Tag Archives: property rights

Double Standard Allows Albemarle To Flex Power Over Property Rights

By. Neil Williamson, President

Last week, without so much as a public input session – Albemarle County’s Board of Supervisors empowered themselves to stomp on property rights – make repairs or even demolish homes they  determine to be “blighted”.

All of this is perfectly legal, but that doesn’t make it right – and the public has no idea it is going on – there have been no community meetings or outreach efforts.

Please let me explain.

From the staff report:

Virginia Code § 36-49.1:1 enables localities to identify and remedy “spot blight.” Virginia Code § 36-3 defines “blighted property” as:
“[A]ny individual commercial, industrial, or residential structure or improvement that endangers the public’s health , safety, or welfare because the structure or improvement upon the property is dilapidated, deteriorated, or violates minimum health or safety standards, or any structure or improvement previously designated as blighted pursuant to § 36-49.1:1, under the process for determination of ‘spot blight.’”

This enabling authority authorizes a locality’s chief executive (or designee) to determine that a property is blighted, and require the owner to develop an abatement plan within 30 days. If the owner fails to respond within 30 days with an acceptable abatement plan, the chief executive may request that the Board adopt a specific uncodified ordinance declaring the property as blighted.

Once the owner has been provided written notice of the ordinance and the locality’s abatement plan, the locality may carry out the approved plan to repair or acquire and dispose of the property. If the ordinance is adopted by the Board, the locality shall have a lien on the property to recover its costs of repairing or acquiring property under an approved spot blight abatement plan. Emphasis Added – nw

spot blight flyerThe Free Enterprise Forum was made aware of several instances of so called “blighted properties” in Albemarle County (image left). 

Despite photos showing trees growing through homes, we remain very concerned at the potential abuse of this “blight” provision.  

But even more astounding than the trampling of landowners’ property rights, is the lack of public engagement by the Board.  If a commercial property owner wants to make a change in their site plan (move a bus stop, etc.) – it requires a vast series of public meetings.

Albemarle prides itself on their high level of citizen engagement required for development applications (see flow chart below).  We have raised concerns that these meetings are no more than political cover for the elected officials.

Albemarle SP_Review_Process_Flowchart.pdf

Community meetings, Community Council meetings, public hears at both the Planning Commission and Board of Supervisors are all part of the development review process.

The stated goal of this process is to provide citizens the opportunity to know about proposed changes in their community that may impact their property.

Why was this process not followed for the blight discussion?

Could it be that the Supervisors only use the “community process” when it conveniently slows the process?

If the Supervisors find this whole public engagement thing too inconvenient for their “important” issues, well that clearly is Albemarle’s double standard.

Respectfully Submitted,

Neil Williamson, President

Neil Williamson is the President of The Free Enterprise Forum, a 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

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Albemarle’s Natural Resources Chapter Rewrite – More Planners, Less Property Rights

Albemarle County has been rewriting their state mandated Comprehensive Plan for over four years.  The Free Enterprise Forum has been an active participant in these conversations.  With the plan now headed to its final public hearing on June 10, we will provide our chapter by chapter review over the next two weeks culminating with our overall analysis prior to the public hearing. 

Today – Chapter 4 Natural Resources

By. Neil Williamson, President

Perhaps no other chapter in the Comprehensive Plan has seen more changes made by the Board of Supervisors than the Natural Resources Chapter.

Even the Goal of the Natural Resources chapter has been altered.

The Planning Commission recommended:

Albemarle’s streams, rivers, and air will be clean.  Rural Area mountains, woodlands, and wetlands will provide large areas of habitat for diversity of flora and fauna.

The newly revised goal is much more expansive and interventionist in its tone:

Albemarle’s ecosystems and natural resources will be thoughtfully protected and managed in both the Rural and Development Areas to safeguard the quality of life of current and future generations.

If there was any question the direction the Chapter is headed, the BOS rewritten chapter declares

Natural resource protection is the County’s highest priority.

Really?? 

Natural Resource Protection is the Highest Priority? 

Over the safety and protection of your citizens? 

Over the education of the children where you currently dedicate 60% of your budget?

The Free Enterprise Forum believes this is philosophical hyperbole and is not supported by the facts (or four supervisors), we hope such inflammatory and incorrect language will be removed from the plan.

The Planner’s Plan Part I – We find it curious when a major strategy for a plan is to do another plan.  This phenomena occurs in multiple places throughout Albemarle’s Comprehensive Plan:

Strategy 1c: Develop and implement a comprehensive water resources plan that sets expectations for public water supply, surface water protection and improvement, and groundwater protection.

Many if these elements will be already completed as a part of the state-mandated TMDL Action Plans, why would Albemarle seek to go significantly further than required?  Perhaps they are seeking to justify/spend a new “rain tax” similar to the City of Charlottesville

Strategy 1e: Secure funding for water resource management programs

Funding for water resource management programs is essential to their success.  At present the County is considering a stormwater utility fee to help pay for the higher level of environmental protection required by the State.

This document is building the case for expanded water resource protections (often at the cost of property rights) beyond the State requirements.  To be opposed to this straw man philosophy suggests you are opposed to clean water.  Nothing could be further from the truth. 

The Free Enterprise Forum sees the ever expanding Natural Resources Chapter as symptomatic of the current Board’s direction to control more and more landowner activity.  We believe securing such funding is critical to the expansion of government.

The Planner’s Plan Part II – Strategy 4a calls for an “Action Plan for Biodiversity” which we see as a property owner rights reduction plan.

The action plan can be developed from the inventory and analysis.  The plan should contain the map of important landscape features and individual species occurrences that can be included in the County’s Geographic Information System.  When made widely available, County staff and the public can use the information for conservation purposes as well as reviewing requests for legislative approvals. … From that action plan, the Natural Heritage Committee can develop a list of short term conservation targets.

Where are the property owners’ rights in the unelected Natural Heritage Committee’s hit list? 

The curious reader might be asking how will this work be accomplished?  Not to worry, the plan calls for an expansion of government into conservation biology:

Strategy 4d: Asses the need for hiring a County staff member with expertise in conservation biology, and/or training existing County staff in the principles of conservation biology to assist in the development of the action plan and coordination with other County actions.

Mountain Protection – Almost a decade ago, Albemarle County went through a very emotional and divisive process regarding a propose Mountain Protection Ordinance. Rather than letting this be settled, the Comprehensive Plan revives this property rights trampling zombie of an idea.

One of the complaints about the direction of the county at that time was the lack of respect for private property owners, whose stewardship created the beautiful mountain vistas.  This lack of recognition is clear in the preamble of Objective 5: Retain Mountain Resources

Albemarle County’s mountains are the source of important natural functions, such as providing clean water, contributions of healthy air, and habitats for many of the County’s plant and animal species.  The mountains are also the source of many agricultural and forest products and add to the County’s appeal to tourists.  To many residents, the mountains give the County its “sense of place in the State and country.”

Nowhere in the above statement does it speak to the private ownership of the lands being discussed.  It only gleamingly mentions the agricultural and forest uses of the land that have kept the land economically sustainable for generations.

Further evidence of Albemarle’s anti-property rights campaign can be found buried on page 4.37 of the Natural Resources Chapter.  This concept that could significantly reduce the development potential of the majority of the parcels in the county. Interestingly it is not its own strategy or objective just a third paragraph under strategy 7a.

The second step is to prevent building in these areas.  County regulations already require that buildings be located away from streams and rivers.  Expanding those requirements to areas near intermittent streams and the mouths of mountain streams can help prevent debris flow impacts.

To understand the impact of this concept one must understand that an intermittent stream can be defined as A stream that flows seasonally when the water table is high, such as during and after periods of heavy or steady rain.  This means the swale that runs behind my house is an intermittent stream. 

The Natural Resources Chapter as rewritten by the Albemarle County Board of Supervisors is much more a planner employment act that seeks to limit private property property rights than it is about ecosystems development and preservation.

Respectfully Submitted,

Neil Williamson, President

NEXT – THE LOUISIANA “OVERLAY DISTRICT” – A JEFFERSONIAN APPROACH TO PROPERTY RIGHTS?

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20070731williamson Neil Williamson is the President of The Free Enterprise Forum, a 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

 

Greene Tennis Courts Face Opposition

By. Brent Wilson, Field Officer

The request for a Special Use Permit (SUP) for a tennis facility in Greene County easily got approved by the Planning Commission, not so much when it came before the Board of Supervisors at their March 24th meeting. Planning Director Bart Svoboda outlined the Special Use Permit request and explained that the property is zoned A1 but very close to a growth area near Ruckersville.

Svoboda cited the 2010 Comprehensive Plan encourages development of businesses – “Goals and Objectives 4. Enhanced image of Greene County as a business-friendly location” – and the alternative is that 8 homes could be built by right on the property. The plan calls for setbacks around the property at a minimum of 200 feet with some parts going up to over 600 feet. The Planning Commission approved the SUP with the following requirements 1) 30 foot screening, 2) lighting not on from 10 pm to 7 am, 3) only sport courts to be to be allowed, 4) indoor court sports only, and 5) a site plan is required. Svoboda also reported that there were no red flags from any agency – i.e. ADA, Health Department, etc.

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Mourad Fahim

Next Mourad Fahim, the applicant, addressed the Board of Supervisors stating that Greene County is a growing community and tennis continues to grow in popularity. There are no public courts in Greene County and the high school doesn’t have a tennis team. Tennis is a sport of a lifetime with players from age 4 to those in their 90’s and it develops discipline, teaches hard work and integrity. Fahim finished stating he reserved the right to defer the request after the public hearing.

This time there were plenty of comments from the public, mostly against the project from adjoining land owners. Jeremy Lay brought a petition that all residents of Carpenter Mill Road  signed along with others in the area. Lay explained that the site selected is visible from all of the residents on Carpenter Mill Road and the project would change the peaceful nature of the neighborhood and that it would be an atrocity to destroy the charm and beauty of the neighborhood. He further explained that the SUP request was not filled out correctly – no distances were provided and no information on what type of lighting was provided – more information is needed. His final concern was that of the site grading and the significant drop off of over 100 feet on the property. He finished by asking the Board, would you want this in your back yard?

Several others spoke against the SUP. Dan Ratzlaff, however, is an avid tennis player and supports the Fahims in their project. He told the Board that this is a great opportunity for Greene County and he trusted them to make the right decision.

The discussion then shifted to the Board members. Supervisor Jim Frydl told the audience he was glad to see a large turnout for the issue. This SUP fits what has been done in other area of the county in A1 districts. It is similar to the Greene County Recreation Center which is closer to homes off Route 33 than the tennis facility would be. There is a horseback riding facility in an A1 district that has horse trailers and is more impactful. The erosion control issue will be managed by the Virginia Department of Transportation (VDOT)  to a state standard. He felt the tennis facility would be a good fit for Greene County and his suggestion was to modify the request to have outside play limited to dawn to dusk with no outside lighting. His other concern was that the SUP as submitted allowed other sports that could attract much more traffic and noise – such as a basketball league. Bart Svoboda told the supervisors that they could modify the SUP to limit the play only to tennis and paddle tennis, or whatever they wanted. If other sports would be wanted in the future they could be requested at that time.

Greene County Supervisor Davis Lamb

Greene County Supervisor Davis Lamb

Supervisor Davis Lamb agreed with Frydl that it would be a great addition to Greene County. However, he expressed concern about having the facility in A1 zoning and he was concerned about the runoff on a sloped parcel. Svoboda reconfirmed that VDOT would oversee this part of the process and that storm water runoff would also be regulated. The final issue Lamb expressed concern over was the traffic in this rural area. Svoboda estimated traffic counts at 56 and going up to a peak of 80 per day. Lamb then addressed Mr. Fahim and suggested that he meet with the neighbors to see if they could come to a compromise solution. Mr. Fahim stated that he wants to comply with the county and work together with the residents of Greene to provide the facility.

Supervisor Bill Martin addressed again the storm water issue. He asked Dan Ratzlaff, who had spoken in favor of the issue during the public comment time, to address the board in his capacity as Erosion Administrator in Greene County. Ratcliff confirmed that the development of the lot would require the runoff to be better than it currently is now, both in volume and rate of flow. Ratcliff stated that annual inspections would be requested of the property owner and that every five years an onsite inspection would occur. Also, if there were any calls complaining, an on-site review would occur at that time to see if there is a problem.

Martin expressed concern for the community vs. the rights of the owner of the property. The alternative is that this property has division rights to allow eight homes to be built. That is a lot of rooftops, lights and educating children. He agreed with Mr. Frydl’s suggestion of a dawn to dusk for the outside play. Also he was encouraged by the $1 million expenditure in Greene County that would provide jobs to the county residents and he liked the idea of the developer speaking with the community.

Supervisor Frydl made another comment that he had done some research out of comments from neighbors before the meeting. He found no indication that property values would decline with a tennis facility in the area, in fact, it may add value. The noise level from a lesser distance than is being proposed is very low.

Greene County Board of Supervisors Chairman David Cox

Greene County Board of Supervisors Chairman David Cox

Chairman David Cox spoke last (Supervisor Eddie Deane was absent) and said that he had made three trips to the site. He felt he still had some unanswered questions that weren’t addressed on the application. The hours of operation were not on the application. Mr. Fahim stated that 7 am to 10 pm for indoor play. He suggested 9 or 10 pm for outdoor play or until the end of daylight if no lights were erected. Other questions Cox had were the size of the structure for indoor play and the type of lighting in the parking area.

Supervisor Lamb asked Svoboda if VDOT required either a deceleration lane or a turn lane – they did not at this time. At this time Chairman Cox asked Mr. Fahim if he would like to defer the request and he said yes. The May 12th date was selected to allow time for Mr. Fahim to gather data and meet with the neighbors and the SUP was deferred unanimously. Following the meeting Supervisor Martin was asked if the park would be a good location for the tennis facility. He believed it would be difficult to have a private entity on county property – it sounds easier than it would be to get it done.

The Free Enterprise Forum’s coverage of Greene County is provided by a grant from the Charlottesville Area Association of REALTORS® and by the support of readers like you.

Brent Wilson is the Greene County Field Officer for the Free Enterprise Forum a privately funded public policy organization.

Greene Denies AT&T Cell Tower

By. Brent Wilson, Field Officer

A process that started in November, 2013 ended for AT&T at the Greene County  Board of Supervisor Meeting on September 9th. Cell phone reception down Route 810 in western Greene County is spotty and AT&T had identified a location that happened to be in the view of the Mount Vernon United Methodist Church . In February the Planning Commission approved the site and the request proceeded on to the Board of Supervisors.

At the first Board of Supervisors meeting where AT&T presented their request, it was recommended to analyze an existing tower location south of Velocitel, Inc. owned by John and Barbara Hayes Revocable Trust – the proposed location. At the September 9th Board Meeting AT&T presented to the Board their analysis of the other tower being considered – one owned by Monticello Media  – which is only 115 feet tall but it sits atop a mountain and therefore is, in total, taller than the location AT&T proposed with a tower of 199 feet. The increased height provides a significant increase in coverage of over double. However, the Monticello Media tower will not support the AT&T equipment and a new tower would have to be built on the site.

Below is the coverage map of the proposed site on the Hayes property.

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Below is the coverage expected from a tower constructed near the Monticello Media existing tower, further south of the Hayes property.

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AT&T’s attorney, Preston Lloyd, addressed the Board and told them that Greene County has clear rules – more so than other counties. He also explained to the Board that a neighbor near the Monticello Media site complained that they did not want a 200 foot tower close to them just like Mount Vernon United Methodist Church doesn’t want it near their location. Lloyd pointed out that if either of two conditions in the code is evident then the tower should be approved. The first is that Monticello Media tower can’t support AT&T’s equipment and therefore, AT&T would have to rebuild. Secondly, the cost to construct a similar tower at the Monticello Media site is more expensive than the site on the Hayes property. The intent is that the Board of Supervisors would not force the applicant to choose a more expensive alternative.

AT&T showed a comparison of construction on the Hayes site vs. the Monticello Media site – $275,000 vs. $520,000. The costs reflected that the site of the Monticello Media tower is on a hillside and therefore significantly more expensive. The grading of the site and roadways was $100,000 for the Monticello Media site vs. only $25,000 for the Hayes site. The Monticello Media site requires $30,000 for road improvement, creating a cutover and clearing of $50,000 each while there would be no cost for any of these factors at the Hayes property.

The meeting then turned to the discussion among the Board members. Since the public hearing had already occurred there we no comments from the public. Supervisor Davis Lamb (Ruckersville)  stated that the Monticello Media site would provide significantly more coverage vs. the requested site. Supervisor Bill Martin (Stanardsville) noted that there is already a Special Use Permit for the Monticello Media site and therefore AT&T could use this tower without a new SUP. He also speculated that since the coverage is more than double, that AT&T’s revenue would significantly increase. Chairman Jim Frydl (Midway) reminded all that the ordinance does not use revenue as a basis for issuing the SUP, only the cost is considered. Supervisor Martin said he kept coming back to the Zoning Ordinance 21-2-1 which is to encourage a minimum number of cell towers and to increase the opportunity for joint use of towers.

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AT&T’s attorney noted that Zoning Ordinance 21-2-8.5 states that if the cost for one site is more expensive than the other site, then the second site is presumed unreasonable. This is the case of the Monticello Media site vs. the site on the Hayes property.

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Supervisor Frydl agreed that the cost factor has eliminated the Monticello Media site from consideration. Supervisor Eddie Deane (At Large) told AT&T that he appreciated their efforts and in meeting the county’s requirements. He expressed disappointment that the “filet mignon” or Monticello Media site would not work and that the “sirloin” alternative at the Hayes property was the other option. Deane stated he struggled with keeping the vista of Greene Co clear vs. providing 911 service down Dyke Road but felt that safety must take priority.

Supervisor Martin also expressed his appreciation to AT&T for their efforts and thanked them for an open process. In the end, he believes the county needs to take a long range view on cell coverage in the county and look for the best coverage vs. just keep adding tower after tower until you get around the mountains to the Albemarle County line. For that reason he is against the current SUP.

Chairman Frydl said that AT&T has been portrayed unfairly in this process and that they have followed the ordinance in detail and looked at existing sites per the BOS recommendation. However, AT&T has to look out for what is best for their business which may be different than what Greene County may want. Chairman Frydl struggled with the decision because the SUP will enhance cell service but it won’t minimize the number of cell towers in the long run. Supervisor Deane expressed concern that if AT&T’s request is denied they may leave the county and the fact that the county requested a comparison to another site actual caused them to shoot themselves in the foot. This is the reverse of the classic taking the bird in the hand over two in the bush

At this point, Dr. John Hayes – the owner of the site where AT&T wants to locate – stood to address the board. You could feel his frustration with the Board. While the normal process would not allow a speaker, Chairman Frydl allowed him to speak since he was the owner of the property. Hayes stated that AT&T did what the Board of Supervisors asked. Most of the land in the Dyke valley is in conservation which excludes constructing a cell tower and many of the remaining properties are too small for a cell tower fall requirement.

Supervisor David Cox said that this decision is the hardest he has faced while on the Board. He lives in the valley that is being impacted. His home has a view of a 600 foot tower when he looks up the mountain but from his front porch he has a clear view of the Blue Ridge Mountains that so many value. Topography is the problem in cell service but it is also what creates the magnificent views in Greene County. He said that he has been seriously injured several times and without cell service to call for EMS responders he might not be here. He felt that safety outweighs the aesthetics in this case and he was in favor of the SUP.

The motion was made to reject the Special Use Permit request and it passed on a 3-2 vote – denying the SUP at the Hayes site. The irony is that two supervisors – Cox and Deane who live in the western part of Greene Co – voted to allow the cell tower.

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The Free Enterprise Forum’s coverage of Greene County is provided by a grant from the Charlottesville Area Association of REALTORS® and by the support of readers like you.

Brent Wilson is the Greene County Field Officer for the Free Enterprise Forum a privately funded public policy organization.

Monticello Proposal Still Infringes Property Rights

A open letter to Albemarle County Planning Commission:

Dear Chairman Morris and members of the Albemarle County Planning Commission,

Many thanks to Albemarle Director of Planning Wayne Cilimberg for forwarding me the new submissions the Thomas Jefferson Foundation has presented for inclusion in the Comprehensive Plan for discussion. The Free Enterprise Forum regrets the majority of the public will not get to see them in advance of the Planning Commission discussion this evening. Again, I regret I will not be able to join you this evening due to a previously scheduled family event.

Considering our outspoken position in favor of individual property rights, we believed a response to Mr. Cilimberg would be appropriate given this newly available information.

After reviewing the e-mailed documents, we agree that this iteration of language is significantly better than the language the Thomas Jefferson Foundation originally wanted. In addition it is also improved from the language the Foundation inserted into the existing Comprehensive Plan.

Recognizing this marked improvement, the Free Enterprise Forum must continue to oppose the intrusion of local government into this basic property rights issue. We ask the section be removed entirely from the Comprehensive Plan.

Please let me explain.

Regardless of their status or import, The Thomas Jefferson Foundation is a property owner with property rights. Their neighbors are also property owners with rights. Because of their position in the community, they have successfully lobbied Albemarle County to insert language into the state mandated planning document that will require the County to act as the Foundation’s agent in delivering voluntary design guidelines to limit the property rights of parcels that may be seen from the “Big House”.

The rationale for this inclusion , according to tonight’s staff report is “In recent years, keeping up with all site plans, subdivision plats, rezonings, and special use permits has been difficult for TJF staff”. As Planning Commission Mac Lafferty regularly reminds the public, the planning staff has increasing responsibilities without the requisite increasing in staffing.

Is Albemarle County now in a position to provide additional staff work for the Thomas Jefferson Foundation?

Will Albemarle extend this courtesy to other property owners as well?

The Free Enterprise Forum is aware that Albemarle County is blessed to have the homes of two presidents within its borders. Why has the County not provided the same accommodations to the staff at Ash Lawn?

This issue of visual impact is an issue between property owners not an issue for government. The reality of voluntary guidelines being delivered by government when a building permit is pulled or a pre-application process is initiated is nothing more than a thinly veiled requirement.

Considering all of the above, we find it ironic that Albemarle County and the home of the drafter of the Declaration of Independence are advocating Comprehensive Plan language that makes some property owners more equal than others.

Thank you again for the opportunity to comment on this issue.

Respectfully Submitted,

Neil Williamson

President

clip_image0024_thumb.pngNeil Williamson is the President of the Free Enterprise Forum, a local government public policy organization located in Charlottesville.  www.freeenterpriseforum.org

Comments on Albemarle County’s Rural Areas Rewrite of the Comprehensive Plan

October 30, 2012

Sunset at Pippen Hill Vineyards - North GardenThe Free Enterprise Forum appreciates the efforts of Albemarle County staff in the rewrite of the rural areas chapter but there is a consistent tension in the document between rural area residential uses and rural area agricultural uses.   On page twelve, the chapter identifies the 1994 recommendations of farm operator that state “County Policies that support farmers regarding nuisance conflicts generated by residential uses in the Rural Areas” later on that same page it discusses ancillary “non-agricultural” to use the comp plan term “can have physical and nuisance impacts on surrounding rural land.”  I am confused which is the nuisance the agricultural use or the residential use.

The Free Enterprise Forum requests that landowner rights be included in those items the plan seeks to protect on Page 7.  It is important to recognize the rural areas are in their current state not because of government action but because of landowner stewardship.  We suggest the words inserting after protect “land owner rights and” the key elements that give the area its character.

The chart for residential uses on page 2 in the rural area is accurate, but misleading.  The rural area units do not compete with the condos and apartments.  A more accurate chart would compare Single Family Detached housing in the rural area vs Single Family Detached in the development area.

Under Conservation easements the Comp Plan notes 18.6 percent of the county is now under conservation easement.  What is the goal? 

If ¼ of the County’s land mass was tied up in perpetuity would that be enough? 

Is Albemarle County spending on such easements a proper metric for success? 

The chapter cites 70 farms in Albemarle County that sell local products to local consumers (Page 4).  I anticipate this number was taken from the Piedmont Environmental Council’s  Eat Local Campaign (Which is a great program).  Later in the document (and on the county’s website) the plan cites 26 wineries (there are 2 that I know of not yet listed) I believe this metric needs to be checked as only 7 Albemarle wineries are included in PEC’s list.  I suggest coordinating with Albemarle County Farm Bureau on this issue.

 We have spoken to staff regarding the objectives on Page 19 as being too broad.  Any new use, beyond a hayfield, would generate more demand on police and fire, will change the character of the area, and based on our understanding of the fractured aquifers and Virginia water law the concept of drawing groundwater from others should be removed.

Considering the fastest growing form of agriculture is farm wineries, we were surprised to see the assertion on page 20 “This situation is complicated by the tendency of winery events (which often include weddings and other gatherings to use their rural surroundings as an attraction without significantly supporting or promoting agricultural production”.  Nothing could be further from reality, as countless winegrowers have testified weddings and events generate new customers, sales and provide economic support for the agricultural uses.   These types of events were deemed as “usual and customary” by the General Assembly in HB 463. We ask this offending language be removed.

 We ask for a minor modification on Page 21 where the comp plan states Additional measures are needed to resolve issues, such as requiring a sound management plan.  We suggest changing to read “Additional measures need to be evaluated …”

 On Page 23, we ask you to drop 3b — the limitation of one or two special use permit events is too limiting.  Each special use permit should be considered on its own merit and conditions.

 We ask you reconsider the groundwater language in strategy 4b

 In Objective 5 we don’t understand why you are expanding some recreational activities while limiting others.  As the County is 95% rural areas we wonder why you would preclude a swim or tennis club in the rural areas to serve those residents as a special use permit.

Again we appreciate staff’s work on this document and hope you bring forward a comprehensive plan chapter that respects landowner rights and preserves rural enterprise economic sustainability.

Respectfully Submitted

Neil Williamson, President

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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.

Greene Planning Commission Considers Proffer Policy

By Pauline Hovey, Greene County Field Officer

The Greene County Planning Commission held a working session on Wednesday evening to, among other things, review a possible proffer policy guide submitted by Planning Department staff. If enacted, this would be the first time the county would offer such a guide to citizens and developers seeking rezoning. The Board of Supervisors had directed the planning staff to review “possible proffer policy guidelines to assist citizens in voluntary proffer submittals” that would be designed to work in concert with the capital improvement plan (CIP).

In presenting the proposed guide to commissioners, Planning Director Bart Svoboda suggested the need for “cohesiveness” in the rezoning process and that the use of “boiler plate” guidelines would simplify the process and standardize improvements. Using a fill-in-the-blank-type model, the guide addresses common proffered conditions such as use and density limitations, landscaping, physical improvements, access, funding for improvements to public facilities such as schools, and traffic control/improvements. Only owners of the property subject to rezoning may proffer conditions.

“We’re trying to streamline the process for rezoning and take some of the guess work out of it,” Svoboda said. “We tend to have the same issues come up in rezoning, such as traffic and schools. This guide will let applicants be aware of the issues beforehand so they can be prepared to deal with them as opposed to the applicant being blindsided at a public hearing.”

If an applicant is unprepared or unaware of issues that the requested rezoning may affect, they may request another hearing, which would further delay the process, Svoboda explained. “As a locality, our strength is the speed of our process,” Svoboda said, and these guidelines would assist in moving that process forward more easily and smoothly.

In providing the outline, staff followed the state code requirements regarding proffers and also researched other models online to avoid “reinventing the wheel,” settling on the “Massachusetts model.” The proposed guide states that proffered conditions are not appropriate or necessary for all rezoning, must be voluntary on the part of the applicant, must be consistent with the comprehensive plan, and must be reasonably related to the rezoning.

Acknowledging this is the first time the county would have such a guide, Commissioner Anthony Herring suggested that proffer policies should be reviewed every two to three years.

Svoboda will submit the policy guidelines to various county agencies for their comments and consideration of items that may been missed. It will then be submitted to the supervisors.

The commissioners also began the process of comparing county zoning ordinances with the new comprehensive plan to ensure no conflicts exist. This has been one of the Planning Commission’s top five priorities, and commissioners were particularly interested in the topic of land use. Considering the extensive time involved in reviewing specific ordinances, the commission decided to form a committee specifically to review them.

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Pauline Hovey is the Greene County Field Officer for the Free Enterprise Forum a privately funded public policy organization.  If you find this report helpful, please consider supporting the Free Enterprise Forum.  To learn more visit www.freeenterpriseforum.org

Charlottesville “Critical” Slopes– it’s not about environmental stewardship; it’s about control

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 100_0317community 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”

Respectfully submitted,

Neil Williamson

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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.  For more information visit the website www.freeenterpriseforum.org

Where Do Rights Come From?

Over the weekend, I was reading a lecture given by Constitutional scholar Charles R. Kesler, a professor at Claremont McKenna College and editor of the Claremont Review of Books

The lecture, titled “Limited Government: Are the Good Times Really Over?” presented many interesting perspectives but one passage posed by the lecture captured my imagination, especially as it relates to the Free Enterprise Forum’s local government focus:

          A new theory of the Constitution corresponded to this new theory of rights. FDR put it memorably in his 1932 Commonwealth Club Address: Government is a contract under which “rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights.” According to this view, we give the rulers power and the rulers give us rights. In other words, rights are no longer natural or God-given, but emerge from a bargain struck with the government. And it is up to liberal statesmen or leaders to keep the bargain current, redefining rights constantly-adding new rights and subtracting some of the old ones-in order to keep the living Constitution in tune with the times. Entitlement rights-rights created and funded by government-replace natural rights. Given this new relationship of people and government, we don’t need to keep a jealous eye on government anymore, because the more power we give it, the more rights and benefits it gives us back-Social Security, Medicare, prescription drug benefits, unemployment insurance, and on and on.

This statement buried near the end of the lecture caused me great pause as it relates to local government control of land use issues. 

I have often highlighted that it was John Locke in his Second Treatise Concerning Civil Government who first developed the concept of natural rights including “life liberty and property (or estate)”.   Our own Thomas Jefferson, one of many of our aristocratic forefathers who read Locke’s work, altered the language importantly in our Declaration of Independence:

          We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The differences between FDR’s 1932 speech at The Commonwealth Club and The Declaration of Independence are as subtle as they are important.  In the Declaration, governments derive their power by consent of the governed.  In FDR’s speech, rights are doled out by government so as to create a condition for the governed to consent.

Local land use across our region falls more toward the Commonwealth Club address than the Declaration position.  In countless planning commission and Board of Supervisors meetings I have heard the phrase “we are not taking away any rights since we gave them to you in the first place”.

Interestingly, in the 1932 Commonwealth Club Speech FDR also provided his rationale for individual property rights:

          Every man has a right to his own property; which means a right to be assured, to the fullest extent attainable, in the safety of his savings. By no other means can men carry the burdens of those parts of life which, in the nature of things afford no chance of labor; childhood, sickness, old age. In all thought of property, this right is paramount; all other property rights must yield to it. If, in accord with this principle, we must restrict the operations of the speculator, the manipulator, even the financier, I believe we must accept the restriction as needful, not to hamper individualism but to protect it.

The Free Enterprise Forum believes any market that is highly regulated by government will be less agile to respond to consumer demands and thus will be less competitive than a less regulated market. 

Where do rights come from?

We tend to agree with Jefferson and Locke.  Men (and women) are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, Property and the pursuit of Happiness. 

Government should serve the people to protect these Creator given rights. 

At the end of the day, this really does not seem like such a radical position.