UPCOMING: - Monday, August 15th - BOARD OF SUPERVISORS' ZONING WORK SESSION 6:00pm Courthouse - Sunday, August 21st - RURAL NELSON PICNIC - 2:00pm Blue Ridge Conference Center in Montebello - Wednesday, August 24th - PLANNING COMMISSION 7:30pm Courthouse - Monday, August 29th - BOARD OF SUPERVISORS' ZONING WORK SESSION 6:00pm Courthouse ------------------------------------------------------------------------- BOARD OF SUPERVISORS Tuesday, August 9, 2005 All Supervisors present. PUBLIC COMMENT - Mr. Earl Holliday, Wintergreen, reported that 142 Wintergreen property owners had unanimously expressed opposition to the planned 78' towers on the highest ridge at Wintergreen. He noted a petition in opposition signed by over 700 people and letters in support of that opposition from several federal and state legislators as well as the Secretary of Natural Resources. Mr. Holliday asked that the Supervisors consider adopting a ridgeline protection ordinance with a 40' height limitation as enabled in the 2000 VA Ridgeline Protection Act. Mr. Jace Goodling, Nelson County Home Builders Association, said that since asking for the Board's help with problems related to the Building Inspections office, his organization has collected 20 written testimonials related to specific problems. He presented copies to each Board member. Mr. Goodling noted that initially, the response from the Building Inspections office seemed hopeful but that the obstructionist behavior has gotten worse again. He said that there have been improvements in the plan review and permitting process but said that the attitude has gotten worse. Mr. Goodling asked that the Supervisors consider solutions to a decade-and-a-half problem that is not likely to go away. Mr. Tom Lanahan, a concrete contractor, said that he was surprised by the number of people who said they had contacted the County Administrator about the problems with the Building Inspector with no action taken. He said that he believes the responsibility of the County Administrator is to improve the process rather than to protect the status quo. He asked the Board for help in solving the problems. VDOT REPORT - Mr. Mike McCormack reported that VDOT will take a look at the problems with the 2,000-foot section of Rt. 29 at the bypass intersection (Food Lion/Lovingston) and report back to the Board. VOTING MACHINES - Mr. Mike Crabill of the Electoral Board reported that the current voting machines do not meet the handicapped requirements and that the county must meet those requirements by 2006. He noted the Electoral Board's recommendation for 30 touch-screen machines at a cost of $97,000 less a $15,000 trade-in for the current machines less $42,000 in Federal funds with the county paying the remaining $40,000 to replace all of the machines. Ms. Ann Marie Middlesworth, representing the vendor, demonstrated how the touch-screen machine works and the features that make it user friendly for the handicapped. Mr. Harvey said that there should be one touch-screen machine in each precinct for the handicapped with the rest of the machines being the current type. He said that the touch-screen machines will scare the elderly. Mr. Wood said that the illiterate would also be intimidated by the machine. Ms. Lisa Wooten, County Registrar, said that one of the concerns is the added cost of operating two separate systems. She also noted that right now the trade-in price is good but that that price would drop in the future. Supervisors voted 5-0 to authorize the Electoral Board to purchase 12 of the touch-screen machines, one per precinct plus two extras using most of the $42,000 in federal funds. COURTHOUSE PROJECT - Mr. Randy Vaughan with Wiley Wilson reported on the progress to date, noting that his group met with the project committee in July and has identified two property owners willing to consider selling land adjoining the courthouse property to the county. After noting that the project committee had decided that they wanted the court and administration operations to remain on the courthouse site if possible, Mr. Vaughan reviewed several options for the design and the identified space and parking needs for both operations. He reported that the project committee felt the Jefferson building (current Sheriff's Office) should be moved on the site to open up the planned new entrance to the court complex. Mr. Vaughan then reviewed the projected costs for the project: $6,085,000 court complex construction costs (two-story addition to historic courthouse section); $6,992,000 administration complex construction costs (2 buildings); $195,000 demolition and relocation (relocation of the cottage behind the courthouse and demolition of the old jail building and Health Department building); $750,000 site improvement; $534,000 structured parking area (two-level, 189-space); $2,364,000 other fees (furnishings, testing, A/E fees, etc); $1,700,000 10% contingency; $1,908,000 escalation at 5%/year for two years; $150,000 relocation of the Jefferson building (includes relocating E-911 department) Total costs projected at $20,500,000 which does not include any land acquisition costs. Supervisors voted 3-2 (Ms. Brennan and Mr. Harris voting no) that the 1930's jail is not to be a part of the project. They voted 5-0 that the county will attempt to relocate the Jefferson building and include it in the scheme of the project. Supervisors voted 5-0 that the Health Department building is to be one of the first structures to be demolished when the actual construction begins. Supervisors agreed to consensus to direct staff to pursue the acquisition of the land needed; to direct Wiley Wilson to proceed with Scheme 6 with the two buildings (Jefferson and 1930's jail) demolished or relocated as described above; to immediately advertise the 1930's jail as available for removal at no cost to the county. 2007 BICENTENNIAL CELEBRATION - Supervisors voted 5-0 to establish a committee consisting of one appointee from each district, and one each from the Historical Society, Chamber of Commerce, School Board, Nelson County Hospitality & Travel Association and from Wintergreen to draft a plan and implement a year-long celebration. The committee will be charged with developing a budget, planning events, coordinating with Jamestown 2007 and reporting to the Board of Supervisors. ANIMAL LAWS - Supervisors tabled discussion of expanding the animal control provisions to prohibit certain breeds of dogs and female dogs at certain times from running at large. APPOINTMENTS - Supervisors voted 5-0 to appoint Mr. Alphonso Taylor to the Economic Development Authority. CLOSED SESSION - to discuss a personnel matter. PERSONNEL - Supervisors voted 5-0 to accept the resignation of Mr. Michael Redifer, Building Inspector, effective September 15th. They directed staff to immediately advertise the position. Supervisors noted their appreciation for Mr. Redifer's service to the county. PRELIMINARY SUBDIVISION PLAT EXCEPTION/MS. MARLO GAYLE ALLEN - The applicant submitted a plat for division of 2.1 acres from the original 5.973 acres of property on Rockfish Valley Highway, leaving a residue of 3.9 acres. The 2.1-acre lot does not front on a public road built to state or county standards but has an existing 35-foot right-of-way designed to meet the requirements of the 2004 one-time division. An exception to Section 4-7-C and Section 4-6-C must be granted by the Supervisors to use the existing right-of-way. Mr. Massie Saunders, representing the applicant, noted that Ms. Allen has proffered no further division of the property. With no public comment, Supervisors voted 5-0 to grant the exception. REZONING REQUEST/MR. CURTIS BRUGUIERE - Mr. Tommy Bruguiere stated that there is a perception of a conflict of interest so he would abstain from voting and would not participate in the discussion of this issue. Mr. Curtis Bruguiere, owner of Anderson's Grocery on Avon Road in Afton, has requested a rezoning of 1.88 acres from Residential (R-1) to Business (B-1) Conditional to allow the use of the space attached to the building for a real estate office and to bring Anderson's Grocery into compliance. The application includes a proffer from the applicant to limit the uses to neighborhood convenience store and real estate office with the residence on the property to be used only as a single-family residence. As per the Supervisors' request during their July meeting, Mr. Boger presented photos showing areas of the property that could be used to increase the available parking. He noted that the area currently used for parking would have to be paved and upgraded to the edge of the right-of-way. Mr. Boger also noted that the state law requires that a conditional rezoning comply with the county's Comprehensive Plan so that would have to be amended if the application were approved. He suggested that an alternative to the conditional rezoning to B-1 would be to rezone to Agricultural (A-1) with the store continuing to operate as a nonconforming use. The applicant could then apply for a Special Use permit to allow a professional office. Mr. Bruguiere said that if that option is more acceptable to the Board, it would sound like the way to go although he does not want to run into the same roadblocks. Mr. Bruguiere requested a postponement to consider the options. SPECIAL USE PERMIT/HIGH COUNTRY ASSOCIATES, LLC (HCA) - HCA submitted a supplement to their application along with a conceptual plan for the proposed development. The supplement requests 185 units, 120 restricted to the development of senior housing on a 13-acre parcel and 65 detached, semidetached or townhouse residences on an 18-acre parcel located between the 27th hole and Rt. 151. The supplement includes the following proffers: 1. the senior living area (approx. 13 acres) will be subjected to a covenant restricting the land to be used for senior living and associated uses; 2. the residential area (approx 18+ acres) will be subjected to covenants restricting those properties to residential and associated uses; and 3. upon final adoption of this Special Permit, the 175 conditional development rights for senior housing provided with the adoption of the amended Master Plan on December 14, 2004 shall no longer be available for any future development on the property and the development rights provided by this Special Permit shall be the only residential rights provided available for the development of the two parcels. Mr. Stuart Sadler, representing HCA, noted that HCA has just signed a contract with Ms. Virginia Tahboub contingent on approval of the 120 senior housing development rights. Ms. Brennan asked whether proffer #2 means no timeshares will be developed on the property. Mr. Sadler said that there are existing covenants on that property that prohibit timeshare units. Ms. Brennan said that the proposal has come a long way toward a compromise but questioned whether the changed application should go back for a public hearing. Mr. Sadler said that the county had requested more information on the proposal and that the changes were made to provide that. He said that he had understood that providing that information would not require that they go back through the process. In response to Ms. Brennan's question about remaining development rights at Stoney Creek, Mr. Sadler said that once this application is resolved, development at Stoney Creek is finished with the exception of the 25-acre parcel owned by the Wintergreen Nature Foundation. Mr. Sadler also noted that the development of this project includes providing water and sewer connections to Valley Green Shopping Center. Mr. Payne, County Attorney, advised that the applicant has tried to meet the county's requirement for information and that another public hearing is not legally required. He noted that the Board has the option to send the application back to the Planning Commission if it wishes however. Supervisors voted 4-1 (Ms. Brennan voting no) to approve the supplemented application for a Special Use Permit. Ms. Brennan noted that while she is pleased with the compromise, she is still concerned about the public's inability to comment on the supplemented proposal and she is concerned about procedure. PROPOSED NOISE ORDINANCE - Mr. Payne explained that the old noise ordinance has been repealed due to ambiguity and the inability to enforce the ordinance. He noted that the county had determined that the old ordinance regulated electronically-generated noise only and that recent General Assembly legislation created another level of ambiguity. Mr. Payne noted that the new legislation also created a July 1 deadline for the county to adopt a new ordinance or be subject to the ordinance created by the new legislation. Mr. Payne explained that Board had adopted the new ordinance as an emergency ordinance and that, following the public hearing, must re-adopt the proposed ordinance if it chooses to keep that ordinance. He noted that the proposed ordinance was created with the help of an acoustic engineer and geared toward acceptable noise levels in a rural county as it is received on a property rather than at the source of the noise. Ms. Brennan said that she hopes all attending to speak against the ordinance have actually read it. She said that there are many exemptions listed, including the hunting of live game and nuisance or predatory animals as well as noise from companion animals. Mr. Wood said that the Board took up the issue of a noise ordinance earlier this year and considered a very general draft ordinance that was not a good fit according to public input. He said that he does not think this proposed ordinance is particularly restrictive. Public Comment - MR. MORRIS BARRETT, Shipman, said that the ordinance will be detrimental to those who target shoot and that farming noises are not mentioned. (Mr. Wood pointed out that agricultural and farming noises are exempt in the ordinance.) MR. BERNARD BIBB, Arrington, said that exercising his 2nd Amendment rights has nothing to do with the county and that hunting is a tradition in Nelson. He asked whether companion animals includes hunting dogs. He said that there is no need for the ordinance and he resents it. MS. VICKIE ROBERTSON, Montebello, said that the restrictions on repetitive sound are a ban on shooting as it would not allow for practice. She said the whole document is vague and intrudes on her constitutional rights. MR. JOEL PARTRIDGE, State lobbyist and liaison for the NRA, said that the majority of this Board of Supervisors has demonstrated an attack on the 2nd Amendment rights of Nelson citizens and that the ordinance effectively outlaws firearm safety training. He said that sound is inherent in firearm use and that the county does not have the authority to prohibit the discharge of firearms. MR. BO ZIRKLE suggested adding a paragraph to set a reasonable limit on how close to a residence you can fire a gun. MR. GEORGE CHEAPE, Afton said that the ordinance is unenforceable and that the county does not need more noise complaints. He said that he disagrees with the way this was done and urged the Board to replace it as soon as possible. MS. DORIS RAGLAND expressed concern about whether hunting dogs are exempt. MR JAMES SHELTON, Roseland, said the ordinance is foolish. SHERIFF GARY BRANTLEY said that this ordinance is going to be his problem to enforce and that the Board could not force his office to do the training required to enforce it. MR. GORDON KOERNER, Shipman, said that he thinks the county is stuck with the state ordinance because the old ordinance was not repealed before the new ordinance was enacted. He said this is an example of underhanded government. MS. DEE DAVIS WELLS, Schuyler, said that Nelson is a rural and diversified county and that people are not happy with the ordinance which should be modified or deleted. MR. MIKE TIERNEY, Massies Mill, said that he chose to live in Nelson because "this crap wasn't here." He said that this ordinance is not for Nelson and he doesn't want his grandchildren to be breaking the law. MS. BARBARA BARTON, Shipman, spoke in support of the ordinance for peace and quiet. MR. ROB RUTHERFORD said that the Board always seems to pick the lowest limits and is wasting everybody's time. MS. KATHY MILLER said that she had skeet shooting on her property for a whole week and does not want to now tell her family that they cannot do that anymore. MR. STEVE KENDALL said that this ordinance is the result of a bill in the General Assembly to help Orion and that it is a city ordinance with a lot of opportunity to exact revenge on your neighbor. He said that the ordinance will cost money to enforce. MR. DAVID HAYDEN said that he chose Nelson County because of its rural character and bought land to target shoot. He said that he now might be deprived of that activity. MR. CARLTON BALLOWE said that the ordinance is not needed, not fair and not enforceable. He said that "we" don't want our lives micromanaged and don't want any additional regulations. He said that there was not an emergency the night the ordinance was passed and that that is an abuse of power. MR. THOMAS DENNIS said that the ordinance makes it close to impossible for him to practice with his weapon. Following the Public Hearing, Mr. Wood clarified that the county can have several ordinances on the same item with different regulations. Mr. Payne said that Robert's Rules do not apply to ordinances and that a statute passed does not repeal the existing statute. Mr. Wood said that he believes the ordinance is valid but that can, of course, be challenged in court. Mr. Harvey said that he has not changed his feelings about the ordinance or the way it was adopted. He said that he is also concerned about the effect on county industries and that grandfathering only works until the industry expands or does something different. Mr. Bruguiere said that he voted for the ordinance primarily because the state was planning to tell the county what it had to do. He said that he believes the ordinance can be re-adopted and then amended to address the concerns. He said that he hunts and his family farm generates noise and that it is not his intent to prohibit normal activities. Mr. Harris said that he had concerns about passing an emergency ordinance but understood that the county would be stuck with the state ordinance otherwise. He said that the only option seems to be to re-adopt and then amend. He said that if he votes to re-adopt, it would be with the understanding that the Board will amend it to address the concerns. Ms. Brennan said that the adoption of an emergency ordinance has been an awkward process. She said that she knows that the ordinance is full of things that need to be changed and reworked and that there is a lot of work to do to make the ordinance reasonable. She noted that the closed meeting held before adoption of the emergency ordinance was held in strict accordance with the Code of Virginia. Mr. Wood said that the Board's preference was not to wait as long as it did to adopt an ordinance. He said that the General Assembly adopted legislation in January with the Board taking up the issue in April or May with a deadline of June 30. Mr. Wood said that his understanding of the ruling in a recent lawsuit was that there are other activities included in hunting but obviously the Board can write those things in to be clearer. He said that it is not the Board's intent to outlaw gun activities. Mr. Wood said that ag and companion animals can be made clearer to include hunting dogs and the Board can look at the levels for normal speech. He said that things are different in Nelson from 20 years ago as there are more people and we can have more of an impact on each other. He said that the Board is trying not to be overly restrictive on those who make noise or on those who like it here because of the quiet. Mr. Harvey said that it is wrong to adopt something you know is not what you want and then work backwards. Mr. Wood agreed that it would be better if it could be amended first but the Board does not have that option. He said that if the Board does not re-adopt the ordinance, we accept what the state hands us. Mr. Harris asked Mr. Payne what the ramifications will be if the county does not re-adopt the ordinance. Mr. Payne said that the legislation is sufficiently vague as to be unclear on that issue. He said that his recommendation was that it was safest to act by the July 1 deadline and to re-adopt the ordinance within the 60 days required or the emergency ordinance would cease to exist. Regarding amending the ordinance first, Mr. Payne said that the state ordinance allows adoption of an emergency ordinance but does not clearly state "an amended ordinance" so his conservative opinion is that you cannot modify prior to re-adoption. Supervisors asked Mr. Payne to further research the issues, develop language to clarify the exemptions for hunting associated activities, companion animals to include hunting dogs and noise generated by certain industries as well as re-examining the levels for normal speech. Further action and discussion tabled until the Board's Monday, August 15th meeting. During Public Comment on any item, Mr. Jim Imbur said that the Board was once again rudely abused and should be treated with respect for its work. He said that he cannot understand why issues cannot be discussed intelligently and reasonably. Meeting continued to Monday, August 15th at 6:00pm at the Courthouse. ------------------------------------------------------------------------- OF INTEREST: Lovingston Historic District meeting with the Department of Historic Resources - Wednesday, August 10th at 5:30pm in the Courtroom at the Courthouse. ----------------------------------------------------------------------------- This report, sent to over 600 Nelson County citizens, was made possible by the generous donations of Rural Nelson members and supporters. We need your help to continue this service. Please consider donating. Kim T. Cash Field Officer Rural Nelson, Inc. P. O. Box 401 (622 Front Street) Lovingston, VA 22949 434.263.5000 Email: info@ruralnelson.org www.ruralnelson.org