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Board stumbles over subdivision proposals
BY JAMES JACENICH • STAFF WRITER
MONTEREY - Many Highlanders believe a person should have the right to do with their property as they see fit. Charlie Hupman of Monterey, however, found out that opinion of property rights doesn't always carry over into the legal view.
Hupman asked the board of supervisors to rezone his 17 acres of A-2 agricultural land near his rock quarry on White's Run Road about two miles north of Monterey. His wanted to divide the property into seven residential lots in what would then be R-3, medium-density residential land. Planners agreed not to send a favorable recommendation to the county; and Tuesday, the request was rejected.
Last Thursday the Highland planners and supervisors held a joint public hearing on the rezoning request.
Adjoining landowner Houston Smith wrote a letter opposing the rezoning. He said it would be spot zoning (a parcel of land zoned differently from land surrounding it). He said the road was gated, meaning that between gates (cattle guards) cattle were free to roam back and forth across the road. The road is mostly dirt, farms along the road have been there for more than 100 years, and livestock have free access to the road whenever they want. Smith was also worried he would have to put a fence along the road to keep cattle from the road if a residential development were to go in on Hupman's land.
Hupman said his latest idea was to have no more than five lots, a change from his original application. His thought was that fewer lots might make the project more palatable to the board and neighbors, but it had the opposite effect. Planners and supervisors criticized Hupman for not having a clear plan for exactly what he wanted to do with the land. But both planners and supervisors seemed to agree that making a developer spend a lot of money getting the land surveyed and tested for residential use before the governing body approved the use was not a financially wise decision, either.
Landowner Bill Henwood spoke against the rezoning. "Five or six of our neighbors are opposed," Henwood said. "Once you let him do it, everyone will want to do it … I don't think traffic and children would be safe on that road.
White's Run Road landowner Robert Shuttleworth also spoke in opposition to granting any additional housing development on the road.
Speaking for him, his daughter said 110 cattle "go back and forth" across the road. "We have trucks from the quarry as it is. There's a lot of degradation in that area. This development would put a lot of traffic in that area."
Adjoining landowner Sherry Sullenberger, wife of supervisor Robin Sullenberger, said, "I have concerns. It's a gated road. There's a lot of noise associated with the quarry from 7 a.m. to 5 p.m. There would be increased traffic." She said the people who might buy Hupman's lots would have to be told of the noise and dust. She was concerned about fencing, too.
"We own property north of this property," said Sullenberger. "The fence is mediocre high tensile with barbed wire. My livestock gets through from time to time. If houses were there, I certainly have a concern. I don't want my cattle damaging their property. We would have to address a better fence than what is there."
Sullenberger said a residential area meant families, and families normally have dogs and cats. "I'm simply going to say, we don't have a leash law," she said. "If you have five families and those pets are running loose, I have a real concern with dogs and cats running loose and getting in among livestock."
She recommended Hupman divide the land into two parcels, allowed by law without a permit. She said he could make just as much money that way as he would if he sold five or more lots.
"You can cut (your land) into two pieces without a subdivision, without coming before all of this," confirmed zoning official Jim Whitelaw. "Wait 10 years and you could do it again."
"I'm not speaking as county attorney, speaking as throwing out a question," said county attorney Melissa Dowd. "I (seem to) remember a few years ago, the state did not want to build a fence nor did landowners want to build a fence to make this a regular road. The Virginia Department of Transportation constructed super-duper heavy cattle guards to go on this road. My recollection is that there was enough traffic back then to get it away from being gated, but the board of supervisors intervened due to the cost of fencing and got these special cattle guards there. Increased traffic (such as from a subdivision) will get us closer to that not being a gated road."
"I have been advised I am not prohibited from voting on this because I don't have a direct financial impact," said Robin Sullenberger. "Noise is substantial, dust, truck traffic is substantial and consistent. We have always anticipated Hupman would sell, and at least one house would be built. I have no problem with that, but a subdivision is out of the question. It's spot zoning; you could never make a substantial case that any of those four cases are being advanced (The board of supervisors can rezone land if one of four conditions is met - public necessity, convenience, general welfare, or good zoning practice.) This is absolute spot zoning. From the perspective of the county, I have a concern that if we act favorably on this situation, we open the floodgates and have no control in the future. I prefer growth in areas where infrastructure is in place ahead of time."
"Part of what Robin said is true, part is not," said planning commission chairman Doug Gutshall. "One rezoning does not govern what we do somewhere else … It is hard to expect the developer to spend the money without it being rezoned."
"He's following proper procedure," said supervisor Jerry Rexrode.
"I contacted VDOT about the road," said Gutshall. "It is not in the six-year plan (for improvement). There are places above the last cattle guard only 13 feet wide (adjoining Hupman's land). Gravel trucks would be meeting residential traffic. I don't think it would be prudent for traffic to mix. I don't think a quarry and a subdivision could coexist. The road is going to remain the same for I don't know how long."
Planner Jim Cobb said rezoning it constituted spot zoning. "You can rezone if it is consistent with land use policies (but) this is not the case. An individual benefits without public benefit. Will it advance the health, safety and welfare of the community? No. No public necessity, convenience or public welfare. I hear what Doug says, but I say it sets a precedent. (Hypothetically) I would love to divide my farm into a subdivision. I can make a lot of money off of it. If Hupman can do it, why can't I? No public benefit; can't be legally supported."
The planners passed the rezoning application to supervisors with the recommendation it not be approved.
"For me it has been unclear, the amount of tracts changing," said supervisor David Blanchard in the board's discussion. "It's hard to make a decision. There are a lot of questions to be answered with this subdivision."
Rexrode noted rezoning would put a residential zone in the middle of an agricultural zone and residences are required to have a 200-foot setback from A-2 land.
Rexrode added, "If you don't let growth happen, you're going to have tax increases."
"I move to table this application," said Blanchard. "I need more information on VDOT. I need Hupman to look at the 200-foot setback from agriculture."
Rexrode and Blanchard agreed to table the decision; Sullenberger abstained.
By Tuesday's board meeting, Blanchard had decided he could not support Hupman's request to rezone. He had reviewed the zoning guidelines of public necessity, convenience, general welfare and good zoning and could find no reason to disagree with the planners' recommendation to reject the application. "The good zoning is one that really sends up a red flag for me, and what this could open up down the road - this application and other applications like it - and I just can't see where this application is meeting these conditions," Blanchard said, making a motion to reject the application.
Rexrode considered Hupman's rezoning application feasible. "I think that some place down the road we have to realize that we have to look at applications and try to start working with people," he said.
"I am trying to be consistent, especially
in my position being new on the board, trying to be consistent with the planning commission's recommendation," Blanchard said. "And I would like to see future applicants possibly have some sort of schedule, whether it be just - at bare minimum - a site plan, so that we have some information."
Blanchard voted to reject the request; Rexrode voted against that motion, and supervisor Robin Sullenberger abstained. The tied vote resulted in a rejection of Hupman's application.
But what about a subdivision in a growth area?
Whitelaw brought up another possible subdivision issue for discussion last Thursday. A Highland property owner has approximately 7-8 acres of land in A-2 about a mile south of Monterey near the stock market. The land is surrounded by agriculturally zoned land. The owner divided the acreage and sold a lot to another person for a modular home. The owners of the original lot want to divide the parcel again, making three lots of the original eight acres.
A subdivision of land (anything more than one division of land in 10 years is a subdivision) could be approved in this situation, avoiding the issue of spot zoning, because the land is in a growth area, Gutshall reasoned.
Planner Tony Stinnett agreed.
But subdivisions are not allowed in A-2 zoned areas, so the land would have to be rezoned to residential.
"You can rezone if it is shown to be consistent with the community's land-use policies," said Cobb. "A potential growth area extends from Monterey to Vanderpool (three miles south of Monterey). That satisfies the comprehensive plan and the subdivision ordinance."
So far, so good, but there's a problem. One lot has already been sold and a house is being built there. The house meets the setback requirements for A-2 zoning, but would not meet the setback for a residential zone if the land were rezoned. That still leaves two lots, but the owner can't divide the remaining parcel without going through the subdivision process and that process can't be invoked until the remaining property is rezoned. If the property were rezoned, it could be subdivided in a minimum of three parcels, but the owner only wants to divide it once.
If the owner waits 10 years, he or she can do that with rezoning or subdividing, but the owner wants to act now, not 10 years from now.
If the second two parcels are rezoned residential, can they meet the setback? Whitelaw said the way the parcels are proposed to be divided, they would not be able to build a house on the residential property and meet the 200-foot setback requirement.
The lot that was sold has a house under construction; if the lot were rezoned, the house would not be in compliance with setback requirements. The second lot has a house on it already; if the land were rezoned, it would meet the setback under a grandfather clause permitting existing structures to remain as is. The third lot is only 200 feet wide and would not be able to meet the residential setback requirement from agricultural land if a house were built on it.
Dowd proposed the owners be asked to move the lot line to make it conform to the setback requirements.
"The simplest answer is, this division is the problem," said Dowd. "If that can be moved so (lots) B and C can be in compliance with an R-2 district, then…"
"We would have to create a variance for (lot A) because by rezoning we create a non-conforming lot with the other two," said Gutshall.
"They don't have to do that," said Dowd.
"It would be nice to have it all the same," said Stinnett.
The discussion ended with the commission's and Dowd's recommendations going back to Whitelaw. Whitelaw will talk to the owners about their options.
Whitelaw asked planners' advice on another potential subdivision issue that was not yet formally in the application phase. An inquiry was made to the planning office by a citizen who owns five parcels of A-2 land amounting to roughly 125 acres in the McDowell area. The five parcels are contiguous and are all of different sizes, from less than an acre to more than 100 acres. The owner wants to redraw the boundaries of the parcels so the sizes of the parcels are roughly equal (about 25 acres each). The land would have to be rezoned residential to permit a subdivision. How does one get around that? Planners agreed the proposal did not fall under the subdivision ordinance but seemed to be a matter of simply drawing up new boundaries for the five parcels and filing that change in the circuit court clerk's office.
"No new street, nothing under five acres, no new division of land - he can do this without anybody saying anything," said Dowd.
- With reporting by M.K. Luther,
Staff Writer
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