BZA votes to protect controversial right-of-way rule
The Rappahannock County Board of Zoning Appeals (BZA) has unanimously upheld an appeal from Sperryville resident Sally Haynes — preventing Tom Taylor, owner of Mount Airy, LLC, from subdividing part of his property on Woodward Road.
Haynes, an adjacent property owner, appealed a Nov. 9 determination from Zoning Administrator Michelle Somers that rendered a 50-foot right-of-way provision in the Subdivision Ordinance unenforceable, which would have allowed Taylor to move forward with subdividing
According to the provision, in order for someone to subdivide land zoned as rural residential, the plat must egress onto a 50-foot right of way. Taylor submitted his application administratively, meaning it did not go through the typical public-hearing process.
Members of the BZA determined on Feb. 28 that Somers “acted beyond her authority” and that a zoning administrator is not able to declare an ordinance unenforceable. They argued it is a legislative action that should have been made by the Board of Supervisors. Newly-appointed BZA member Chris Parrish was not present at the meeting.
“The ordinance was clearly designed to protect scenic landscape,” said BZA member Steph Ridder. “There is an appropriate place for changing the ordinance, and that’s the Board of Supervisors.”
Now, Taylor is not able to subdivide a 25-acre parcel of land into three more parcels along Woodward Road, which would not have egressed onto a primary road, as it states in the ordinance.
Some 20 people from across the county showed up at the Feb. 28 public hearing, with most residents speaking in favor of Haynes:
“If you make this change, then you are fundamentally altering the ability of the requirements associated with future development,” said Sperryville resident Mark Constatine. “Our gig here is that we want to preserve Rappahannock County in the way it is.”
“I'm not a lawyer, but from what I've seen, I believe the zoning administrator has no authority to declare the Zoning Ordinance invalid or unenforceable,” said Hampton resident Dan Lanagan.
“My confidence in the zoning laws protecting property rights has absolutely gone rock bottom,” said Piedmont resident Patty McGill Peterson. “When you deal with any issue like this, you're dealing with multiple property rights. And now we're being told that we may have no rights if this is unenforceable. And so, that has to be examined very closely. But clearly, doing this in a peremptory way, is not acceptable.”
Another common concern among those who spoke, which was also highlighted in Haynes’ appeal, is the safety of Woodward Road once more housing is built. Woodward Road is a narrow, winding gravel road that is one-way at some points.
“The leaders who put these right-of-way provisions in place made sure that our Comprehensive Plan also reflects special protections for our secondary roads,” said Piedmont resident Mary Katherine Ishee who spoke on behalf of Haynes during the meeting.
The three parties — appellant Sally Haynes, appellee and Zoning Administrator Michelle Somers, and the aggrieved party, Tom Taylor — each had 30 minutes to argue their case and give closing statements before the vote.
County Attorney Art Goff spoke on behalf of Somers and argued that the provision in question is “incapable of enforcement” because there are no 50foot wide, public secondary-road right of ways anywhere in the county, with the exception of Chester Gap Road.
“We're saying we can't enforce it because it doesn't exist,” Goff said. “That's like asking a blind man to tell you what he sees out the window. He can't do it. Under no circumstance could an applicant such as Mr. Taylor satisfy the requirement.”
Goff added that this provision has not been enforced over the years, and that there are about 49 subdivided parcels in the county with a less than 50foot right of way.
Taylor’s attorney Mike Brown reminded BZA members in his closing statement that the body’s sole function is to determine if Somer’s interpretation of the ordinance was “illegally incorrect,” and that she’s presumed to be correct. He said Somers did not “waive” any requirements on Taylor’s application, and instead recognized it’s an “impossible condition for the applicant to meet.”
Three residents spoke in favor of Somer’s determination — Piedmont residents Tommy Atkins, Carolyn Butler and Dee Wines.
“We hear people talk about feeling unsafe on Woodward Road — people are not supposed to be walking in the middle of the road to start with,” said Atkins, who also serves on the Planning Commission.
Butler pointed out that Taylor plans to build two houses on the parcel in question, and said she doesn’t want Sperryville “from becoming like Washington,” which has a population of less than a hundred. “I think it's very important to build some new houses to replace those ones that have been taken away,” Butler said.
Brown declined to comment on the BZA’s vote, but said they will consider their options for appealing the decision. “Nobody in the country has been able to deal with [tourist homes],” said Atkins. “Now, that has caused us a little bit of tax money that they bring in. That’s not a positive to me.”
The county’s tourism industry has generated roughly half a million dollars annually in food and lodging taxes. “I think [investors] are very wealthy people, and I don’t think we should give them a break,” said Atkins.
According to the county code, “tourist homes” are considered to be transient lodging that accommodates up to 10 people in not more than five bedrooms, is rented in its entirety to a single party and does not serve meals. A bedand-breakfast typically rents out single rooms.
If this ordinance amendment is approved, an owner would be required to own a property for at least two years prior to being eligible to apply for a tourist home special exception permit. This proposal does not include bed-andbreakfasts, and only applies to tourist homes that require a permit. This proposal was first introduced informally by Stonewall-Hawthorne Supervisor Van Carney last October in an effort to improve the long-term housing market in the county.
Four residents attended the Feb. 21 public hearing, with three of them speaking in favor of the proposal, while another resident questioned the urgency to vote on it.
“I don’t see what the advantage would be,” said Jackson resident Ron Makela, who is also a member of the Board of Zoning Appeals. “A lot of [tourist homes] are quaint. They are old tenant houses and stuff like that. They don't really lend themselves to full-time residency, particularly in the winter.”
The commissioners agreed that a two-year holding period won’t solve the affordable housing problem in the county, but ultimately decided that a moratorium could give the body time to see if it makes a difference on the market.
“I haven't seen anybody buy land and build houses on it,” said Hampton Commissioner Al Henry. “We're talking about something that hasn't happened.”
Other commissioners thought this proposal could protect against an ill-advised investor buying land in the county for the sole purpose of building shortterm rentals.
“I feel like some of the comments suggest that by having this two-year ownership delay, we're going to somehow see a slowdown in the applications,” said Stonewall-Hawthorne Commissioner Gary Light. “I doubt that's going to be the case … This will only affect people buying property going forward. But that to me is where the real value is.” Family Divisions amendment The Planning Commission also voted unanimously to recommend that the Board of Supervisors remove language on Family Divisions from the Zoning Ordinance, and to amend the Subdivision Ordinance that contains similar language.
At issue: These sections are "nearly identical," according to county staff, because an ordinance amendment that occurred in November 2000 modified language in the Zoning Ordinance, but did not modify the parallel language in the Subdivision Ordinance.
The language being amended has to do with density limitations on parcels zoned as a family division, and the Zoning Ordinance would instead make reference to language in the Subdivision Ordinance.