Brian Wheeler's July 18, 2001 Letter to Amelia McCulley

 

Brian A. Wheeler

89 Langford Place

Charlottesville, VA 22903

 July 18, 2001

Amelia G. McCulley

Zoning Administrator

County of Albemarle

Department of Building Code & Zoning Services

401 McIntire Road, Room 223

Charlottesville, VA 22902-4596

Dear Ms. McCulley:

I write this letter in support of the Morgantown Road Action Committee's (MRAC) upcoming appeal of your June 26, 2001 zoning decision related to the Faulconer Construction Company's proposed use of the 27.37 acre parcel of land in the Ivy Business Park currently zoned light industrial (LI).

I am a parent of a 4^th grader at Murray Elementary on Morgantown Road and Vice President of the Murray P.T.O.  There are two principal points I would like to make regarding this zoning decision.  First, the zoning decision on the proposed Faulconer industrial site is premature on the following grounds: A) the comparable sites you identified, including Faulconer's existing site, have not all received LI zoning status; B) numerous zoning regulations were not considered in your review, particularly those applicable in general to all industrial sites and industrial district performance standards; and C) the impact and activities proposed for the new Faulconer site at Ivy Business Park have not yet been adequately assessed by the Zoning Department or Planning Department because Faulconer has not even submitted a final plan for their use of the site.

Second, the safety of children at both Murray Elementary and the Millstone Preschool must be given serious attention by the County with respect to traffic on Morgantown Road and water safety before any official zoning determination can be made.  As written, your determination that all of Faulconer's activities are allowed by right, before a final plan is even on the table, implies a lack of concern about our children's safety and a priority on fast-tracking this industrial project in Ivy.

Zoning decision is premature

A determination that Faulconer's proposed activities comply with the industrial zoning regulations can only be based on a comprehensive review of Faulconer's final plan for the site.  The use of other construction companies as comparables is inappropriate given their current zoning status and level of review. As written, the County's June 26th determination calls into question the County's "longstanding consistent administrative zoning practice[s]."  A consistent approach to the handling of contractor's office and equipment storage yards as always being light industrial in Albemarle County is false in fact and does not guarantee a sound analysis based upon the merits of each applicant's new request at other sites.

It should also be noted that "contractor's office and equipment storage yards" ALSO appears as a by right activity under HEAVY industrial zoning.  The County's June 26th determination makes no mention of the consideration of Faulconer's activities as being heavy vs. light industrial and I believe the past zoning decisions for the three contractors listed below justifies such an examination now.

Haley, Chisholm and Morris (Airport)

The Haley Chisholm & Morris (HCM) site (Tax Map 31, parcel 23) is primarily zoned RA. A portion of the 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.  Had the LI designation not been granted, HCM would have been forced to limit their growth or move.  Today's County records show the site with RA as the primary zoning and LI as the secondary. When the County provided MRAC with a list of all light industrial sites in the County, the HCM site was not included.  It is very unlikely the County would have considered any other zoning status for the HCM office given the fact that a HEAVY industrial site would have been viewed as incompatible with the neighboring residential area, regardless of HCM's activities at the time.  Their current usage is likely not in compliance with their primary RA zoning and thus they should not be considered a comparable to Faulconer Construction.

Parham Construction Company (Route 20 South)

Parham Construction company inherited a site (Tax Map 90, parcel 35V) previously zoned LI from ownership by the Wilson Trucking Company.  It should not be used as a comparable unless it was subjected to a rigorous review of their activities against the County's industrial zoning regulations.  In the absence of that review and documentation to that effect, their use of an LI site is one of convenience and inheritance as opposed to a true comparable to the proposed Faulconer site.  It is worth noting the Parham site is the only comparable site you have identified that has a primary zoning designation of LI, and it is the only one of the three you did not visit.

Faulconer Construction (Existing site off Rio Road)

Faulconer Construction was active on their existing site prior to the existence of LI zoning in Albemarle County.  The existing Faulconer site is zoned R-6 and according to the County it is non-conforming and has never been zoned LI. Thus this site should not be considered comparable in the absence of an assessment as to whether their activities today would be in compliance with that zoning status.  A cursory inspection based on false comparables is not sufficient.  Further, a determination that Faulconer's current operations are "typical" of a contractor's office is incomplete and circumspect in the absence of their final plan for the Morgantown Road site.  Their office could ALSO be found to be typical of a HEAVY industrial contractor's office, but no such comparison has been made to date.

Safety of school children

My second major disagreement with the zoning determination is that the County has turned a blind eye to its own zoning regulations, particularly with respect to the requirements for assessment of public safety (26.12 site planning, adverse influences), off-site traffic impact (26.12.1 vehicular access), industrial district performance standards (4.14) and special permit requirements, none of which have been adequately assessed for Faulconer Construction's proposal.

Albemarle County's industrial district zoning regulations state, in part, the following:

26.12 SITE PLANNING - EXTERNAL RELATIONSHIPS

Site planning within the district shall provide for protection of individual sites from surrounding adverse influences, and for protection of surrounding areas from adverse influences within the district.

26.12.1 VEHICULAR ACCESS

Vehicular access points shall be designed to encourage smooth traffic flow with controlled turning movements and minimum hazards to vehicular and pedestrian traffic. Pavement widths and strengths of both internal and external roads shall be adequate to accommodate projected traffic generated from the district.

27.4 ADDITIONAL REQUIREMENT [for Light Industrial districts]

In addition to the requirements contained herein, the requirements of section 26.0, industrial districts, generally, shall apply within all LI districts.

4  GENERAL REGULATIONS, 4.14 PERFORMANCE STANDARDS

No use shall hereafter be established or conducted in any industrial district in any manner in violation of the following standards of performance:

4.14.1 NOISE

4.14.2 VIBRATION

4.14.3 GLARE

4.14.4 AIR POLLUTION

4.14.5 WATER POLLUTION

4.14.6 RADIOACTIVITY

4.14.7 ELECTRICAL INTERFERENCE

4.14.8 CERTIFIED ENGINEER REPORT SUBMITTAL

Each future occupant of an industrial character shall submit to the county engineer as precedent to issuance of a zoning compliance clearance a certified engineer's report describing the proposed operation, all machines, processes, products and by-products, stating the nature and expected levels of emission or discharge to land, air and/or water or liquid, solid or gaseous effluent and electrical impulses and noise under normal operations, and the specifications of treatment methods and mechanisms to be used to control such emission or discharge.  The county engineer shall review the applicant's submittal and make comment and recommendation prior to final commission action on the site development plan.  (Amended 9-9-92)

With respect to site planning (26.12), Faulconer had no site plan under review by the County at the time of the June 26^th zoning determination.  It is impossible to know if Faulconer's activities are allowed by right within the light industrial district in the absence of a site plan that allows the County to ensure the "protection of surrounding areas from adverse influences within the district."

With respect to vehicular access (26.12.1), the County has made no effort to evaluate whether Faulconer's activities would present "minimum hazards to vehicular and pedestrian traffic."  Further, the VDOT has said it will not assess impacts to roads off-site as part of the site plan review.  Thus it falls on the County, as defined in the zoning regulations, to ensure that "pavement widths and strengths of both internal and external roads shall be adequate to accommodate projected traffic generated from the district."  The June 26^th zoning decision should be rescinded and reconsidered only after the vehicular access issues have been reviewed.

It is important to note the following issues with respect to vehicular traffic, as this is the single most important safety issue for the school children and the greatest potential liability risk to the County of Albemarle:

·        Morgantown Road is barely wide enough for two typical cars and VDOT has determined it is not even wide enough for painted side stripes.

·        Morgantown Road has no sidewalks for children walking to and from school.

·        Faulconer Construction proposes to base its equipment storage yard at this site, equipment that will include large cranes and earth moving equipment which can only be transported on wide load trailers.  The heavy industrial vehicles are incompatible with the school's bus, pedestrian, and car traffic.  Any heavy industrial traffic from the Ivy Business Park should be restricted in its use of  Morgantown Road in front of Murray Elementary when school children are being dropped off or picked up.

·        The intersections of both Morgantown (West end) and Tilman Roads with Route 250 have limited site distance and are currently incompatible with heavy industrial traffic. Any heavy industrial traffic from the Ivy Business Park should be prevented from using these points of access to Route 250.  One look at this intersection and it is obvious that it is a tragedy waiting to happen should a large and slow moving piece of construction equipment be turning out at the time a vehicle comes around the curve on Route 250.

·        During the past year, the County and VDOT have been working with the Morgantown Road and Murray Elementary communities to address existing traffic safety issues.  Further attention was given to this issue by the Planning Department when the Millstone Preschool requested a special permit earlier this year to expand its operations and add another 50 children and a new building.  The County has assessed cut-through traffic, striping, widening and cul-de-sac options for closing off Morgantown Road.  Despite this history, no consideration was given to the size or scope of industrial traffic Faulconer would add to the residential and school neighborhood before you made your determination.

With respect to what activities are allowed "by right" in a light and heavy industrial districts (i.e. contractor's office and equipment storage yards), it should also be noted that activities related to warehouse facilities (27.2.1.17) limits the storage of hazardous materials: "Warehouse facilities and wholesale businesses not involving storage of gasoline, kerosene or other volatile materials; dynamite blasting caps and other explosives; pesticides and poisons; and other such materials which could be hazardous to life in the event of accident."  Faulconer is the only contractor you have reviewed that stores explosives and this is also a major public safety issue near our schools.  The industrial zoning regulations do not indicate that storage of explosives has to "constitute independent uses or businesses," to be incompatible with the light industrial district, as mentioned in your zoning determination.  This is yet another reason why the by right determination that Faulconer's activities constitute light industrial activity should be rescinded.

Further, some activities in light industrial districts also require special permits (27.2.2) including the following: Truck terminal; Body shops; Towing and storage of motor vehicles.  It should be expected that Faulconer's equipment storage and repair yard would be involved in all of these activities and thus would require special permits for such use.  MRAC has been informed that neither Faulconer, HCM or Parham hold any special permits for their current operations, which further calls in to question the County's "longstanding consistent administrative zoning practice[s]" with respect to these contractors and which was used as part of the basis for your zoning determination.  Any zoning determination should assess what Faulconer activities would require special permits.

Finally, the performance standards (4.14) for industrial districts are not discussed at all in your determination.  For past occupants at the Ivy Business Park (e.g. Smith Time, Inc.), these seven performance standards have been reviewed and assessed as part of the issuance of a zoning compliance determination.

Again, I urge both you, and the parties copied on this letter, to give serious consideration to the appeal being made by the Morgantown Road Action Committee, both on its merits and for the reasons I have described in this letter.  This zoning determination was premature and more attention must be given to the safety of our children.

Sincerely yours,

Brian A. Wheeler

cc:        Sally Thomas, Albemarle County Board of Supervisors

            Charles Ward, Chairman, Albemarle County School Board

            Kevin Castner, Division Superintendent, Albemarle County Schools 

            David Rogers, Principal, Murray Elementary