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Fry's Spring development tests critical slope ordinances, councilors

Charlottesville zoning ordinances protecting the city’s many hillsides are testing not only the city officials that enforce them but the developers looking to waive them.

A City Council decision earlier this month to waive the so-called critical slope ordinances for a new subdivision in the Fry’s Spring neighborhood came down to one vote.

City Council Member Brian Pinkston went into that Jan. 3 meeting declaring that he’d vote against a Northern Virginia-based developer’s plan to build a 45-house subdivision called Azalea Springs.

“It’s a unique space in Charlottesville,” Pinkston said at the meeting’s outset, “and I think it needs to be preserved, so I’m going to vote against the waiver.”

But he changed his mind. By the end of the meeting, Pinkston was part of a 3-2 majority voting to waive the ban on putting some of those 45 houses on the critical

slopes between Azalea Drive and Monte Vista Avenue.

Reston-based Stanley Martin Companies LLC, which bought the ravine-centered, 7.4-acre tract for $2.42 million in 2019, let engineer Scott Collins do most of its talking at the meeting.

“Everything around it has been developed,” said Collins, who warned City Council that Stanley Martin might want to build row houses if the current plan was rejected.

Whatever is built, the existing road plat appears to allow the developer to place the property’s intermittent stream into a culvert – with or without the requested critical slope waiver.

Council Member Sena Magill, in her last public appearance before announcing her midterm resignation at the close of the meeting, expressed incredulity.

“With all the work we’ve done to daylight streams, is there anything that would mean that a project that would un-daylight a stream would have to come forward?” she asked.

City planner Matthew Alfele reminded her and the other four councilors that Azalea Springs had already won a 6-0 recommendation from the Charlottesville Planning Commission in December.

“I would like council to keep the following in mind,” said Alfele. “The proposed development site was platted in roughly 1919, and the lots are legal nonconforming lots of record.”

In other words, the road drawn up over 104 years practically requires the transformation of a creek into a culvert.

“You couldn’t have tried to plat this worse,” said Alfele. “The 20-foot right of way is right in the V of the valley.”

Worse, Alfele noted, is that modern road standards mean the developer would need to build a swath of asphalt nearly twice that wide.

The city planner noted that only 22 of the 88 lots would run afoul under the critical slopes ordinance. And that’s if the laws are applied ex post facto, that is retroactively.

“The vast majority of the site can be developed by-right,” he said.

The planner noted that the original 1919 lots might be too narrow for modern residential tastes, that 5-foot-wide setbacks might mean that a by-right development might consist of long, narrow “shotgun-style houses.”

The developer intends to replat. In exchange for the waiver, the developer would offer two lots to Habitat for Humanity and would carve out a pocket park, an area nearly the size of a football field, at one end of the site to save about 77 trees. The Charlottesville Tree Commission has expressed its opposition to the waiver because of the amount of tree canopy loss the project would entail and the harm that could do the city’s goal of reaching carbon neutrality by 2050.

Additionally, the developer promised storm-water detention ponds to capture not only the site’s own runoff but also some of the runoff emerging from an existing city-owned culvert that dumps into the site.

City Council has a history of granting critical slopes waivers. Since 2019, all 11 waiver requests that went to a City Council vote were met with approval, according to a city tally that showed that another waiver request was deferred by the council and yet another was deferred by the applicant.

With nothing stopping him from turning the creek into a culvert, Collins noted that he could come back in a year and assert that there are no critical slopes because, he noted, under Charlottesville’s ordinance critical slopes don’t exist without a nearby waterway.

“We’re not trying to sidestep or get around regulations, but that can be done too,” Collins said.

Pinkston jumped in. “We get a worse project if we deny the critical slope waiver – is that what you’re saying?”

“Yes,” Collins answered.

“I must have gotten 50 emails from people telling me to deny this project,” said Pinkston. “But if we vote to deny, it looks like it’s going to be a more harmful project.”

“It’s hard to believe this was on the consent agenda,” said Council Member Juandiego Wade.

Mayor Lloyd Snook, an attorney, noted a fundamental problem as he saw it.

“If the city wants to preserve places like that, then we have an obligation to buy them,” said Snook. “And if we don’t buy them or don’t want to buy them, then developers have a right to do what the law permits.”

Council Member Michael Payne expressed some exasperation of his own.

“In almost every case, we’re told that if we didn’t approve it, then the outcome will be worse,” said Payne. “We become afraid to say, ‘We just expect better.’”

In the end, Magill and Payne voted against the waiver. Snook, Wade, and Pinkston provided the three votes to approve it.


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