By. Neil Williamson, President
Tuesday evening (5/10), the City of Charlottesville Planning Commission will hold a public hearing regarding their proposed amendment to the current critical slopes ordinance. This joint public hearuing with the City Council may be the last opportunity for members of the public to speak, on the record, about the proposed zoning text amendment.
The reality is that much if not most of the environmental protection intent of the proposed critical slopes ordinance is already covered under current regulations. What is not covered is the hidden intent of the ordinance which is to prevent further density to occur in the City.
Erosion and Sediment Control plan regulations exist for all construction in the city. In addition, Virginia’s Department of Conservation and Recreation require a Storm Water Pollution Prevention Plan for effectively all new developments disturbing earth.
Project engineers are also required to follow Minimum Standard 19 (MS-19) regarding runoff from a site.
Properties and receiving waterways downstream of any land development project shall be protected from sediment deposition, erosion, and damage due to increases in volume, velocity, and peak flow rate of storm water runoff . . .
DCR inspections of a site are the rule rather than the exception. To be clear DCR clearly declares its legal jurisdiction over such matters this way:
The Virginia Department of Conservation and Recreation (Department) is responsible for the successful implementation and enforcement of Virginia’s Stormwater Management (SWM) Regulations (4VAC3-20-81) and the Erosion and Sediment Control (ESC) Regulations (4VAC50-30-40.19).
Since the beginning of this process, the Free Enterprise Forum has been raising questions regarding the need for a “critical” slopes ordinance in a city of 10 square miles. Back in March 2010 a staff report highlighted:
Staff has uncovered no evidence that any other city in Virginia with a population over 20,000 has a steep slope ordinance.
According to the minutes (and my recollection of the March 2010 meeting) Chairman Jason Pearson asked a very telling question:
Mr. Pearson was not sure their intent was to protect critical slopes. He thought it was possible they were protecting critical slopes only to achieve some other objectives such as water quality objectives and that critical slopes, in and of themselves, have no inherent value to the city.
If the goals are to protect the contributions of critical slopes to the environment, the City has already indicated such solutions can, in most cases, be engineered.
But if the environmental contribution is not what is being protected – what is?
While the City’s Comprehensive Plan goes to great lengths to discuss increased density as the way of the future, one prominent City resident is searching for an aesthetics metric. Writing a question to the online community of planners, then Charlottesville Planning Commissioner Bill Emory asked:
“When we replace green infrastructure with bricks and mortar, how can we quantify the value of what is lost?”
Internal to this question is something the community has lost. But the community never really had ownership of this asset. If there is a property of value that the City does not wish to see used to the highest and best use, the City should buy it. To continue to enact further restrictive land use policies to make sites indivisible is in direct opposition to the stated goals of the City’s Comprehensive Plan.
Further the ordinance is filled with subjectivity that has no business being a part of a legislative document. Much of the concern about this proposal revolves around the ambiguity of the waiver provisions and a clear presumptive denial of most waivers by the current Planning Commission.
Under section (6) Modification or Waiver:
The planning commission may grant a modification or waiver, upon making a finding that a waiver would serve a public purpose of greater import than would be served by a strict application of the requirements of these critical slopes provisions.
Any waiver should be based exclusively on a public purpose specifically identified in the Comprehensive Plan.
A waiver shall only be granted if the alternatives proposed by the developer are more likely to satisfy the purposes and intent of these critical slope provisions than leaving the slope undisturbed.
Then the ordinance turns on itself raising the potentiality that sound engineering practices could mitigate, or even improve the environmental conditions on a site:
No modification or waiver granted by the commission shall be detrimental to the public health, safety or welfare, detrimental to the orderly development of the area or adjacent properties, or contrary to sound engineering practices [highlighting added- nw]
In April, staff provided the Commission with a list of 23 waiver applications that were reviewed under the current ordinance over the last 5 years or so. Of those 23, the Planning Commission unanimously decided in their work session that 6 of those were “trivial” and should never have had to come before the PC. They also decided that an additional 3 may have been trivial, but they were not unanimous on those 3. They decided that the other 14 should be classified as critical and should definitely be subject to the new ordinance and need a waiver.
The proposed new ordinance would exempt only 4 of the projects on that list… maybe. The remaining 19 would require a waiver. And the 4 that might be exempt are not guaranteed to be exempt because they can be called critical and swept back under the ordinance if they contain “significant and unique natural or topographic features”. Any group of highly intelligent and educated people is likely to disagree about what constitutes a “unique natural feature.”
The Free Enterprise Forum believes nearly all natural features are unique for one valid reason or another. That phrase is very troubling.
Since the new ordinance doesn’t actually exempt any slopes that previously required a waiver, the rest of the ordinance changes are even more troubling.
If the stated intent is for this new ordinance to provide a mechanism to administratively exempt many slopes, but make it much harder, if not impossible, for the slopes that aren’t exempted to get a waiver. It is clear based on their waiver review exercise above, this ordinance fails.
However, however if the intention of the new ordinance is to gain significant new power over privately held property, perhaps usurping state powers, than the ordinance succeeds.
The issue reminds me of writer/philosopher Edward Dahlberg who famously stated:
The ancients understood the regulation of power better than the regulation of liberty.
In Charlottesville, they could learn a great deal from “The ancients”
Neil Williamson is the President of The Free Enterprise Forum, a privately funded public policy organization covering the City of Charlottesville as well as Albemarle, Greene, Fluvanna, Louisa and Nelson County. For more information visit the website www.freeenterpriseforum.org