Virginia FOIA Advisory Council sides with Konick. The Rappahannock County Board of Zoning Appeals has voted unanimously to approve a special use permit for a tourist home in a log cabin structure at Alnell Farm north of Flint Hill.
Meanwhile, there was an unexpected withdrawal hours before the start of the meeting of a special use permit application for a tourist home in a log cabin on Gid Brown Hollow Road.
The Alnell Farm application sought permission to “use an existing log cabin structure of 2750 square foot 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.
Only three of the five BZA members were in attendance, but still constituted a quorum. Chair Alex Sharp and William Anderson were absent.
During the board’s discussion, the applicant revealed that the property is owned by five separate Limited Liability Corporations (LLCs). This prompted BZA member David Konick to question what might happen if one of the other LLC properties were sold and the new owner objected to the tourist home.
The ultimate vote to approve was conditioned on a subsequent review of the permit, if and when any of the properties change hands.
Kummli has also applied for a special exception permit to hold up to four events a year on the property. The application was heard at a June meeting of the planning commission, which recommended it move forward to the Rappahannock Board of Supervisors, which took up the application at its July 5 meeting.
Responding to numerous neighbors who oppose the application — citing concerns of traffic congestion on narrow Jericho Road, as well as noise — the supervisors sent the application back to the planning commission for further review.
Meanwhile, the BZA meeting adjourned in less than 30 minutes due to the unexpected withdrawal hours before the meeting of a special use permit application for the tourist home on Gid Brown Hollow Road.
Heidi and Desmond Dodd, owners of the cabin on five acres, 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.
At that meeting, the planners voted 4 to 1 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 in the week between the planning commission and BZA meetings, Rappahannock County Attorney Art Goff issued a memorandum of opinion calling into question the legality of zoning amendments approved by the supervisors in 2010.
Back then the planning commission proposed a zoning ordinance amendment to modify the 10 acre requirement for tourist homes and B&Bs. The proposed amendment stated that the 10 acres, instead of being one tract of land, could 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.”
When the amendment reached the board of supervisors, they made material changes and voted to approve this language: “In Agriculture and Conservation zones the minimum acreage requirement shall be two and five acres, respectively.”
Goff opined in his memo that because the new language of the amendment had not been properly noticed to the public, it was void, and the original 10-acre requirement still stands. [Last week’s Rappahannock News incorrectly reported that the planning commission had modified the amendment language in 2010, not the board of supervisors].
It was after the release of Goff’s memo that the Dodds decided to withdraw their application. It’s not known whether the couple will reapply in the future.
Virginia FOIA ruling
Alan Gernhardt, executive director of the Virginia Freedom of Information Advisory Council, issued an advisory opinion related to BZA meetings held in February, April, and May of this year.
David Konick requested the opinion based on his concerns that the three meetings had not been noticed to the public properly under FOIA rules, and that the permits approved at those meetings might be invalid.
FOIA requires people who request email notification of a meeting receive it three days in advance of the meeting. Former Rappahannock County Administrator Debbie Keyser’s practice was to email the notification on Sundays.
Gerhardt states that under FOIA, the three days do not include the day of notification nor the day of the meeting, no matter what time the notice is sent or when in the day the meeting is held.
In the case of the BZA meetings, a notice sent on Sunday for a Wednesday meeting would constitute a two-day notice.
In a phone call Tuesday, Konick said, “I very much appreciate the staff at the council taking the time to issue this advisory opinion. I also regret that the BZA ignored me when I told them in writing that the notifications [for those meetings] were improper and that the permits approved at those meetings might be invalid.”
If that turns out to be the case, he proposed a remedy.
“The remedy would be a mulligan,” he said. “We should re-advertise the public notices for those permits and re-approve them.”
Unedited video of the afternoon and evening sessions of the July 26 Board of Zoning Appeals 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.