The remarks below were delivered by Thomas Hutchinson and submitted on behalf of the Morgantown Road Action Committee (MRAC) to the Albemarle County Board of Zoning Appeals (BZA) on September 11, 2001. Unfortunately, MRAC (and the other appellants) lost our appeal of the zoning decision on a 3-2 vote. The two board members who voted against the zoning decision were very outspoken in their belief that Faulconer's operations were both HEAVY INDUSTRIAL in nature and not compatible with this LIGHT industrial site in Ivy. The three members who voted in support of the zoning administrator's decision, that Faulconer should be allowed to operate in any light industrial district, did so largely without comment.
We have one of the largest contractors in the region, trying to move out of the way of VDOTs plans to build the Route 29 Western bypass. They need a new home where they can consolidate their headquarters for a 5 state operation.
We have a contractor who has, for a tremendous bargain, purchased a 27 acre parcel of land surrounded by homes, schools and bucolic Albemarle countryside. They have been promised by County officials that the one-fourth of their site, which was originally set aside as a required 200' protective buffer by the B.O.S. in 1970 and never changed, no longer exists and that the entire parcel is available to them, by-right, for their industrial operations, no strings attached, no special permits required.
We have a community that is concerned about public safety, their children, the environment and our aesthetic resources.
We have a community that the County failed to give proper and timely notice to about the Faulconer site plan and the very determination of use we are discussing today. Over half the adjoining landowners were not even sent the County's notice of the Faulconer site plan, a plan that referred to an office and shop not an industrial equipment storage and repair facility. In our case, as stated in our appeal, we reserve the right to raise additional matters inasmuch as the June 26, 2001 determination of use was not made available to us until nine days before expiration of the appeal window.
On the face of it, we seem to have a County going out of its way to get Faulconer approved on this site.
How can it be that we are now faced with a determination of use that allows a contractor to warehouse explosives adjacent to an elementary school and day care center with over 300 children? A determination of use that allows, and will encourage, heavy industrial trucks to travel on rural residential roads. Roads that are not wide enough for even side stripes or sidewalks and that are traveled by school buses, children, joggers and bicyclists. Heavy trucks pulling oversized loads, some weighing in at over 150,000 pounds, seventy feet in length and exceeding 14 feet in width. Morgantown road dates from stagecoach days and varies between 16 feet and 20 feet in width. A school bus is 8 ½ to 10 feet wide. You can do the math.
This is a determination of use that allows Faulconer to do apparently anything while wrapped in a by-right protective suit of armor.
The determination of use was issued prior to completion of County staff's review of even a preliminary site plan.
Faulconer Construction Company requested suspension of the review of their preliminary site plan on May 23, 2001 and that review was suspended by County staff at the time of Ms. McCulley's determination. Her determination was issued over one month after Faulconer requested and was granted a suspension of their site plan.
In the absence of the comprehensive review of a final site plan and certified engineer's report, the Zoning Administrator cannot adequately assess the requirements for public safety, off-site traffic impact, industrial district performance standards and special permit requirements, all of which apply to Faulconer Construction's preliminary site plan. As such, it is impossible to know if Faulconer's activities would be allowed by-right within the light industrial district and the County cannot at this time ensure the "protection of surrounding areas from adverse influences within the district" as required in Code Section 26.12.
Given the nature of the location of this project this determination of use should have waited for more substantial review.
Let me read to you her determination, and I quote… "This is in response to your request for an official determination of the zoning category of use proposed by the Faulconer Construction Company, Inc. site plan. It is my opinion that the activities proposed for the new site in Ivy, are currently permitted by-right in this zoning district as a ‘contractor's office and equipment storage yard.’”
The original request for this determination came this past May from Ms. Lisa Glass, a Project Manager in Building Services, where she specifically requested Ms. McCulley's assessment of Faulconer's activities as being light vs. heavy industrial in nature. The determination at issue here, however, totally ignored the question of heavy vs. light industrial uses and in fact states the proposed activities are permitted by right in this light industrial district.
Despite Ms. McCulley's suggestion in the staff report to this Board, and the comments of Mr. Kamptner, Assistant County Attorney, that argue this determination was little more than an acknowledgement that Faulconer can have an office and equipment storage yard somewhere in this County, Ms. McCulley's determination was indeed site-specific and it even came after the County had suspended review of their plan, the plan that would have revealed their specific intentions on this site, or any site.
Ms. McCulley states she was only asked to determine whether Faulconer's use could be properly categorized as a "contractor's office and equipment storage yard." In fact, her determination went much further as she stated that the proposed use was: 1) a contractor's office; 2) a contractor's office that was permitted by-right on this specific site; and 3) a contractor's office that was by-right within this specific light industrial district, without any assessment as to whether it might be a contractor's office supporting heavy industrial uses. And this is our contention. Faulconer’s use, on the proposed site, for the repair and storage of massive equipment must be considered a heavy industrial use. Thus, Faulconer is barred from this activity by code. Even a washing machine cannot be manufactured in a LI site much less repair associated with massive diesel engines and enormous gear boxes.
In her staff report, Ms. McCulley points out that contractor offices are allowed "in all the industrial zoning districts." We do not disagree, nor do we disagree that Faulconer Construction is a contractor.
However, Ms. McCulley's "field inspection" did not assess light vs. heavy industrial uses. While the ordinance does not distinguish between different types of contractor's offices, there was also no attempt to evaluate Faulconer against the separate ordinances governing light vs. heavy industrial use, and the general regulations they are subordinate to.
It may come as a surprise to some that Faulconer does not currently operate on a site zoned LI, so it seems incumbent upon the zoning administrator to assess both light and heavy industrial uses to determine whether Faulconer was even eligible for the proposed site. The present site is termed non-conforming.
As to comparables…
So if Faulconer cannot be its own comparable, are there others? Ms. McCulley found two, Haley, Chisholm & Morris and Parham Construction.
The Haley, Chisholm & Morris (HCM) site is today primarily zoned rural agricultural. A 10 acre parcel containing the contractor's office and yard was rezoned to LI in 1981 as the result of their request to add additional acreage for expansion. Staff noted at the time this use would not be detrimental to surrounding areas because of the "proximity to Teledyne and the Airport and the remoteness from existing residential uses in the area." In contrast the site in Ivy is surrounded by residences and schools directly adjacent to their property. When the BOS approved the HCM rezoning request, they did not say that it was by-right, they said they were allowing HCM to do this because of their existing use on property zoned RA thereby creating a conditional zoning [see §15.2-2296] and because the Board wanted to allow their existing business to continue. A specific notation to this effect was made on the zoning map. We argue that the facts and circumstances surrounding the HCM site, and the intent of the BOS and staff's evaluation at the time, totally removes the use of HCM as a comparable to the proposed Faulconer Ivy site.
Parham Construction Company
Parham Construction company inherited a site previously zoned LI from ownership by the Wilson Trucking Company. It can most certainly, not be used as a comparable unless it is subjected to a rigorous review of their activities against the County's industrial zoning regulations. Absent that review, their use of an LI site is one of convenience and inheritance as opposed to a true comparable to the proposed Faulconer site. Also, the Parham site is the only comparable site Ms. McCulley identified that has a primary zoning designation of LI, and it is the only one of the three she did not visit.
The Zoning Administrator is charged with the responsibility of being guided in all of her actions by the purposes, intent and, spirit of the ordinances in the County of Albemarle and the code of the Commonwealth of Virginia. [§ Chapter 18, Section 31.1]
In this case, she has said the ordinances do not give her enough information to fully examine the Faulconer site plan with respect to the definition of a contractor or with respect to offices allowed in a light vs. heavy industrial district. She argues that Faulconer's use is allowed by-right, and that no matter what they might want to do in the future, "special permit requirements do not apply."
Our appeal is not based on perceptions of those ordinances, but rather a close reading of the overarching purposes of those ordinances and a detailed examination of the requirements for operating in all industrial districts. In fact, the regulations discuss very specific intentions with respect to the types of activities that will be permitted in both light and heavy industrial districts.
Nevertheless, instead of adhering to these overarching goals, purposes, and applicable regulations, or at a minimum, waiting for a detailed site plan to be reviewed by County staff, Ms. McCulley's determination of use bypasses the spirit and intent of the ordinances all together by granting prematurely to this one applicant permission to operate their business on this light industrial site in Ivy.
In her staff report Ms. McCulley argues that any specifics related to the site proposal, and much of our appeal, are irrelevant. I quote, "These site-specific issues are irrelevant to this zoning determination." Ms. McCulley also states that "It is not the Board's role to find that the proposed site is appropriate for this use or that the proposed site development complies with the zoning regulations.
We disagree. This is the Board's job!
Ms. McCulley's determination brought this action before this Board because she did not:
1) determine light vs. heavy industrial use
2) was not based on a site plan under review
3) and, it relied on comparables which were not comparable at all.
The County must examine whether Faulconer's intended use will be appropriate. Faulconer’s operations can only be classified as heavy industrial. Make no mistake.
A tremendous injustice will have taken place if this determination of use is allowed to stand and thus proceed. The Ivy community may well suffer irreparable damages as a consequence of this ruling and all of the LI districts within the county will be laid open to future indiscriminant incursions from this kind of heavy industrial operation.
Today we are here simply to ask the BZA to rescind the determination of use. Alternately you may wish to amend the determination, to remove all references to the site and the by-right determination that Faulconer can operate in a light industrial district. This stipulation would preclude LI classification for operations, which are of a heavy industrial character, specifically the repair and storage of massive machines, and simply let stand the determination that Faulconer is a contractor.