In a ruling on Dec. 17, Albemarle Circuit Court Judge Cheryl Higgins overturned a ruling by the county’s Board of Zoning Appeals that had found that plans that enlarged the second floor of the ReStore’N Station gas station and convenience store proposed on Rt. 250 in Crozet were “in general accord” with conditions set by the Albemarle Board of Supervisors when they approved the project in October 2010.
The new ruling is a victory for Crozet residents who fought to keep the building from being a mega-station designed to draw traffic, including tractor-trailers, off Interstate 64 and whose water demand potentially posed a danger to the wells of residents of the Freetown neighborhood behind and below its site. The ruling essentially returns the design of the station’s second floor to the 1,000-square-foot dormered design reviewed by the supervisors when they set their conditions for giving the project a special use permit.
Higgins heard lawyers’ arguments in the case Dec. 9. Craig Marshall of the Zobrist Law Group represented Brownsville Market owners Chris and Ann Suh, and Bruce Kirtley and Richard Brown, close neighbors of the project, in their appeal of the BZA decision. Andrew Herrick represented the county government, defending the “general accord” decision made by deputy zoning administrator Ron Higgins, and Michael Derdeyn represented Jeffries LLC, the company building the station.
In the project’s original plan, a future addition of rental office space was shown along side the 3,000-square-foot first floor of the convenience store. In their determination to make the project smaller, the supervisors made a condition limiting its footprint, its foundation walls, to 3,000 square feet. Assured by the applicant that no changes were contemplated for a 1,000-square-foot second floor space that was described as “a family office,” the supervisors imposed no conditions on the second floor. When the revised plans for the station were submitted to county zoning officials to show that they conformed to the conditions, the store’s second floor had grown to nearly 2,000 square feet and rental offices were included. In effect, the rejected future addition had been put on top of the store. Nonetheless, plan reviewer Ron Higgins decided that the revised plan was in general accord with the supervisors’ intentions.
Crozet residents who had been following the project cried foul, arguing that the developer had taken advantage of a loophole he found in the formal conditions in order to circumvent them. They appealed the ruling to the BZA and in a perfunctory hearing of the matter Jan. 11, 2012, with Ron Higgins serving as staff advisor to the BZA and asking it to confirm his decision, the BZA went along, seemingly uninformed about the supervisors’ actions on the project.
Their decision led resolute citizens to appeal again to the Circuit Court.
Marshall first challenged the BZA’s legitimacy, saying that according to the Virginia Code it was improperly constituted because it had only four members at the time it heard the case. State law calls for a county BZA to have five to seven members. One member of Albemarle’s BZA had recently died and a replacement had not been named at the time that the ReStore’N Station appeal was heard. Marshall said the county had had time to name a replacement (three months had passed) and should have alternates named who are prepared to fill in under such circumstances.
Derdeyn disputed the contention, noting that the BZA was formed with five members and that state law does not require all five to be present. Judge Higgins agreed with him and ruled against Marshall’s motion.
Marshall’s second contention was that the BZA erred in making its ruling. “It seemed clear to us that they had already made up their minds,” Marshall said describing the occasion of the BZA decision. He traced out the history of the design footprint and concluded that in revised plan “the second floor is essentially doubled” beyond what the supervisors had seen.
“The board’s intent was to lower the size and scope of the project,” he asserted.
“I agree with you there was significant discussion of the size of the station,” Higgins responded.
Marshall pointed to the transcript of the supervisors’ meeting, calling attention to the statement by project consultant Jo Higgins, who was working for Jeffries LLC, when she assured the supervisors, “It’s only a partial second floor, a family office space.”
Marshall argued that the supervisors used the term “general accord” because they wanted to leave flexibility for the Architectural Review Board, which had yet to sign off on the plan, and presumably would add requirements about landscaping and fencing around the project. He called attention to a passage in the transcript when White Hall District Supervisor Ann Mallek had said that if there were any change in the project’s square footage, it would have to come back to the supervisors for consideration. Scottsville District Supervisor Lindsey Dorrier worried aloud that the general accord term was “too open ended and would allow developer too much flexibility.”
Marshall called the enlarged second floor an attempt at “sleight of hand that they got away with because of the ‘general accord’ ruling.”
He said that Ron Higgins had told the BZA at its hearing that ‘general accord’ meant “the same broad characteristics.”
“He was making up a rule for his own case because he did not want to be overruled in it,” Marshall said. “County documents show that after the ‘general accord’ debacle with ReStore’N Station, the county got a lot more explicit in stating what ‘general accord’ meant. 1,915 does not equal 1,000. 1,915 square feet is larger than the houses in Freetown. Enlarging the second floor was not contemplated by the supervisors. [The developers] took advantage of what they saw as a loophole.”
He called Ron Higgins’ general accord ruling “capricious” and said that the BZA did not consider what the supervisors’ intentions for the project were. He asked Judge Higgins to find that the BZA was in error.
Herrick argued that “The plans are in ‘general accord.’” He said the original plan showed a larger parking and asphalt area than the revised plan.
“The board could have limited the size of the second floor, but it didn’t,” he said.
Derdeyn said that the supervisors had meant that the site plan for the project had to be in general accord, “not necessarily the design of the building. Architectural elevations are not at issue.
“The board understood that it could have put a limit on the square footage,” Derdeyn said. “They didn’t do it. Moreover, they didn’t specify what they meant by ‘general accord.’”
He asserted that Marshall had not met the burden of proof that his appeal required.
“You have to look at what the supervisors put down as the conditions. It says nothing about the square footage of the second floor.
Marshall contended in rebuttal that if what Derdeyn and Herrick were saying was right, then the developer could have added any number of floors on top of the footprint and still satisfy the supervisors’ intention of reducing the scale of the station. He noted that in the revised plan, the building actually had 4,690 square feet, larger than the 4,000 sq/ft building shown to the supervisors. “The BZA is supposed to put themselves in the shoes of the supervisors, not the property developer,” Marshall said. “Nobody would have tried to do this in front of Farmington and the County would not have let them get away with it.”
Judge Higgins said she would review the documents for a week and then announce her decision.
When court was next called in session, Higgins said she had reviewed the record. She called attention to a passage on page 67 in the transcript of the supervisors’ meeting where the supervisors had said that the ‘general accord’ term was meant to allow flexibility to the ARB for fencing. She pointed out a further passage, on page 61, in which Mallek had stated that if the square footage of the plan should change, the plan must come back before the supervisors and that Dorrier had spoken up to say that was his understanding as well.
“Therefore the court finds that the BZA erred in finding general accord,” she declared.
Developer Jeff Sprouse, or the county, has until Jan. 17 to file an appeal of the decision.
Marshall called the ruling a victory for the residents of Crozet and said that ReStore’N Station’s builders will now have to present a plan that has a 1,000-square-foot second floor.