Albemarle Downzoning by Definition?

By. Neil Williamson, President

In last night’s (8/21) Albemarle County Planning Commission meeting new definitions language was added to an ordinance that could have a chilling effect on the development of the development area (and the balance of the county).

This definitional modification, which was not mentioned by staff but was brought to light by an alert citizen, was proposed as follows:

Density, gross: The theoretical maximum number of dwelling units allowed per acre within a zoning district
before complying with all applicable regulations pertaining to critical slopes, stream buffers, flood plains,
minimum yards, maximum structure height, and other regulations affecting the development of a site.

Density permitted by right: The maximum number of dwelling units allowed per acre within a zoning district upon complying with all applicable regulations pertaining to critical slopes, stream buffers, flood plains, minimum yards, maximum structure height, and other regulations pertaining to the development of a site.

Now I am not an attorney and I may not completely understand this concept but it is clear this is a MAJOR SHIFT in County Policy – and it only gets a footnote in the marked up version of the ordinance.

The rationale for including this revised definition is a still unpublished Virginia Supreme Court Decision that indicated the town of Occoquan “could not require a special exception to disturb critical slopes for residential development to achieve the density permitted by right.  The definitions clarifying that the “density permitted by right” under the County’s zoning ordinance is the density achieved after complying with all of the other regulations pertaining to development”.

How is this not a down zoning?

When staff was questioned about the impacts on by right development and it was suggested this would reduce the number of by right units in the development area.  Albemarle County Planning Director Wayne Cilimberg indicated this was not the intent of the language.

Wait a minute, let’s look at a conventional, by-right development in the development as an example.

A ten acre parcel in the development area that is zone R-4 (4 units an acre) Gross density= 10 x 4 = 40.

If three acres are in critical slopes the new “density permitted by right” is (10-3) x 4 = 28.

Net density lost = 12 units.

Now the planners suggest you can request your “lost” density be returned  along with the critical slopes exception application.  But in order to enforce the concept of “critical slopes” your by right density must be reduced.

So, if enacted, the ordinance will make landowners petition government for theoretical development rights that they have today.

The proposed new definitions are nothing short of a regulatory taking of property rights.

The Free Enterprise Forum believes rather than twisting their ordinances to permit regulating “critical” slopes, Albemarle County should eliminate critical slopes in the development area from any restrictions, other than those directly related to a stream bed.  This would mitigate the largest number of slopes and truly protect those slopes that most greatly contribute to the health of the community’s streams and waterways.

We encourage the Albemarle County Planning Commission to consider this alternative track when the Zoning Text Amendment is again heard in October.

If the ordinance as written is  enacted, the Free Enterprise Forum anticipates Albemarle’s County Attorney’s office will be preparing much more than a mere footnote to defend this aggressive regulatory reduction of property rights.

Respectfully Submitted,

Neil Williamson

20070731williamson

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.

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