Albemarle County Planning Commission

July 11, 2006


The Albemarle County Planning Commission held a meeting and a public hearing on Tuesday, July 11, 2006, at 6:00 p.m., at the County Office Building, Room 241, Second Floor, 401 McIntire Road, Charlottesville, Virginia. Members attending were Bill Edgerton, Eric Strucko, Calvin Morris, Vice-Chairman; Pete Craddock, Jo Higgins, Jon Cannon and Marcia Joseph, Chairman. Julia Monteith, Senior Land Use Planner for the University of Virginia, representative for David J. Neuman, FAIA, Architect of University of Virginia was absent. 


Other officials present were Wayne Cilimberg, Planning Director; Elaine Echols, Principal Planner; Rebecca Ragsdale, Senior Planner; Steve Tugwell, Planner; Mark Graham, Director of Community Development; David Pennock, Principal Planner; Tamara Ambler, Natural Resources Manager; Glenn Brooks, Senior Engineer; Jack Kelsey, County Engineer; Ron White, Director of Housing; Amelia McCulley, Zoning & Current Development Director/Zoning Administrator and Greg Kamptner, Deputy County Attorney.


Call to Order and Establish Quorum:


Ms. Joseph called the regular meeting to order at 6:00 p.m. and established a quorum.


Public Hearing Items:


SP 2006-0011 Mosby Mountain Stream Crossing (Signs #14,22)

PROPOSED: Amendment to existing special use permit for fill in the floodplain to allow a culvert stream crossing.

ZONING CATEGORY/GENERAL USAGE: R-1 Residential (1 unit/acre)

SECTION: (2); (3)

COMPREHENSIVE PLAN LAND USE/DENSITY:  Rural Area 4 - preserve and protect agricultural, forestal, open space, and natural, historic and scenic resources/ density (0.5 unit/ acre)


LOCATION: Approximately 200 feet from the intersection of Mosby Mtn. Drive and Old Lynchburg Road (Route 631)



STAFF:  Tamara Ambler


Ms. Ambler summarized he staff report. 


         The applicant is requesting to amend a previously approved special use permit to allow the construction of a full barrel 10í X 10í box culvert in place of a ConSpan bridge on Ambroughs Common Drive to provide the second access into the existing Mosby Mountain Development.  The applicant has indicated that issues have arisen with the use of the ConSpan at the site that are making approval of the bridge by VDOT and construction of the project difficult.  It is important to note that the applicant has been coordinating with VDOT regarding various designs for the ConSpans since 2003 without approval so far.  Specifically, soils on the site are fine and unstable and would require the addition of pilings for the foundation of the bridge and the addition of rip rap beneath of the bridge.  It should be noted that if a box culvert were to be utilized, excavation of this unsuitable soil and backfill with suitable material would still be necessary to establish proper bedding for the boxed culverts.  So there would still be in stream disturbance regardless of which structure were to be used.

         It is true that staff prefers a span design over a box culvert design to reduce long term stream impacts. Staff coordination with VDOT indicates that the applicant has not yet submitted a design showing the rip rap under the span structure and such design would likely be acceptable.  However, staff also acknowledges the extended coordination between the applicant and VDOT.  Therefore, staff recommends approval of the request with revised conditions.  Those revised conditions are listed in the packet.  Condition 1 is a new condition that stipulates that the applicant must first submit to VDOT one final proposal for the ConSpan structure with the rip rap scour protection provided under the extent of the structure.  If VDOT indicates in their review of this final submittal that the rip rap cannot satisfactorily address the scour concerns and does not approve the final proposal in a timely manner, then the quadruple 10í X 10í box culvert may be installed in lieu of the ConSpan structure.

         Conditions 2, 3 and 4 remain from the original special use permit approval with just a few edits.  Condition 5 also remains, but it has an addition that requires that if the box culvert is utilized then it must be cast in place or otherwise constructed to provide for countersinking of one barrel of the culvert to provide for normal and low flows in a manner satisfactory to the approved U.S. Army Corps of Engineers water quality permit.

         Conditions 6 and 7 remain from the original special use permit with minor edits, but not substantive in content.  An email was sent to the Planning Commission that included condition 7.  Staff failed to add one condition that was left over from the previous special use permit conditions, which says, in an effort to minimize environmental degradation, no soil shall be removed from the stream to compensate for any fill.  She apologized for any confusion this may have caused.

         Jack Kelsey, County Engineer, is present to answer any questions about design features of either structure.


Mr. Craddock asked what type of time frame staff thought it would take for VDOT to do one more review.


Ms. Ambler replied that they had discussed that and it was actually suggested by the applicant that perhaps they look at the understanding of a 60-day time period. 


Mr. Craddock asked if VDOT would do that.


Ms. Ambler replied that VDOT has not indicated.


Mark Graham, Director of Community Development, said that he just wanted to let the Commission know that there are a number of coordination issues that happened with VDOT.  This would go from the residency to the district in Culpeper and they would review it.  But, for the final bridge design it would have to go to Richmond.  Staff has seen those types of reviews take more than two months in the past.  Rather than put a date on there what he was suggesting was that they try to look for VDOT to do the review and get the comment from VDOT and see if they can get it approved.  But, they have no assurance that VDOT would review that within 60 days. 


Ms. Higgins asked Mr. Graham about the last condition 7 where it talks about no soil shall be removed from the stream to compensate for any fill.  Could that potentially conflict with trying to meet requirement 6, that talks about demonstrating approval of the revised floodplain and no changes in floodplain levels can occur?  Typically there was some balancing out of what they remove.  Are they conflicting?  Does that make it conflicting because it says no soil shall be removed from the stream to compensate for any fill?  That seems a little extreme because no change in the floodplain levels can occur.  Sometimes that is how you account for the changes and how you keep from affecting a floodplain.


Mr. Graham said that if they were going to weaken one or the other he would say it would be 6 versus than 7 in that they want to maintain the stream section as much as possible.  But, he suspects that is not going to be an issue with the ConSpan bridge or with the box culvert.


Ms. Higgins noted that she was saying with the ConSpan it probably would not, but with the box culverts it could be.


Mr. Graham said that it could be, except it is suppose to be a counter sunk section and the remaining sections should actually meet the contours.  So it should be fine.


Ms. Joseph asked if there were any other questions for Mr. Graham or staff.


Ms. Higgins acknowledged that VDOT takes a long time.


Due to no further questions for staff, Ms. Joseph opened the public hearing and invited the applicant to address the Commission.


Pete Caramanis, representative for Bates Development, said that they were here tonight out of necessity and not for convenience.  Since this original special use permit was approved in 2002 Bates Development has made numerous efforts back and forth with VDOT to try to get a span design approved.  It has become very clear that is not going to happen.  Whether or not a specific item can be addressed in a revised plan has not been sufficient to get the entire design approved because there is always something left that is insufficient.  Basically, it has become clear that VDOT is not comfortable with a span design on this site due to the soil problems.  So tonight they are here asking to amend this special use permit to allow construction of a box culvert. Ms. Ambler mentioned that perhaps with some rip rap and scour protection it was likely to be approved.  He would disagree with that.  At the end of the packet there is a letter dated May 19 from Jim Utterback, who is the Residency Administrator of VDOT, where he states the department strongly recommends the County allow the use of a box culvert at the site.  There is also an email before that where Ms. Ambler received some conflicting information from someone at VDOT.  Since then there was another email that they may or may not have from Jim Utterback to Mark Graham where he makes it as clear as he could.  He was directly addressing the fact that there is a condition potentially requiring Bates Development to submit another proposal for review.  In response to that concern, Mr. Utterback says that he understands the County has a process to follow, but he was not sure how efficient it is to revisit the ConSpan issue with VDOT again.  There should be enough existing documentation from VDOT on this structure, and he references that May 19 letter.  He distributed copies of the email.  (See Attachment)  He thinks that it is clear from that email that all they would really be doing by submitting another proposal to VDOT is taking more time, which no one really wants to do.  Beights Development certainly does not want to take any more time.  The residents of Mosby Mountain have been very clear that they would like this crossing constructed as soon as possible.  Obviously, requiring Beights Development to go back to VDOT, which they have already talked about, is a process of indefinite length.  Even if it is only one submission it does not lend itself towards achieving that goal.  He understands the Countyís concern from reading the staff report that using the box culvert instead of the ConSpan is basically environmental and the potential impact to the stream bed.  They have submitted a letter from an environmental engineer from Timmons, Chris Dotson, who specifically states in that analysis that the box culvert, although it would have some minor increased impact on the stream bed during the construction phase, would have no greater long term impact on the stream bed than the span design would.  In addition, another box culvert was used on this same stream a little further down the stream on Old Lynchburg Road. Obviously it has been used successfully in that location.  Acknowledging that some greater temporary impact would result to the stream bed as part of the proposal, they have submitted some stream buffer mitigation in planting some trees within the stream buffer to ensure that the area remains in its naturally beautiful state even with the construction of the boxed culvert.  They had a meeting with the Mosby Mountain residents that discussed this to let them know what was going on.  That occurred about a month ago.  They answered a lot of questions mostly about why this is taking so long.  The Mosby Mountain residents have been waiting to have this crossing constructed for four years and it is still not there.  The site is clearly not as attractive as they anticipated it being by this point because the residents expected the crossing to be built. The residents expressed their unanimous support for allowing the box culvert at this location understanding that it would get constructed quicker. VDOT has said that they would approve a box culvert.  The Army Corps of Engineers has already approved the use of a box culvert. Staff received a letter from the Mosby Mountain Community Association expressing their support.  In addition, tonight he would submit to Ms. Ambler a petition in support of their application, which was signed by about 30 lot owners in Mosby Mountain.  He has not heard or received any opposition from any residents in Mosby Mountain Subdivision.


Next, Mr. Caramanis asked to briefly address condition 1.  Obviously, he has already mentioned that it would not be productive to have to resubmit anything to VDOT.  In light of the email that he circulated, his position would be that it is appropriate to simply delete condition 1 and not require Beights Development to make that submittal and waste any more time on this.  If the Commission determines that it is appropriate to keep the condition, there are a few changes that he would recommend.  The first is it mentions if VDOT indicates in their review of this final submittal that the rip rap cannot satisfactory address scour concerns and does not approve.  He reiterated that throughout this process VDOT has been fairly creative in their reasoning for rejecting each revision that is submitted to them.  He felt that it would be more appropriate not to limit this condition to a specific response from VDOT, but rather have the condition say ďif VDOT does not approve the final proposal.Ē  This could go on indefinitely.  VDOT might say that the rip rap and scour protection is fine, but there is some other reason that they canít approve the span, and then they would be back to square one.  The other thing he would like to see, again, Mr. Graham addressed this by using the words ďin a timely manner.Ē Again, that just leaves this open to drag on even longer.  If they are going to keep this condition in here, he would like to see a specific time frame added. He would like to put as much pressure on VDOT as possible to get them to respond quickly.  He suggested that 30 days would be sufficient.  If they donít get a response or if they get a denial in that time frame, then they would be allowed to move forward.  Lastly, it does say quadruple 10í X 10í box culvert may be installed.  He realized that it would be a quadruple box culvert because that is what the engineers of Bates Development used to look at it and thought that it would most likely be required there, but this will require the approval of VDOT.  They might think the quadruple will do it or they might think that it needs one more, but he would prefer that this be approved as a box culvert and leave the flexibility there for VDOT to approve it without them having to come back and amend it one more time.  So he would respectfully ask that the Commission recommend approval of the application with the deletion of condition 1.  Or if the Commission feels that condition 1 needs to remain in there with those changes that he just recommended.  He would be happy to answer any questions.


Ms. Joseph asked if there were any questions for the applicant.


Mr. Cannon asked what is there now.


Mr. Caramanis replied that there was nothing there now.  Right now they have an entrance to access one side road.  Then it does not continue to access the remainder of Mosby Mountain.  So what were supposed to be one neighborhood with two entrances are essentially a street and a neighborhood with one entrance until they can be connected. 


Ms. Joseph asked if he knew how many revisions that they had sent to VDOT at this point and when their first submission was.


Mr. Caramanis stated that he had some information on that, which they provided to staff.  He asked staff to chime in if they knew the answer from the information submitted.


Ms. Higgins said based on their timeline submitted the preliminary review of the ConSpan was on April 22, 2003.


Ms. Joseph said that was correct, and there were two submittals.


Mr. Caramanis said that there have been numerous discussions about a lot of things that were not submitted, but were batted back and forth.  It has become even clearer in verbal discussions, although he felt that the email was pretty clear, that it has pretty much been stated in verbal discussion that VDOT is not going to approve a span design here now.  VDOT is reluctant to put something that concrete in writing to the County.  But, he feels that the email is pretty significant.


Mr. Edgerton asked why VDOT would be reluctant to make that statement.


Mr. Caramanis replied that people are always reluctant to make statements that leave no wiggle room. He was not singling out VDOT.  He just thinks that people never want to say never.  He felt that was the situation that Beights Development was in right now.  If VDOT said never it would make this situation a lot easier for Beights Development, the County and everybody.  He felt that was the situation they were in.  They canít wait for VDOT to say never.  They have already tried this for four years.  He felt very sympathetic to the residents of Mosby Mountain that are waiting for this.  There is not much more that they can tell them other than this is the way that they can get it done.  That is why the residents are supporting Beights Development in this request.


Ms. Joseph asked if there were any other questions for the applicant.


Ms. Higgins requested to ask another question of Mr. Graham.  She asked if Mr. Graham had responded to the May 19 letter, which says that the department strongly recommends the County.  She felt that they were mincing the words because saying that their understanding is that the County will not allow the use of it.  So it is kind of a Catch 22. 


Mr. Graham said that it was not that the County would not allow it, but VDOT.  He has talked to Jim Utterback, the Resident Administrator, about it.  They are in an awkward spot.  What has happened is that the local office and the district office do not really have that big of an issue with the ConSpan design, but when it went to Richmond to the bridge division all of a sudden they donít want to see those.  They want to see box culverts.  They canít overrule.  That is the issue.  But, Richmond wonít come out and say that that ConSpan is not an acceptable design.  That goes back to when the special use permit was first being considered the first thing that they got was a documentation from the then acting engineering here in Charlottesville that said a ConSpan bridge design would be acceptable subject to final shop drawings.  Now this is where they were at is final shop drawings.  When it got to Richmond all of sudden the issues start coming up. 


Ms. Higgins noted that it was a different soil condition.


Mr. Graham replied that is true, but the applicant and staff have met with VDOT several times. He has met with VDOT staff from the district and even representatives from the Bridge Division.  The last meeting they had they talked about a rip rap.  They were trying to use sheet piling before and were told that the sheet piling was just not going to work.  They talked about a rip rap design as a solution.  All he is suggesting is that because they wanted the ConSpan design and because of the lesser environmental impacts letís try the rip rap and see if that works. If that does not work, they can give up and go to the box culvert. 


Ms. Higgins said that based on this email she felt that the applicant was irritated. The resubmitted plan might be submitted and not get an appropriate review because the applicant has been through it so long and so many different times.  But, that was her personal opinion. 


Mr. Graham said that he did not know what to say.  He was truly sorry that the applicants have had to go through this.  He was also sorry that staff has had to go through this for such a long period of time.


Ms. Higgins asked if he felt that it was worth leaving item 1 in just to go through the whole routine again.


Mr. Graham replied that he would like to quite frankly because they have used ConSpans.  Old Trail has a ConSpan and it was approved, but it was different soil conditions.  But, they were talking about trying to respond to those soil conditions for the scour potential and seeing if that can address it.  If VDOT says that it is not addressing it, then he gives up. 


Ms. Joseph said that they would have scour with the box culverts.  They are going to have to excavate all that stuff before putting the box culverts in and put something suitable underneath that.


Mr. Graham replied yes, they would put a footing in with the box culverts. The risk of undermining the box culverts is fairly low. But, with a ConSpan it is an open channel there and the opportunity for erosion is significant.


Ms. Joseph said that she sees erosion happening there.


Mr. Graham said that it does have problem soils there.  There is no question about that. 


Ms. Joseph asked about a suitable time limitation because they donít want this applicant hanging in this process.


Mr. Graham said that he did not want that either.  He was hoping that the way that is worded that it gives staff the discretion to determine whether VDOT has had adequate time to make a review and a recommendation or not. 


Ms. Higgins said that it is written kind of nebulous.


Mr. Graham agreed.  But, the problem is that honestly he did not know how long it would take VDOT to review it.


Mr. Edgerton asked if there was a way that the County could get on the same side of the table with the applicant to try to push VDOT into making a decision in a timely way.  He asked if Mr. Graham could go to VDOTís office and tell them that he needs a decision and that he does not mean next October.


Mr. Graham said that he could, but he did not know if he would get the decision.  He pointed out that there are site plans and subdivisions that are not getting reviewed by VDOT within 60 days.  That is being done locally.  They are talking about something that has to go to Richmond.


Mr. Edgerton pointed out that this VDOT representative who is writing the email has given approval.


Ms. Higgins noted that he was the local resident and was being overruled by Richmond.  With all of these things taking so long and what the situation is she asked if Mr. Graham thinks the plan should be sent through again for another round.  She asked if he felt that it was that important.


Mr. Graham said that it was the question of balancing the environmental concerns with the pragmatic of VDOT.


Ms. Higgins said that VDOT wants to stick with what is tried and true.


Mr. Graham agreed, but that VDOT has approved ConSpans before.  As everyone has noted, VDOT will not come out and say that they are not going to approve a ConSpan.  So he has said based on the last meeting that they had with VDOT they said try it with the rip rap. He was saying letís try it with the rip rap and if that does not work then move on.


Mr. Edgerton asked if he was suggesting that some shop drawings be submitted by the applicant to VDOT with rip rap.


Mr. Graham replied that was correct with rip rap in the channel for scour protection.


Mr. Edgerton said that in the staff report he got the distinct impression that because of the soil condition to get the structural support necessary to make the ConSpan there is probably more environmental degradation to the stream than would be put in by the box culvert.  His read was that they would have to do more excavation than they would for the box culvert. 


Mr. Graham replied that he was not sure about that.  The box culvert is going to be a pretty intrusive thing.  One of the things is that the bridge can be done in the wet. To build the box culvert they are going to have to build a diversion to even build the box culvert.


Mr. Cannon said that he understood from the applicant that their expertís report indicated that construction of the box culvert would be more disruptive than the bridge at the time of construction, but after that the operational impact would be equal.  He asked if Mr. Graham agreed with that.


Mr. Graham noted that what they have seen from the Department of Conservation and Recreation and the Department of Environmental Quality in Virginia is that they disagreed with that and have shown a strong preference to the ConSpan over a box culvert.  Those are the two environmental agencies that protect the streams.


Mr. Cannon said that is based on long term as well as separate comments.


Mr. Graham agreed it was for cumulative impacts.


Mr. Craddock noted that was in their summary where it says that the County Engineer has determined greater long term impacts if a culvert is used.  He asked who Mike Viar is.


Mr. Graham replied that he was VDOTís District hydraulic man.


Mr. Craddock asked if Mr. Viar was overruled by Richmond.


Mr. Graham replied that was correct.


Ms. Higgins questioned that if several years from now if an inspection was made and they are still getting scour if that was worth taking the risk. 


Mr. Graham said that the simplest answer would be not to build anything and have a single entrance.  There is risk in anything here.  What is the risk and how significant the risk is would be real hard to say.


Ms. Higgins said all they would need is a real bad flood condition and it is going to scour.  It does not matter. But, the box culvert potentially has less risk of that happening.  The applicant has already designed that.  If it was her call, she would say remove condition 1.  She felt that staff has done a highly diligent job in these meetings.  But, she knew staff had no pull with VDOT.  It might just be a principle thing now and they are tired of looking at.  VDOT has made their call.  VDOT has written him a letter saying that he strongly recommends that he allow them to use this.


Mr. Graham noted that even after he asked VDOT they will not come back and say that they will not approve a ConSpan.


Ms. Higgins agreed that he canít because he is in Richmond.


Ms. Joseph asked if anyone else has any questions. 


Ms. Ambler asked to make one clarifying comment since the Commission was referencing the response from Timmons in their Attachment B.  It is on page 17 of the packet.  It is important to note that in those environmental impacts that Timmons was looking at a double 10í X 10í and not a quadruple 10í X 10í.  That means that there are two barrels versus four barrels.  The actual quadruple is actually bigger.


Mr. Cannon said that the environmental impacts of a quadruple would be greater.


Ms. Ambler said that it would be greater because there would be more excavation.


Mr. Cannon asked if it would be for both short term and long term impacts.


Ms. Ambler said that was correct. Also, she had talked to the US Army Corps of Engineers and she knew the applicant was pursuing a water quality permit.  It is not currently permitted currently because it is going to require a different higher level permit.  She felt that it would not be an issue of getting it permitted through the Army Corps, but it does need to be permitted.  There is just confusion between the double and the quad box.


Ms. Joseph asked if there was any other member of the public present that would like to speak to this issue.  There being none, she asked if the applicant would like to make a rebuttal.


Mr. Caramanis said that the letter mentions a double.  His understanding is that the review that they did was just for the use of a box culvert and he was not sure why it says double.  Again, he did not think that they were talking about how many it is going to be here.  They know what the area is and they were evaluating a box culvert at that location. That is what it relates to.  The other thing to keep in mind is that a ConSpan at this location would have a much greater impact than a Span at any other location.  So when they are comparing ConSpan to box culvert, which is not an option here because they canít get a ConSpan approved, but if they are comparing the two a ConSpan at this location was going to have more impact on the stream than a typical ConSpan may have.


Ms. Joseph asked if Mr. Beights has anything to add to the rebuttal on this.


Gaylon Beights noted that they have been trying as hard as they can for four years to get this approved.  It has never been any issue other than getting a bridge approved.  The Commission can listen to the facts as he has, but they would not be here this far tonight if it were not for Mark Graham.  If Mr. Graham had not called the meeting and demanded that the people be there that they would not even be where they are tonight.  He said that VDOT does not want a bridge because they donít want the maintenance or the size or scope and they are box culvert oriented.  He believed that no matter what the Commission decides tonight they are going to end up with a box culvert.  The thing that frustrates us is that they have tried and tried and hired engineers and designed and submitted.  They have 117 people that they have promised a bridge to and he was just glad that they are not all here tonight because they want to lynch him.  He asked for the Commissionís consideration.


Ms. Higgins said that she has been there and done this and respects Mr. Graham for what he has gone to bring it to this place.  But, she thinks that there is a lot of baggage with VDOT that they want what they want and they can explain to someone what rip rap is.


Motion: Ms. Higgins moved, Mr. Strucko seconded, to approve SP-2006-0011, Mosby Mountain Stream Crossing, with the conditions recommended by staff, as amended deleting item 1.


Mr. Kamptner said that would also trigger the need to amend condition 5, adding condition 7, and modifying condition 6 as well.


Ms. Higgins said that there was no modification to condition 7.


Mr. Cilimberg said that there would have to be some wording changes throughout where the bridge or box culvert is referred to.  They would have to be making some adjustments in wording to reflect the fact that this is just going to be a box culvert if that is what the Commission decides to recommend. 


Ms. Higgins felt that if condition 1 is deleted, then in condition 5 just the first sentence comes out.


Mr. Cilimberg felt that staff could take care of that, which was something that the Commission did not have to worry with. It is just that the Commission understands that those adjustments will be made.  He noted that there needs to be some modification in the sixth condition that the Commission should be aware of and include in the motion so that when it gets to the Board it will be taken care of. 


Ms. Ambler noted that basically all they need to do is say that the applicant needs to submit computations showing no rise in the 100-year floodplain because that is what our Code requires.


Amended Motion:

Ms. Higgins moved, Mr. Strucko seconded, to amend the motion to revise the conditions as recommended by staff as follows:


1.    Albemarle County Community Development Department approval and VDOT approval of final grading plans and box culvert and road plans and computations;

2.    Albemarle County Community Development Department approval of an Erosion and Sediment Control Plan to include stabilization of fill;

3.    Albemarle County Community Development Department approval of mitigation plans for disturbance of the stream buffer;

4.    If a box culvert is utilized it must be cast in place or otherwise constructed to provide for countersinking of one barrel of the culvert to provide for normal and low flows in a manner satisfactory to the approved U.S. Army Corps of Engineers water quality permit.

5.    The applicant must provide computations showing no rise in the 100-year floodplain. 

6.    In an effort to minimize environmental degradation, no soil shall be removed from the stream to compensate for any fill.


The motion passed by a vote of 6:1.  (Mr. Craddock voted nay.) 


Ms. Joseph stated that SP-2006-011, Mosby Mountain Stream Crossing will be heard by the Board of Supervisors on August 2 with a recommendation for approval.


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