Board of Supervisors 11.18.08


November 18, 2008

Present: Mr. Tommy Harvey, Mr. Allen Hale, Mr. Tommy Bruguiere, Ms. Connie
Brennan and Mr. Joe Dan Johnson

Chris Allwood and Mr. Joe Hungate presented the master plan and preliminary
site plan for the distillery.  They noted a planned $5,000,000 investment in
Nelson County over the next 2 years with another $2,000,000 to be invested
during years 3-6.  The plans include the employment of 19 people by year 4
with an estimated 35+ local jobs in the supply chain to the distillery.  Mr.
Allwood reported that the distillery expects to purchase 700 tons of
Virginia barley a year, currently exports to five US states and plans to
export worldwide.  Mr. Hungate said that the distillery will be a good fit
with Nelson’s agri-tourism industry.  The distillery will offer tastings and
sales and will be developed under a phased plan.

VDOT REPORT – Mr. Kevin Wright reported that the workshop and public hearing
on the six-year plan will have to be delayed pending definitive information
on funding impacts.  He said that, due to the economic downturn, VDOT is
expecting $2.1 to $2.6 billion less in revenue over the next six years and
will be making fundamental structural changes to the organization.

Mr. Wright reported that paving will be done on Phoenix Road and Glenthorne
Loop in the spring.  He also reported that the 45mph speed limit has been
posted between Rt. 6 and Nellysford.

Mr. Harvey asked that VDOT being the process to lower the speed limit to
45mph from the south end of Nellysford to Rt. 664 (Beech Grove Road) and
from the north end of the 45mph to Rt. 250.

INDIVIDUAL SEPTIC SYSTEMS – Mr. Jeff McDaniel with Virginia Department of
Health (VDH) reported that the VDH regulations on individual septic systems
were written for the state but that each county has different needs.  He
noted that the current VDH regulations require up to a 50% reserve area
depending on the type of soil.  Mr. McDaniel said that counties should
consider where public sewer systems will be available in the future and what
the expected life span of a house might be when establishing regulations.
He said that an individual septic system needs longevity for the initial
system and in case of failure.  Mr. McDaniel, noting the proposed ordinance
amendment to require a 100% reserve, said that good soils in Nelson are the
exception and not the rule – that the average soils are Class 3 (Class 1
being the best soil and Class 4 being the worst) which need at least a 50%
reserve area.

Ms. Brennan asked how a 50% reserve area would work if a septic system were
to fail in Class 4 soil.  Mr. McDaniel said that the owner can often still
use some of the old drainfield with pretreatment to decrease the footprint.
He noted though, that pretreatment or any other alternative system is
expensive to install and requires ongoing maintenance.  Mr. Bruguiere said
that much depends on the size of the lot – that an owner can often do an
additional 50% if needed over and above the 50% permitted.  Mr. Johnson
asked whether Mr. McDaniel, as a health official, would suggest a 100%
reserve area.  Mr. McDaniel said that the county should consider 100%,
noting the expense for an owner to pre-treat and the extreme expense to
extend public sewer lines.  Ms. Brennan asked what would happen if the
ordinance required a 100% reserve area and that could not be found on a
property.  Mr. McDaniel said that it would be up the county to decide
whether an exception could be granted.

Mr. Harvey suggested requiring a 50% reserve for Class 1 & 2 soils and a
100% reserve for Class 3 & 4 soils.  Mr. McDaniel said that that could be
done but was not sure how easy it would be to do administratively.  When
asked about alternative systems, Mr. McDaniel said that those systems should
certainly have 100% reserve areas.

Supervisors voted 5-0 to adopt amendments to:

– Section 12-1-4 of the Zoning Ordinance to require that Class 1 & 2 soils
have a 50% reserve area and all other soil types to have a 100% reserve;
– Section 12-1-5.1.1 to require that alternative waste treatment systems
be approved by the VDH and/or VDEQ and that they have a 100% reserve area;
– Section 12-1-6 to require any other information deemed necessary by the
Zoning Administrator.
– Section 4-4 D.2 of the Subdivision Ordinance to require that Class 1 & 2
soils have a 50% reserve area and all other soil types to have a 100%
– Section 4-4 D.3 to grant exceptions to required septic system and
reserve for residue lots of 20 acres or more with a statement on the plat
and for lots with an existing on-site septic system approved by VDH.
– Section 4-4 E.2 to require a 100% reserve for alternative waste
treatment systems.

NELSON MEMORIAL LIBRARY FUNDING – Supervisors voted 3-2 (Mr. Bruguiere and
Mr. Hale voting no) to approve $2,600 in additional funding for additional
substitute staff hours.  Mr. Hale said that this request has been made and
considered at least twice before outside the regular budget cycle.  He said
that the Board will be facing many demands for additional funding.  Mr.
Bruguiere said that volunteers should be utilized and requests for funding
should not be approved outside the regular budget cycle.

BOARD OF ZONING APPEALS – Supervisors voted 5-0 to approve a resolution to
provide funding not to exceed $3,000 to allow the BZA to obtain advice of
legal counsel relating to an appeal of the Planning Director’s decision on
division rights by Mr. and Mrs. Donald Hall.  Mr. Phil Payne, County
Attorney, advised that it would be a conflict of interest for him to
represent the BZA in this matter.

although final state figures have not yet been received, it appears that the
Compensation Board is going to reduce funding for Constitutional Offices
(Commissioner of Revenue, Treasurer, Registrar, Circuit Court, Commonwealths
Attorney, Sheriff, Sheriff Dispatch/Office) by approximately $18,000 –
funding budgeted to provide salary increases in December.  Mr. Carter noted
that, in 2006, the Board had established a policy of supplementing the Comp
Board’s shortfall on salaries for the offices and asked for the Board’s
direction on the current shortfall.  Mr. Johnson noted that a salary
supplement of $18,000 for December-June would not go away for the county and
would multiply in future cycles.  Mr. Bruguiere said that he did not see how
the county could fund the shortfall as the state will be cutting funding in
a lot of areas.  Mr. Hale said that it is fine to say that the county is
going to pay for all these things but that at some point, it will translate
into raising taxes.  Supervisors voted 5-0 to fund the shortfall.

CLOSED SESSION – Supervisors went into closed session to consult with legal
counsel on the acquisition of real property fro use as the Faber/Schuyler
Collection Site.  Following the closed session, Mr. Hale reported that he
and Mr. Harvey had attended a meeting on the 17th of the Cove Valley
Recreation Center membership and presented the county’s generous offer for
the property needed for the collection site.  He noted that since that
meeting, the vote has been reported to the county as 17-14 in opposition to
the sale to the county.  Mr. Hale said that there may be some votes
outstanding but nothing further has been reported.  He said that, at
present, the county is again at a standstill.  Supervisors agreed by
consensus to direct staff to request that the Commissioner of Revenue
prepare and send Cove Valley a bill for current and past taxes owed on the


– Mr. Johnson asked staff to develop the language required to establish a
Broadband Authority.
– Ms. Brennan said that an energy audit is needed to establish ways to cut
energy use in the new courthouse complex; asked about a committee to review
the cell tower ordinance (Mr. Boger reported that the Planning Commission
will be establishing a committee to do the review); and asked about the
status of the Comp Plan review (Mr. Boger noted that he is working on the
data and charts for the review.  Ms. Brennan suggested that a Commissioner
could help get that information together so the review could move forward.)
– Mr. Hale said that he would like a report and recommendation from staff
on the recycling cans at Wintergreen, noting that he understands they
continue to be contaminated with trash.  Mr. Hale then asked about a memo
distributed by Mr. Carter requiring that Mr. Carter and Mr. Payne review all
applications received by the Planning Department.  Mr. Hale reported that he
had received a call from an applicant claiming that issues related to the
application had been worked out with Mr. Boger and he was then advised that
Mr. Carter and the county attorney had a different view so the application
could not move forward without a written reply from Mr. Carter.  Mr. Hale
expressed concern that the process is getting more cumbersome.

Mr. Carter said that he disagrees, that he is not trying to make the process
longer or more difficult.  He said that it was not that he would not respond
to the person in question but that information should flow through Mr.
Boger.  Mr. Carter said that the Board should stay out of it and let him do
his job as the Board did appoint him the Zoning Director.  Mr. Hale said
that he did not understand why Mr. Carter would not talk to the party
involved.  Mr. Carter said that he did not say he would not talk to him, but
did tell the party to put the comments in writing.  He said that the policy
is nothing new and asked what the Board wants.  Mr. Carter said that at the
Board’s retreat, the Board was happy with this procedure and asked why the
reversal.  Mr. Harvey said that it is not a reversal for him as he has felt
all along that this would delay the process.  Mr. Carter said that he is
trying to make sure applications are complete before they move forward.  He
said that the concern is that the process moves forward too quickly without
the application being complete but that he will do whatever the Supervisors
want.  No action taken.


REZONING/MR. & MRS. CURTIS BRUGUIERE – The applicant has applied to rezone
1.10 acres of land located at 1897 and 1889 Avon Road in Afton from
Residential, R-1 to Business, B-1 Conditional, to permit use of a small area
of the existing (non-conforming) building as a real estate office for
himself and continued use of the remaining portion as a neighborhood
convenience store to be operated by someone else.  The applicant proffered
away uses under B-1, including gasoline filling stations, but retained
several uses – primarily 8-1-2 “Retail drugstores, feed and seed stores,
food sales and restaurants, wearing apparel shops, auto and home appliance
services, banks, barber and beauty shops, hardware stores, offices and
personal and professional services.”  The applicant first requested rezoning
to B-1 in 2002 (applicant withdrew) and again in 2005 (BOS deferred action
to allow applicant time to consider alternative ways to accomplish the end
result of operating a real estate office at the location).  The applicant
then applied for rezoning to Agricultural A-1 with a Conditional Use Permit
for the office and a Special Use Permit to change Anderson’s Grocery from
non-conforming to conforming as a neighborhood convenience store.  The
request was subsequently denied for failure to provide a survey describing
the property and dwelling, as well as consideration of public sentiment
opposing the rezoning.

Mr. Boger reported that staff has no objection to the real estate office but
felt that the appropriate way to establish the real estate office in the old
Anderson’s store building was to rezone to Agricultural, A-1 with a
Conditional Use Permit for an office.  Mr. Curtis Bruguiere reviewed the
history of his applications and expressed his opinion that there are
underlying issues that began with the Planning Commission and continued with
the Board of Supervisors.

During Public Comment, MR. ROY WHITE asked the Board to permit only the
store and office without the rezoning to B-1.  MS. DONNA SMALL said that a
rezoning would have a negative impact on the community as B-1 allows for
smaller setbacks and more uses.  She asked that the Board limit the uses to
the store and office without the rezoning to B-1.

Supervisors voted 3-0 (Mr. Harvey and Mr. Tommy Bruguiere abstaining) to
deny the rezoning for the following reasons:

1. the rezoning request is speculative rezoning;
2. the rezoning is not compatible with the Comp Plan in that the area is
not designated as a growth area;
3. the rezoning is not compatible with the current zoning and uses in the
area which are residential in nature, including this lot which is
4. no documentation has been received stating that the lot could meet
current VDOT standards if a real estate office were permitted; and
5. the acreage on the application is not the same as the acreage on the

Ms. Brennan said that Mr. Bruguiere can have a real estate office in the
store by rezoning to A-1, which would be the simple solution.  Mr. Johnson
said that the county needs to review the Comp Plan and the Country Store
Ordinance but that he would like to see an office there.  Mr. Hale said that
the parcel is a residential lot with a non-conforming store.  He noted that
B-1 zoning would mean that the owner could remove the residence and store
and put in a new business – such as the restaurant or larger convenience
store that the applicant has talked about.  Mr. Hale said that since the
store has been there, the character and traffic in that area has changed.

nTelos, presented photos showing the towers that could replace the requested
130-foot tower on the Kier/White property on Rt. 151.  Two towers would be
required, one on each of two properties where the owners expressed initial
agreement to consider leasing space.  One of the properties would require an
80-foot pole, which would be highly visible for a great distance along Rt.
151 (north and south) as there are no trees on the property to provide
screening.  The second property would require an 80-foot or 95-foot pole,
both of which would be visible from various locations along Rt. 151.  Ms.
Long noted that poles at both sites would still result in signal quality

Mr. Hale said that he has a problem with approving a 130-foot tower on a
scenic byway as it will change the character of the area.  He noted that the
consultant had suggested that the tower height could be reduced to 30 feet
over the tallest vegetation or 119 feet.  Mr. Hale said that nothing would
preclude the landowner from clear cutting and then the tower would be very

Mr. Bruguiere said that nobody was concerned when the county approved towers
on the other end of Rt. 151.  He said that people want cell coverage and
that this is a way to get broadband and wireless service.  Mr. Bruguiere
said that there are too many positives to approving the tower and it would
not compromise the scenic byway by installing one pole.  He said the county
is going backwards.

Ms. Brennan said that nTelos has done everything possible to prepare a
complete application but that she has a problem with a tower on the scenic
byway.  She said that she has had many calls and emails about this issue and
that no one, other than emergency services, has spoken in favor of the
tower.  Ms. Brennan said that there is never going to be complete coverage
in Nelson County and that interrupted coverage is not that big a deal.

Mr. Harvey said that it is ironic that there is so much concern about a
scenic byway when the power substation at Rt. 6/Rt. 151 is the ugliest thing
on 151.  He said that the high-tension power lines are much more visible
than the proposed tower will ever be but said that he would like to see the
tower lowered to 120 feet.

Supervisors voted 4-1 (Ms. Brennan voting no) to approve a 120-foot tower
(excluding the height of the lightening rod) and grant the exception to the
Section 20-7-2e (to locate a tower within the viewshed of a scenic byway)
for nTelos.  Ms. Brennan noted that there was some concern that the bottom
of the pole would be visible and representatives from nTelos agreed to
provide vegetative screening around the pole.

Meeting continued to December 2nd at 5:00pm for a meeting to conduct the
County Administrator’s performance evaluation.

Copyright 2000-2008 by Rural Nelson, Inc. All rights reserved. Reports may
be reprinted or excerpted with attribution.



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