Board of Zoning Appeals (BZA) Meeting   2/4/2025

Ms. Joseph.

Marsha Joseph, here I am.

Could we have a nomination for the chair?

I'd like to make that motion, please.

Ms. Alley, would you call the roll?

Mr. Burkhardt?

Aye.

Mr. Carrington?

Thank you.

Thank you very much.

So moved.

Second.

Sally, would you please call the roll?

Mr. Burkhardt?

Aye.

Mr. Rosenberg?

Aye.

Mr. Carrington?

And then the appellant can take a 15-minute time to present to the board as well.

So this then leads to our recommendation, which is, again, in the staff report.

Thank you.

and I'm here for any questions as is our county attorney if you so need to ask any particular clarifying questions from him.

Any questions from the board for Mr. McCall or Mr. Herrick for that matter?

Is that correct?

That's correct.

Okay.

It's the minimum area for a lot in the rural area.

I didn't...

It's rural areas, the RA.

What was the rationale for two acres in that minimum size?

Definitely wasn't around when in 1980 when the ordinance was adopted but I believe that that minimum acreage was carried over from the some of the earlier the 79 ordinance 74 somewhere in that range I don't know the exact history but minimum two acres has been a minimum lot size for a considerable amount of time

December 10th, 1980.

That's the current ordinance, the date it was adopted.

However, that's when it was, it's been around for a very long time.

Could you give some idea of what you think the justification for two acres as opposed to one acre as opposed to any other size?

It's actually late 70s when this was actually adopted.

Usually when we have an area requirement, I think that there's some justification based on density, proximity of structures next to each other or something, some rationale like that.

So evaluating that over that space, I don't know if that was done in the late 70s.

That's what you're telling me.

It was an amazing thing.

Has the development of the rural area in this area, and I couldn't tell from the pictures you were showing, has it developed that way with no subdivisions of greater density than two acre minimums, or has the ordinance been carried out exactly as it was designed in 1980?

There were a lot of smaller, pre-existing lots that you do see on the map.

And you're saying there are just a few houses on these two acre parcels?

And then, okay.

Do you know of any lot ever that's been created with less than two acres in the rural areas since December 10th, 1980?

There may be other variances that had been granted, but I did not do that research to know all of the history of Albemarle County when it came to variances for minimum lot size reductions.

So from 1994 to 2009, it never happened.

I know that from- Yeah, and I'm not aware that my time approving subdivisions in the rural areas, that that also has never happened.

I would not disagree with anything Mr.

Bowling has stated.

Yeah I just want to get bogged down in the intention of the old code and I want to refocus our board on the strict criteria in front of us so any more questions for staff?

I mean, I know that precedents can't be set because every variance is different, but I was wondering if you could address that.

And in order to have a house and space, all those things appropriately, that's where the two acre size comes from, kind of ballpark.

How would that person proceed?

right right so so in order to reduce lot sizes normally you do rezoning rezonings are done in accordance with the comp plan right right we don't have within our rural area category of the comp plan right especially in this spot and particularly in this spot a designation for more density so it doesn't align with the growth plan for the camp

It's a legislative change.

the option to go through to get the smaller lot.

Correct, and if it were rezoned R1, which is what you've been talking about, would that be permissible for a subdivision plat?

Same thing as if I was zoned R1, I'd have to rezone R2 if I want.

So that would be the methodology you'd have to use if everything were left in place, the regulation in this category and the minimum lot size.

So I think we may be doing a disservice to this applicant by even having this discussion.

Not for me.

It's my assumption that you can't.

Okay, thanks.

Open it up for 15 minutes.

I'm not used to standing in front of government organizations, so.

Sally, is the microphone on?

It is on.

OK. OK, thank you.

No, that's good right there.

Sorry.

Yes sir.

accomplishing what you're attempting to do here with an easement rather than creating this smaller lot.

Not a lawyer?

Is that feasible?

I think you'll be enlightened.

So it's not anything that somebody doesn't see, but it can be drawn on there and then defined what can happen within that space.

Thank you.

Any other questions for Mr. Lynn?

I wondered why you drew the line where you did.

That second mark looking back in the middle of the field is where the septic tank is.

The left-hand side arrow or the right?

The right-hand side.

Right, okay.

And I kept that line 20 feet all the time.

And I guess I'm wondering why the line has to be where you've drawn it.

And that view through there is what I'm trying to keep.

Well, maybe I'm just not understanding.

And that's what you're saying.

No, I'm saying to you to contact somebody who will consult with a reasonably competent realtor.

This is okay.

And I haven't, you know, it's a question.

Any other questions for Mr. Lynn?

A two-acre parcel would be 120 feet deeper than this line.

That's the distance between those arrows that you see there.

It's right on the state road.

Correct.

But you own both parcels on both sides, correct, on the public road?

If I went down to my other piece of property and take an old acreage down there to give me two acres, they wouldn't let me do it.

Not allowed.

I can't do it off the subdivision.

Okay, well, that's not a question for this board to answer anyway.

That's why I'm here.

Okay.

Because I already know where the fence line would be.

Thank you, Mr. Lynn.

Thank you for your time.

And I'll just remind the board that the way we try to do this is to roll right through the staff's rebuttal time right into the applicant's time with no questions in between.

Mr. McCall, do you have anything to add?

No.

Thank you.

OK, Mr. Lennon does not need that extra time, so I can open it up to board discussion.

I just, I just, I can't support this way of doing what you want to do.

Any other discussion?

So for those three reasons, plus the definition, that's the basis of my vision here.

Thank you, Mr. Shepherd.

Thank you, Mr. Burkhart.

Thank you, Mr. Rosenberg.

Mr. McCall, would you maybe put up a?

Thank you.

Any motions?

I move to deny the variance application VA 2024-00003 654 Clark's Track lot for the reasons stated in the staff report and in the discussion.

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

Mr. Carrington?

So I can open it up for discussion of the existing rules of procedure.

Mr. Chairman, I have four that I'd like to propose, but we'll obviously take those one at a time if that's agreeable with you.

This is in our, just for the board members, this is in our packet, starts on page three, the current rules of procedure.

While this process may take a few extra minutes of time every meeting, by doing so, we are assured that whatever has been provided to each of us in our deliberation is truthful.

So are you saying that Mr. Lin should have, that Mr. Carrington should have administered an oath to Mr. Lin and asked him, is that what you're saying?

No, because it's not in our rules and procedures, I'm simply proposing that.

No, but that's what you're saying, that you want to happen.

Yes.

You want an attorney to do that too?

That's what you want.

Zero, but it makes me nervous to have to do it every time.

I think so too with those that come before this board need to do so in a matter that is taken most seriously rather than just opinionated because we're affecting people's property and potential livelihood and other things.

I think it's more about the practice of actually doing what the authority we already have to do.

I haven't sold out one of these in a long time.

Where?

So that's just a variance application.

So is it anywhere on here that says?

Yes, it's on page 25 at the very bottom.

Okay.

Do you feel confident that the authority of the chair to administer us and compel attendance of witnesses exists in our current rules of procedure?

I think you could do it on individual cases if that's what you feel is necessary because the chair has latitude in determining how the meetings to be run but

And even more so, maybe 1A that Mr. Burkhart pointed us to ends with, on any application or appeal, the chair may administer oaths and compel the attendance of witnesses.

it's very unlikely that that's going to lead to a perjury charge that's prosecuted by the local commonwealth's attorney's office because if for nothing else they have enough problems just dealing with the testimony they hear in court which is under oath.

Do we have subpoena power?

Some quasi-administrative bodies do have some people.

And I think that's where this board's rules and procedures come from.

So you can compel witnesses to attend if you think that's appropriate.

And I could see an argument like that being raised in some very controversial case we can't imagine today.

My question would be, if we do have the power to issue subpoenas, is that something that we would do in closed session?

And I've never seen it done, but.

It was brought up, yep.

bodies, but I would say it's seldom used and never been used in my experience.

Mr. Chairman, based on the discussion, I'll withdraw that proposal.

It sounds like you might have some other ones.

And then the link would take it to the Albemarle County YouTube page of these meetings.

Even though, of course, those folks are working hard behind the scenes.

Yes, John.

staff reporter and rather than Beth Goldman you'd say the transcriber or you know

Are we able to put this up on the screen, our current rules of procedure?

The packet page three doesn't have any names.

There aren't any names in the current bylaws.

But I'm saying in the recording secretary.

Excuse me, Mr. Chairman.

But I think he's referencing the last page of the minutes, which is actually packet page 55.

Everybody comfortable with that?

I like the idea.

I just don't think it's a rules of procedure add.

And I think that that would be something that would only take a couple of minutes to ask each board member, has anybody had any ex parte communications relative to matters before the board?

But every, you know, every meeting having a swear, a swearing contest that none of us talk to anybody, you know, I think that that is probably unnecessary as long as we understand our roles.

What I want to ask you is if the case has already been heard, a decision has been made, everything that's happened here is public knowledge at that point, what is your feeling about talking to a board member after a decision has been made?

And our chair probably knows better about that.

Do you concur, Mr. Shepherd?

Like participate in the conversation, but I was there and you know, yes.

Nobody knows what they're talking about except those two people.

Am I making sense, Mr. Burkhart?

Sure.

So you must have a duty to do so on and on and on.

Any further discussion?

while we're on that point, if anybody does have any inadvertent discussion with anybody from the zoning staff, then they should notify the staff and the other members immediately so that the other side can be informed of that contact and the nature of it before the actual meeting in which a decision is made.

So that part I found very clear with direction from staff.

yeah and as soon as you ask about something i turn around and walk away well no you're just having to do with the work that we're doing yeah just say i can't discuss that but you can say hello and yes how are you doing and uh what'd you think about this or that it doesn't relate to what the zoning matters i like your car

I want to give Mr. Rosenberg, seeing the clock, a chance to just suggest any sort of amendments or otherwise.

I mean, maybe this is just going too far afield to, you know, to the staff, but also to make it known to the applicant who, or does that just, counsel, do you think that just is, you're asking for trouble to do that?

And the same applies to, I think everybody understands.

Or would they ask you that question?

So it would be available to the board at the hearing.

and it's looking backwards kind of questions for precedent or for practices.

OK.

Thank you.

Mr. Rosenberg is stepping out at 3.20.

I have one more and maybe I'll get a home run on this one.

Bowling's was centered on procedure, but how do you feel about current status of the discussion?

Understood, I think that's.

It did have to do with the BZA, not necessarily with the outcome of whatever it was that we were hearing, but the fact that we do have a relationship with the Board of Supervisors, and we kind of wonder what happened to the letter we wrote to them.

Why don't we let you jump to your fourth rules of procedure point?

that the appellant has, there's some guidance on what they can do.

You got it.

Correct.

But it's not been stated to the appellant.

There's a motion for a rehearing, and then there's a nice little swatch with that.

You proposed it placed in D, correct?

With tie votes.

Where it says tie votes.

So maybe it would be appropriate to put it up in A one and two or somewhere else, maybe K like Mr. Shepherd.

And then I would recommend you just follow the statutory language when you do that.

Bowling, do you have an opinion of whether we would tack that onto A one or two or create a new bullet?

Although Mr. Shepherd, that's not to say your point's not right.

So if I'm looking at tie votes, that's where I want to find it instead of reading through something else.

So might the language say something about in the event that the tie vote is?

Well, no, you just follow the statutory language exactly.

Yes.

When there's not a full house of the BCA members present.

Or an abstention or something else.

You haven't read it?

Yeah.

Why don't you read it if you're sure, Kurt.

That's what I suggested.

And you just add that as a second sentence under tie vote if that's what the board wants to do.

D as in Delta, two, five, D. Okay.

I got one.

Got to have a vote.

We'll adopt it next meeting.

that there needs to be language in there that- Excuse me, where are you now?

This right here on the- Oh, this is not- The second page of the agenda.

I think it'd be helpful to be able to have a line in here that would mirror something similar to what we've just discussed as far as how a tie vote will be treated.

I mean, because that has nothing to do there with tie votes.

Thank you.

So it's something that maybe it's our responsibility and doesn't necessarily have to be in print.

but maybe we can have some asterisk or disclaimer or point them to a certain section.

But- Can't you just reference what we just went over?

State code that provides this.

I mean- Just ask Mr.

Reference your rules of procedure.

Exactly.

You were talking about advising the applicant of his rights to request an appeal.

Well, yes, I was, because I think we should tell them.

or appeal language in the letter?

I believe that's the case, but.

I think it's the first three or four words in that sentence.

Yeah, I was comfortable adding it to the general tie vote provision just because it does start with in the case of an appeal, but I'm tracking with you.

pursue other options in the courts, perhaps, instead of saying, I'd like to have this rescheduled to the next meeting to have it re-heard when, because that's what this allows for, the next re-scheduled meeting.

It's carried over, the public hearing has been held and closed.

At that point, the statute, John, you want to read it again?

taken pursuant to this section, if the board's attempt to reach a decision results in a tie vote, the matter may be carried over until the next scheduled meeting at the request of the person filing the appeal.

but the procedurally due process has been followed up to that point.

I'm missing your argument.

Well, that's what I'd have to let you and the two attorneys.

I mean, one argument says, well, you just give him, I don't know how you do it, but I would just say, have another public hearing.

Bowling does, which is just follow the state statute but be clear if you decide to give this type of guidance either in writing in your minutes or in your bylaws or rules and procedures or on any form that it's strictly for appeals.

Right, and that's why I just leave it in the rules or procedure and call it a day.

What are the expectations for the appellant at that next meeting in terms of actions by the board?

And that person went ahead and appealed anyhow to the circuit court.

So maybe we can move forward to any other rules and procedures changes that

You want to switch that to just the statute from- No, I don't think so.

I can't hurt either.

Redundancy on something like that I don't think is bad.

So we will provide a revised rules, rules and procedures for whatever the next meeting is so that we can advertise.

That was going to be me.

Okay.

I think the current rules are still in force and that we can move on to our next agenda item, which is reviewing and adopting.

At the next meeting.

You're going to adopt it at the next meeting.

Correct.

That makes sense.

It all written down.

I'll find it in a second.

March 3rd to March 31st and not in April.

Ms. Joseph, the column on the far right hand is our meeting date.

Nevermind.

I think it's generally just the first Tuesday of every month.

You can take submissions anytime you want.

Except for the one in bold, which is a Wednesday, November.

Is there any consideration there?

What is a holiday week?

I have to come on holiday week.

I thought that was a day.

Well, it could have people on vacation that week.

What about Christmas to me, clums day?

I don't know if anybody else does.

If you're fine with it, that's fine.

I would propose that we don't change those meeting dates so we just have them if we have an item and I'll either participate remotely or not participate.

The vice chair would have to run the meeting in person

I think it's already scripted for us.

It could be the same rules, same words.

We'll just see what we have on our potential agenda on those dates and move forward accordingly if y'all are okay with that.

Hope you have a good time.

I move we adopt the meeting schedule for this year, 2025.

I'll second.

Ms. Alley, would you please call the roll?

Mr. Burkhart?

Aye.

Mr. Carrington?

If anybody has any changes they'd like to make, please speak up now.

Oh, I have one for the people present on page one, Bridget DeLoria.

Thank you.

Any other changes you'd like to make?

All right, hearing no more changes, do I have a motion to approve the meeting minutes from December 3rd, 2024 with the addition that Mr. Shepherd just made, which is adding Mr. DeLoria to item number two?

Richard DeLoria?

He's up at the top of the page, but he's not listed under the also present.

It just seems like all the other staff, as Andy Herrick has mentioned, James Bowling, lots of staff.

It may simply not be included because they didn't state his name.

Do I have a motion?

I move that we approve the minutes of December 3rd, 2024 with the addition of Richard DeLoria's name on page one.

Is there a second?

Second.

Hearing a motion and a second, Ms. Alley, would you please call the roll for the approval of minutes with Mr. Shepherd's change from December 3rd, 2024?

Mr. Burkhart?

Aye.

Mr. Shepherd?

Aye.

Mr. Carrington?

Does any board member have an old business item?

It'll be quick.

Go ahead.

You're not looking too pleased.

Is there any other old business that we need to take care of right now?

So how that all pans out, I'll let you know.

say say that again so the board did approve it and you you have turned it over so we we have um alerted them miss jess if are you talking about the the alternate yes so miss jess was talking about the alternate i think mr spud is talking about the process to replace process to turn me over to the court saying she's not coming back yeah oh yeah so we'll have to look into whatever that procedure is to undo that or

How's that?

Okay, interesting.

You might have to apply again.

I don't think so.

Third name in the hat.

Mr. Burkhart, do you have another old business item?

Do you know that supervisors have read it?

It was sent through email and we got confirmation of receipt but it sounds like maybe not all of the board members received it or at least they don't remember it too.

Correct.

I don't know anything off the cuff that we can do to try and, squeaky wheel, but.

Well, I have a suggestion on March 26th, the chair could certainly go before the board during public comment and introduce who you are and what the BCA is about and the critical need to be able to have five seated board members at each one of these meetings.

I looked it up, but I hesitate telling you what month I think it was.

So I'm happy to be the one to go to the board in public comment or otherwise on our behalf, if that's what we think we should do.

So if that isn't usurping your power, I would be happy to.

We can discuss that.

Okay well let's talk about it because I just think that they need to know that this just wasn't something that popped into somebody's head is that we really did have discussions on it for several sessions and did some research and ask questions that the whole BZA thought were important pertinent questions to ask other BZAs in the state.

So that might be like two lines on the budget, not just one.

or would you be willing to?

So we were charged with no increases in our proposal.

their quest was still conveyed or communicated somehow in violation of toeing the line.

So depending on how we have to work with the budget, there's different ways to kind of get to where we want to go if we get approval for that additional part-time person.

I just have to think that if the department was behind it, it would be perhaps possible to make a small adjustment within the gigantic budget to find $1,000.

I appreciate that.

Bowling works for free, which we don't want to ask him to do, or the BZA goes without counsel, which we don't really want to do either.

Thanks for doing off the cuff, especially.

Can y'all give us a sense of what we may have coming down in terms of next meetings?

It would be later beyond that.

We won't hold you to it, but that's helpful.

But yeah, we'll keep you posted.

OK.

We've come to the end of our agenda.

Do we know where that is in the courts at this point?

I do not.

Mr. Herrick, do you know?

It's pending before the court right now and the appellant has not yet requested a court date, so it's pending.

Okay, thank you.

The Kostelac.

Okay.

He's filed an appeal?

So an appeal has been filed with the circuit court.

OK, thank you.

Do I have a second?

Second.

Ms. Alley, would you please call the roll?

Mr. Burkhardt?

Aye.

Mr. Carrington?

We are adjourned.