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Supervisors nix FOIA extension, deny homestay exception

Albemarle County will no longer delay responses to Freedom of Information Act requests.

The Board of Supervisors on Wednesday voted to remove language about FOIA response deadlines from the continuity of government ordinance the county passed in response to COVID-19. The move comes after Virginia Attorney General Mark Herring last month issued an opinion that said localities may not modify or indefinitely extend FOIA deadlines.

The ordinance originally said that any deadline for responses to a request for records under the state’s FOIA requirements are “extended indefinitely as may be necessary,” and was later changed to “may be extended to the earliest date thereafter practicable.”

At its virtual meeting on Wednesday, the board voted to remove the deadline extension for records requests from the ordinance, as county staff say they are able to timely respond to records requests.

“If the pandemic conditions deteriorate, we can respond in a way that would allow a very specifically tailored ordinance to be put in place that would deal with the specific conditions of both the pandemic and the county’s operations,” County Attorney Greg Kamptner said.

Herring’s opinion was in response to a request from Del. Sally Hudson, D-Charlottesville, online news outlet Charlottesville Tomorrow and the Virginia Coalition for Open Government after Albemarle County Public Schools filled multiple requests past the state’s deadline, citing the ordinance.

Kamptner said that indefinitely “was always intended to mean without any specific date,” and county staff members have been able to “timely respond to the overwhelming majority of requests.”

“In circumstances when that is not impossible, fortunately, the requesters have been flexible, allowing additional time to respond,” he said.

Supervisor Ann H. Mallek said the county has documents in storage at Northside Library, and in that situation “it’s not as easy as just clicking on an internet thing.”

“I know that’s what he was thinking about originally when we planned this, so I’m in favor of these changes,” she said. “I think it’s gotten a little carried away in the way it’s been perceived out in the community, but that’s okay.”

Board Chairman Ned Gallaway said the state wasn’t enforcing expired Virginia state vehicle inspection stickers, among other things, due to the pandemic.

“I mean, there are a lot of things that the state gave some flexibility on, and it was just curious to me that this one was, probably for other reasons than practicality, was handed down from the Attorney General,” he said.

The county ordinance update in September included factors that will be considered by the county in determining whether the COVID-19 disaster prevents a deadline from being met.

Those four factors are: a federal or state lockdown being in place “prohibiting necessary travel to conduct business”; COVID-19 illnesses preventing the board, any county public body or county staff from meeting or conducting business; whether county buildings where applications, documents and other public records are kept are closed because of COVID-19 contamination; and “other similar reasons that prevent the board, any county public body, or county staff to meet or conduct its business without endangering their health or the health of others.”

A fifth factor was removed Wednesday from the ordinance that said if the custodian of records or other county employee is “a member of a vulnerable population group and would be required to retrieve physical public records in a manner that would endanger the employee’s health and alternative persons are not available to retrieve the records.”

The county is currently holding all public meetings electronically, and last month said it was extending its building closure to the public through at least Jan. 19, but would reevaluate in mid-December.

During public comment, county resident Gary Grant questioned why public hearings on changes to the continuity of government ordinance have been scheduled near the end of the meetings.

“Is it because you really don’t want reporters hearing this news before deadline?,” he asked. “Tonight is a prime example, when you will have to rescind your embarrassing, illegal action related to the Virginia Freedom of Information Act.”

The ordinance to ensure continuity of government expires “not later than six months after the COVID-19 disaster ends,” and the COVID-19 disaster ends when the board adopts a resolution ending the declared local emergency, according to the ordinance.

The board also voted 4-2 to deny a homestay special exception request for a house at 2405 Northfield Road. Mallek and Gallaway voted in favor of the special request.

The board approved new regulations for homestays, like Airbnb, in 2019, limiting owners of houses in residential districts and rural-area properties under five acres to renting out two rooms, while those who own larger rural properties can rent out five rooms.

Northfield Road property owner Darrick Harris requested a special exception to increase the number of guest rooms from two to five. Harris’ property is in a residential district.

“I purchased this property several years back with a goal to open up a [bed and breakfast], but it was not just to open up a business, it was to build a home for me to stay in, and invite special guests to come and stay with me,” he told the board.

The special exception request was deferred multiple times by Harris and his attorney. Initially, he had also asked to waive the owner occupancy requirement, but later removed that request.

County staff had recommended denial of the special exception because the increase in guestrooms from two to five “could result in additional traffic, noise and other outdoor activity on the property that would adversely impact the abutting properties in the surrounding neighborhood.”

If the board did approve the special exception, staff recommended conditions including that the homestay be limited to 10 occupants.

Supervisors who voted against the exception took issue with the number of rooms in the request.

“It has nothing to do with the applicant, the applicant’s record in the area, or anything that the neighbors have said,” Supervisor Liz Palmer said. “My decision is clearly on the intensity of the use here.”

Some neighbors contacted county officials to raise concerns that the homestay would resemble a “small hotel,” and take issue with the number of guests the exception would allow. They cited another homestay Harris owns, which was approved in 2017 before the county required homestays be owner-occupied.

Terry Bentley, who helps manage Harris’ other homestay, took issue with the comparison to a hotel.

“We focus on accommodating small groups, which consists of families and groups of friends who are looking to spend quality time together in a home setting,” she said. “ … We don’t return single bedrooms to guests, and we offer an entirely different experience, because we provide a high-end, comfortable place for small groups to stay.”

The Charlottesville Human Rights Commission held a retreat at Harris’ other homestay in Albemarle earlier this year.

Supervisor Diantha McKeel said she was invited to a party at the other homestay and did not attend, but drove by and saw the property.

“What I saw were neighbors with cones and signs in their yard and in front of their house and on their driveway that said no parking,” she said. “I saw a couple of neighbors standing on their porches, in their yard with their hands on their hips, frustrated … Now, that’s separate from this issue but I am still concerned that we would be opening up this property in a neighborhood for an event.”

Gallaway said that denying a special exception wouldn’t prevent any large scale events.

“The personal, private birthday party, family reunion, those sorts of things would be permitted as part of the accessory to residential,” said Bart Svoboda the county’s zoning administrator and director of zoning.

Svoboda said if there were issues with a road being congested or impassable, the police would be involved.

Harris can still have two rooms in his home as part of a homestay without approval from the board.


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