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January 19, 2012

Virginia Supreme Court ruling limits power of planning commissions

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DailyProgressBy Sean Tubbs
Charlottesville Tomorrow
Thursday, January 19, 2012

The Virginia Supreme Court has ruled that planning commissions do not have the power to grant waivers that allow property developers to deviate from zoning ordinances.

“Delegation of such authority to the [Albemarle] planning commission is inconsistent with the general role of planning commissions, as reflected by their enabling statutes,” reads the ruling issued last Friday from Justice William C. Mims.

Albemarle County Attorney Larry Davis said in an interview that the county has delegated decision-making powers to its Planning Commission for many decades.

“It’s an important decision that affects our processes, and not just in Albemarle County, but every locality statewide,” Davis said.

The case, Sinclair v. New Cingular Wireless et al., stems from a waiver granted in February 2010 by the Albemarle Planning Commission that allowed the construction of 103-foot cell tower on land subject to the county’s critical slopes ordinance.

Kent Sinclair, an Albemarle resident who owns adjoining property, argued at two public hearings against the waiver. After the commission granted it, Sinclair filed a suit that claimed Albemarle was in violation of the Dillon Rule, which prevents localities from exercising power not granted to them by the General Assembly.

The Albemarle Circuit Court did not agree with Sinclair’s complaint, and the case was appealed to the Virginia Supreme Court, where justices ultimately upheld Sinclair’s suit.

“The General Assembly has specifically empowered only zoning administrators and boards of zoning appeals to authorize departures from zoning ordinances,” Mims wrote in his majority ruling.

The ruling states that planning commissions are only to have advisory roles, and are not to have executive, legislative or judiciary powers.

Davis said waivers previously granted, except the one that was challenged, will remain valid. However, he added the ruling would affect how the county proceeds in the future.

The ruling did not stop the Charlottesville City Council from finalizing a review of its critical slopes ordinance Tuesday.

The Charlottesville Planning Commission spent nearly two years debating a revision to the city’s critical slopes ordinance in order to make it more understandable to the public.

The council approved an amended ordinance that expands the definition of a critical slope. In addition to having a grade of 25 percent or more, a “critical” slope must either have a horizontal run of 20 feet, a square footage of 6,000 feet, or be within 200 feet of a waterway.

Morgan Butler of the Southern Environmental Law Center had asked the council to delay a vote on the ordinance until it could be rewritten.

“The waiver provisions in both the current ordinance as well as the proposed changes are now legally void and the city must revisit who will grant critical slopes waivers,” Butler said.

However, Jim Tolbert, the city’s neighborhood development services director, said he wanted the council to act because he was concerned that not doing so would hold up developments already in progress, such as a 300-unit apartment complex at Arlington Boulevard and Millmont Street.

“The bottom line is, without a waiver provision, they’re just dead in the water,” Tolbert said.

At the same time, projects that move forward with such waivers, and ordinances that allow staff to grant them, may both face increased legal scrutiny.

For instance, the city of Charlottesville currently requires developers of vacant lots to build sidewalks. Tolbert is authorized to grant waivers, but if he does not, city code allows for appeal to the Planning Commission.

Tolbert said the city could amend the ordinance to allow another body to grant waivers, such as the city’s Board of Zoning Appeals or even the council itself.

Davis said another potential remedy would be to pass legislation to authorize planning commissions to grant waivers.

“That’s a likely approach that we will consider,” Davis said.

 

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