Another wrinkle in the Montclair “Stream or no stream?” debate arose at the end of the September 7 Board of Supervisors (BOS) meeting. At issue is a waterway that traverses two parcels on Rt. 240 just west of Wickham Pond where developers plan to build 157 homes. The Montclair development’s neighbors, now organized as a group called Crozet United, have been asking pointed questions since January about whether a small stream that runs across the northwest parcel should be protected with a stream buffer under the county’s Water Protection Ordinance.
After months of shifting explanations from county planners, engineers, and representatives from the U.S. Army Corps of Engineers (ACOE), the latter seemed to close the book on the question with a written confirmation in July to Eric Schmitz of Crozet United that recognized an official “Waters of the U.S.” stream running through the property. Montclair developer Vito Cetta requested an indefinite deferral of the project application later that day.
The stream’s status seemed settled until the BOS meeting, where Community Develop-ment Director Jodie Filardo announced that the county had retained an outside consultant from Ecosystems Services, for a $3,000 fee, to make a “Perennial Flow Determination” on two segments of the stream.
“The study will indicate whether the streams are ephemeral, intermittent, or perennial,” and that determination “will drive buffer regulations for all stream segments,” said Filardo. The county’s position is that if the stream is deemed “ephemeral”—meaning its water flows only during and briefly after precipitation events—then the local ordinance requiring a 100-foot protective buffer around the stream does not apply, thus paving the way for Montclair homes to be built atop it.
White Hall District Supervisor Ann Mallek questioned the process and timing of the stream’s removal from official county maps, which was done in 2021 just before the Montclair application was submitted. “My request would be that [staff explain to us] what the process is to change the re-designation of this stream, which was done at the very last minute before the adoption of the Crozet Master Plan,” she said.
“There is an effort [by citizens] to re-establish the stream, which has been on county maps for more than 100 years,” said Mallek. “You’ve also seen information from the Army Corps of Engineers that there was no re-designation of the stream by the ACOE, and that staff was told otherwise, by someone unnamed, [to change the map]. To me, it’s especially important that we maintain the stream designations that we have, and to protect them. It’s so much harder to clean up an area after it’s been ruined than it is to protect it from the beginning.”
Crozet United president Eric Schmitz sees the consultant study as a wasted effort. “Given that the current county code recognizes only two types of stream classifications (perennial or intermittent), I insist that we limit the scope of this unnecessary consulting engagement to defining the stream as one of those two categories,” said Schmitz in an email to Mallek. “Since even intermittent streams [require] a 100-foot buffer in Crozet, this study is a complete waste of the taxpayers’ time and money.”
Crozet Community Advisory Committee Chair Joe Fore said the consultant engagement is puzzling. “It seems like the whole stream re-designation [from stream to non-stream last fall] was predicated on either a misunderstanding or a miscommunication of the Army Corps’ position,” he said. “So why are we having to fight to re-designate a stream that was mistakenly removed from the maps in the first place? Why not just default back to the status quo ante [that the stream exists]?
“From my perspective on the CCAC, I think that many of us in Crozet are feeling the lack of transparency or forthrightness on this that has been going on for a year now,” Fore continued. “Why is the county footing the bill to try to prove something that is in the developer’s interest? We have heard various responses from staff members and other people which were sometimes, frankly, contradictory and not coherent.”
Filardo’s consultant statement noted that one justification for the consultant hire is that the county engineer, Frank Pohl, has a “conflict of interest” with this project. The county’s communications director, Emily Kilroy, later clarified that Filardo’s use of the term was “colloquial,” not legal, and that she was “referring to the fact that prior to his employment with Albemarle County, Mr. Pohl was employed by the developer of the Montclair Project. Mr. Pohl does not have a ‘personal interest’ (as that term is defined in the Conflict of Interests Act) in either the applicant or the application, and has not engaged in any prohibited conduct or contracts.”
This statement prompts further questions, such as whether Pohl’s conflict of interest with the Montclair developer should have restricted his role in making or coordinating the stream determination and in having the stream removed from county maps in 2021. Emails between county officials, obtained by FOIA, indicate that Pohl has been integrally involved in the entire string of events involving the stream’s re-designation, up to and including defining the terms and scope of the new stream consultant’s work.
The stream consultant has sixty days to produce its report, after which Filardo’s department will move forward with a recommendation.
