[EyesOnIvy] County not appealing Faulconer Verdict

[Brian Wheeler]

The Albemarle County Board of Supervisors voted 5-1 this afternoon to NOT
appeal the Circuit Court decision in the Faulconer case.  Sally Thomas
(Samuel Miller) was the lone vote in favor of an appeal to the Virginia
Supreme Court.

 

The Supervisors voting against an appeal cited recommendations from their
attorney and representatives from, believe it or not, other localities in
Virginia.  The County Attorney was not optimistic about the Board's
prospects of being heard by the Supreme Court.  Chairman Dennis Rooker
expressed his strong support for adequate public facilities legislation, but
also announced that other localities had asked Albemarle to forgo an appeal
because of fears the Supreme Court might make matters worse by rendering a
decision that further eroded  local government power.  Also, there was
interest in keeping the court's docket clear of cases related to "adequate
public facilities" so the General Assembly might be more inclined to follow
up on Governor-Elect Kaine's interest in supporting legislation in this
area.

 

This is a significant disappointment.  

 

The Ivy Community Association's Board of Directors met this evening to start
planning our next steps.  Stay tuned for details about the next community
meeting where this subject will be discussed.

 

Brian Wheeler

President

Ivy Community Association

 

P.S. My comments to the Board today are included below.

 

My name is Brian Wheeler and today I am speaking as President of the Ivy
Community Association.  I am here today to urge the Board to appeal to the
Virginia Supreme Court the decision handed down last month in the case of
Faulconer Construction.

 

You will be told in your closed meeting today that this is a case not likely
to be heard by the Supreme Court.  This is a situation where you should do
what is right, not what is easy.  

 

Judge Peatross couldn't see how Virginia law could allow you to say NO to
by-right industrial development that had off-site impacts.  Your zoning code
clearly says you expect to have that power, and I think you should defend
that right to the end in the name of public health and safety, or remove it
from your ordinance entirely.

 

There are two issues in the ruling that got my attention that I ask you to
consider in today's deliberations.

 

First, Peatross argues that code section 26.12.1 is part of the zoning
ordinance and not the site plan ordinance. He suggests that you therefore
cannot rely on it to raise objections.  Does Section 26 only apply to the
creation of industrial districts at the time of their formation.  If that is
true, why does Section 26 detail not only issues about external roads, but
also things like:

 

*	HEIGHT REGULATIONS of structures, Section 26.6
*	PERFORMANCE STANDARDS, required quote of "Each future occupant" of
an industrial district, Section 26.7
*	SIGN REGULATIONS, Section 26.8
*	MINIMUM LANDSCAPED AREA, Section 26.9
*	Placement of UTILITY lines, Section 26.11
*	BUILDING SEPARATION, Section 26.13

 

In the 27 acre undeveloped parcel of the Ivy Business Park, none of these
things can be addressed for a forest.  They can only be addressed when we
have a site plan under review.  

 

Is Judge Peatross saying you couldn't deny an industrial site plan if
Faulconer presented a plan for an office that was 70 feet in height and had
above ground utilities?  Section 26 says you can't do that in Albemarle.
Peatross seems to think you somehow have this all taken care the day you
colored the property on the map back in 1980.

 

Defend the stated purpose of your zoning code by taking this matter to the
Supreme Court.

 

Second, Peatross argues that if external roads were found to be inadequate,
the only remedy would be for the County to require Faulconer to upgrade
them.  Well that's a pretty one-sided assessment.  The court has a blind
spot to the other remedy, the applicant could adjust its proposed use of the
property.  Maybe this particular industrial site doesn't work.  Remember the
Zoning Administrator's determination of use from 2001 is not site specific
and not made with a final site plan in hand.

 

The County of Albemarle has to seek the power from the Supreme Court to
raise questions during site-specific reviews of industrial development.
That is why you have Section 26 spell out all these requirements.  

 

People all over Albemarle are asking you to think about adequate public
facilities and infrastructure. We ask you to go to the Supreme Court to get
the power to do what is in your own zoning ordinance today.  It is something
worth fighting for.

 

This is the cost of doing business.  If Mr. Davis can say with some
certainty the Supreme Court won't hear this case, then at least you know you
won't have to spend much to get the paperwork submitted.  If they reject
your appeal, you haven't lost much and you will have stood up for what is
right.

 

If Albemarle is unsuccessful at the Supreme Court, you can rest assured that
the community will work with you to get the enabling legislation required
from Richmond.  It may come too late for Ivy, but we have already learned
this is something worth fighting for all of Albemarle.  Thank you.

 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://listserv.bnsi.net/pipermail/eyesonivy/attachments/20060104/35e3bf0f/attachment.htm