Board of Supervisors

Virginia:

AT A REGULAR SCHEDULED MEETING of the Nelson County Board of Supervisors at 2:00 p.m. in the Board of Supervisors Room located in the Nelson County Courthouse.

Present:
Allen M. Hale, East District Supervisor
Constance Brennan, Central District Supervisor – Chair
Thomas H. Bruguiere, Jr. West District Supervisor
Joe Dan Johnson, South District Supervisor – Vice Chair
Thomas D. Harvey, North District Supervisor
Stephen A. Carter, County Administrator
Candice W. McGarry, Administrative Assistant/Deputy Clerk
Debra K. McCann, Director of Finance and Human Resources
Fred Boger, Director of Planning and Zoning

Absent: None

I. Call to Order

Ms. Brennan called the meeting to order at 2:06 pm with all Supervisors present to establish a quorum.

A. Moment of Silence
B. Pledge of Allegiance – Mr. Harvey led the Pledge of Allegiance.

II. Consent Agenda

Ms. Brennan inquired as to there being any changes to the Consent Agenda and there being none, Mr. Bruguiere moved to approve the Consent Agenda. Mr. Harvey seconded the motion and there being no further discussion, Supervisors voted unanimously (5-0) by roll call vote to approve the motion and the following resolutions were adopted:

A. Resolution – R2010-24 Minutes for Approval

RESOLUTION-R2010-24
NELSON COUNTY BOARD OF SUPERVISORS
APPROVAL OF MEETING MINUTES
(March 17, 2010 & April 15, 2010 Continued Meetings)

RESOLVED, by the Nelson County Board of Supervisors that the minutes of said Board’s continued meetings conducted on March 17, 2010 and April 15, 2010 be and hereby are approved and authorized for entry into the official record of the Board of Supervisors meetings.

B. Resolution – R2010-25 FY09-10 Budget Amendment

RESOLUTION R2010-25
NELSON COUNTY BOARD OF SUPERVISORS
AMENDMENT OF FISCAL YEAR 2008-2009 BUDGET
May 11, 2010

BE IT RESOLVED by the Board of Supervisors of Nelson County that the Fiscal Year 2009-2010 Budget be hereby amended as follows:

I. Appropriation of Funds (General Fund)

Amount Revenue Account Expenditure Account
$ 15,519.00 3-100-002307-0001 4-100-021060-5411
$ 5,800.00 3-100-002307-0001 4-100-021060-3005
$ 50,000.00 3-100-004105-0106 4-100-093100-9206
$ 71,319.00

II. Transfer of Funds (General Fund)

Amount Credit Account (-) Debit Account (+)
$ 5,010.00 4-100-999000-9901 4-100-013010-1010
$ 25.00 4-100-999000-9901 4-100-013010-5201
$ 1,454.00 4-100-999000-9901 4-100-013010-5401
$ 3,800.00 4-100-999000-9901 4-100-013010-5413
$ 545.00 4-100-999000-9901 4-100-013010-5501
$ 210.00 4-100-999000-9901 4-100-013020-5201
$ 56,000.00 4-100-999000-9901 4-100-033010-6001
$ 67,044.00

III. Appropriation of Funds (School Fund)

Amount Revenue Account Expenditure Account
$ 50,000.00 3-205-004105-0001 4-205-066100-9305

IV. Appropriation of Funds (Courthouse Project Fund)

Amount Revenue Account Expenditure Account
$ 50,000.00 3-106-009999-0001 4-106-093100-9100

C. Resolution – R2010-26 CUP Transfer Authorization (J. Koschara)

RESOLUTION-R2010-26
NELSON COUNTY BOARD OF SUPERVISORS
CONDITIONAL USE PERMIT TRANSFER AUTHORIZATION
JAMES R. KOSCHARA TO RONALD AND NANCY KING

WHEREAS, Mr. Ronald King and Mrs. Nancy King have contracted to purchase an airstrip in Nellysford, VA, currently owned by Mr. James R. Koschara; and

WHEREAS, Mr. Koschara has an approved Conditional Use Permit # 3 for the use of the airstrip, which Mr. and Mrs. King plan to continue to use in the same fashion as Mr. Koschara, and

WHEREAS, Item 10 of the original Conditional Use Permit # 3 states “that the permit is not transferable without the consent of the Board of Supervisors” and Mr. and Mrs. King have requested that the permit be transferred to them,

NOW THEREFORE BE IT RESOLVED, by the Nelson County Board of Supervisors that Conditional Use Permit # 3, approving the use of an airstrip for Mr. James R. Koschara, be transferred to Mr. Ronald King and Mrs. Nancy King, with such transfer being effective on the date that they close on the purchase of the airstrip, as requested.

D. Resolution – R2010-27 75th Anniversary of the Blue Ridge Parkway

RESOLUTION R2010-27
NELSON COUNTY BOARD OF SUPERVISORS
75TH ANNIVERSARY OF THE BLUE RIDGE PARKWAY

WHEREAS, Nelson County, Virginia is the starting point of the 469-mile Blue Ridge Parkway which joins Shenandoah and Great Smoky Mountains national parks and was built over a 52-year period from September of 1935 until its completion in1987; and

WHEREAS, the Blue Ridge Parkway has remained the most visited unit in the National Park Service system since the 1940s and contributes to the region’s prosperity, bringing more than $2.3 billion annually to the local economies; and

WHEREAS, the Parkway is one of the most biologically diverse places in the temperate portion of our planet, containing more species of trees than all of Europe, a number of protected species of plants, and hundreds of historic structures; and

WHEREAS, the Blue Ridge Parkway shall continue its legacy by developing and sharing engaging information about the importance of this exceptional natural and cultural resource, involving local communities through events that focus attention on the history and stewardship of this treasure, and advancing a new generation of advocates who embrace Parkway values, speak out regarding future challenges, and actively work for a sustainable and healthy Blue Ridge parkway; and

WHEREAS, the Parkway is also home to hundreds of historic structures and is a place where visitors come to make memories and enjoy the recreational opportunities that abound there,

NOW, THEREFORE BE IT RESOLVED that the Nelson County Board of Supervisors does hereby recognize the 75th anniversary of The Blue Ridge Parkway in the Commonwealth of Virginia, and calls this observance to the attention of all its citizens.

III. Public Comments and Presentations

A. Public Comments

Ms. Brennan opened the floor for public comments and the following persons were recognized:

1. Kenneth White, Roseland – Virginia Taxpayers Association

Mr. White distributed and read aloud the following prepared statement:

Madam Chairman and members of the Board, my name is Kenneth White, 93 Shields Gap Road, Roseland, and I am President of the Virginia Taxpayers Association.

Since your last meeting the popular Schilling Show, broadcast over Radio WINA, Charlottesville, interviewed me for 40 minutes May 5, 2010, in which I had opportunity to report to thousands, including scores of Nelson County citizens, the VTA and grassroots victory over your Board when we compelled you to announce planned non-use of any dangerous x-ray carcinogenic full body scanner in the newly enlarged Nelson County Courthouse. We still have the question of whether a full-length walk-through metal detector will be placed at the new main entrance to the courthouse, and I told you at your April 14, 2010 meeting that I can guarantee that if the Board decides to have such a metal detector at this
location in the courthouse, you will be charged with regarding all of your own constituents as “possible terrorists” who might be carrying “dangerous weapons” every time they enter this courthouse to pay taxes, check assessments or deed books, consult with the School Board office or carry out any other normal business purpose.

Of course, if such a metal detector were placed at the main entrance, it would have to be attended full time by a deputy sheriff at extra cost to the county, at a time when available tax revenues are declining noticeably. Now you are still in violation of your oaths of office in failing to protect Nelson County citizens against massive law breaking in Washington and encroachment of executive bureaucracy affecting all your constituents.

Attached is an article from one of today’s most widely read web pages reporting on widespread militarization of local police, being unlawfully promoted by the U. S. Department of Homeland Security. While in Nelson County this dictatorial activity from Washington has not yet been allowed to proceed, thanks in part to the Virginia Taxpayers Association, you can be sure that heavily financed federal bureaucracy will continue its nefarious work until local law enforcement people here crumble under the pressure, unless the Board of Supervisors specifically acts to prevent such a dangerous result.

The historic stock market collapse last week should make you realize that here too all Americans will be adversely affected. If it is not generally apparent now, it soon will be that this financial disaster did not “just happen”, but in the oft-repeated words of FDR “was planned that way” by extremely powerful criminals with very broad international connections, whom your representatives in Washington are afraid to prosecute.

As a result there will be so much less available money in the pockets of citizens that Nelson County real estate sales will drop sharply and assessments of property here must also fall, resulting in a further loss of local tax revenue. So here is where the obligation falls on all of us, including the Board of Supervisors, to act to prevent further disaster by bringing lawful pressure to bear on legislators and executive officers in Richmond and Washington so the true wishes of citizens can be carried out, despite the massive criminality topside.

The clock is ticking. When are you going to do your lawful duty? That concludes my Statement.

There being no other persons wishing to be recognized, the public comments session was closed.

B. VDOT Report

There was no VDOT representative present to give a report.

IV. Unfinished Business

A. Proposed Amendment of Appendix A, Zoning , Article 10 General Flood Plain District, FP of the Code of Nelson County,Virginia,1989 (O2010-03)

Prior to discussing the proposed Ordinance Amendment, Mr. Boger reported that the Blue Ridge Trail had been completed and inspected by VDOT that morning. He noted that Amherst County was still consulting on the legal issue with the fencing.

Mr. Boger then noted the Planning Commission’s review of the draft Ordinance and discussed their recommendations as follows:

He noted that the “freeboard” definition used is the one required by the State and that the Planning Commission went with the USBC height requirement of 1 ft. above base flood elevation; noting that most localities have this and it reduces building costs.

He noted that the Planning Commission did not want to restrict building in the floodway. He then reviewed what a floodway was, using a cross-section diagram. He noted that the fringe was the one hundred (100) year flood plain and you can build in it if the structure is elevated above the base flood elevation.

Mr. Boger reviewed the legend on the new maps used for insurance purposes and reviewed the FIRM map using the legend. He noted using the GIS and floodplain maps and denoted varying colors for ease of understanding.

Mr. Carter noted the FEMA letter distributed in the Board’s packet regarding how the program would be enforced with or without passage of the Ordinance including the maps.

Mr. Carter also reported one comment from Mr. Price since the public hearing and he noted that he had referred his concerns to S. Rorrer to review the property lines. He noted that he was referring the topography issue to FEMA since the County cannot remedy this issue.

Mr. Boger noted that if the property is very, very close to the floodplain, he recommended having a survey done to verify the property lines and noted that he believed this was to the owner’s benefit.

Mr. Hale commented that the maps that must be followed are the FEMA maps, while it is nice to use the GIS system as a helpful tool. He acknowledged that all of the maps were not extremely precise, citing a professional example of a problem getting an elevation certificate due to missing benchmark levels. He noted that it was also hard to quote pricing for this work, but did not think the Board could do anything other than adopt this Ordinance.

Mr. Bruguiere reiterated his position that the new maps would cost homeowners more money by placing more homes in the floodplain.

Ms. Brennan noted that some localities use a requirement that structures be built two (2) ft above the base flood elevation, but that the Planning Commission recommended one (1) ft above and she noted that she felt this was safe and followed the USBC.

Mr. Carter added that adoption of the ordinance was an incumbent responsibility of the Board and must be done by June 18th. Mr. Boger added that FEMA may come back to the County with some changes.

Following discussion, Mr. Johnson moved to amend Appendix A, Zoning, Article 10 General Flood Plain District, FP of the Code of Nelson County, Virginia, 1989 and Mr. Bruguiere seconded the motion. There being no further discussion, Supervisors voted unanimously (5-0) by roll call vote to approve the motion and the following Ordinance was adopted:

(ORDINANCE – O2010-003)
AN ORDINANCE TO AMEND APPENDIX A,
ARTICLE 10, GENERAL FLOODPLAIN DISTRICT, FP, OF THE CODE OF NELSON COUNTY, 1989, RELATING GENERALLY TO ZONING

BE IT ORDAINED BY THE BOARD OF SUPERVISORS OF THE COUNTY OF NELSON, VIRGINIA:

1. That Appendix A, Zoning , Article 10 of the Code of Nelson County, Virginia, 1989, be, and the same is hereby amended to included the following:

ARTICLE 10. GENERAL FLOODPLAIN DISTRICT FP

ARTICLE I. GENERAL PROVISIONS

Section 1.1
10.1. Purpose.

The purpose of these provisions is to prevent the loss of life and property, the creation of health and safety hazards, the disruption of commerce and governmental services, the extraordinary and necessary expenditure of public funds for flood protection and relief, and the impairment of the tax base by:

A. Regulating uses, activities, and development which, alone or in combination with other existing or future uses, activities, and development, will cause unacceptable increases in flood heights, velocities, and frequencies.

B. Restricting or prohibiting certain uses, activities, and development from locating within districts subject to flooding.

C. Requiring all those uses, activities, and developments that do occur in flood-prone districts to be protected and/or flood-proofed against flooding and flood damage.

D. Protecting individuals from buying land and structures which are unsuited for intended purposes because of flood hazards.

Section 1.2
10.2. Applicability.

These provisions shall apply to all lands within the jurisdiction of Nelson County and identified as being in the 100-year floodplain by the Federal Insurance Administration.
________
*Editor’s note—An ordinance adopted October 8, 1991, amended App. A, Art. 10 in its entirety to read as herein set out. Formerly Art. 10 derived unamended from the zoning ordinance adopted January 11, 1977 as amended through May 31, 2007.
Cross references—Buildings, Ch. 4; flood hazards, ξ 4-51 et seq; erosion and sediment control, ξ 9-51 et seq.
Section 1.3

Section 1.3
10.3. Compliance and liability.

A. No land shall hereafter be developed and no structure shall be located, relocated, constructed, reconstructed, enlarged, or structurally altered except in full compliance with the terms and provisions of this ordinance and any other applicable ordinances and regulations, which apply to uses within the jurisdiction of this ordinance.

B. The degree of flood protection sought by the provisions of this ordinance is considered reasonable for regulatory purposes and is based on acceptable engineering methods of study. Larger floods may occur on rare occasions. Flood heights may be increased by manmade or natural causes, such as ice jams and bridge openings restricted by debris. This ordinance does not imply that districts outside the floodplain district or that land uses permitted within such district will be free from flooding or flood damages.

C. Records of actions associated with administering this ordinance shall be kept on file and maintained by the Planning and Zoning Director.

D. This ordinance shall not create liability on the part of Nelson County or any officer or employee thereof for any flood damages that result from reliance on this ordinance or any administrative decision lawfully made hereunder.

Section1.4
10.4. Abrogation and greater restrictions.

This ordinance supersedes any ordinance currently in effect in flood prone districts. However, any underlying ordinance shall remain in full force and effect to the extent that its provisions are more restrictive than this ordinance.

Section 1.5
10.5. Severability.

If any section, subsection, paragraph, sentence, clause, or phrase of this ordinance shall be declared invalid for any reason whatever, such decision shall not affect the remaining portions of this ordinance. The remaining portions shall remain in full force and effect and for this purpose, the provisions of this ordinance are hereby declared to be severable.

Section 1.6
10.6. Penalties.

A. Any person who fails to comply with any of the requirements or provisions of this ordinance or directions of the zoning officer Planning and Zoning Director or any other authorized employee of the Nelson County shall be guilty of a misdemeanor and subject to the penalties as provided in Section 15-2 of the Zoning Ordinance.

B. In addition to the above penalties, all other actions are hereby reserved, including an action of equity for the proper enforcement of this ordinance. The imposition of a fine or penalty for any violation of, or noncompliance with, this ordinance shall not excuse the violation or noncompliance to permit it to continue, and all such persons shall be required to correct or remedy such violations or noncompliance within a reasonable time. Any structure constructed, reconstructed, enlarged, altered or relocated in noncompliance with this ordinance may be declared by the Board of Supervisors to be a public nuisance and abatable as such. Flood insurance may be withheld from structures constructed in violation of this ordinance.

ARTICLE II. DEFINITIONS
10.7. Definitions
For the purpose of this Article, words and terms are defined as follows:

A. Base flood/100-year flood: A flood that, on the average, is likely to occur once every one hundred years (100) years (i.e., that has a one (1) percent chance of occurring each year, although the flood may occur in any year). The flood having a one percent chance of being equaled or exceeded in any given year.

B.Base Flood Elevations (BFE): The Federal Emergency Management Agency designated 100-year water surface elevation. The Federal Emergency Management Agency designated one hundred (100)-year water surface elevation. The water surface elevation of the base flood in relation to the datum specified on the community’s Flood Insurance Rate Map. For the purposes of this ordinance, the one hundred (100) year flood or 1% annual chance flood.

Basement: Any area of the building having its floor sub-grade (below ground level) on all sides.

C.Board of Zoning Appeals: The board appointed to review appeals made by individuals with regard to decisions of the zoning administrator in the interpretation of this ordinance.

Building: Any structure having a roof supported by columns or walls and intended for the shelter, housing, or enclosure of any individual, animal, process, equipment, goods, or equipment of any kind.

D.Development: Any man made change to improved or unimproved real estate, including, but not limited to, buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials.

Drop-down Fence: A fence design that gives way under the pressure of flood flows to lay flat on the ground, and which can be re-erected after the flood.
Elevated building: A non-basement building built to have the lowest floor elevated above the ground level by means of fill, solid foundation perimeter walls, pilings, or columns (posts and piers).
Encroachment: The advance or infringement of uses, plant growth, fill, excavation, buildings, permanent structures or development into a floodplain, which may impede or alter the flow capacity of a floodplain.

E.Flood or flooding:

(a) A general and temporary condition of partial or complete inundation of normally dry land areas from:

(1) The overflow of inland or tidal waters.
(2) The unusual and rapid accumulation or runoff of surface waters from any source.
(3) Mudslides (i.e. mudflows) which are proximately caused by flooding as defined in paragraph (a) (2) of this definition and are akin to a river of liquid and flowing mud on the surfaces of normally dry land areas, as when earth is carried by a current of water and deposited along the path of the current.

(b) The collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm, or by an unanticipated force of nature, such as a flash flood or by some similarly unusual and unforeseeable event which results in flooding as defined in (a) (1) of this definition.

F.Flood-prone area: Any land area susceptible to being inundated by water from any source.
Flood Insurance Rate Map (FIRM): An official map of a community, on which the Federal Insurance Administrator has delineated both the special hazard areas and the risk premium zones applicable to the community. A FIRM that has been made available digitally is called a Digital Flood Insurance Rate Map (DFIRM).
Flood Insurance Study (FIS): An examination, evaluation and determination of flood hazards and, if appropriate, corresponding water surface elevations, or an examination, evaluation and determination of mudflow and/or flood-related erosion hazards.

G.Floodplain:

(a) A relatively flat or lowland area adjoining a river, stream or watercourse which is subject to partial or complete inundation;

(b) An area subject to the unusual and rapid accumulation or runoff of surface water from any source.

Flood-proofing: Any combination of structural and non-structural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents.

H.Floodway: The designated area of the floodplain required to carry and discharge flood waters of a given magnitude. For the purposes of this ordinance, the floodway shall be capable of accommodating a flood of the 100-year magnitude.

Freeboard: A factor of safety usually expressed in feet above a flood level for purposes of floodplain management. “Freeboard” tends to compensate for the many unknown factors that could contribute to flood heights greater than the height calculated for a selected size flood and floodway conditions, such as wave action, bridge openings, and the hydrological effect of urbanization in the watershed.

Highest adjacent grade: The highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure.

I.Historic structure: Any structure that is:

(a) Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register;

(b) Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the secretary to qualify as a registered historic district;

(c) Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of the Interior; or

(d) Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either:

(1) By an approved state program as determined by the Secretary of the Interior; or
(2) Directly by the Secretary of the Interior in states without approved programs.

Lowest floor: The lowest floor of the lowest enclosed area (including basement). An unfinished or flood-resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building’s lowest floor provided that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of Federal Code 44CFR §60.3.

J.Manufactured home: A structure subject to federal regulations which is transportable in one or more sections, is eight (8) body feet or more in width and forty (40) body feet or more in length in the traveling mode, or is three hundred twenty (320) or more square feet when erected on site, is built on a permanent chassis, is designed to be used as a single family dwelling, with or without a permanent foundation when connected to the required facilities, and includes the plumbing, heating, air conditioning and electrical system contained in the structure.

K.Manufactured home park/subdivision: A parcel (or contiguous parcels) of land divided into two (2) or more lots for rent or sale.

L.New construction: For the purposes of determining insurance rates, structures for which the “start of construction” commended on or after the effective date of any initial FIRM or after December 31, 1974, whichever is later, and includes any subsequent improvements to such structures. For floodplain management purposes “new construction” means structures for which the “start of construction” commenced on or after the effective date of a floodplain management regulation adopted by a community and includes any subsequent improvements to such structures.

M.Recreational vehicle: A vehicle which is:

(a) Built on a single chassis;
(b) Four hundred (400) square feet or less when measured at the largest horizontal projection;
(c) Designed to be self-propelled or permanently towable by a light duty truck; and
(d) Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational camping, travel, or season use.

Special flood hazard area: The land in the floodplain subject to a one (1%) percent or greater chance of being flooded in any given year as determined in Section 10-10 of this ordinance.

N.Start of construction: The date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement was within one hundred eighty (180) days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration on any wall, ceiling, floor, or other structural part of a building, whether or not the alteration affects the external dimensions of the building.
Structure: A combination of materials that form a construction for use, occupancy, ornamentation, including a fence, a gas or liquid storage tank, whether installed on, above, or below the surface of land or water.

O.Substantial damage: Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before predamaged condition would equal or exceed fifty (50) percent of the market value of the structure before the damage occurred.

Substantial improvement: Any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds fifty (50) percent of the market value of the structure before the “start of construction” of the improvement. This term includes structures, which have incurred “structural damage” regardless of the actual repair work performed. The term does not, however, include either:

(1) any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions or

(2) any alteration of a “historic structure”, provided that the alteration will not preclude the structures continued designation as a “historic structure”.

Suspended cable fence: A steel cable or chain suspended across the waterway between two secured posts. From the cable a fence made of galvanized chain, chain mesh, galvanized mesh or prefabricated fencing or netting is attached. The suspended cable remains taut during the flood while the flood gate fence remains flexible and rises with the flow. Some variations of the flood gate fence have foam or plastic floats at the bottom of the fence to aid in flotation on the surface of the flood flow.

Violation: The failure of a structure or other development to be fully compliant with the community’s floodplain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in Code of Federal Regulations, Title 44: Emergency Management and Assistance, Part 60-Criteria For Land Management and Use, Subpart A-Requirements for Land Management Regulations, Sec. 60.3(b)(5), (c)(4), (c)(10), (d)(3), (e)(2), (e)(4), or (e)(5) is presumed to be in violation until such time as that documentation is provided.

Watercourse – A lake, river, creek, stream, wash, channel or other topographic feature on or over which waters flow at least periodically. Watercourse includes specifically designated areas in which substantial flood damage may occur.

ARTICLE III. ESTABLISHMENT OF ZONING DISTRICTS

Section 3.1. Description of districts.
10.8. Establishment of Floodplain Districts

A. Description of districts.

1. Basis of districts. The various floodplain districts shall include areas subject to inundation by waters of the 100-year flood. special flood hazard areas. The basis for the delineation of these districts shall be the Flood Insurance Study (FIS) and the Flood Insurance Rate Maps (FIRM) for Nelson County, prepared by the Department of Housing and Urban Development, Federal Insurance Administration, dated February, 1978, as amended. Federal Emergency Management Agency, Federal Insurance Administration, dated June 18, 2010 and any subsequent revisions or amendments thereto.

The boundaries of the Special Flood Hazard Area and Floodplain Districts are established as shown on the Flood Insurance Rate Map which is declared to be a part of this ordinance and which shall be kept on file at the Nelson County Planning and Zoning office.

The Floodway District is delineated, for purposes of this ordinance, using the criterion that certain areas within the floodplain must be capable of carrying the waters of the 100-year flood without increasing the water surface elevation of that flood more than one (1) foot at any point. The areas included in this district are specifically defined in Table 2 of the above referenced flood insurance study and shown on the accompanying Flood Boundary and Floodway Map or Flood Insurance Rate Map.
(1) The Flood-Fringe District shall be that area of the 100-year floodplain not included in the Floodway District. The basis for the outermost boundary of the district shall be the 100-year flood elevations contained in the flood profiles of the above referenced flood insurance study and as shown on the accompanying Flood Boundary and Floodway Map or Flood Insurance Rate Map.
(2) The Flood-Fringe District shall be that area of the 100-year floodplain not included in the Floodway District. The basis for the outermost boundary of the district shall be the 100-year flood elevations contained in the flood profiles of the above referenced flood insurance study and as shown on the accompanying Flood Boundary and Floodway Map or Flood Insurance Rate Map.

(3) The Approximated Floodplain District shall be that floodplain area for which no detailed flood profiles or elevations are provided, but where a 100-year floodplain boundary has been approximated. Such areas are shown as Zone A on the maps accompanying the flood insurance study. For these areas, the 100-year flood elevations and floodway information from federal, state, and other acceptable sources shall be used, when available. Where the specific 100-year flood elevation cannot be determined for this area using other sources of data, such as the U.S. Army Corps of Engineers Floodplain Information Reports, U.S. Geological Survey Flood prone Quadrangles, etc., then the applicant for the proposed use, development and/or activity shall determine this elevation in accordance with hydrologic and hydraulic engineering techniques. Only professional engineers shall undertake hydrologic and hydraulic analyses or others of demonstrated qualifications, who shall certify that the technical methods used correctly reflect currently accepted technical concepts. Studies, analyses, computations, etc., shall be submitted in sufficient detail to allow a thorough review by Nelson County.

2. The Floodway District is delineated, for purposes of this ordinance, using the criterion that certain areas within the floodplain must be capable of carrying the waters of the one hundred (100)-year flood without increasing the water surface elevation of that flood more than one (1) foot at any point. The areas included in this District are specifically defined in Table 4 of the above-referenced Flood Insurance Study and shown on the accompanying Flood Insurance Rate Map.

3. The Special Floodplain District shall be those areas identified as an AE Zone on the maps accompanying the Flood Insurance Study for which one hundred (100)-year flood elevations have been provided.

4. The Approximated Floodplain District shall be those areas identified as an A or A99 Zone on the maps accompanying the Flood Insurance Study. In these zones, no detailed flood profiles or elevations are provided, but the one hundred (100)-year floodplain boundary has been approximated. For these areas, the one hundred (100)-year flood elevations and floodway information from federal, state, and other acceptable sources shall be used, when available. Where the specific one hundred (100)-year flood elevation cannot be determined for this area using other sources of data, such as the U.S. Army Corps of Engineers Flood Plain Information Reports, U.S. Geological Survey Flood-prone Quadrangles, etc., then the applicant for the proposed use, development and/or activity shall determine this elevation in accordance with hydrologic and hydraulic engineering techniques. Hydrologic and hydraulic analyses shall be undertaken only by professional engineers or others of demonstrated qualifications, who shall certify that the technical methods used correctly reflect currently accepted technical concepts. Studies, analyses, computations, etc., shall be submitted in sufficient detail to allow a thorough review by the governing body.

B. Overlay concept.

1. The floodplain districts described above shall be overlays to the existing underlying districts as shown on the Official Zoning Ordinance Map, and as such, the provisions for the floodplain districts shall serve as a supplement to the underlying district provisions.

2. Any conflict between the provisions or requirements of the floodplain districts and those of any underlying district, the more restrictive provisions and/or those pertaining to the floodplain districts shall apply.

3. In the event any provision concerning a floodplain district is declared inapplicable as a result of any legislative or administrative actions or judicial decision, the basic underlying provisions shall remain applicable.

Section 3.2
10.9. Official Zoning Map. The boundaries of the floodplain districts are established as shown on the (Flood Boundary and Floodway Map and/or Flood Insurance Rate Map dated June 18, 2010 which is declared to be a part of this ordinance and which shall be kept on file at the Nelson County Administrators Planning and Zoning office.

Section 3.3
10.10. District boundary changes. The delineation of any of the floodplain districts may be revised by the Board of Supervisors where natural or manmade changes have occurred and/or where more detailed studies have been conducted or undertaken by the U.S. Army Corps of Engineers or other qualified agency, or an individual documents the need for such change. However, prior to any such change, approval must be obtained from the Federal Insurance Administration.

Section 3.4
10.11. Interpretation of district boundaries. Initial interpretations of the boundaries of the floodplain districts shall be made by the zoning administrator Planning and Zoning Director. Should a dispute arise concerning the boundaries of any of the districts, the Board of Zoning Appeals shall make the necessary determination. The person questioning or contesting the location of the district boundary shall be given a reasonable opportunity to present his case to the Board and to submit his own technical evidence if he so desires.

10.12. Submitting Technical Data. A community’s base flood elevations may increase or decrease resulting from physical changes affecting flooding conditions. As soon as practicable, but no later than six months after the date such information becomes available, a community shall notify the Federal Insurance Administrator of the changes by submitting technical or scientific data. Such a submission is necessary so that upon confirmation of those physical changes affecting flooding conditions, risk premium rates and flood plain management requirements will be based upon current data.

ARTICLE IV. DISTRICT PROVISIONS

Section 4.1
10.13. General provisionsPermit and Application Requirements.

A. Permit requirement. All uses, activities, and development occurring within any floodplain district, including placement of manufactured homes, shall be undertaken only upon the issuance of a Special Use Permit. Such development shall be undertaken only in strict compliance with the provisions of the ordinance and with all other applicable codes and ordinances, such as the Virginia Uniform Statewide Building Code (VA USBC) and the Nelson County Subdivision Regulations. Prior to the issuance of any permit the zoning administrator Planning and Zoning Director shall require all applications to include compliance with all applicable state and federal laws. Under no circumstances shall any use, activity, and/or development adversely affect the capacity of the channels or floodway of any watercourse, drainage ditch, or any other drainage facility or system.

B. Alteration or relocation of watercourse. Prior to any proposed alteration or relocation of any channels or of any watercourse, stream, etc., within this jurisdiction a permit shall be obtained from the U.S. Corps of Engineers, the Virginia State Water Control Board, and the Virginia Marine Resources Commission (a joint permit application is available from any of these organizations). Furthermore, notification of the proposal shall be given by the applicant to all affected adjacent jurisdictions, the Division of Soil and Water Conservation (Department of Conservation and Recreation), and the Federal Insurance Administration.

C. Site plans and permits applications. All applications for Special Use Permit for development in the floodplain district and all building permits issued for the floodplain shall incorporate the information contained in subparagraph 1., 2., 3., 4., and 5. and the zoning administrator Planning and Zoning Director may require the applicant to furnish any and all of the following information in subparagraphs 6. through 8. As deemed necessary for determining the suitability of the particular site for the proposed use, the following is required:

1. Plans in triplicate drawn to scale showing the nature, location, dimensions, and elevation of the lot, existing or proposed structures, fill, storage of materials, flood proofing measures, and the relationship of the above to the location of the channel, floodway, and the flood protection elevation.
2. For structures to be elevated, the elevation of the lowest floor (including basement).
3. For structures to be flood proofed (nonresidential only), the elevation to which the structure will be flood proofed.
4. The elevation of the 100-year flood.
5. Topographic information showing existing and proposed ground elevations.
6. A typical valley cross section showing the channel of the stream, elevation of land areas adjoining each side of the channel, cross sectional areas to be occupied by the proposed development, and high water information.
7. Plans (surface view) showing elevations or contours of the ground; pertinent structure, fill, or storage of all proposed and existing structures on the site; location and elevations of streets, water supply, sanitary facilities; photographs showing existing land uses and vegetation upstream and downstream, soil types, and other pertinent information.
8. Specifications for building construction and materials, flood proofing, filling, dredging, grading, channel improvement, storage of materials, water supply, and sanitary facilities.
10.14. General Standards

The following provisions shall apply to all permits:

A. New construction and substantial improvements shall be according to the VA USBC, and anchored to prevent flotation, collapse or lateral movement of the structure.

B. Manufactured shall be anchored to prevent flotation, collapse, or lateral movement. Methods of anchoring may include, but are not limited to, use of over-the-top or frame ties to ground anchors. This standard shall be in addition to and consistent with applicable State anchoring requirements for resisting wind forces.

C. New construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage.

D. New construction or substantial improvements shall be constructed by methods and practices that minimize flood damage.

E. Electrical, heating, ventilation, plumbing, air conditioning equipment and other service facilities, including duct work, shall be designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding.

F. New and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system.

G. New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters.

H. On-site waste disposal systems shall be located and constructed to avoid impairment to them or contamination from them during flooding.

In addition to provisions A. – H. above, in all special flood hazard areas, these additional provisions shall apply:

I. Prior to any proposed alteration or relocation of any channels or of any watercourse, stream, etc., within this jurisdiction a permit shall be obtained from the U. S. Corps of Engineers, the Virginia Department of Environmental Quality, and the Virginia Marine Resources Commission (a joint permit application is available from any of these organizations). Furthermore, in riverine areas, notification of the proposal shall be given by the applicant to all affected adjacent jurisdictions, the Department of Conservation and Recreation (Division of Dam Safety and Floodplain Management) and the Federal Insurance Administrator.

J. The flood carrying capacity within an altered or relocated portion of any watercourse shall be maintained.

K. Fences shall be installed parallel to a waterway. When a fence crosses a waterway, it shall be designed as a drop-down fence or a suspended cable fence.

10.15. Specific Standards

In all special flood hazard areas where Base Flood Elevations have been provided in the Flood Insurance Study or generated according Section 10.18, the following provisions shall apply:

A. Residential Construction

New construction or substantial improvement of any residential structure (including manufactured homes) shall have the lowest floor, including basement, elevated one foot or more above the Base Flood Elevation.

B. Non-Residential Construction

New construction or substantial improvement of any commercial, industrial, or non-residential building (or manufactured/mobile home) shall have the lowest floor, including basement, elevated one foot or more above the Base Flood Elevation. Buildings located in all A1-30, AE, and AH zones may be flood-proofed in lieu of being elevated provided that all areas of the building components below the elevation corresponding to the BFE plus one foot are water tight with walls substantially impermeable to the passage of water, and use structural components having the capability of resisting hydrostatic and hydrodynamic loads and the effect of buoyancy. A registered professional engineer or architect shall certify that the standards of this subsection are satisfied. Such certification, including the specific elevation (in relation to mean sea level) to which such structures are flood-proofed, shall be maintained by the Planning and Zoning Director.

C. Elevated Buildings

Fully enclosed areas, of new construction or substantially improved structures, which are below the regulatory flood protection elevation shall:

1. Not be designed or used for human habitation, but shall only be used for parking of vehicles, building access, or limited storage of maintenance equipment used in connection with the premises. Access to the enclosed area shall be the minimum necessary to allow for parking of vehicles (garage door) or limited storage of maintenance equipment (standard exterior door), or entry to the living area (stairway or elevator);

2. Be constructed entirely of flood resistant materials below the regulatory flood protection elevation;

3. Include, in Zones A, AO, AE, and A1-30, measures to automatically equalize hydrostatic flood forces on walls by allowing for the entry and exit of floodwaters. To meet this requirement, the openings must either be certified by a professional engineer or architect or meet the following minimum design criteria:

a. Provide a minimum of two openings on different sides of each enclosed area subject to flooding;

b. The total net area of all openings must be at least one (1) square inch for each square foot of enclosed area subject to flooding;

c. If a building has more than one enclosed area, each area must have openings to allow floodwaters to automatically enter and exit;

d. The bottom of all required openings shall be no higher than one (1) foot above the adjacent grade;

e. Openings may be equipped with screens, louvers, or other opening coverings or devices, provided they permit the automatic flow of floodwaters in both directions;

f. Foundation enclosures made of flexible skirting are not considered enclosures for regulatory purposes, and, therefore, do not require openings. Masonry or wood underpinning, regardless of structural status, is considered an enclosure and requires openings as outlined above.

D. Manufactured homes. Manufactured homes that are placed or substantially improved on sites shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated to or above the base flood elevation and be securely anchored to an adequately anchored foundation system to resist floatation collapse and lateral movement.

E. Recreational vehicles: Recreational vehicles placed on sites either:

(i) Be on the site for fewer than one hundred eighty (180) consecutive days, be fully licensed and ready for highway use, or
(ii) Meet the permit requirements for placement and the elevation and anchoring requirements for manufactured homes in paragraph 4.1.D. above.

A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached additions.

D. Standards for Manufactured Homes and Recreational Vehicles

1. All manufactured homes placed, or substantially improved, on individual lots or parcels, in expansions to existing manufactured home parks or subdivisions, in a new manufactured home park or subdivision or in an existing manufactured home park or subdivision on which a manufactured home has incurred substantial damage as the result of a flood, must meet all the requirements for new construction, including the elevation and anchoring requirements in Section 10.13 A. and B. and Section 10.15 A.

2. All recreational vehicles placed on sites must either:

a. be on the site for fewer than 180 consecutive days;
b. be fully licensed and ready for highway use (a recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices and has no permanently attached additions); or,
c. meet all the requirements for manufactured homes in Section 10.13 and Section 10.15 D.
Section 4.2. Floodway District. In the Floodway District no encroachments, including fill, new construction, substantial improvements, or other development shall be permitted unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that tile proposed encroachment would not result in any increase in the 100-year flood elevation.
10.16. Standards for the Floodway District

The following provisions shall apply within the Floodway District:

A. Encroachments, including fill, new construction, substantial improvements and other developments are prohibited unless certification such as hydrologic and hydraulic analyses (with supporting technical data) is provided demonstrating that encroachments shall not result in any increase in flood levels during occurrence of the base flood. Hydrologic and hydraulic analyses shall be undertaken only by professional engineers or others of demonstrated qualifications, who shall certify that the technical methods used correctly reflect currently accepted technical concepts. Studies, analyses, computations, etc., shall be submitted in sufficient detail to allow a thorough review by the Planning and Zoning Director.

Development activities which increase the water surface elevation of the base flood may be allowed, provided that the property owner first applies and obtains the following:

1. Receives an endorsement from the State’s Floodplain Program Engineer;
2. Receives a Special Use Permit from The Nelson County Board of Zoning Appeals for a conditional Flood Insurance Rate Map and floodway revision; and
3. Receives the approval of the Federal Emergency Management Agency.

B. If Section 10.19 is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of this Article.

C. The placement of manufactured homes (mobile homes) is prohibited, except in an existing manufactured homes (mobile homes) park or subdivision. A replacement manufactured home may be placed on a lot in an existing manufactured home park or subdivision provided the anchoring, elevation, and encroachment standards are met.

Section 4.3
10.17. Permitted Uses in the Floodway District. The following uses and activities are permitted, provided that they are in compliance with the provisions of the underlying area and are not prohibited by any other ordinance and provided that they do not require structures, fill, or storage of materials and equipment:

A. Agricultural uses, such as general farming, pasture, grazing, outdoor plant nurseries, horticulture, truck farming, forestry, sod farming, and wild crop harvesting.
B. Public and private recreational uses and activities, such as parks, day camps, picnic grounds, golf courses, boat launching and swimming area, horseback riding and hiking trails, wildlife and nature preserves, game farms, fish hatcheries, trap and skeet game ranges, and hunting and fishing areas.
C. Accessory residential uses, such as yard areas, gardens, play areas, and pervious loading areas;
D. Accessory industrial and commercial uses, such as yard areas, pervious parking and loading areas, airport landing strips, etc.
E. Flood warning aids and water measurement devices.

Section 4.4. Flood Fringe and Approximated Floodplain Districts. In the Flood Fringe and Approximated Floodplain Districts, the development and/or use of the land shall be permitted by special use permit in accordance with the regulations of the underlying area provided that all such uses, activities, and/or development shall be undertaken in strict compliance with the flood proofing and related provisions contained in the Virginia Uniform Statewide Building Code and all other applicable codes and ordinances.

Within the Approximated Floodplain District, the applicant shall also delineate a floodway area based on the requirement that all existing and future development not increase the 100-year flood elevation more than one foot at any one point. The engineering principle-equal reduction of conveyance shall be used to make the determination of increased flood heights.

Within the floodway area delineated by the applicant, the provisions of Section 4.2 shall apply.

10.18. Standards for the Special Floodplain District

The following provisions shall apply within the Special Floodplain District:

Until a regulatory floodway is designated, no new construction, substantial improvements, or other development (including fill) shall be permitted within the areas of special flood hazard, designated as Zones A1-30 and AE on the Flood Insurance Rate Map, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within Nelson County.

Development activities in Zones Al-30, AE, and AH, on the Nelson County’s Flood Insurance Rate Map which increase the water surface elevation of the base flood by more than one foot may be allowed, provided the property owner first applies, with the Nelson County Board of Zoning Appeal’s endorsement, for a conditional Flood Insurance Rate Map revision, and receives the approval of the Federal Emergency Management Agency.

10.19. Standards for Approximated Floodplain

The following provisions shall apply with the Approximated Floodplain District:

The Approximated Floodplain District shall be that floodplain area for which no detailed flood profiles or elevations are provided, but where a one hundred (100)-year floodplain boundary has been approximated. Such areas are shown as Zone A on the maps accompanying the Flood Insurance Study. For these areas, the one hundred (100)-year flood elevations and floodway information from federal, state, and other acceptable sources shall be used, when available.

Where the specific one hundred (100)-year flood elevation cannot be determined for this area using other sources of data, such as the U. S. Army Corps of Engineers Floodplain Information Reports, U. S. Geological Survey Flood-Prone Quadrangles, etc., then the applicant for the proposed use, development and/or activity shall determine this elevation. For development proposed in the approximate floodplain the applicant must use technical methods that correctly reflect currently accepted technical concepts, such as point on boundary, high water marks, or hydrologic and hydraulic analyses. Studies, analyses, computations, etc., shall be submitted in sufficient detail to allow a thorough review by the Planning and Zoning Director.

The Planning and Zoning Director reserves the right to require a hydrologic and hydraulic analyses for any development.

When such base flood elevation data is utilized, the lowest floor shall be elevated to one foot above the base flood elevation. During the permitting process, the Planning and Zoning Director shall obtain:

1. the elevation of the lowest floor (including the basement) of all new and substantially improved structures; and,

2. the elevation (in relation to mean sea level) to which the structure has been flood-proofed if the structure has been flood-proofed in accordance with the requirements of this article

10.20. Standards for Subdivision Proposals

A. All subdivision proposals shall be consistent with the need to minimize flood damage;

B. All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage;

C. All subdivision proposals shall have adequate drainage provided to reduce exposure to flood hazards; and

D. Base Flood Elevation data shall be provided for subdivision proposals and other development proposals (including manufactured home parks and subdivisions) that exceed fifty lots or five acres, whichever is the lesser.

Section 4.5
10.21. Design criteria for utilities and facilities.

A. Sanitary sewer facilities. All new or replacement sanitary sewer facilities and private package sewage treatment plants (including all pumping stations and collector systems) shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into the flood waters. In addition, they should be located and constructed to minimize or eliminate flood damage and impairment.

B. Water facilities. All new or replacement water facilities shall be designed to minimize or eliminate infiltration of flood waters into the system and be located and constructed to minimize or eliminate flood damages.

C. Drainage facilities. All storm facilities shall be designed to convey the flow of surface waters without damage to persons or property. The systems shall ensure drainage away from buildings and on site waste disposal sites. The Board of Supervisors may require a primarily underground system to accommodate frequent floods and a secondary surface system to accommodate large, less frequent floods. Drainage plans shall be consistent with local and regional drainage plans. The facilities shall be designed to prevent the discharge of excess runoff onto adjacent properties.

D. Utilities. All utilities, such as gas lines, electrical and telephone systems being placed in flood prone areas should be located, elevated (where possible), and constructed to minimize the chance of impairment during a flooding occurrence.

E. Streets and sidewalks. Streets and sidewalks should be designed to minimize their potential for increasing and aggravating the levels of flood flow. Drainage openings shall be required to sufficiently discharge flood flows without unduly increasing flood heights.

ARTICLE V. SPECIAL USE PERMITS OR VARIANCES;
FACTORS TO BE CONSIDERED

In passing upon applications for special use permits or variances, the Board of Zoning Appeals shall satisfy all relevant factors and procedures specified in other sections of the zoning ordinance and consider the following additional factors:

10.22. Variances and Special Use Permits
Variances and Special Use Permits shall be issued by the Board of Zoning Appeals upon:
A. A showing of good and sufficient cause;
B. Determination by the Board of Zoning Appeals that failure to grant the variance would result in exceptional hardship to the applicant; and
C. Determination by the Board of Zoning Appeals that the granting of such Variance or Special Use Permit will not result in:

1. Unacceptable or prohibited increases in flood heights;
2. Additional threats to public safety;
3. Extraordinary public expense;
4. Nuisances being created;
5. Fraud or victimization of the public; or
6. Conflict with local laws or ordinances.

While the granting of variances generally is limited to a lot size less than one-half acre, deviations from that limitation may occur. However, as the lot size increases beyond one-half acre, the technical justification required for issuing a variance increases. Variances may be issued by the Board of Zoning Appeals for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, in conformance with the provisions of this section.

Variances may be issued for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use provided that the criteria of this section are met, and the structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.

In passing upon applications for Variances and Special Use Permits, the Board of Zoning Appeals shall satisfy all relevant factors and procedures specified in other sections of the zoning ordinance and consider the following additional factors:

A. The danger to life and property due to increased flood heights or velocities caused by encroachments. No Special Use Permit or Variance shall be granted for any proposed use, development, or activity within any floodway district that will cause any increase in the 100-year flood elevation Base Flood Elevation (BFE).
B. The danger that materials may be swept on to other lands or downstream to the injury of others.
C. The proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination, and unsanitary conditions.
D. The susceptibility of the proposed facility and its contents to flood damage and effect of such damage on the individual owners.
E. The importance of the services provided by the proposed facility to the community.
F. The requirements of the facility for a waterfront location.
G. The availability of alternative locations not subject to flooding for the proposed use.
H. The compatibility of the proposed use with existing development and development anticipated in the foreseeable future.
I. The relationship of the proposed use to the Comprehensive Plan and floodplain management program for the area.
J. The safety of access by ordinary and emergency vehicles to the property in time of flood.
K. The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters expected at the site.
L. The repair or rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure’s continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.
M. Such other factors which are relevant to the purposes of this ordinance.

The Board of Zoning Appeals may refer any application and accompanying documentation pertaining to any request for a Special Use Permit or Variance to any engineer or other qualified person or agency for technical assistance in evaluating the proposed project in relation to flood heights and velocities, and the adequacy of the plans for flood protection and other related matters.

Special use permits or variances shall be issued only after the Board of Zoning Appeals has determined that the granting of such will not result in (a) unacceptable or prohibited increases in flood heights, (b) additional threats to public safety, (c) extraordinary public expense; and will not (d) create nuisances, (e) cause fraud or victimization of the public, or (f) conflict with local laws or ordinances.

Special Use Permits or Variances shall be issued only after the Board of Zoning Appeals has determined that Special Use Permit or Variance will be the minimum required to provide relief from any hardship to the applicant.

The Board of Zoning Appeals shall notify the applicant for a Special Use Permit or Variance, in writing, that the issuance of a Special Use Permit or Variance to construct a structure below the 100-year flood elevation Base Flood Elevation: (a) increases the risks to life and property: and (b) will result in increased premium rates for flood insurance.

A record shall be maintained of the above notification as well as all Special Use Permits or Variance actions, including justification for the issuance of a Special Use Permit or Variance. Any Special Use Permit or Variance which is issued shall be noted in the annual or biennial report submitted to the Federal Insurance Administrator.

ARTICLE VI. EXISTING STRUCTURES IN FLOODPLAIN DISTRICTS
10.23. Existing Structures in Floodplain Districts
A structure or use of a structure or premises which lawfully existed before the enactment of these provisions but which is not in conformity with these provisions may be continued subject to the following conditions:

A. Existing structures in the Floodway District shall not be expanded or enlarged unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed expansion would not result in any increase in the 100-year flood elevation Base Flood Elevation.

B. Any modifications, alteration, repair, reconstruction, or improvement of any kind to a structure and/or use, located in any floodplain area to an extent or amount of less than fifty (50) percent of its market value, shall be elevated and/or flood-proofed to the greatest extent possible.

C. The modifications, alteration, repair, reconstruction, or improvement of any kind to a structure and/or use, regardless of its location in a floodplain area to an extent or amount of fifty (50) percent or more of its market value, shall be undertaken only in full compliance with the provisions of this ordinance and the Virginia Uniform Statewide Building Code.

ARTICLE 10 – ENACTMENT

ENACTED AND ORDAINED THIS 11th DAY OF MAY, 2010. This ordinance shall become effective at 12:00 AM, June 18, 2010.

B. TJPDC Rural Transportation Plan (R2010-28)

Mr. Boger noted that staff did rankings of the plan based on its knowledge and the six year plan. He noted that some were to be removed, and ones like rural rustic roads were to be surface treated.

He noted that the Planning District Commissions were asked by VDOT to complete this long range planning.

Mr. Johnson noted that Tye River Road needed to be done and was wash-boarding substantially.

Mr. Carter noted that Mr. Boger could change its priority and also noted that it was a maintenance issue; recommending that it be changed from low to high priority.

Mr. Johnson then requested that it – #329, be moved up in priority; noting that the road was used to cut across to Appomattox and was heavily travelled.

Mr. Harvey stated that Tye River Road had a substantially lower travel count than those on the first page, which prompted Mr. Johnson to question the travel counts. Mr. Boger noted that they take an average count over a period of time.

Ms. Brennan noted that she had a few that she would like to discuss and Members noted that it was seemingly just a paper exercise.

Members then discussed Cold Creek Rd.(Rt. 635) being a private driveway and not a road, noting that it was once a road and now was not. Mr. Boger noted that it was a segment of Rt. 151 and that lane widening was recommended there from 18 to 24 feet.

Ms. Brennan noted that she wanted the intersection location #357, Spruce Creek and Rt. 151, to be high priority and Mr. Boger noted that it was marked as high. She also requested that the Rt. 151 and Rodes Farm Inn intersection #358 to be marked high as well and Mr. Boger noted that it was.

Ms. Brennan also requested that the intersections of Rt. 6 West and Rt. 151, #360 shown as medium priority be changed to high, as well as intersection #356, 56 East and Laurel Road.

Mr. Carter noted that Mr. Boger had incorporated the SSYP plan priorities into the regional plan to ensure that they were there.

Following discussion, Mr. Hale moved to approve resolution R2010-28 Approval of Thomas Jefferson Planning District 2010 Rural Long Range Transportation Plan for Nelson County and Mr. Johnson seconded the motion. There being no further discussion, Supervisors voted (3-2) by roll call vote to approve the motion with Mr. Harvey and Mr. Bruguiere voting No and the following resolution was adopted:

RESOLUTION-R2010-28
NELSON COUNTY BOARD OF SUPERVISORS
APPROVAL OF THOMAS JEFFERSON PLANNING DISTRICT
2010 RURAL LONG RANGE TRANSPORTATION PLAN
FOR NELSON COUNTY

BE IT RESOLVED, by the Nelson County Board of Supervisors that the Thomas Jefferson Planning District’s 2010 Rural Long Range Transportation Plan for Nelson County reflects the long range transportation priorities of Nelson County and is hereby approved and authorized for submittal to the Virginia Department of Transportation for inclusion in the Commonwealth’s multimodal long range plan known as VTrans 2035.

Mr. Boger noted that the County had a new Commonwealth Transportation Board member and inquired as to whether or not the Board wanted to reapprove the last Six Year Transportation Plan submitted in 2008.

Members questioned the need for this and Mr. Boger stated that it would reiterate the County’s Priorities. Members agreed, with Mr. Carter noting that the first two (2) may be the only thing done in the next one to five (1-5) years.

Members discussed the priority list and Mr. Johnson moved to send the 2008 list of 11 projects for inclusion in the plan for primary roads with amendments to move #4 Rockfish Valley Hwy (Rt 151) at the intersection with Rodes Farm Drive (Route 613) and #7 James River Road (Rt. 56 East) at the intersection with Findlay Mountain Road (Rt. 647) to bottom of the list.

Mr. Hale seconded the motion and there being no further discussion, Supervisors voted unanimously (5-0) by roll call vote to approve the motion and the following Six Year Transportation Plan Priorities as amended:

1. Rockfish Valley Highway (Rt. 151) at the intersection with Greenfield Road (Rt. 635)
2. River Road (Route 6 West) at the intersection with Old Roberts Mountain Road (Rt. 634)
3. Laurel Road (Rt. 639) at the intersection with Irish Road (Rt. 6 East)
4. Richmond Highway (Rt. 60) at the intersection with Allen’s Creek Road (Rt. 622)
5. Spruce Creek Lane (Rt. 627) at the intersection with Rockfish Valley Hwy (Rt. 151)
6. River Road (Rt. 6 West) at the intersection with Rockfish Valley Hwy (Rt. 151)
7. Front Street (Business Rt. 29), Lovingston
8. Route 56 Extension, Lovingston
9. Patrick Henry Hwy (Rt. 151) at the “Y” intersection with Tye Brook Hwy (Rt. 56)
10. Rockfish Valley Hwy (Rt. 151) at the intersection with Rodes Farm Drive (Rt. 613)
11. James River Rd. (Rt. 56 East) at the intersection with Findlay Mountain Rd. (Rt. 647)

C. FY11 Budget Work Session

Ms. McCann briefly reviewed the Other Fund Budgets as follows:

Debt Service Fund

Debt service expenditures relative to the General Fund include a full year of debt for the Solid Waste Convenience Center construction and equipment ($330,118). Debt service expenditures relative to the School Fund include no new debt. School expenditures for debt total $2,841,558 and include debt service payments and trustee fees related to the following:

1) Bus leases (only 2 leases remain)
2) Tye River Elementary
3) Rockfish River Elementary
4) VRS refinancing
5) NCHS Renovations/ New Middle School

In FY11, the transfer from the General Fund ($3,071,334) pays for all debt except a portion of the middle school/high school project debt. The Capital Fund provides $100,342 towards the school project debt. The formula to pay for the school project debt utilizes the five cent real estate tax, 0.5% cumulative growth in real estate, and cumulative debt reduction with the balance being paid from the Capital Fund. Due to anticipated minimal growth in real estate for the upcoming fiscal year, the .5% growth was not included in the FY11 calculation.

Ms. McCann added that the bus leases were going to cost about $150,000 this year and reiterated the formula used for schools and that staff was covering additional amounts with capital fund money. She noted that per the formula, it would be the last year of pulling money out of the capital fund to cover debt.

In response to questions regarding the loan for construction of the solid waste facilities, Ms. McCann noted that the County had borrowed approximately $2.5 Million for ten (10) years and the County was in year three (3) or four (4) now. She noted that the funds were used as needed and being drawing down as used for the Faber site. She noted that all funds had to be drawn down by June to avoid paying arbitrage.

Mr. Carter added that staff had discussed doing further analysis on the system savings just that morning; noting that staff thought that the improvements have been highly successful. Mr. Carter reported that S. McSwain had reported that visiting solid waste representatives have noted that the County had the best solid waste collection facilities in the state and possibly the region. He further commented that the solid waste budget has been reduced each of the last few years and that the trucks were part of the financing.
Mr. Carter also noted that staff plans to evaluate the transfer of waste to the landfill operations and whether or not the County should assume this as well.

Mr. Johnson noted getting criticism on the hours of the transfer station operations not being conducive to public use and Mr. Carter noted they were what they were because of usage patterns. He reiterated the hours and the consensus of the Board was that they were sufficient.

Ms. Brennan recommended a review of the whole system in about 6-8 months.

In response to questions about the school debt, Ms. McCann noted that the TRES debt will retire in approximately five (5) years and that the primary reduction in debt for the next year is because of the bus leases. She added that the reductions were being thrown towards the NMS/NCHS project right now.

Capital Fund

Expenditures include the transfer to the Debt Service Fund to support debt for the High School/Middle School project ($100,342) and also a transfer to the General Fund ($145,398) for the roof and window replacement at TRE & RRE. Also budgeted is potential payment of arbitrage rebate related to the VPSA refunding and the school project financing ($29,000). The calculation of arbitrage rebate will be reviewed annually as required by IRS regulations. Anticipated FY11 revenues include $1,000 interest earnings on funds invested in the Local Government Investment Pool (LGIP). This investment was established with the windfall collections resulting from the switch to twice a year real estate. $4.5 million (comprised of both General Fund balance and Capital Fund balance) was transferred by the Treasurer into a money market account. The interest from this new investment is being posted to the General Fund. The small amount of interest from the LGIP account is the only incoming revenue to the Capital Fund for FY11. Fund balance in the amount of $273,740 is allocated to support anticipated expenditures. Of this amount $143,011 was funding returned to the Capital Fund from the Piney River 3 project.

It is anticipated that the last contribution toward debt service will be approximately $25,000 in FY12 per the formula. The remaining available fund balance would be approximately $1.7 million which could potentially continue to supplement debt service or be used for other capital projects.

Ms. McCann reported that some interest earnings were posted on the money created from the switch to twice a year tax collection to pay for the school debt. She noted that next year $25,000 will be used for school debt and will leave a balance of about $7.5 million.

Piney River 3 Project Fund

The project fund will not be maintained in FY11 as the project is currently complete. All loan and grant funds have been expended for the project. Additionally, as previously noted, $143,011 will be returned to the Capital Fund.

Piney River Water/Sewer Enterprise Fund

In FY11, this budget reflects a full year of operations including new customers (approximately 95) and Phase 3 debt service. The primary change in the budget is an increase in the maintenance and repair line. These are the maintenance expenses billed to the county by the Service Authority. Maintenance expenses for the current year are anticipated to exceed the FY10 budget amount of $40,000.
Receipts for water and sewer fees are based on current year receipts as projected. Current year fees including connection and installation are projected to be $113,728. The FY11 budget amount for regular fees and connection/installation fees totals $114,000. Expenses are anticipated to exceed revenues by $114,379. The budget reflects this shortfall being covered by a transfer from the General Fund.

Ms. McCann reported that the maintenance costs increased by $42,000 because the costs were under budgeted from this year. Mr. Carter noted that he would like for the Board to reconsider this arrangement.

CDBG Fund

The only active grant shown in this fund for FY11 is for the dental health care planning grant (Blue Ridge Medical Center expansion) in the amount of $22,000. This funding is anticipated to partially pay for environmental review and preliminary architectural costs. This was budgeted in FY10 and it is anticipated to be FY11 before grant conditions and products are complete and receipts are realized.

Ms. McCann noted that there was one (1) grant showing here, the BRMC dental planning grant and noted that most of the funds would be received next year and not this year. Mr. Carter added that the state representatives had noted that the County’s application for $700,000 in CDBG funds was very promising.

Street Light Fund

The street light tax was abandoned in FY09. The FY10 revenue budget reflected $500 in estimated delinquent payments based on collection plans currently in place. Actual anticipated collections during FY10 are projected to be $1,585. There is one payment plan still in place and other delinquent accounts have had a lien placed on the property. This fund will be not be maintained in FY11. After July 1, 2010, any street light receipts will be posted to the General Fund, although this is anticipated to be minimal unless a liened property is sold. The total outstanding balance on street light accounts is currently $4003.04 (Payment Plan due-$758.63, Liens Payable-$3,244.41). Electric service expense previously charged to this fund was included in the General Fund budget for FY10 and will continue as such in FY11 (Maintenance Dept.). The fund balance is projected to be about $13,010 at the end of this fiscal
year and will be transferred to the General Fund. The anticipated balance to be transferred exceeds the budget amount of $6,585 by $6,425.
Ms. McCann noted that this tax was abandoned in FY09, and that there was one payment plan remaining in effect and the other delinquent accounts have liens on their property now. She noted that the fund would not be maintained next year and staff would post collections to the General Fund.

Courthouse Project Fund

The Courthouse Project Fund expenditure budget for FY11 is based on the anticipated remaining project costs including $482,800 in contingency and $309,375 for the interest payment due in July. The expenditures are allocated between architectural, other professional services, construction, insurance,
furnishings, IT/E911 equipment installation and relocation, and debt service. Also budgeted is a transfer to the General Fund of $595,302 to be transferred to the School Fund for the roof and window replacement at TRE & RRE.

The revenues include the remaining financing proceeds anticipated to be $4,450,000, the General Fund transfer for the interest payment, and $1,291,702 from the fund balance (amounts previously allocated to the project). Of the amounts previously allocated to the project, $595,302 is proposed to be reallocated
for the school project. Project costs as budgeted to date will leave an unbudgeted contingency of about
$745,000. The balance of interest payable will be due in July 2011 as will the first debt service payment (40 year schedule-$391,500 plus reserve $39,150 OR 20 year schedule-$645,000 plus reserve $39,150) .

Broadband Project Fund
The Broadband Project Fund budget is based on the NTIA grant application which provides for installation of a fiber optic network and towers from the north to the south end of the county. The expenditures are allocated between engineering and other professional services and construction.
Revenue funding sources for this project include $1,826,646 from NTIA through the Broadband Technologies Opportunities Program. A twenty percent nonfederal match of $456,662 is required and budgeted from local funds. Potentially as much as $200,000 may be awarded from the Dept. of Housing & Community Development to help offset the local match.

Ms. McCann noted that staff is hopeful that the County can use CDBG money to offset the required local match but that it may not be able to use federal funds to offset this. She noted that the State people had previously said that the County could, but staff has not asked the Federal people yet.

Mr. Carter reported that the County has spent the planning grant funds and approximately $22,000 in County funds on this project thus far. He noted that staff was still waiting on the sole source determination from NTIA and would move forward with the Environmental Assessment; which Icon had done a lot of already.

Ms. McCann then reviewed the General Fund and School Fund Summary sheet as follows:

Ms. McCann reviewed the General Fund adjustments and noted that approximately $34,000 in State Compensation Board revenue had been restored increasing the State Revenue Adjustments line.

Ms. McCann then reviewed the punch list of unresolved funding items as follows:

Bucket Truck-

Ms. McCann noted that the budget contained a bucket truck proposed to replace lights at the parking areas and convenience center sites. She noted that Paul Truslow was working with CVEC and has made an agreement with them to change the lights for $2,500 and this item could be eliminated, saving approximately $18,000.

MACAA -Project Discovery-

Ms. McCann reported that $7,660 would need to be added to the budget in order to reinstate the Project Discovery program. The Board agreed by consensus to add this back into the budget.

RVCC Senior Meals-

Ms. McCann noted that she had spoken with Mr. Perdue who estimated that they will have $9,351 in restricted funds at June 30th. She noted that if the Board added $277 to this item, it would bring them up to level funding that is in the budget now. Mr. Perdue stated that they may not be able to have as many meals if they are level funded. He indicated that FY10 actual expenditures would be $11,377 which was less than the amount requested for next year. Ms. McCann reported that they were assuming that the churches were not providing meals when making their request so the amount is different than their actual expenditures.

Members discussed that funding could be added during the year if needed and that the yearend restricted fund balance was an estimate. They also discussed that the funding should go directly to the Senior Program and not to RVCC; allowing the seniors to handle the meals funding. Ms. Brennan suggested that an accounting system be set up for them to track expenses etc.

Following discussion, the Board’s consensus was to level fund the Rockfish Senior Center meals; providing $277 dollars of county funding in addition to the senior center’s estimated restricted fund balance of $11,377; a reduction of $9,351.

Vehicles:

Ms. McCann noted that the Board had received the full vehicle list and that staff had budgeted $77,000 for Sheriff vehicles.

Mr. Carter noted having looked into an RD grant application for Sheriff vehicles in the amount of $50,000. He noted that if the Board added $15,900 to the budget, the County could get five (5) cars using RD funds and an additional $15,900 in General Funds.

Members and staff discussed whether or not there was a need for five (5) vehicles and whether or not the County should take advantage of this stimulus funding opportunity. It was noted that the Sheriff was amenable to reducing the vehicle purchase funding as long as the Board would cover the cost of a new vehicle if needed during the year. Ms. McCann noted that the Board would not necessarily have to do anything now and could do a budget amendment when it is known if they got the grant or not. Mr. Carter noted that staff was encouraged by RD to seek no less than $50,000 because it was not worth their time if asking for less than that. Members also discussed buying two (2) vehicles.

Mr. Carter noted that he was unsure of how long the County would have to spend the grant money. He noted that it was public safety money and the County could use it for Animal Control trucks if it was not used for Sheriff Dept. vehicles. Members suggested that the vehicle purchase could be staggered if the County had a year to use it.

Following discussion, the Board’s consensus was to apply for the grant, find out how long the County would have to spend the funds, if the funds were for all public safety purposes, and ask if the County could apply for less than $50,000.

Ms. McCann clarified that for budget purposes; staff should take out one of the Sheriff vehicles and put it into contingency, with staff to apply for the grant and sort the rest out later.

D.A.R.E Program-

Ms. Brennan reported that the Sheriff thought that the School Resource Officer could do the program if the Board could fund the materials for about three to four thousand dollars. She noted that Captain Robertson said that they could exchange the School Resource Officer for a trained D.A.R.E officer for the second half of the year. Members briefly discussed whether or not there was any evidence that it was an effective program but agreed by consensus that it was worth the funding of $3,500 if it saved one kid.

Following discussion, the Board’s consensus was to fund $3,500 for D.A.R.E materials.

Ms. McCann then reported on State Compensation Board Funding as follows:

She noted that the Governor’s reductions this year would yield a higher amount for next year. She noted that this year they reduced funding across the board at the bottom line, but that for next year, they took the funding reductions from positions as follows:

She noted that it was a shell game and was how they were applying these reductions. She noted that staff felt that the Board should be aware of it, offices still had to operate and staff’s recommendation was to continue as is given that the funding was in the budget. She noted that at some point staff may have to bring policies forward to define constitutional positions that are fully County funded.

Mr. Carter added that technically, the Board would have to authorize funding of these positions and that staff would have to find out if next year these positions would be restored somewhat. He noted that the Board had previously said it would absorb the shortfall and acknowledged that the overall funding was better; but that funding for positions had been eliminated fully in some cases. Members and Staff briefly discussed bringing all Constitutional Offices under the County; which would take a referendum and would not be a popular move.

Ms. McCann reported that if the State Compensation Board was not going to fund some positions at all, then the County was not obligated to fund the eliminated positions. She then noted that for budgetary purposes, if they wanted to continue these positions, they should do that and the related policy issues could be addressed later. She reiterated that the money was already in the budget to maintain these positions.

Mr. Hale recommended that they proceed carefully with this; that if they were still elected officers, they should run their own shops.

Mr. Carter then recommended that the Board proceed to public hearing on the budget on May 27, 2010 and then approve it at the first meeting in June. He noted that the Board had to wait ten (10) days to approve the budget after the public hearing was held.

There being no other items from staff or the Board regarding the proposed budget, Mr. Hale moved to proceed with advertising for a public hearing on the budget for the May 27, 2010 meeting as presented and Mr. Harvey seconded the motion.

There being no further discussion, Supervisors voted unanimously (5-0) by roll call vote to approve the motion.

Following this agenda item, the Board took a five minute break.

V. New Business (As May Be Presented)

There was no new business considered by the Board.

VI. Reports, Appointments, Directives, and Correspondence
A. Reports
1. County Administrator’s Report

A. Courthouse/Government Center Project: Construction in process. Courthouse Committee (Ms. Brennan and Mr. Hale) met on May 5 with Wiley and Wilson to discuss potential project changes related to the historic Courthouse and Health Department. A meeting with Judge M. Gamble is to be scheduled and subsequent consideration by the full Board.

B. Faber Collection Site Project: Construction in process. Location of facility gates have been revised by change order to provide for one entrance gate adjacent to Cove Valley Lane Substantial completion by June 5th is attainable with site start up to be scheduled as immediately thereafter as follows.

Mr. Carter noted that there would be two compactors at the site, that the volume was similar to that of Massies Mill, and that there would be cardboard recycling right next to the trash compactors to encourage their use. He noted that the equipment was being stored at the transfer station.

Ms. Brennan commended Paul Truslow and Jason Harvey for the improved gate design at the site and Mr. Carter noted that David Thompson had been very proactive at the site also.

C. Broadband Project: A decision from NTIA is pending on sole source procurement of engineering services. All initially required project reports have been submitted to NTIA. Environmental Assessment work is the ensuing responsibility to be completed.

D. Blue Ridge Medical Center – CDBG Project: CDBG/CIG application ($700,000) submitted to VA- DHCD on 3-31. A funding decision is anticipated by mid-July.

E. Blue Ridge Tunnel Project: Work is continuing on easement acquisitions for trail and parking lot installations. County Attorney has provided Woolpert with deed information for completion of trail easements on each side of the tunnel. Woolpert proceeding with completion of 65% final design documents.

F. Radio Tower Project (PSIC): Invitation for Bids issued on 3-29 with bid proposals due on 5-13 (the original bid date of 4-29 was extended to afford contractors additional time). A 120 day construction period (approximate) is anticipated. Application for local tower permit submitted and scheduled for Planning Commission meeting on 5-26.

G. 2012 General Reassessment of Real Estate: Blue Ridge Mass Appraisal Company selected. Negotiations completed. Contract executed and is pending signature and return from BRMAC.

Mr. Carter noted that the holdup had been that ProVal did not want to give them a license because he has a competing company. He then noted that they have it now and the County has proceeded with the contract.

H. TRES/RRES Roof & Window Repair Project: School Division has been advised to proceed with retaining AE services and with project implementation.

Mr. Carter reported that the AE firm was using County Standard contract forms and not an AIA agreement that tends to protect the architect’s interest more than the county’s. He also reported that he had met with Phil Payne and talked with Dr. Collins and their attorney and it appeared that there was not much chance for recourse at this point on the TRES & RRES roof/window problems. He noted that the Schools could not find all of the records related to project, but there was some recognition of the window problem right before school started and some resolution was put into place, but he was unsure how that unfolded.

I. FY 10-11 Budget: Work session included in 5-11 agenda.

Mr. Carter then reported that Verizon had initiated a lawsuit to have their Public Service taxes reduced, basing their argument on alleged over valuation by the SCC; based on their stance that their equipment was substantially devalued because of lagging technology. Mr. Carter then reported that he had authorized payment of $750 to participate in a pool with other affected localities, to fight the request by Verizon.
2. Board Reports

Mr. Harvey had no report.

Mr. Hale had no report on the Planning Commission; however he noted that the Board will likely discuss some items later during the public hearings. He noted that a question that would come up would be the problem of what is described as “spot zoning”. He noted that the Zoning Map has all kinds of zoning errors or inconsistencies, so he has no problem approving these applications when it is righting this situation.

Members briefly discussed “spot zoning” and that rural areas tend to have mixed uses. Ms. Brennan suggested that the Planning Commission look at the Zoning Map at some point; however Mr. Harvey and Mr. Hale agreed that going on a case by case basis seemed to work best.

Mr. Hale also reported that the deed had been drawn up and sent up by Phil Payne to the property owner who was donating land to the County for the park area; and he was awaiting a response.

Mr. Johnson reported that the Dept. of Social Services was moving along reasonably under the budget and that they were still looking for a Service Person. He also reported that positive feedback had been received on the change in leadership.

Ms. Brennan reported the following

1. Attended Montebello nature trail opening with Mr. Bruguiere and noted that Creigh Deeds attended.

2. Attended PWC meeting and noted the Strategic Plan that came out of their retreat. She also noted that no one at the State level was assigned to look at workforce now and that programs for kids in summer were put in place.

3. Attended VACO Spring Meeting and noted that a Committee was to look at education funding and the composite index. Mr. Harvey noted that maybe an appeal process should be allowed rather than changing the index.

4. Attended a Food Policy Presentation from UVA. The presenters looked at food policy for ways of encouraging local policies for consumption, buying locally etc.

5. Attended a Dental Advisory Committee Meeting and noted that the group was being awarded an unsung heroes award presented by Gov. McDonnell because the effort was such an incredible partnership.

6. Attended a JABA long range planning Committee meeting and noted that they have enterprise projects that raise money for seniors. She noted that there was concern about assisted living programs; hospitals may now open these because providers can be reimbursed for this. She noted that it may provide jobs for the area and better care.

7. Attended TJPDC meeting and discussed their VDOT reporting. She noted that the Culpeper Director comes and gives a written monthly report and that he would try to go to Board of Supervisors meetings on quarterly basis. Mr. Bruguiere suggested that the County’s Shed Superintendents could report to the Board. She also noted that Louisa County has joint meetings with the Planning Commission and Board of Supervisors in order to foster business and Mr. Carter noted that Phil Payne has expressed concerns about doing this. She noted that Louisa County was forming a 501 c3 for the County so it could accept donations.

Mr. Bruguiere reported that the Virginia Farm Bureau would be filming a video at Dickie Bros. for their “save our food” propaganda that will air in June.

B. Appointments

Ms. McGarry noted that there were no new appointments for consideration; however a letter had been received from the Senior Advisory Committee, requesting that the Board designate an alternate Board of Supervisors representative to the Committee.

Mr. Hale then volunteered to be the alternate and the Board agreed by consensus that he be designated the alternate Board of Supervisors member and that a letter be sent to that affect requesting that he be added to the list to receive meeting information.

Ms. McGarry then noted the list of those Boards/Committees with seats expiring June 30, 2010. Members briefly discussed those of the Nelson County Service Authority, noting that Rick Sperry may no longer be a County resident and Montie Pritchett had indicated he would not seek reappointment. Ms. McGarry then noted that letters would be sent out to all of the incumbents to gauge their interest or not in reappointment.

C. Correspondence

Mr. Carter noted his email response to Betty Graham of the SPCA and noted that he thought that things had been smoothed out between the SPCA and the Animal Control office. He noted that there were times when compassion got in the way of cooperation and they just needed to address it and move on. He also noted that the Animal Control Dept. was highly successful in keeping animals from being destroyed.

Members noted that the concern was that no one was responding to their communication and Mr. Carter noted that he had immediately responded to the second message. He then noted that staff was gathering information on dogs running at large Ordinances.

1. Scott Massie -NMS FFA

In consideration of Mr. Massies request for funding of $1,055.00 for FFA jackets, Mr. Bruguiere moved to approve the request for funding and Mr. Harvey seconded the motion. There being no further discussion, Supervisors voted unanimously (5-0) by roll call vote to approve the motion and the funding.

D. Directives

Mr. Harvey and Mr. Bruguiere had no Directives.

Mr. Johnson questioned the letter that people in his area had gotten, from the post office, saying that private roads needed to be maintained for continued service. Mr. Bruguiere remarked that they were not supposed to be going up private driveways and Mr. Johnson noted he would check into this.

Ms. Brennan had the following Directives:

1. Ms. Brennan presented a County Flag mock up and asked Supervisors to look at it and provide feedback. Mr. Bruguiere suggested using a plain white background with the County and County Seal on it and Mr. Harvey stated that he did not like the one presented.

2. Ms. Brennan noted that she will be on the Rivanna River TMDL project committee.

3. Ms. Brennan noted that there would be a birthday event for Joe Mitchell who was turning 100, at the Senior Center and they were inviting the Board of Supervisors. She noted it would be on Wednesday at 11 am on 5/26 at the Nelson Center.

4. Ms. Brennan noted that the Seniors would like to hold an appreciation reception for the Board at the Nelson Center and the Board needed to choose a date and time. She noted she would give this to staff to coordinate.

5. Discussed the upcoming Community Fun Day at the Heritage Center on 5/15 at 11 am, where they would have an unveiling of a portrait of the late Supervisor Harry Harris.

6. Ms. Brennan reported that she spoke to the Sheriff on giving a quarterly report and asked members for input on what the content should be.

7. Inquired as to vehicles for hire getting charged for the vehicle license fee. Mr. Carter to look into and report back.

8. Asked that staff provide a response to the Blue Moon Antique’s Owners thanking them for the tour of the building.

9. Inquired as to receiving a Clerk’s Office report and Mr. Carter noted that he has invited them to report, but that they haven’t chosen to submit one.

Mr. Bruguiere asked staff to find out how the Sheriff is handling Comp Time issues.

VII. Recess and Reconvene for Evening Session

At 5:40 pm, Mr. Johnson moved to recess and reconvene at 7:00 pm. There was no second and Supervisors voted unanimously by voice vote to approve the motion.

EVENING SESSION

7:00 P.M. – NELSON COUNTY COURTHOUSE

I. Call to Order

Ms. Brennan called the meeting to order at 7:07 pm, with all Supervisors present to establish a quorum.

II. Public Hearings & Presentations

A. Special Use Permit #2010-001 – Helen Park
Special Use Permit requested pursuant to Article 4, Section 4-1-4b, of the Nelson County Zoning Ordinance for a public garage in which to store automobiles on a long term basis. Property is located at the corner of Thomas Nelson Highway (Rt. 29) and Morse Lane in Arrington, Virginia, Tax Map #76-10-3, and zoned Agriculture, A-1.

Mr. Hale noted that he was again recusing himself, not because he believed he had a conflict of interest, but to avoid any appearance of one.

Mr. Boger stated that this application was a repeat from last month due to the Department’s error in notifications to adjoining property owners. He reported that the proposed building would not be visible from Morse Lane or the Heritage Center, but may be somewhat visible from the house behind. He noted that they would need to look at the site plan to determine if any screening was needed. He concluded by stating that the Planning Commission recommended approval with the following conditions: 1) no mechanical work performed on the property; and 2) no outside lighting unless approved by the Planning
Director. Mr. Boger noted that Mr. Park was okay with these conditions.

Ms. Brennan then opened the public hearing. There being no persons wishing to be recognized the public hearing was closed.

Mr. Johnson then moved to approve Special Use Permit #2010-001 and Mr. Bruguiere seconded the motion.

Mr. Harvey questioned the need for the Planning Commission’s first condition and noted that he would like to see this removed. Supervisors discussed the concern that mechanical work may take place outside of the building if it were removed. After discussion, the Board agreed to modify the first condition to say no vehicles stored outside of the building. Mr. Johnson then amended his motion to include this change.

Mr. Bruguiere seconded the amended motion and there being no further discussion, Supervisors voted (4-0) by roll call vote to approve the motion and Mr. Hale abstaining from the vote.

B. Rezoning #2010-001 – Vito’s Restaurant
Rezoning Request from A-1 to B-1 for Sal Mannino D/B/A Vito’s Restaurant. Located at 8181 Thomas Nelson Highway, Lovingston; Tax Map #67-A-14A. Applicant proposes to add an 8’ x 8’ entrance vestibule to the front of the building. The building’s (restaurant’s) front is located 35’ from the right-of-way of Thomas Nelson Highway (Route 29).

Mr. Boger reported that the property was currently zoned A-1 and that the current business use is nonconforming; but predates the Zoning Ordinance. He reported that there have been several businesses at the location and that it has been a restaurant for years now.

He noted that the owner had two (2) options, as taken from the staff report, as follows:

1. The first option would be to seek a variance from the Board of Zoning Appeals to reduce the required front yard setback from 35 feet to 27 feet. Although on the surface it appears the 8 foot reduction would not be a significant problem, such a reduction of an existing nonconforming setback would significantly increase the nonconformity of this building. The Board of Zoning Appeals would have difficulty granting this variance because the petitioner may not be able show a hardship. The proposed vestibule would be for the convenience of customers entering the building and those seated within the restaurant.
Customer convenience may not be enough of a hardship to justify granting a variance. The existing entrance has worked for years and the owner would be creating the problem requiring the variance.

2. The second option is rezoning the property to Business, B-1. The reasons we suggested this option to the property are:

1. The subject property is located in an area which appears to be identified in the Comprehensive Plan for light industrial/mixed commercial.

2. The zoning pattern in this area is mixed. There are properties zoned Business, B-1, Industrial, M-2 and Agricultural, A-1. Although there are several residential properties north of Vito’s Restaurant, the B-1 corridor should extend southward to parcel 9A (formerly Kurt’s Garage). Located in this area are AEP, Lovingston Veterinarian Hospital, Vito’s Restaurant, Sharon Ponton’s property which is a commercial/residential use, and several houses. It was the understanding of a former owner of the subject property that it was zoned B-1; however, we have not been able to find records to that affect.

3. Vito’s Restaurant is a local establishment and is a significant contributor to the County’s economic base. Therefore, we need to help this restaurant and not impede its growth. Rezoning it to B-1 would allow the proposed addition on the front because there is no minimum front yard setback in a B-1 District other than being located behind the street right-of-way.

4. The number of parking spaces required for Vito’s 834 sq .ft. dining area is 8 spaces. The 64 sq. ft vestibule would increase this number to 9 and there presently exists 27 parking spaces on site.

Mr. Boger also reported that Planning Commission member at the time, Hughes Swain stated that he thought that the current designation was an error on their part at the time the map was originally established.

He also noted that the Lovingston Veterinary office is zoned A-1, as is the Ponton property. Members noted that this has always been a business; however staff could not find record of this designation in the minutes or records.

Mr. Boger stated that the Planning Commission recommended approval of the request and would like to come back to rezone the whole property at some point to correct the error. He noted that there are businesses all around it; however the zoning designation is A-1 from Ponton’s down to the Library, except for the Nelson Center which is B-1.

Mr. Harvey noted that he did not support encouraging zoning areas, and it should be mixed uses rather than all one zone designation. Mr. Boger stated that they could create a mixed use district there if they wanted. Mr. Harvey noted that with the approval, the Board would be cleaning up zoning errors made at the time the zoning map was established.

Mr. Carter clarified that the Code did not require retrofitting of businesses for handicap accessibility.

Mr. Barry Harker, the applicant’s representative noted that there was a handicap ramp there now, and that the owner was trying to create an air locked vestibule and would have two (2) ramps from either side to improve the restaurant for the customers.

Ms. Brennan then opened the public hearing. There being no persons wishing to be recognized the public hearing was closed

Mr. Bruguiere then moved to approve rezoning request #2010-001 for Vito’s restaurant and Mr. Hale seconded the motion. There being no further discussion, Supervisors voted unanimously (5-0) by roll call vote to approve the motion and the application.

C. Conditional Use Permit #2010-001 – Byrd Leavell
Conditional Use Permit application by Byrd Leavell, pursuant to Article 4, Section 4-1-27a, to establish a corporate training center at 1100 Mill Pond Road, Faber, VA; Tax Map #48-A-15.

Mr. Boger noted that the applicant was not in attendance and the Board could postpone consideration of the application. He noted that this has typically been done if the applicant was not present.

He noted that the Planning Commission felt that it was a good fit for the area and the Board could hold the public hearing and then decide at the next meeting.

Mr. Boger then provided an over view of the application and showed the applicant’s property on aerial photograph. He noted that the corporate training center would be used by groups several times a month and they planned to build possibly five (5) more yurts later on. He noted that they would have to address a floodplain issue and topography issue.

Mr. Boger noted that yurts must comply with USBC code and that this application was like a cabin approval and could only be occupied no more than 180 days per year. He reported that the Planning Commission had held a public hearing, no opposition came, and they recommend approval without shooting activity, except for hunting and the permit being non-transferable.

Mr. Jeff Winder, the applicant joined the meeting.

Ms. Brennan asked for an explanation of why the Planning Commission changed the condition from no shooting ranges to no shooting except for hunting. Mr. Hale responded that the language was to preserve the peaceful rural nature of the area and that the Planning Commission felt that it could use this wording to prevent an operation that would allow hundreds of rounds an hour.

Mr. Boger added that the concern was that the first wording would set a precedent for skeet shooting to be allowed and that they did not want any organized shooting ranges to be established and the definition of shooting range is fairly broad.

Mr. Winder addressed the Board and noted that the survey was being done; the corporate training center would be brought into compliance with FIRM maps and would not be in the floodplain when they go to get site plan approval. He noted that they wanted to preserve the rural nature of the area and had no objections to the restrictions on shooting. He added that they did not plan to offer hunting retreats but rather wanted to accommodate those neighbors who have hunted there in the past.

Mr. Hale noted that at the Planning Commission there was some discussion as to the change of title of the land. He explained that the application was made by Byrd Leavell and the current owner was now Virginia Leavell, Byrd’s daughter. Members and staff discussed this and Mr. Boger concluded that it could be changed since it was being done before the Board took action. Mr. Carter noted that this was not a material change to the application.

Ms. Brennan then opened the public hearing and the following persons were recognized:

1. Kim Cash, Montebello, Rural Nelson

Ms. Cash stated that she had no objection to the application itself but posed a procedural question – If they construct five (5) yurts which cannot be single family dwellings and cabins are restricted to one; is it by ordinance to allow five (5) yurts treated as cabins on this property?

Mr. Boger noted that the definition of a yurt is a semi permanent tent.

There being no other persons wishing to be recognized, the public hearing was closed.

Mr. Boger noted that corporate training centers were treated differently and that the site plan would be for all yurts at one time; were treated as a business rather than a residence.

Mr. Hale noted the sketch showing five (5) yurts and noted that there was no number in the proposal other than it stated a yurt would be erected behind the house; so any further consideration of this did not address the question of whether or not additional yurts would be included. Mr. Carter confirmed that the sketch showed future cabins or yurts.

Members and staff discussed whether or not having multiple yurts was problematic, with Mr. Boger noting that he did not think so because they would all be part of the corporate training center. He then noted the definition of a corporate training center in the Ordinance and stated that the definition covered it.

Mr. Harvey questioned what would keep Shannon Farm from coming back to change their cabin application to that of a corporate training center and then erecting multiple cabins. Mr. Boger indicated that it would then be a Board decision. He added that this was a commercial center and that the Shannon Farm application was for a residential cabin. He noted that the yurts would also have a 180 day restriction on occupancy.

Mr. Harvey questioned whether or not people would be staying overnight in the yurts and Mr. Winder, the applicant, responded that the one mentioned in the application would be for meeting space and not for overnight stay. He clarified that he only showed the future yurts for planning purposes and to get the Board’s feedback up front. He added that the intention was for weekend use by no more than twenty-four (24) people, except in the summer when they might have larger groups. Then they would include primitive tent camping and the future yurts would be for overflow during larger events.

Mr. Hale recommended granting approval of the CUP, as stated in the application, for a yurt and leave alone the determination as to whether the training center has by right ability to erect additional yurts according to USBC. He then noted that if after further research by Mr. Boger, it would permit future yurts, then he could notify the applicant. Mr. Boger reiterated that the definition of corporate training center covered the future yurts.

Mr. Winder also noted that the proposed yurt would have a bathroom in it and the future ones would not.

Mr. Carter questioned what larger events meant and Mr. Winder noted it would be less than one hundred (100) total for a larger conference. He stated that he was throwing out the largest possible number for the Engineer so he would not have to come back.

Following discussion, Mr. Hale moved to approve Conditional Use Permit #2010-003 pursuant to Article 4, Section 4-1-27a, to establish a corporate training center at 1100 Mill Pond Road, Faber, VA; Tax Map #48-A-15 for Virginia Leavell as stated in the application, with the conditions recommended by the Planning Commission 1) No shooting ranges permitted; and 2) Conditional Use Permit is not transferrable.

Mr. Johnson seconded the motion and the Board discussed whether or not the approval was open ended.
Mr. Harvey stated his uncertainty of the application and recommended that the Board table making a decision. Mr. Hale indicated that he did not think the use was wide open, as it was outlined in the application specifically and the permit was non transferable.

Members discussed that the flood plain area on the map was not very accurate and that the applicant could relocate the yurts out of this area. Mr. Boger added that they would have a site plan.

Mr. Johnson suggested re-looking at the definition with Mr. Carter noting that the definition was okay, and the question was the number of yurts – one or five. Mr. Hale indicated that he did not want to limit the number of yurts.

Ms. Brennan then called for the vote and Supervisors voted (4-1) by roll call vote and Mr. Harvey voting No, to approve the motion and the conditional use permit.

Note: While Mr. Hale stated in discussion that he did not want to limit the number of yurts; his original motion stood un-amended to approve the CUP as stated in the application, which specified “a yurt” and therefore the CUP was approved for one yurt.

D. VADHCD-CDBG Local Innovation Grant Program
Receive public input on a Community Development Block Grant (CDBG), Local Innovation Grant Program proposal to be submitted to the Virginia Department of Housing and Community Development for the Community Broadband Network Project. (R2010-29 Authorization to Apply for VADHCD-CDBG Funding)

Mr. Carter noted that the purpose of the public hearing was to get the public’s input on the proposed CDBG proposal to be submitted to DHCD for Local Innovation Grant funding for the Community Broadband Project. He noted that these funds would offset the County’s required local match for the Federal NTIA grant by almost 50%. He further noted that the scope was the same as the scope of the Federal BTOP project; construction of a fiber optic backbone and 4 towers with the completed network being usable by various service providers. He noted that staff’s primary intent was to seek the Board’s approval to apply for these funds after the public hearing.

Ms. Brennan questioned the location of the proposed four (4) towers and Mr. Carter responded that there would be two (2) along Rt. 151, one at the Courthouse in Lovingston and two (2) in Massies Mill. He added that the two (2) along Rt. 151 would be at RRES and in the Afton area. He noted that the anticipated speeds of the network were to be 1 Gigabyte/second and the last mile up to 100 mps.

There being no further questions from the Board, Ms. Brennan opened the public hearing and the following persons were recognized:

1. JP Harvey, Roseland

Mr. Harvey spoke in favor of the Broadband Project and noted that he has tried everything and is in desperate need of good internet and would like to live long enough to see decent internet in the County.

Mr. Carter noted that the County had three (3) years to implement project and it may be faster.

There being no other persons wishing to be recognized, the public hearing was closed.

Mr. Johnson then moved to approve resolution 2010-29 resolution of support and authorization to apply to VA-DHCD for CDBG Local Innovation Grant funding for the Nelson County Broadband Network Project and Mr. Hale seconded the motion. There being no further discussion, Supervisors voted unanimously (5-0) by roll call vote to approve the motion and the following resolution was adopted:

RESOLUTION-R2010-29
NELSON COUNTY BOARD OF SUPERVISORS
RESOLUTION OF SUPPORT AND AUTHORIZATION TO APPLY
TO VA-DHCD FOR CDBG LOCAL INNOVATION GRANT FUNDING
FOR THE NELSON COUNTY BROADBAND NETWORK PROJECT

BE IT RESOLVED, that the Nelson County Board of Supervisors supports and endorses the County’s application for VA Department of Housing and Community Development (VA-DHCD) Community Development Block Grant (CDBG) – Local Innovation Grant funds for the County’s Community Broadband Network Project; and hereby authorizes the County Administrator to execute associated grant documents on behalf of the County.
E. Presentation – D.A.R.E. Program (Sheriff D. Brooks)

Ms. Brennan noted that Sheriff Brooks would not be addressing the Board at this time.

III. Other Business (As May Be Presented)

The Board and staff noted that there was no other business to consider and Ms. Brennan noted that she would have the flag design re-worked as there was not much enthusiasm for the one presented.

IV. Public Comments

Ms. Brennan opened the floor for public comments and the following persons were recognized:

1. Kim Cash, Montebello

In reference to the just approved CUP 2010-01, Ms. Cash stated that she was not opposed to yurts and noted that the BZA had discussed these at length and decided that they could not be used for permanent residency and suggested that the Board define what lodging is. She noted that she was concerned that the Board may have just allowed substandard housing. She also expressed concern that the Board had not heard from the actual applicant and the property has changed hands since the original application. She added that Mr. Winder lives on Shannon Farm Lane and that the Board may have now opened the door for them to come and get a CUP for a Corporate Training Center.

Mr. Harvey reiterated his concern regarding the Board’s approval of this Conditional Use Permit and suggested that Mr. Payne look at it as he was uncertain that the Board could approve an application where the property had changed hands even between family members. He also questioned how the Board could allow anything under a Corporate Training Center except for a shooting range.

Mr. Carter clarified that the Board could impose conditions for CUPs.

Mr. Hale agreed that the point of the name change in the application had legal implications that needed to be answered.

Mr. Bruguiere noted that there was no telling who would be allowed in there and the Board could not regulate that.

Mr. Johnson noted his agreement that there was a need for a better definition of lodging in a corporate training center and Mr. Carter responded that limiting or narrowing the definition may prohibit creative applications like this one and that the Board could not anticipate what the use would be.

Mr. Hale suggested that the Board answer the question of whether or not the applicant name change was a valid problem and if so, they should immediately notify the applicant. He noted there was no reason to prevent this activity in his opinion and suggested that they work on the definition of lodging in a Corporate Training Center. Mr. Boger and Mr. Carter both advised that this definition was okay as is.

V. Adjournment

At 8:19 pm, Mr. Johnson moved to adjourn and Mr. Hale seconded the motion. There being no further discussion, Supervisors voted unanimously by voice vote to approve the motion and the meeting adjourned.