Residents of Western Ridge and other nearby neighborhoods are asking Albemarle County officials to address what they say will be a violation of the county’s Water Protection Ordinance (WPO) if the proposed Montclair development on Rt. 240 is allowed to proceed as planned. After almost three months spent requesting information from county Supervisors, engineers, planners, and other staff, citizens’ concerns about the project have only increased.
During a public hearing for the proposed development at the Crozet Community Advisory Committee’s January 12 meeting, Western Ridge resident Eric Schmitz presented evidence of an unprotected stream running through one of the two parcels where up to 157 homes are to be built for Montclair. The presentation included photos of water running along the ground, and Schmitz asked what plans the developer had to protect the stream. In response, the project’s engineer, Justin Shimp, said that the county engineer and a representative of the U.S. Army Corps of Engineers had examined the flow last fall and declared it to be a “non-stream.”
The neighbors dispute this characterization. “Honestly, if you drive out and just park in that [Sentara] doctor’s office lot, and you stand along that fence and look at the stream we’re talking about, it’s not a little trickle. It is 150 yards long before it’s recognized by the developer’s plan,” said Kimberly Gale, president of the Western Ridge Homeowner’s Association in the neighborhood adjacent to the Montclair property to the south. She and other citizens have been pressing county staff to explain why Albemarle’s WPO does not protect what everyone agrees is visible, flowing water on the property.
The explanations have been evolving. During the January meeting, county planner Rachel Falkenstein said that “the county engineer [Frank Pohl] and the Army Corps of Engineers went out and assessed the stream in September and determined that that portion of the stream should be taken off the land use map.” Shimp added that “a stream buffer is lawfully created by the stormwater ordinance when a land disturbance occurs, when there’s activity on the ground,” which, he implied, had not occurred on the Montclair site.
However, Pohl confirmed in an email to Supervisor Ann Mallek that the landowner had enclosed and buried (i.e., “piped”) a portion of the stream closest to Park Ridge Drive in the summer of 2021, just before Pohl’s assessment of a non-stream in September. Neighbors now wonder about the timing of this series of actions, given that they occurred just before the Montclair project received review comments from the county in November. Pohl has not responded to requests for comment from the Gazette.
“Just prior to the application for rezoning this parcel of land, bulldozers came in without notice and filled in a large portion of the stream,” said Gale. “The water immediately began to puddle around that area, and a new stream has formed alongside where the ‘piping’ occurred.” The parcel is owned by Highlands West Limited Partnership, and county land use documents requiring Highlands West’s authorization are signed by Hunter Craig of Craig Builders.
Adding to the consternation of the neighbors is the lack of clarity over who told county planners to pull the northwest quadrant of the stream from the land use map. Vincent Pero, of the Army Corps of Engineers (ACOE), said in an email that the “statement that Mr. Shimp said it was a ‘non-stream’ was incorrect, so he must have misspoken.” Pero also confirmed that he conducted a site visit and issued a verbal permit for the piping in September; however, the piping activity had already occurred “earlier in the summer,” according to Pohl. The debate’s outcome has serious implications for Montclair, as much of the project’s acreage would be rendered unbuildable by the imposition of stream buffers.
“One of the problems that I think raises the temperature of this discussion at Montclair is the fact that throughout the two years of work on the Crozet Master Plan, that stream was counted as a stream on the map,” said Mallek. “So, it is a serious problem that it should be shown one way and prepared by the staff and adopted by the board, and then six weeks later we’re told, ‘Oh, no, never mind.’ No wonder the neighbors are so upset.”
Email exchanges in January and February of 2022 between the neighbors, Mallek, and other county and project officials have tracked what Gale calls a “hot potato” of characterizations of Montclair’s water flow. It went from being deemed a “non-stream” (unprotected by the WPO), to an “intermittent” stream (also called “ephemeral,” with limited protections in growth areas), to now a perennial “jurisdictional” stream (fully recognized as part of the Waters of the United States, or WOTUS) according to Pero.
While the stream’s formal recognition by the ACOE is a small victory for the neighbors, the status may not matter if the landowner continues to pipe the stream, because piping is not prohibited in Albemarle County nor by WOTUS rules. Owners are required to keep a natural stream “free from refuse and other obstacles that would pollute, contaminate, or adversely impact the stream’s functional performance,” but, said Pohl, this rule does not refer to piping or redirecting a stream. “The county does not prohibit [piping] from occurring anywhere in the county (development or rural) if required permits are obtained,” he said in an email responding to questions from Mallek.
The permits Pohl refers to are related to land disturbances that occur while doing the piping. “In this case, if the land disturbance had exceeded 10,000 square feet, the owner would have also needed a county land disturbance (grading) permit, but the stream impacts would [still] have been recognized as a permitted activity,” he said. Because the land grading at Montclair was only 6,000 square feet, no permit was required, but the piping seems to be allowed regardless.
The end result may be that the entire length of stream crossing the upper Monclair parcel could be legally piped section by section and then built over. Neighbors say this outcome should be halted by the Board of Supervisors because the county’s own WPO states that streams (either perennial or intermittent) within a water supply watershed are required to have a 100-foot stream buffer on each side. However, the Crozet Master Plan adds the caveat that “piped portions of streams do not have stream buffers,” and therein may lie the rub. The group of concerned neighbors believes that the Montclair stream resolution will be a pivotal test of the WPO’s strength in the future.
“[The Supervisors] are now aware of the existence of the stream, and the community’s plea to save it from destruction,” said Gale. “So if there’s a loophole, then they should have the ability to look at all parts of this and say, well, it may be something that you could get away with, but that’s not how you protect streams, by allowing them to be systematically destroyed and covered up in the name of progress. If the board is allowed to look the other way, and not stand up to large development without anybody holding them accountable, then this area as we know it today is soon to be gone. One little stream dries up and doesn’t feed Lickinghole Creek and, you know, it’s just a domino effect.”
Schmitz, Gale, and the other residents have spent dozens of hours gathering information and asking questions, and they are attracting the county’s attention on the issue. On March 28, the group hosted Supervisors Donna Price and Diantha McKeel on site to provide background information and to show them the stream. Mallek met with the group online to view their presentation and research, and citizens also showed up en masse to Mallek’s recent Town Hall at Brownsville Elementary to voice their concerns about the stream and the Montclair development.
“I have had many debates with [former] senior staff about this whole concept that it’s okay to pipe streams in the growth area,” said Mallek, “because a stream is a stream, and it’s all impacted, the ecosystem is all connected. I was not getting anywhere, and certainly we were not a majority on the board during the time when many of these changes were made. So, we have, I think, a conflict still in our growth management in the growth areas versus how we deal with the environment.”
Mallek has requested a position analysis on the issue from county staff that will clearly lay out the relevant rules and categories for stream protection as they exist currently, and she says she will proceed from there. “What I have had difficulty with is that I get one answer on one little question and then another answer on another, and it’s when they seem to be directly in conflict with each other that I go to pieces,” she said.
Meanwhile, the Western Ridge neighbors hope to expand awareness of the stream protection inconsistencies they’ve discovered to other parts of Crozet and the county via social media and a public education effort. They plan to continue pushing county officials to make changes in local ordinances that would address these issues.