Last year, the duties of the Charlottesville Planning Commission were changed slightly to allow its seven members to spend more time shepherding the ongoing evolution the City’s zoning regulations. Less time was to be spent on individual projects.
That new focus came into sharp relief during the Commission’s meeting on March 10, 2009. There were no individual projects on the agenda. Instead, Commissioners heard one request to amend the comprehensive plan and considered seven separate changes to the zoning ordinance. Consideration of these changes was requested by staff and included the following recommendations:
1. Restrict City Council’s review of Board of Architectural Review (BAR) decisions to a technical review, rather than allowing Council to weigh in with their own opinions on a particular project
2. Lower the number of unrelated people who could live in the R-2U zoning district near the University of Virginia from 4 to 3
3. Allow for final site plans to be submitted with the signature of the project director, rather than the City Engineer as currently required
4. Change the code so that references to “Access and Pedestrian Walkways” link back to the City Engineer’s “City of Charlottesville Standards and Design Manual” rather than the code itself
5. Revise the section that deals with Parking Garages so that maximum widths of driveways are governed by the Design Manual and not the code itself
6. Revise the “parking location and driveway sections” of the code to match the same maximum widths called for in the manual
7. Simplify the zoning code’s definitions of “building height” and “grade” and to add a definition for driveways
The public hearing on all seven items lasted for over two hours. It was decided before the meeting began that a decision on item two would be deferred, but the Commission discussed the matter anyway. Items three, four five and seven and were voted on separately and approved 7-0. Item six was approved on a 6-1 vote, with Commissioner Michael Osteen voting against because he thought the ordinance change would encourage larger driveways.
City Planner Nick Rogers presented the amendments to the Commission. He explained that staff keeps a list of various zoning issues that are identified throughout the course of their work.
“Various typos, discrepancies, problem areas,” Rogers said. “Often these changes are typically minor in nature… Many of the changes that happen to be on this list are anything but minor.”
COMMISSION DEBATES ‘EFFECTIVE DOWNZONING’ OF SOME UVA NEIGHBORHOODS
Staff recommended that the Commission defer consideration of item #2 due to a concern that not enough people had been notified of the public hearing. If allowed, the change would reduce a developer’s ability to build four-bedroom apartments near the University. The R2-U district contains 356 individual properties, both developed and undeveloped, and is largely near the University north of Fontaine Avenue.
Rogers said the recommendation was being offered because when staff was going through the district to look for typos, they discovered that a developer could build units in R2-U that would allow for four unrelated people to live together.
“As staff members, we were under the impression that it had been three unrelated,” Rogers said. “We operated under the understanding that was not the intent.” Staff then initiated the amendment in order to correct the code to what they thought it should be. In doing their research, they found the matter came up when Planning Commission held work sessions in September 2002 on what would become the City’s 2003 rezoning.
“There’s information in the minutes about two Planning Commissioners liking the idea of having three un-related persons in low-density areas and four unrelated persons in high density areas.” Rogers went on to describe how this section was never really cleared up in the residential density matrix, which shows the various number of peoples included in each district.
Commissioner Dan Rosensweig called the idea an “effective down-zoning” and wondered if the move would discourage density around the University.
“Are [the special University zoning districts] functioning in a way that we want them to function, creating student density where we want student density?” Rosensweig asked. He also pointed out that if the zoning ordinance were changed, all of the existing structures would be non-conforming. He asked staff to provide more information on how many would fall into this category.
During the public hearing on this item, Fontaine Road property owner Keith Lancaster said his street is unique as an example of a walkable community where 94% of the structures are rental units. He said tenants have easy access to bus lines, restaurants, jobs at the Fontaine Research Park and the University of Virginia.
The Commission voted to defer the decision until a later date.
COMMISSION DECLINES TO STRIP COUNCIL OF BAR OVERSIGHT
The official request from staff was to formally remove Council’s de novo review of the appeals. That’s a legal term that means that when Council receives the appeal, it is permitted by City code to hear the entire case. Rogers said staff’s decision to initiate the removal stems from a September 2006 meeting between the City attorney, two Councilors, two Commissioners and two members of the BAR.
“While it was not the meeting’s primary focus, the discussion drifted to how BAR appeals are handled by City Council,” Rogers said. Each City and County in Virginia can decide for themselves how much power the elected body can have over the appointed one. He said Council’s de novo power may have originated at a time in the early 90’s when Council did not want the BAR to be an obstacle to development.
Commissioner Genevieve Keller asked if the amendment was in response to any particular BAR decision that had recently been appealed to Council. Last year, Council spent several hours hearing the appeal of a large residence on Second Street NE and eventually upheld the BAR’s decision to approve the home.
However, Nick Rogers said the amendment was only being proposed because it was on the planning staff’s housekeeping list. Mary Joy Scala, the City’s Historic Preservation Planner, said she didn’t think it was necessary for Council to be required to hear every appeal from the BAR from the beginning.
“The reason for that is because the BAR has nine qualified members with varied design expertise,” Scala said. She said Council has heard eleven appeals of BAR decisions since 2005 and Council overturned the BAR in 4 cases. Scala said she supported the ordinance change because she did not think that de novo appeals were necessary.
Lewis wanted to know why the amendment was being suggested, given that there are so few appeals. Scala said she thought Council’s time was being unnecessarily taken up by having to perform the full review. Lewis wanted to know which City Councilor thought it was burdensome to hear the review. Scala referred back to the 2006 meeting, but could not name the Councilor who had suggested removing de novo.
Lewis continued to press and quoted the staff memo for the ordinance, which defended the removal of Council’s de novo power because of “a change in the relationship between Council and the BAR.” Lewis said that neither Rogers or Scala had addressed that point.
“Please tell me about the relationship between Council and BAR, and how Council used to perceive BAR as an obstacle, and why they don’t now,” Lewis said. “This proposed language would greatly limit a power that City Council has.”
Scala said she had not had any conversations with a Councilor on the issue since 2006.
City Council sits in on Planning Commission public hearings. Councilor Satyendra Huja said during the entire time he worked in City government, that Council has always had the option of fully reviewing a BAR decision. Commissioner Genevieve Keller, who has been active in the community for decades, said her memory matched Huja’s.
“My sense is that prior to 2003, Council had discretion to take into account a number of factors and did so whenever something came on appeal, and that there was a certain climate in the late 1990’s… to make sure that the Council didn’t feel bound to go by what the BAR had done,” Keller said. She added she didn’t think the item had come forward because of any recent incident.
Both Commissioners Mike Farruggio and Dan Rosensweig agreed with Lewis and said the ordinance should be left as is. Rosensweig suggested deferring the motion until such time as the Council adopts a historic preservation district, which is awaiting its second hearing. As currently written, Council would not have de novo power when it hears appeals of BAR’s decisions in those areas of the City that will be covered by the historic preservation district.
Councilor David Brown said he thought that Council should not be over-turning decisions based on design. “If it comes down to us reviewing a decision of a Board that we’ve appointed that’s full of design professionals, we probably shouldn’t get too far down the road of micromanaging the design aspects,” Brown said.
| Chairman Jason Pearson
Chairman Jason Pearson wanted to know if there was a happy medium between de novo and a strict technical review. Pearson said his concern with the language of the existing ordinance is that it currently appears to compel Council to always perform a de novo review. Lewis answered by making a motion to recommend denial of the ordinance change. Keller suggested that the Commission defer the decision and invite members of the historic preservation community to weigh in. Lewis said she would be willing to revisit the issue at a future work session.
Lewis’s motion passed 6-1 with Chairman Pearson voting against.