[EyesOnIvy] Rick Carter's Letter of Appeal For Faulconer

[Brian Wheeler]

Those of you who have closely followed the Faulconer project and who plan to
testify Wednesday night will enjoy Mr. Carter's formal appeal letter below.
I believe Mr. Carter's charges will persuade some Supervisors.  As a result,
we need a bigger turnout than ever before.  I know you have heard me say
that in the past, but the stakes just keep getting bigger.  If we can help
uphold the Planning Commission's vote by showing our continued support and
intelligence on this matter, then Faulconer's only venue is the courts.  I
like our odds there.  

Brian Wheeler 


http://www.albemarle.org/upload/images/Forms_Center/Departments/Board_of_Sup
ervisors/Forms/Agenda/2004Files/20041027/Faulconerappealletter.htm

BASIS OF APPEAL

Faulconer Construction Company ("Applicant") is appealing the decision of
the Albemarle County Planning Commission's disapproval of its final site
plan pursuant to SDP 04-023.

On September 23, 2003, the Planning Commission granted a Critical Slopes
Waiver request with conditions and approved the Preliminary Site Plan with
conditions (see decision on SDP 02-128).  The Planning Commission required
that the final site plan come back before it for review.

The planning staff reviewed each condition of the critical slopes waiver and
each condition of the preliminary site plan.  In the staff report prepared
by Yadira Amarante and presented at the September 7, 2004 Planning
Commission meeting, the staff found that Applicant met each and every
condition.

Notwithstanding Applicant's compliance with each condition of preliminary
site plan approval and Planning Commission's own staff's concurrence that
the conditions had been met, the Planning Commission denied final site plan
approval for eight reasons.  The Planning Commission did not defer the
matter in order to give Applicant an opportunity to comply with the
conditions, but simply denied the plan for the reasons listed (see page 33
of draft minutes submitted October 19, 2004).

While all eight reasons for denial of approval go beyond the conditions
previously required, Applicant could comply with seven of them.  The eighth
condition is "Vehicles coming to the site shall be verified to be of a scale
that may be safely accommodated by Morgantown Road as provided by Section
26.12.1" (see page 34, draft minutes).

The Planning Commission attempted to place a condition on Applicant that is
unfounded in law.  In fact, the Planning Commission was specifically told by
the Assistant County Attorney that it could not do this.  Mr. Kamptner, in
response to Ms. Joseph's question, ". . . if he was saying that their
[Planning Commission] denial could never be based on the fact that the roads
are inadequate for this particular use" replied, ". . . that was right
because beyond simply the land use cases that he had discussed already the
Courts have repeatedly said that the responsibility of State roads is the
State's.  It is the State's decision as to when public roads are upgraded
and what the level of improvement is."  (see page 26, draft minutes)

When pressured by Mr. Rieley to allow the certification required in the
eighth reason for denial (see page 31, draft minutes), Mr. Kamptner stated
". . . because it is a by right use and we cannot restrict a by right use
based on external factors that the owner cannot control and which the County
has not (sic) authority to require improvement."  (see page 32, draft
minutes)

Even after being advised that such a requirement is illegal, Mr. Rieley
said, ". . . he would like to include the language and see where it goes."
Mr. Morris "agreed to include the language noting that it could be thrown
out." (see page 32, draft minutes)

Where the language goes is before the Board of Supervisors.  The law has not
changed since the September Planning Commission meeting.  The law as stated
by Mr. Kamptner as cited above and expanded on page 25 of the draft minutes
is clear.  This is a by right use that cannot be restricted by external
factors.  This is not a re-zoning or a special use permit, but site plan
approval for a by right use.  The objections to this project are objections
to the use more than to the site plan.  The use has been determined to be
valid under present zoning by the Zoning Administrator, the Board of Zoning
Appeals and the Circuit Court.  By using a standard out of the control of
Applicant, the Planning Commission is attempting to relate a use question to
a by right site plan.  Again, there is no basis in the law to do this.

It is unfortunate that the majority of the commissioners chose to give in to
public pressure as opposed to following its own ordinance.  It is even more
disturbing that they chose to refuse to follow the advice of their own
attorney, while not disputing his advice, taking a cavalier attitude of
"let's see where it goes" and "it could be thrown out".

Applicant received preliminary site plan approval.  Applicant met all
requirements for final site plan approval.  Pursuant to Section 32.4.3.9 of
the Albemarle County Code, the Board of Supervisors may affirm, reverse or
modify in whole or in part, the decision of the Planning Commission.
Applicant asks that the Board of Supervisors reverse the decision of the
Planning Commission and approve the final site plan as submitted and
verified by the staff report.  In the alternative, Applicant asks that the
Board of Supervisors modify the decision of the Planning Commission by
deleting reason for denial number eight and requiring that the Applicant
comply with the other seven items referring the matter to the staff for
administrative approval.

 
Respectfully submitted,
                                            
Richard E. Carter   

Counsel for Faulconer 

Construction Company