Road for a couple of weeks.

I mean, big chunks, chunks big enough so that you'd have to get out of your truck and get them out of the way.

So I'm a contractor, you know, I know the difference between fill.

And when we saw this, I don't know, you get the idea.

Anyway, that's the last thing.

Thank you, Mr. Noonan.

Would anybody else like to speak?

Sure.

Thank you, Chair.

Again, Richard DeLoria with the County Attorney's Office.

When I

started my comments or made my comments earlier.

I tried to narrow the focus of the analysis and the issue in this case, because under county ordinance, it's fairly straightforward.

The zoning administrator, in his notice of determination, he determined two things.

One, that these buildings were unpermitted.

and I drew the attention to County Code Section 18-31.3 which provides that prior to establishing, so before these buildings even made it to the property, they needed, the applicant needed to request a zoning permit and we know that hasn't been done.

So in terms of the zoning administrator's determination, it's based on county law and it's also based on the facts that these buildings are there without a permit.

And I kind of flipped these around because I think the appellants cannot overcome the fact that on August 20th, and that's the zoning administrators, his focus, that on August 20th, these buildings were situated in the flood hazard overlay district, and they're simply not permitted.

and we can talk about future intended uses, modifications that may or may not have happened but as of August 20th, those hypothetical uses or configurations did not exist in looking at the evidence

that Ms. Green presented.

You can look at these buildings.

They check the boxes of industrialized buildings.

They don't have wheels.

They don't have a tongue to pull it.

It's not mobile.

They're sitting on blocks.

They're buildings sitting there just deteriorating at that point for about two and a half, maybe three years.

I captioned one observation was a rose by any other name is a rose.

The Kostelaks have attempted to call these industrialized buildings, farm equipment, agricultural buildings, recreational vehicles, and I guess now it's a chicken coop.

but the fact of the matter is you can call them what you want but when you look at those pictures from August 20th they're industrialized buildings they didn't have a permit to be there and they're prohibited in the flood the flood hazard overlay district and so so in terms of the zoning administrators determinations they're obviously founded and the question is has the applicant

Have they shown by the preponderance of the evidence that the determination was wrong?

That determination is given the presumption of correctness.

And I would suggest to this board that that determination has not been overcome by preponderance of the evidence.

The objective evidence shows industrialized buildings sitting in floodplain.

So I would ask that the board that they affirm the zoning administrator's determination.

Thank you.

Thank you for the opportunity to rebut that.

There's a significant misunderstanding by the community at large about the history of this.

But I would really appreciate an opportunity to continue this discourse with the community after this meeting.

And I implore you to read and listen to the lecture, The Rise and Fall of Property Rights in the 20th Century by Supreme Court Attorney Timothy Sandefur and the Institute of Justice, who's litigating zoning in this nation.

And just so you know, it doesn't really matter how many people, whether the plurality of people are against a position such as property rights.

The wrong side has a long history in this particular county and others of being on the wrong side of history.

We have no black man has any rights that a white man ought to respect.

Albemarle County had the highest slavery rate in Virginia.

also the fertility the government's right to remove fertility from certain unfavorable populations Charlottesville has gifted the Nazis with Buck versus Bell you could read about that case as well so popularity of a cause does not make it right the county took the division

And just to further note, the county has numerous times took the position that a person can advocate for an LLC and has never raised that specter with us in the BZA court.

So we have a number of times, so we were clearly surprised by that today and are off balance for that.

We'll certainly look at that in the appeal, but both in the cases, two cases before Shadwell in terms of the timber harvesting and also for

the cases of about whether buildings are structures or not which we prevailed in that before the BZA and regarding that BZA it wasn't me who determined that these types of buildings are not structures it was the BZA

And just to speak to that a little bit, the state actually the state code allows for the advocate by an individual for an LLC up to a certain dollar amount since the county has not alleged any dollar amount as it did in civil court under the warrant that I do have the right under state law.

What you're witnessing though is a fight between the judicial branch

and the executive branch as to whether a person who's a non lawyer has standing to speak on their behalf.

And I'll let that fight go on for another 20 or 30 years.

But in terms of the state law, I'm correct in being able to advocate for my LLC.

That is the actual state law.

and also I want to note that in the BZA's determination in the Shadwell case that that equipment had no chickens in it so whether or not the chickens rented or not looking to the BZA's decision in our vested entrance it didn't have to have chicken in it the county does allow for an abatement period and we will continue to work with the county and others to

Abate anything that continues to be a nuisance there in the law.

That means to work with them both whether we succeed or fail in this appeal and work through the abatement process.

We did have the right to abate after we got the notice.

The county took the, and I also want to point out that the complaint started right after we began activity and we didn't have chickens or buildings on the property at the time

and early 2022 when we began the children actually were there clearing personally the trees out and to make that a usable lot so they were there then and then it's for 1.5 years until late February, January and February of 2022 it's been in court and additionally VDOT came in and illegally I have the pictures and the evidence there

where we had a legal entrance.

They acknowledged that and ultimately issued a legal entrance permit for us, which we have in the records.

But all the work that we did, including the issue of gravel being contaminated or not, were resolved in our favor.

The county withdrew, which is a assertion of that because it was legally allowed on agricultural property to use recycled concrete from a neighbor on Polar Grounds Road who sold it to us.

You should see from the pictures in the submitted evidence package how perfect the entrance was until VDOT came and for almost a year dug a two-foot hole in there preventing us from going in and doing any work.

I don't think that you're aware of that but we've been in court and dealing with that.

Now VDOT did restore that because they knew to and they're subject to a significant

significant fine for the entrance far outside their 30 foot right of way to self-help and evade the law in terms of making that hole and burying us from entrance.

They bear the brunt of that in the case and they will surely lose that.

I did want to also point out that in terms of their neighbor who mentioned something about cutting the internet, we were unaware that an illegal easement was placed by the CenturyLink on the property where they buried illegally cables on the property without an easement or permission.

And they were

They were broken when we were operating on the property, removing some dangerous elements of hanging trees.

Unfortunately, that was not made known to us until somebody showed up and began digging in the property and they made us aware that there was even cables under the property.

Upon that time, we reached out to the neighbor who shut her doors on us when we were just trying to do a work around.

The cable we let continue having internet to her, even though we were not required to allow that service to continue through her thing.

Thank you, Mr. Koslak.

I'm looking at three key elements, looking at three key elements with this as I'm thinking it through.

One is,

My understanding and my approach to this is that we're here to determine if we think the zoning administrator's determination of August 20th, 2024 was correct.

So I think, so I'm focusing my analysis of this on just what were the conditions on the property at that time.

I am convinced that the buildings on the property meet the definition of industrialized buildings that would require a permit.

And I'm convinced that they're placed in the floodplain, which would also, well, just not permitted, but doing any construction or activity in the floodplain, including parking and all sorts of things.

The uses are very limited, but it requires a permit.

So I'm inclined to uphold the zoning administrator's opinion.

I've got a question here.

So should the board uphold the zoning administrator's determination?

Maybe Ms. Green, you could help answer this, Mr. Herrick.

Again, I'll go back.

Should this board uphold the zoning administrator's determination of what are the options available to the owners?

That timeframe is outlined in the notice of violation, so the enforcement actions are stayed while we go through this hearing, but we will certainly once again reach out to the owners

and, you know, find out their intent.

Ms. Green, just for clarification,

The notice of official determination violation was dated August 26th.

They had 30 days till September 26th to bring the property into compliance that was stayed once the appeal was filed on that same day, right?

The September 26th date.

So help us understand in the wake of that stay, how you go out of this meeting, were the determination to be upheld.

Well, right.

And then we'll get with Mr. DeLoria and I, who's our attorney in the court, we'll get together and determine a strategy.

Thank you.

We talk a lot about definitions and I think those are important as they were the last time Mr. Koslak came before this board.

Mr. Cossack used some of my words in that setting today.

And I just would like to point out that the definitions are very different between an industrialized building and a manufactured home.

So by my read of the code, the structures on site do indeed qualify as industrialized buildings as outlined in the notice of official determination of violation.

And I have nothing further.

I move that we uphold the zoning administrator's determination of August 26th, 2024.

Motion to uphold the zoning administrator's determination has been made and seconded.

Mr. Shepherd?

Aye.

Aye.

The zoning determination dated August 26, 2024 and the subject of AP 2024-05.

And with that, we move on to the next agenda item, which is the approval of minutes from November 12th, 2024.

Are there any comments or edits to those minutes as submitted?

None.

I had none either.

Request a motion to approve.

I make a motion that we approve the minutes from, what's the date on this?

On November 12th.

November 12th, 2024 meeting of the board's zoning appeals.

Motion to approve minutes from November 12th, 2024 has been made and seconded.

Mr. Burkhardt?

Aye.

Mr. Shepherd?

Aye.

Aye.

We can move to old business now.

We have nothing on our agenda.

If anybody has anything they'd like to add under old business, now's the time.

Seeing none, we can move to new business.

I just want to ask about the January meeting coming up.

How does that agenda look?

Yeah, it might be helpful if we could ask staff to give us a picture of that January meeting.

We do.

Bart Svoboda, Zoning Administrator, is the annual organizational meeting, election of officers.

Thank you.

Are we within the time frame for making any requests of the budget regarding the compensation for Mr. Boland?

Yes.

We've always been behind on that.

I would like to get ahead.

Yeah, we are collecting and the departments have been requested to submit information for the budget.

The preliminary numbers have gone in, we have been directed to kind of toe the line.

That being said, I think if the BZA wants to officially ask for an increase there, that that January meeting would be appropriate.

And we can do that by either consensus vote

or Roll Call Vote and include that in our submittal.

And I think during that time we should look at that probably more like at the August timetable, right?

And go over what we get allocated for the budget when we find those numbers out at the close of the fiscal year in June.

So basically at our July or August meeting, we talk about

following budget cycle, which for staff starts in the fall of that year, right?

My concern is that in the past, by the time we have attempted to weigh in on that, we've discovered that the budgeting process is well on the way and it's too late.

Right.

Understood.

Yep.

I already have laid that out to Jodie Filardo, our director, that that is a tentative going to be requests from the board as a whole.

That line item is set for $5,000.

So if we want to increase that, I would suggest an amount if we know what that is.

If it's $5,500 or $6,000, whatever we think that might be if the motion

Thank you.

I don't think there's any reason to wait.

So, I think we could have a consensus vote today to request staff to pursue that request.

I'd like to make the motion that

that we request the zoning administrator in the preparation of the next fiscal year budget to include an additional $1,000 on top of what we have currently approved for our legal counsel and to include that in the

initial presentations at your earliest convenience, whatever time that you're asked to make your presentation to the board of supervisors.

I know various departments come in at different times, but we'd like to be there at the appropriate time.

Is there a second?

I second that.

Motion to request additional $1,000 to the legal counsel budget has been made and seconded.

Thank you.

Thank you.

I have one thing I'd like to request.

We were given an update last month on our request for alternates.

As you can see, we're a little light today.

Had we had a heavier agenda, this was certainly very interesting today.

But I think it's I think it demonstrates the need to have these seats filled.

And I want to ask the

So I'll leave that to you, whether or not you would like to speak with your supervisor or representative.

Fair enough.

Excuse me, I can give you an update on the upcoming vacancy.

So I did talk to the Board of Supervisors Clerk's Office and they will be advertising for the BZA seat that will be vacated by Ms. Joseph and May.

They will be advertising in March.

I understood that that was already live.

I saw that was up and you could apply, so I don't know.

We had spoken about that as well.

I had not seen that it was live.

I had seen that the application is there, but I did not see it specifically for the BZA seat.

Sure.

When I looked at vacancies, there's this page where you can apply and you have the dropdown box and it had border zoning appeals in there.

So I heard last week that it had already been, I guess, put out there for people to apply.

So naturally got my curiosity.

Thank you.

And certainly appreciate Ms. Joseph giving us a heads up so that we can get ahead of that.

And lastly, just before we leave, I failed at the start of the meeting to thank the staff that's here.

Appreciate it.

Add something to that.

I thought the staff report

and the staff presentations, Lisa and Deloria.

I thought it was really good, especially just starting with the staff report.

I don't know how much goes into that, how many heads, how many offices, drafts, I don't know.

It just laid it out like an algebra equation.

Just the questions were posed, answered, posed, answered.

And I just have to say, just sort of on a personal level, and it just feels

I just really appreciated it in light of some of my past experiences dealing with staff reports where most of the job is trying to crack the code and looking stuff up on my own.

I didn't spend a lot of time in the zoning ordinance with this.

It was just the questions I had, the sections of the code were there.

I wasn't chasing that stuff or trying to,

It just kept me on target, focused, and I thought the whole meeting was the same thing.

This meeting could have gone off the rails in a lot of different ways and down the middle.

And I really appreciate that.

Thank you.

I second that.

Motion to adjourn has been made and seconded.

Aye.

Aye.

And at 3.58, we are adjourned.