Planning: July 5, 2005 Meeting Minutes

July 5, 2005 Meeting Minutes

Nelson County Board of Zoning Appeals
Meeting Minutes
July 5, 2005

Members Present: Kim Cash, Gifford Childs, Goffrey Miles, Linda    Russell, Ron Moyer, Alternate

Member Absent:   John Bradshaw

Staff Present:   Fred Boger

Call to Order:   Mr. Childs called the meeting to order at 7:30 P.M. in the Board of Supervisors meeting room of the County Courthouse.

Approval of Minutes: Minutes from June 6, 2005 were reviewed. One editorial change was made on Variance #2005-010 narrative: Construction on the main dwelling is to begin within one year. Ms. Russell made a motion to approve the minutes as corrected, Ms. Cash provided the second, and motion passed 5-0.

Variance #2005-011 – Sycamore Island, Monroe G. Baldwin, Jr., Owner
Mr. Boger reviewed the Staff Report sent to the Board on June 22, 2005, showing maps of the island and surrounding properties. The BZA does not have the authority to grant this request for a use variance. Only the BOS has that authority. The applicant has the option to provide proof that these buildings are not located within the floodway and therefore, not subject to Article 10, Sec. 4.3, or request an ordinance change from the BOS. An appeal may be made to the Circuit Court if a variance is denied.

Mr. Sam Eggleston, Jr., Attorney at Law, representing Dr. Baldwin and his son, stated that the Island Hunt Club uses the island. Dr. Baldwin originally bought the island for the purpose of establishing a campground. He was told by Buckingham County officials that as long as he was not putting in electricity and water, an outhouse would be permitted. Mr. Baldwin’s son uses the island for hunting and his original camping quarters of a teepee evolved into an elevated platform with a tarp roof, and eventually more cabins were added. They thought they were dealing with Buckingham County until a notice of violation came from Nelson County. When he agreed to represent Dr. Baldwin in his appeal, he wasn’t aware that an application needed to be completed. He felt his letter of September 13, 2005 was the formal request for relief from the zoning violation via variance.

Massie Saunders, Surveyor, went to the site and “shot” the elevation of the buildings, relative to the 100 year flood plain. The FEMA flood map was discussed and there was some question over whether the boundaries shown are County lines or indicators of the flood plain. Mr. Eggleston stated that the flood plain is generally defined as the area where the flood waters are deepest and swiftest. The fringe areas are outside the flood way, but not within the channel of moving water. He believes the island is within the banks of the river, and the structures are of sufficient elevation that they should be considered to be similar to the flood fringe. Mr. Eggleston handed out copies of field work done by Massie Saunders which shows the elevation of the structures. A study of the James River floodplain prepared by State Water Control Board and Army Corps of Engineers in 1975 shows the location of Sycamore Island and the limits of the “intermediate regional flood” and the “standard project flood.” He showed photos of the Gladstone Store and Post Office and a profile from the study. Another map shows the level of the intermediate and project floods on mile 201 which corresponds to the middle of Sycamore Island. The 100 year flood elevation is about 337 feet. The buildings on Sycamore Island are about the same level as the porch on the Wingina Store and water has only been up in the store in 1969 and 1972. Mr. Eggleston said that these building are not to be lived in as primary residences or insured from flooding. He encouraged the Board not to get caught up in the technical details. If necessary, the cabins could be further elevated, or if additional engineering is required, they would like the time to do that rather than tearing the buildings down within 30 days as required by Mr. Boger.

Massie Saunders explained that the USGS benchmark on the bridge over to Sycamore Island shows an elevation of 336 ½ feet. The field elevation on the island is 325’, the riverbed at zip line is 310’, and the floor elevations for the cabins are 331.5, 335.8, 331.4 and 330.2. He stated that there are discrepancies in the FEMA maps. The cross section 76 on the flood maps, relative to the river, shows that the structures would have a minimal impact on the floodway.

Ms. Cash stated that the County’s best information shows these structures to be in the floodway, as depicted on the FEMA maps, which cannot be altered. She asked if the applicant has contacted FEMA to begin the process to have the map altered. Mr. Eggleston said that process has not begun. Mr. Saunders said the map amendment process is costly and requires a great deal of documentation.

Mr. Tom Berry, Attorney at Law, also representing Mr. Baldwin, asked why Mr. Baldwin was asked to appear before the BZA. When Dr. Baldwin purchased the property and it was transferred to his LLC, River Exploration and Fishing LLC, it was recorded in Nelson County and Buckingham County. In reference to Mr. Boger’s earlier statement that the BZA did not have the authority to grant the variance, Mr. Berry quoted portions of Article 10 of the Code of Nelson: The Board of Zoning Appeals may refer any application and accompanying documentation pertaining to any request for a special use permit or variance to any engineer or other qualified person or agency for technical assistance in evaluating the proposed project in relation to flood heights and velocities, and the adequacy of the plans for flood protection and other related matters. Special use permits or variance shall be issued only after the Board of Zoning Appeals has determined that the granting of such will not result in (a) unacceptable or prohibited increases in flood heights, (b) additional threats to public safety, (c) extraordinary public expense; and will not (d) create nuisances, (e) cause fraud or victimization of the public, or (f) conflict with local laws or ordinances. Special use permits or variances shall be issued only after the Board of Zoning Appeals has determined that special use permit or variance will be the minimum required to provide relief from any hardship to the applicant. The applicant is not claiming a hardship, but a bilateral mistake on the part of Nelson County and Buckingham County. These wood huts on stilts will be used for recreation, not residential homes. This is a primitive setting with canoeing for recreation. Mr. Moyer asked if it has been definitely determined that Sycamore Island is in Nelson County. Mr. Berry said that the Lawyer’s Title Group in Richmond determined this to be in the James River Magisterial District, Buckingham County. Further, Article 10 also states: The Board of Zoning Appeals shall notify the applicant for a special use permit or variance, in writing, that the issuance of a special use permit or variance to construct a structure below the 100-year flood elevation (a) increases the risks to life and property and (b) will result in increased premium rates for flood insurance. In Mr. Berry’s opinion, the BZA does have the authority to address this issue (Article VI of the Zoning Ordinance). Dr. Baldwin does not want to have to remove the structures.

Mrs. Russell asked Mr. Berry if he was questioning Nelson County’s jurisdiction in this matter and he replied that he was not.

Mr. Boger stated that in a previous situation involving a special use permit for a storage shed at the former Fleetwood Elementary School, the Army Corps of Engineer study showed that the location was outside the floodplain. FEMA advised at that time that they would not accept this study; only the FEMA map could be used to determine floodplain.

The public hearing was opened.

Mr. David Gunn, Floodplain Program Engineer for Va. Department of Conservation & Recreation, addressed the National Flood Insurance Program which is designed to manage development. The Nelson County ordinance is in compliance with FEMA requirements. He stated that these are residential dwellings and the owner must comply with the code which requires an engineering study to prove there would be no rise in floodplain. The standard is 100th of a foot. Such a study has not been done. He explained how FEMA maps were developed and that they were updated in 1978, six years after the flood previously referred to. Variances are a “big thing” with FEMA. It is the County’s responsibility to manage development and look at what’s going on. If that is not done, it results in flood losses. There are procedures to go through to amend the maps, and this also has not been done. The County must make sure it stays in proper compliance with the NFIP. There are 73 people in the program now, and granting this variance would have adverse consequences for them and the County, as explained by Mr. Boger. He strongly recommended denying the variance. If it is continued to another meeting, there will be FEMA representatives present.

Ms. Russell asked what the consequences would be if the variance is granted and the owner of the property did not apply for flood insurance. Mr. Gunn said this was inconsequential to the County’s responsibility to enforce development requirements in the floodplain. There has been no such management in this situation. The islands are in the floodplain and any rise in water will affect other properties downstream. FEMA has already determined the floodplain and the floodway.

M.r Eggleston explained the difference between the floodplain and overland flow and flood fringe. Mr. Gunn stated that overland flow is very important, but it is not the measurement used in FEMA regulations. Until the flood maps are officially changed by FEMA, anything on this island, Buford Island, or any other island is considered floodplain.

Mr. Billy Hale of Buckingham County feels the island is in the floodway and the variance should be denied.

Mr. Mason Rue questioned what constitutes a residential structure. Mr. Childs said that would be determined by the Building Official. Mr. Boger quoted from the zoning ordinance Definitions, 2.85: Structure: Anything constructed or erected, the use of which required permanent location on the ground, or attachment to something having a permanent location on the ground.

Mr. Baldwin stated he had previous experience with islands. He just wanted to provide a place for people to camp. It didn’t occur to him to get a building permit. He wants to be a good neighbor and in harmony with what Nelson County and Buckingham County want.

Mr. Eggleston suggested that if the Board is uncomfortable with making a decision now, the applicant would like to have an opportunity to address and provide what’s needed. Mr. Boger said that the Board can ask for additional information. Anything submitted must be sealed by an engineer and then be sent to the State and FEMA for their review. If the variance is turned down, the applicant would have 30 days to remove the structures or appeal to the Circuit Court.

Mr. Childs reiterated that the options available to the BZA are:
1)   approve the variance
2)   deny the variance
3)   continue at a later date with additional information

The public hearing was closed.

Ms. Russell stated that based on Mr. Gunn’s information, in her opinion it is very reckless to place these structures in the floodway. Mr. Baldwin suggested the Board assume it is in the floodway and they will focus on the circle of rise by having the pilings strong enough that an engineer will stand behind the design and the floors placed above flood elevation, rather than attempting to amend the FEMA maps. Mr. Gunn stated that the first floor must be above base flood elevation, the foundation engineered to hold up, and it be proven there is no rise. In addition, building codes must be followed.

Ms. Russell made a motion to table the variance request for 90 days, at which time the applicant will advise whether they wish to proceed with or withdraw the application. Mr. Moyer provided the second. Motion passed 5-0.

OTHER BUSINESS: Mrs. Russell asked Mr. Boger to report on the status of the Sallie Fisher property. She reminded the Board that on 3/2/05, it was decided that Ms. Fisher must remove the junk cars and car parts before 6/1/05. Mr. Boger stated that he had visited the property and would have a report for the next meeting.

ADJOURNMENT: At 10:30 P. M., Mr. Miles made a motion to adjourn and Mr. Moyer provided the second. Motion passed 5-0.

NEXT MEETING: August 1, 2005

Respectfully submitted,

Betty Fortune, Planning Secretary

TO:       Nelson County Board of Zoning Appeals
FROM:   Fred M. Boger, Zoning Administrator
DATE:       June 22, 2005

RE:       Appeal of Zoning Administrator Decision/Variance -#2005-011
_____________________________________________________________________

In August, 2004 we received two complaints concerning some construction taking place on Sycamore Island. Investigation of these complaints revealed the following:

1.   Sycamore Island is located in Nelson County even though the property is taxed in Buckingham County. The payment of taxes on the subject property is something the Commissioners of Revenue of each jurisdiction worked out a number of years ago. We cannot say if this practice is legal or not. That is a question that would have to be addressed in another venue. However, available data clearly shows the property is located in Nelson County and is subject to our zoning and local Health Department regulations.
2.   Based on my observation at the time (August, 2004), there was one structure under construction and it appeared several other buildings may have already been constructed on the island. A review of County records showed no permits had been issued for construction on the island. Also, the local Health Department had not approved any permits for sanitary facilities.
3.   Sycamore Island is located within the James River Floodway and according to Article 10, Section 4.3, Permitted Uses in the Floodway District, no structures, fill, or storage of materials and equipment are permitted in the floodway district.
4.   On August 19, 2004, Mr. Chris Langley and Mr. Monroe G Baldwin, Jr. were notified of the zoning violation and directed to remove all structures within thirty days from the date of the letter.
5.   On September 13, 2004 we received a letter from Mr. Sam D. Eggleston, III informing us that he was representing Mr. Monroe G. Baldwin, Jr. and he was appealing my decision to the BZA. He also stated that they felt the structures would not result in any increase in the 100-year flood plain and that engineering would be done to verify this.
6.   Between September 13, 2004 and April 18, 2005 we received no information from the petitioner. We contacted Mr. Eggleston on several occasions and asked for the information, including the application for an appeal. According to State and local regulations, the appeal must be officially made within 30 days from the date of the decision. The appeal was not made according to Section 14-5, Procedures on Appeal or Application to the Board of Zoning Appeals. The petitioner failed to complete the appeal process within the specified time period.

The subject property commonly known as Sycamore Island is located between Buford Island and Buckingham County. The property is further identified as Tax Parcel 034-037 (Buckingham County).

The National Flood Insurance Program Flood Boundary and Floodway Map, Nelson County, Virginia, Community-Panel Number 510102-0150-A shows Sycamore Island is located within the Floodway of the James River. An on-site inspection of the property has revealed that four buildings and an outhouse have been constructed on the property. This inspection also showed equipment, such as lawn mowers, trailer, and other materials, being stored on the island.

According to Article 10, Section 4.3. Permitted Uses in the Floodway District (Floodway defined as the designated area of the floodplain required to carry and discharge flood waters of a given magnitude. For the purposes of this ordinance, the floodway shall be capable of accommodating a flood of the 100-year magnitude.), the following uses and activities are permitted, provided that they are in compliance with the provisions of the underlying area and are not prohibited by any other ordinance and provided they do not require structures, fill, or storage of materials and equipment:

A.   Agricultural uses, such as general farming, pasture, grazing, outdoor plant nurseries, horticulture, truck farming, forestry, sod farming, and wild crop harvesting.
B.   Public and private recreational uses and activities, such as parks, day camps, picnic grounds, golf courses, boat launching and swimming area, horseback and hiking trails, wildlife and nature preserves, game farms, fish hatcheries, trap and skeet game ranges, and hunting and fishing areas.
C.   Accessory residential uses, such as yard areas, gardens, play areas, and pervious loading areas.
D.   Accessory industrial and commercial uses, such as yard areas, pervious parking and loading areas, airport landing strips, etc.
E.   Flood warning aids and water measurement devices.

The four buildings, outhouse, equipment and materials are clearly prohibited in the floodway and therefore must be removed.

The petitioner is requesting a variance to this section to permit the buildings to remain on the island as built. A variance is an authorization for deviation from zoning ordinance provisions that regulate the size of a lot or the size, area, or location of a building or other structure. The decision of the board is administrative and not legislative. This basically means that the board does not have the authority to grant a use variance, i.e., a use that is not allowed in the district by the zoning ordinance. In this case, the five structures are not allowed in the floodway district and a variance cannot be granted. Only the Nelson County Board of Supervisors has the legislative authority to amend the zoning ordinance to add or delete uses within any zoning district and not the Board of Zoning Appeals. Therefore, this variance request must be denied.

Presently there are 73 structures insured by the Federal Flood Insurance Program for a total value of approximately 11 million dollars. If this variance were to be granted, the consequences could be severe for these property owners and the County. The County could be dropped from the Federal Insurance Program for non-compliance which would result in the mortgage companies calling in the loans on those properties because they would no longer have flood insurance. If this happens, the County could not re-enter into the Flood Insurance Program until this violation has been corrected to comply with the Federal Insurance requirements.

A less severe consequence is the County’s Insurance Program being placed on probation. In this case, the insurance rate for all local properties covered would be increased by $50. This increase would remain in effect until the violation had been abated.

Approximately 10 years ago, the Board of Zoning Appeals and the County were warned about granting variances in the floodplains. If this variance is granted, we can anticipate the probability of being dropped from the Flood Insurance Program. Even if the County took the BZA to Court and the court upholds the action, the County could not re-enter the insurance program until the violation has been corrected to comply with Flood Insurance Program’s regulations.

The major concern I have with this request, and it should also be a concern of the Board, is the health, safety and welfare of people using the structures on the island. We would like to assume that good sense would prevail and when there is a threat of flooding, people on the island would leave. However, this is generally not the case. Many people will take the gamble to ride out a storm and the next thing we know there is a life threatening situation, placing additional lives in jeopardy to rescue the people on the island. Examples of this type of problem are frequently shown on the national news programs. One thing is very clear. In this situation, due to the location of this island and limited access to it, a timely rescue probably would not be possible.   I strongly believe we should not encourage the use of this property in a manner inconsistent with our zoning ordinance regulation which could result in the possible loss of life. Therefore, this variance request must be denied.

A simple question the petition has failed to answer is: Where is the hardship to justify granting a variance? It is our opinion that the property owner has created this problem by failing to obtain the required permits and this should not be grounds to justify granting the variance. I have often heard people say it is easier to ask for forgiveness than play by the rules. In situations where loss of life is a possibility, I strongly do not believe forgiveness should be given. The rules for managing growth in the floodway/floodplain are there to protect life and property and they have to be followed. Therefore, this variance request must be denied and the petitioner ordered to remove the buildings within thirty (30) days.

If you have any questions regarding this report, please feel free to contact me.

Thank you.

Copies to: Monroe G. Baldwin, Jr.
          Sam D. Eggleston, III
          Becky Carter, County Administrator, Buckingham County