The zoning board vs. the neighbors?

There’s an old saying that the best compromises leave everyone unhappy, and despite (or perhaps because of) the four hours of acrimonious testimony, no one seemed happy at the conclusion of last week’s Rappahannock County Board of Zoning Appeals meeting.

The lone application last Wednesday night (Oct. 23) was a special-use permit request from Randall and Kimberly Fort, owners of Harmony Manor Bed & Breakfast, who were requesting permission to expand their available rooms from two to five, though several conditions were also attached.

Harmony Manor’s proposed expansion from two rooms to five was approved Oct 23 over the neighbors' objections.
Harmony Manor’s proposed expansion from two rooms to five was approved Oct 23 over the neighbors’ objections. | Rappahannock News

That request was met with vehement requests for denial from the Forts’ neighbors on Clark Lane, as well as recommendations against it by County Administrator John McCarthy and (a week earlier) a 6-1 vote of the planning commission.

But despite protests from the neighbors, organized formally as the Clark Lane Residents Committee (CLRC), the BZA voted 3-2 to grant the request. (Alex Sharp, chair Robert Weinberg and Christopher Bird voted in favor; Jennifer Matthews and William Anderson voted against it.)

The BZA’s decision marks the second time in the last 18 months it has reversed recommendations by McCarthy and the planning commission in decisions on permits for the Forts — whose large hillside house has been controversial since it was built a decade ago, its original owner cited for illegally operating it as a hotel.

“I was very surprised [by the decision],” said Clark Lane resident Pat Choate, “especially given the recommendations by John [McCarthy] and the planning commission. What surprised me the most was that they ignored VDOT . . . It’s one thing to ignore John and planning commission — that’s in their authority. But ignoring VDOT is not in their authority.”

After the original permit was granted last August, the CLRC appealed the BZA decision and sued. However, the case was thrown out by Circuit Court Judge Jeffrey W. Parker in part because it named the wrong party — Rappahannock County itself — as a respondent.

Allan Rexinger, head of the CLRC, said the CLRC intends to file another appeal to the court within tthe required 30 days. “Three out of five BZA members ignored Zoning Administrator John McCarthy, the planning commission, the residents of Clark Lane, VDOT and their own rules,” said Rexinger. “The lane is unsafe and an accident is likely because the B&B is in the wrong place.”

Choate insisted this appeal wouldn’t be thrown out on a technicality. “Merle Fallon is a first-class attorney . . . [but] this is about more than Clark Lane. I think it’s almost a civic duty to defend the county’s zoning and standards . . . I think the BZA has gone rogue.”

This is not the first time the BZA has overturned a recommendation from the planning commission, said McCarthy, but it’s still a rare phenomenon. McCarthy remembers only three times in the 28 years he’s served as county administrator that the BZA has done so: Twice with Harmony Manor recently, and one other instance in the early 1990s with a B&B in Castleton.

Such decisions are also not common in surrounding jurisdictions, but they do happen.

John Egertson, planning director of Culpeper County, said the process for approving special-use permits in Rappahannock’s much more populous neighbor is slightly different. “All special-use applications are reviewed by staff, and a staff report is produced,” Egertson said. The application then goes before the planning commission, though a final decision rests with the county’s supervisors, rather than a court-appointed zoning appeals board.

Egertson agreed with McCarthy that while a final decision in opposition to previous recommendations is rare, it does happen. “There have certainly been cases where the board did not follow the recommendation of either the staff, the planning commission or both.”

“There are cases where the staff and planning commission may not have the same recommendation as well. The bottom line is that the staff and planning commission are advisory, and the board most often follows that advice, but not always.” (Egertson added that no one has ever sued Culpeper County due a permit ruling.)

Clark Lane itself was the main issue at last week’s meeting, with the CLRC claiming, as before, that the road was simply too narrow to accommodate commercial traffic and provided no space for drivers to pass each other or turn around — a claim the Forts disputed. “There are places where you can pass,” said Randall Fort. “I’ve done so.”

Stonewall-Hawthorne planning commissioner Gary Light spoke to the BZA as well, explaining that he had voted against the permit because the right-of-way didn’t meet the usual requirement of 50 feet. (The planning commission’s vote was 6-1, with Sharp, who serves on both boards, being the only positive vote.)

The county allows exceptions to that, Light admitted, but there had to be a reason why that requirement was waived. As Light explained, he didn’t feel an adequate case for waiving it had been made, and voted accordingly.

“I’m very much opposed to it,” said BZA member William Anderson, who was absent from the board’s meeting in August 2012 when the initial permit was issued. “That road’s width is just not proper . . . I can’t imagine [a B&B operation] on my road.”

Christopher Bird, who was not a BZA member last August, asserted that the decision “comes down to property rights. Does it deny [the Forts’ neighbors] their property rights?” While Bird added that it’d “be nice to have turnaround spaces,” he felt it was “a reasonable application.”

“Their abilities to enjoy their homes are impacted,” said Anderson.