BOARD OF ZONING APPEALS December 22, 2016  THE REGULAR MEETING OF THE GREENE COUNTY BOARD OF ZONING APPEALS WAS HELD ON THURSDAY, DECEMBER 22, 2016 AT 7:30 P.M.  Those present were:  Richard Herring, Chairman Frank Morris, Vice-Chairman Bob Runkle, Member Lyle Durrer, Member Brent Wilson, Alternate Member Wesley Wills, Member Dale Herring, Ex-Officio Member Bart Svoboda, Zoning Administrator Shawn Leake, Zoning Officer Marsha Alley, Secretary  Those absent were: Staff present were:  CALL TO ORDER  The Chairman called the meeting to order.  PLEDGE OF ALLEGIANCE & PRAYER TO OPEN MEETING Mr. Herring lead the Pledge of Allegiance to open the meeting. Mr. Morris invited Eddie Deane to open the meeting in prayer.  Mr. Deane offered a prayer. DETERMINATION OF QUORUM  Mr. Svoboda took a roll call to establish a quorum.  PUBLIC HEARINGS  David Vanderveer requests an appeal of the Zoning Administrator's determination (VIO#16-032) regarding the operation of a second tourist lodge without the required special use permit on property which is zoned, A-1,Agriculture, and located at 224 Mulberry Drive and identified on County Tax Maps as 48-(2)-24.  (BZA App#16-004)  Mr. Herring asked Mr. Svoboda for a report.  Mr. Svoboda read the request and gave a staff report. He reviewed the determination of violation based on an on-site inspection, Mr. Vanderveer's own admission, and online    BZAMinutes December. 22, 2016  comments. He reviewed the scope of the appeal and the provided information from staff and from the appellant's attorney. He pointed out that the appellant has noted in their information that item three (3) has been withdrawn. He described the structures on the property and the requirement of a special use permit for the detached structure. He added that Article 16-25-2.3 of the Greene County Zoning Ordinance requires a special use permit if more than one (1) dwelling on a parcel is being used for tourist lodging. He reviewed the definition of tourist lodging and discussed the use of the property as it relates to the definition. He noted that there is an argument as to whether or not it is an agricultural use. He explained that the property is designated as an agricultural zoning area but that it is located within a residential subdivision, noting that the agricultural use, Mulberry Farms, is on a separate parcel and the agricultural use does not exist on the parcel in question. He reviewed the fourth item listed by the appellant referring to the Board of Supervisors' (BOS) intention to regulate the use. He explained that the BOS adopted an ordinance for tourist lodging requiring that a special use permit be granted in order for more than one (1) dwelling or structure per parcel to be used as tourist lodging. He stated that all of the referenced information has been provided in the attachments in the information packet. He summarized that legislative action taken by the BOS requires that a special use permit is required for tourist lodging in excess of one (1) dwelling or structure per parcel, noting that a special use permit has not been granted and that therefore, the decision of the zoning administrator should be upheld based on Will Tanner, attorney for David Vanderveer, addressed the Board. He stated that he does not envy the BZA or Mr. Svoboda under these circumstances because this is unchartered territory in Virginia pointing out that this new statute has not been interpreted by courts. He raised the question as to whether the requirement of a special use permit is a lawful requirement, given the Right to Farm Act and how it addresses the ability of localities to regulate certain activities. He focused on the starting point which is the fact that Virginia is a Dillon Rule state. He read the Dillon Rule language referring to the powers of local governing bodies. He added that the Virginia General Assembly has removed all power to regulate agritourism referring to section 15.2-2288.6. He read the passage of that section that referred to agricultural operations, agritourism activities, bona fide agriculture, and silviculture activities. He noted that the General Assembly has indicated that local governments can require special use permits for tourist lodging but that they cannot regulate agricultural operations. He stated that Mr. Vanderveer will address the agriculture operation on this property and surrounding property. He noted that the retreat qualifies under either reference. He added that ifi iti is in fact an agriculture operation, then it is agritourism. He stated that the General Assembly has Mr. Tanner reviewed the articles that were attached in the packet provided. He stated that the article states that overnight stays are a part of agritourism and that he could not state enough that it is rare to see a statute that is drafted this broadly. He reviewed  those facts.  defined agritourism very broadly and read the definition.  2    BZAI Minutes December 22, 2016  several references from statutes and minutes from the BOS and the Planning Commission (PC) meetings. He stated that the BOS and PC were rightly focused on issues that concerned the health, safety, and welfare of the community. He added that the BOS did not indicate that the tourist lodging had a substantial impact on the health, safety, and welfare of the general public. He reviewed the definition of a substantial impact, noting that there was no finding of such when the BOS adopted the special use permit process for tourist lodging. He noted that one thing that the Code requires is that any local restriction placed on an activity that qualifies as agritourism shall be reasonable and take into account the economic impact of the restriction of the agricultural operation. He reviewed the Zoning Ordinance and the application of the state law, noting that under specific circumstances, the special use permit cannot be required. He noted that he does not envy Mr. Svoboda given the unchartered territory. He added that the Zoning Ordinance can be read in harmony with the stature and stated that the BZA must reverse the determination made by Mr. Svoboda ini the zoning violation. He stated that Mr. Vanderveer would offer more information and asked that the BZA keep an open mind and listen to what Mr. Vanderveer has to say. Mr. Herring announced that those wishing to speak should sign up on the sheet. The Chairman swore in the speakers and opened the public hearing.  David Vanderveer, applicant, addressed the Board. He reviewed the photos that were distributed prior to the meeting that demonstrate various farm items, produce, produce stands, structures, property features such as gazebos, Frisbee golf, etc. He described the features and produce growing operation. He described the wood production that takes place on site. He noted which activities take place in certain areas on the parcels. He added that comments from the forester are included in the packet. He added that reviews from guests of the White Lotus have been included in the packet as well since they also experience the farm during their stay. He reviewed income from the silviculture and agriculture operations on site. He went over the agritourism definitions and the two letters from Ed Furlough at the Department of Forestry. The following citizens addressed the Board of Zoning Appeals:  Ilya Arsenovic Nathan Abse Paul Harrington Patrick Montezuma Kathy Doehr Bob Doehr Bill Sypher Sarah Lanzman  Janet Pip: waived her right to speak  3    BZAI Minutes December 22,2016  These citizens voiced their concerns, comments, and opinions relating to the following: the Tourist Lodging ordinance revision and its intent to prevent hodge-podge the farming activity that takes place on Mr. Vanderveer's property the inappropriate nature of spending time and energy on this issue Mr. Vanderveer's continued interest in agriculture and teaching others about  construction, noting that it was well-written  agriculture  the construction of the castle the appearance that Mr. Vanderveer is being picked on has been purchased there there being a produce stand on the property the understanding of silviculture in place on site an open, inviting atmosphere ap popular Airbnb destination clearly fits the state definition  the property is an agricultural use and is referred to as a farm, noting that kale  the structure is not really a treehouse and baffled as to what the problems are areal nice farm market on the property and is a benefit to the community  described Mr. Vanderveer as gentle the attorney has laid out a clear case out to get Mr. Vanderveer  the lack of understanding of why sO much time and effort have been invested in this issue, questioning the motivation of the county and wondering if someone is Mr. Vanderveer contributes taxes and his efforts are being thwarted wonder why Mr. Vanderveer is having to prove something again requested that the Board allow and support the business. There being no further public comment, the public hearing was closed. Mr. Herring asked if Mr. Svoboda would like to comment for rebuttal.  described the nice produce and beautiful buildings, noting that they are proud to  have the business in the county  Mr. Svoboda stated that the issue tonight is whether or not the particular structure is in violation and does not have to do with the other rooms that Mr. Vanderveer is renting out under Airbnb. He noted that the information submitted by the appellant on page 9 of the photos demonstrates the treehouse as a separate structure. He stated that it is not within the purview of the BZA to debate the constitutionality of the regulation, noting that neither the BZA nor the Zoning Administrator have the ability to change laws set by the BOS. He explained that it is the role of the BZA and the Zoning Administrator to read the laws and to interpret them. He added that the BOS has identified a substantial impact in the agricultural districts by requiring a special use permit for more than one  4    BZAI Minutes December 22, 2016  tourist lodging on a parcel. He explained that he was not saying that Mr. Vanderveer has an agritourism use on the parcel, but noted that if that argument was made, then a special use permit would be required. He pointed out that it was noted earlier during the public hearing that the ordinance was well-written as it related to tourism. He stated that this is not the venue to determine the constitutionality of the regulation. He noted that Mr. Vanderveer applied for and was issued a building permit for a detached structure. He added that the argument is that Mr. Vanderveer is using a separate additional structure as tourist lodging which requires a special use permit. He stated that the farm shown in the photos that were presented tonight is located on a different parcel. He explained that tonight is not to determine if Mr. Vanderveer has an agriculture use/operation on that parcel but that it is about having more than one tourist lodging in a separate additional structure on the same parcel which requires a special use permit. Mr. Herring asked what makes a building attached or detached from a dwelling. Mr. Svoboda stated that it would be the plain meaning of the word, detached being separate, noting that attached and within would not be the same. He offered the example of the Virginia Beach Boardwalk explaining that the hotels are attached by the There was discussion regarding structures being attached by a roof, deck, ramp, walkway, etc. but that it does not mean that they are one structure, noting that they Mr. Svoboda reminded the BZA that the building permit for a separate structure was applied for by the appellant and issued by the county as a separate structure. Mr. Runkle stated that it was mentioned in the beginning and is mentioned now that it is the way the permit was applied for and that is the way it was granted. Mr. Herring reminded the BZA that the tourist lodging special use permit requirement applies to large properties in the agricultural district as well. Mr. Svoboda agreed noting that it is consistent throughout the district. He noted that many had described this as a fine establishment and that it is not being disputed but stated that the issue is about the regulation adopted by the BOS regarding additional structures being used for tourist lodging and the requirement of a special use permit. Mr. Durrer asked if a roof is placed over the walkway would it be considered attached or Mr. Svoboda gave the example of town homes, noting that they are attached but are  boardwalk but are not considered one structure.  would continue to be two separate structures.  does the building permit determine that.  separate structures with separate ownership, etc.  5    BZAI Minutes December 22, 2016  Mr. Durrer stated that he just wanted to clarify how it was determined.  Mr. Svoboda stated that there was testimony that they had to walk to the kitchen and other areas. He noted that it may be part of the same business plan but it does not Mr. Herring asked Mr. Tanner or Mr. Vanderveer if they had further comments. Mr. Tanner stated that they are not asking the BZA to determine the constitutionality of section 16-25-1 or 2, adding that they are not asking the BZA to determine if the zoning regulation is valid ori invalid as it is valid. He stated that it was adopted and adopted for perfectly appropriate reasons. He noted that he disagreed with Mr. Svoboda's characterization that the BOS found any finding regarding substantial impacts. He noted that they are asking the BZA to take a look at the determination and say Mr. Svoboda, you are wrong and the law says you are wrong. He stated that if it qualifies as agritourism, then the special use permit cannot be required. He added that there are plenty of properties ini the A-1 district that may qualify for this and many that probably do not. He stated that they are asking this Board to say to Mr. Svoboda that he is not applying the ordinance correctly, noting that they are talking about invalidating an ordinance or questioning the constitutionality of anything. He stated that the Board must reverse this. He stated that there is clearly agritourism taking place on this property and Mr. Herring stated that he had spent a lot of time reading the information provided by both parties. He referred to an article by VPI that stated that the county could impose regulations and that you should check with the county. He stated that various items could be considered agritourism and referred to the Introduction of Agritourism and read ap portion of the article. He pointed out that it seems that the tourism is a minor portion of the agriculture portion. He reviewed the figures for income generated by the agriculture portion and noted that it appears to amount to about $8,300 per year. He stated that it appeared to him that the agriculture portion could not be the major emphasis with the Mr. Tanner stated that the publishing dates of these articles predate the statute being discussed, noting that he believed the statute was adopted in 2012 or 2013. He added that it was important because where the extension service says iti is okay as long as your local government permits it, that is no longer the case because the General Assembly Mr. Herring asked Mr. Tanner if he was saying that the county cannot place any zoning  make it one structure.  the surrounding properties.  amount of income generated.  has eliminated that unless there are impacts.  restrictions on this.  6    BZAI Minutes December. 22, 2016  Mr. Tanner stated that the county can place restrictions if the make the appropriate findings under the statute. He added that the statute does contain exceptions and that the focus would be on what substantial impact means. He stated that he has never seen a statute drafted so broadly that circumvents or removes a powerful zoning power from the local government. He referred to the statute and stated that there was no finding from the BOS that did any of the analysis mentioned in the statute. He noted that he was not saying that they were required to but was saying that they did not make that finding and as a result, the general prohibition on local regulation of agritourism applies Mr. Morris asked Mr. Tanner if because Mr. Vanderveer sells all these products that Mr. Tanner stated that there are products being sold, products being developed and utilized on the property, forest management, and silviculture taking place which is part of Mr. Morris asked Mr. Tanner if he was saying that Mr. Vanderveer is doing all of this on  ini this case.  would make him agri.  the agricultural operation definition.  this property.  Mr. Tanner stated that he is.  Mr. Morris asked how many acres make up this property noting that there had been several references, one being three (3) acres, one being 3.7 acres and the other being Mr. Tanner stated that the particular property being discussed is about 3 to 3.5 acres but noted that it is surrounded by other properties that he owns which is about 21 acres and that all ofit is being used in a similar fashion. He stated that the evidence before you shows that in addition to the larger parcels being used for all of the various uses sO is Mr. Herring stated that it seems as if you all are putting the BZA in a box and this will end up court anyhow. He explained that if the BZA follows the county rules, then there isa a violation, and that Mr. Tanner is saying that the BZA should overturn the determination because the state says that the county cannot do that. Mr. Tanner agreed and stated that the argument is that simple.  21 acres.  the treehouse property which is being discussed tonight.  Mr. Herring stated that he believed that the BZA is bound to uphold the county  ordinances.  Mr. Svoboda stated that Mr. Herring was correct.  7    BZAI Minutes December 22, 2016  Mr. Tanner stated that the BZA is also bound by state law. He disagreed with the contention that the BZA cannot consider state law in determining whether or not this Mr. Durrer stated that you are also asking the BZA to determine if this is an agriculture  determination is right. operation.  Mr. Tanner stated that the whole argument he is making hinges upon it.  Mr. Durrer explained that there is no definition with the USDA that determines who is a farmer. He stated that each locality has requirements to participate for Land Use Taxation but no definition for farmer. He added that he agreed with Mr. Herring in that if Mr. Tanner stated that he could understand that in a matter of thinking about it in a general way but noted that the problem is that the General Assembly has defined it any operation that is devoted to the bona fide production of crops, animals, silviculture, etc. Mr. Herring asked what the income would be specifically for farming on this three (3) Mr. Tanner stated that Mr. Vanderveer would have to answer that as he did not know. He added that he understood the thought process but noted that the Right to Farm Act Mr. Morris stated that we are dealing with this piece of property and that it was not as if he owned two acres and rented 500 acres to farm and generate income. Mr. Tanner stated that it depends on how you are using those two (2) acres. Inr response to a gesture from the audience, Mr. Herring pointed out that the public hearing has been closed and that comments are only heard from the appellant. Mr. Vanderveer stated that he is involved in farming in Madison County as well and that the average farmer in Madison County loses $14,000 per year. He added that they are still a farm but that they are being subsidized. He stated that the purpose of the Right to Farm Act is to help farmers survive. He added that it is not about the money but the main use of the land. He stated that the main use of his land is fori farming and silviculture and the buildings are a very small part ofit. He reviewed the purpose of the Right to Farm Act. He referred to other farmers in the area who are making more from  you are a farmer then that would be your main source ofi income.  He noted that it is a very broad definition in the Right to Farm Act.  acre tract.  does not determine by the income on the property.  other uses of their land other than farming.  8    BZAI Minutes December: 22, 2016  Mr. Herring asked what crops are grown on this one parcel of land.  Mr. Vanderveer stated that the greenhouse is there, as well as basil, mint, tomatoes, and many other products. He noted that the main use is silviculture with limbs, roots, Mr. Morris asked Mr. Vanderveer why he did not apply for a special use permit. Mr. Vanderveer stated that he was told that he did not need to and that the last time that he had applied for a special use permit, it did not work out SO well because his neighbors got up and lied about what he was doing and it was not approved. He added that it was not pleasant and that he would rather just do what is legal and this is legal. He noted that he had been counseled and that Steve Borders says he is legal. Mr. Durrer agreed that this may end up in court either way but noted that the BZA is here to uphold the law and zoning of the county. He added that it is sO broad that ten people could read it ten different ways but that the BZA has to make the best decision they can Mr. Runkle stated that it seems that he needs a special use permit and that he does not Mr. Morris made a motion to uphold the zoning administrators decision based on it does  firewood, etc., noting that it is the majority of the use of that land.  based on the facts and the BOS. have one and has not applied.  not meet the county ordinance that we have in front of us now.  Mr. Durrer seconded the motion. The vote was taken. AYE Mr. Morris Mr. Herring Mr. Runkle Mr. Durrer by a 4-0 vote. OLD/NEW BUSINESS  NAY  The motion to uphold the zoning administrator's determination BZA App#16-004 carried  There was no Old/New Business for discussion.  9    BZAI Minutes December 22,2016  As the crowd exited, a gentleman asked the Chairman if public comments were totally  closed. Mr. Herring stated that public comments were closed.  MINUTES  Mr. Herring asked the members if everyone had read the minutes.  Mr. Runkle stated that he had not seen any mistakes but that it did not mean it is not The court reported stood and reminded those in attendance that he meeting was still in Mr. Herring stated that the members need to be careful in reading these minutes because there are sometimes some inferences or changes and that he had noticed a couple of misstatements in reading through all of this information. He noted that he was not referring to the BZA minutes but that in the Planning Commission meeting, there were some things that were incorrect according to what he had been told. Mr. Runkle made a motion to approve the minutes of October 26, 2016 as presented.  there. session.  Mr. Morris seconded the motion.  The vote was taken and the minutes of October 26, 2016 were approved by a 3-0 vote  with Mr. Durrer abstaining as he was not present for that meeting.  OTHER MATTERS  Mr. Svoboda stated that there will be an organizational meeting in January and that Mr. Herring asked if new up-to-date booklets could be issued to the members. Mr. Svoboda stated that they would be provided. He noted that the updated ordinance  there are not public hearings scheduled at this time.  isa always available online.  Mr. Herring asked for a transcript of the recent court case.  Mr. Runkle stated that he had not heard anything about how that was going. Mr. Herring stated that it was last week and that the judge will make his decision in  January.  10    BZAI Minutes December 22, 2016  Mr. Runkle asked if the BZA was notified.  Mr. Herring explained that two (2) members were subpoenaed by Route 33 Rummage  and others were not.  Mr. Svoboda stated that he had no other business.  Mr. Morris asked why the summons had not been provided to the members. Mr. Svoboda stated that copies were available in the office. He added that he would have to look at the writ to be specific but that it was addressed to the clerk of the BZAt to Mr. Morris stated that when he tried to deliver his papers to the court, he was told by Brenda Compton that she could not take them because he had not been properly Mr. Svoboda suggested that he speak with the Clerk of the Court to determine what she There was discussion regarding the serving of the writ, the request for copies in the event of that happening again. Itwas noted that they are public record and would be Mr. Morris stated that he would like for the minutes of the meeting to be word-for-word and not a summary of the meeting if this case goes to court. He asked if he needed to  collect the information.  served.  meant by that.  available from the office or from the court.  make a motion.  Mr. Durrer stated that if it went to court, it would be a good idea.  Mr. Svoboda stated that it would be based on the request for evidence and how that  information needed to be submitted.  Mr. Runkle stated that it would be up to the judge.  There was discussion regarding the format of the information that would likely be Mr. Svoboda stated that the audio of the meetings has always been available and with recent media installation the video will also be available sO that record is there.  requested, such as the minutes.  Mr. Herring asked if a date had been determined for training.  11    BZAI Minutes December 22, 2016  Mr. Svoboda stated that scheduling has been ongoing with those folks. He added that they are scheduling out a bit. He noted that February could be an option which would Mr. Morris asked if there was a way that the BOS could have some attorneys come for a question and answer session relating to legal issues. He noted that there had been mention tonight about the laws and the duties of the BZA to uphold state and local  likely postpone the organizational meeting until then also.  statutes.  Mr. Svoboda stated that he would provide some case law at the next meeting to be used for reference that would address the quasi-judicial responsibilities of the BZA.  ADJOURNMENT  Mr. Durrer made a motion to adjourn the meeting.  Mr. Morris seconded the motion.  The consensus vote was taken and the motion carried by unanimous vote. There being no further business, the meeting was adjourned.  Respectfully submitted, Mansha alley Marsha Alley, Secretary  huihalgetiisy 2/22/2017  BZA Chairman  Date  12