County attorney finds approved 2010 zoning amendment void

Dodds withdraw tourist home application for second time

‘Unbelievable that county staff have undermined the county’s own code’

Just when you thought the county’s planning and zoning actions couldn’t become more skewed and controversial, along comes a memorandum from Rappahannock County Attorney Art Goff calling into question the legality of zoning amendments approved in 2010 by the Board of Supervisors — amendments under which some previous tourist home permits were approved.

Goff’s July 24 memorandum came on the eve of a Board of Zoning Appeals meeting (held last night after the Rappahannock News went to press) at which an already contentious special use application from Heidi and Desmond Dodd for a tourist home on Gid Brown Hollow Road was to be considered.

However, just as this newspaper was approaching its publishing deadline yesterday afternoon, it was learned that the Dodds had notified the county of their intention to withdraw their application. In a letter addressed to county Zoning Administrator David Dameron, the couple said: “We are writing to provide notice that we are withdrawing our application for a special use permit scheduled for a hearing this evening [at the Board of Zoning Appeals]: Heidi & Desmond Dod-Tourist Home-SU#17-05-08.”

The Dodds, owners of a cabin on five acres on Gid Brown Hollow Road, presented their application at the Rappahannock County Planning Commission’s July 19 meeting, where they faced fierce opposition from neighbors complaining of increased traffic, road safety, neighborhood security, and the presence of people unfamiliar with the area.

A disappointed Heidi Dodd told the Rappahannock News in an email yesterday: “Our goal was simply to get a special use permit for a tourist home, so we could rent out our cabin when we aren’t here. It is our strongly held view that our application was in line with the published county code, and we applied on that basis. It is unbelievable to us that county staff have undermined the county’s own code rather than assume its legitimacy until instructed otherwise by a court or the Board of Supervisors.”

This is not the first time the Dodds have applied for a tourist home permit, met with neighbor opposition, and withdrawn their application. They applied the first time in late 2015 and were heard at the Planning Commission’s November 2015 meeting.

According to a Rappahannock News report at the time, “After a lengthy public hearing and many comments and questions from commissioners, the planners voted to table the permit application.”

At last week’s Planning Commission meeting, the planners voted four to one to recommend the application to the BZA for consideration. Hampton district commissioner Al Henry cast the opposing vote, based on his finding that the property sits too close to the road.

But during the public comment session, local attorney David Konick raised the issue of whether 2010 amendments to the zoning ordinance establishing the five-acre standard for a tourist home in certain zones had been legally noticed. Later, he asked Goff to look into the matter.

Goff’s review determined that amendments to the code had been properly noticed. However, Goff found, the Planning Commission had made material changes to the amendment that had not been properly noticed.

Goff’s memorandum reviews the Virginia code statutes pertaining to the announcement of proposed amendments to local zoning ordinances.

“Essentially,” said Goff in a phone call yesterday, “a zoning amendment notice has to run two times [in a locality’s newspaper of record] and the notice must include a descriptive summary of the proposed amendment, so that citizens will know if they have an interest in the action.”

According to Goff’s memo, the Planning Commission at its June 16, 2010, meeting discussed an amendment to replace existing language in section 170-66 K (4) requiring a minimum of 10 acres for a tourist home. The amendment read: “(4) In A[gricultural] and C[onservation] zones the minimum acreage requirement shall be 10 acres, which may include both the parcel that is the subject of the application and/or adjacent property under the same ownership or owned jointly with the owners or owners of the subject property.”

However, rather than sending the amendment to the BOS as written, the Planning Commission made material changes to what had been advertised, and voted to approve this language: “(4) In A and C zones the minimum acreage requirement shall be two and five acres, respectively.”

The BOS approved the revised language at its July 2010 meeting.

Because the new language had not been properly noticed, Goff finds in his memorandum that the amendments were illegal and that the previous ordinance language requiring a minimum of 10 acres for a tourist home stand.

When asked how this affects tourist homes that have been approved under the 2-acre and 5-acre lot size zoning ordinance, Goff said “that is the next issue to be considered.”

“I hope to have something to tell the Board of Supervisors at its August meeting,” he said.

Other Planning Commission actions

At last week’s Planning Commission meeting, the planners voted unanimously to send a special use application for a tourist home at Alnell Farm north of Flint Hill to the BZA. The application asks for permission to “use an existing log cabin structure of 2750 square feet as a tourist home to accommodate not more than 4 people overnight.” The property, owned by Susan Kummli, sits on 111 acres on Windsor Lodge Lane off of Jericho Road.

Kummli has also applied for a special exception permit to hold up to four events on her Alnell Farm property. The planners first heard that application at their June meeting and voted to send it to BOS to consider at its July meeting.

At both meetings, numerous neighbors spoke in opposition to the application, citing concerns of traffic congestion on narrow Jericho Road, as well as noise.

The BOS sent the application back to the Planning Commission for further review.

The planners once again took up an application from Bill Fletcher’s Thornton Hill Farm for a blanket special exception permit allowing up to 31 events a year that could draw as many as 8,000 people to the 158-acre parcel along Route 522 south of Sperryville.

As at previous hearings of the application before the Planning Commission and the BOS, the courtroom was packed with neighbors opposed to the application.

After an hour and a half of public comment and discussion among the planners, the applicant was admonished to modify the application, refining the number and character of events and giving more specifics as to traffic management, security, and emergency response.

Unedited video of the afternoon and evening sessions of the July 19 Planning Commission meeting can be found online at rappnews.com/video, or on the newspaper’s YouTube channel at youtube.com/RappNewsPlus. The meeting agenda and related documents are online at boarddocs.com/va/corva/Board.nsf/Public.

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About Patty Hardee 169 Articles
Writer, consultant, actor, director, recovering stand-up comic, Patty covers the county’s courts and other topics of interest for Rappahannock News. She lives with her grape-growing husband Bill Freitag in Flint Hill.