On February 6, 2008, the Albemarle County Board of Supervisors passed an ordinance amendment to require a 100 foot buffer along intermittent streams in all of the County’s rural areas . The buffer protections had already been in place in much of the western half of Albemarle on both perennial and intermittent streams since 1998.

Just a week later, Supervisor Dennis Rooker (Jack Jouett) told his colleagues that he wants to amend the ordinance because he feels staff is now interpreting it in such a way as to prevent any vehicular crossing of streams.

“We had a number of people [at the public hearing] that were alarmed  by the current interpretation which basically seemed to prohibit crossings entirely,” Rooker said. “At least from my perspective, I don’t think that’s the way the ordinance had been interpreted and I think what we’ve seen is a relatively short period of time during which that interpretation [by staff] changed.”

Rooker said he did not disagree with the staff interpretation, but said that the language used in the ordinance should be strengthened to be clearer. The ordinance currently reads:

“Development in a stream buffer may be authorized by the program authority in the circumstances described below, provided that a mitigation plan is submitted to, and approved, by the program authority pursuant to section 17-322:

Then in sub-section 17-321-4 : on a lot on which the development in the stream buffer will consist of the construction and maintenance of a driveway or roadway, and the program authority determines that the stream buffer would prohibit reasonable access to a portion of the lot which is necessary for the owner to have a reasonable use of the lot;

Staff have recently interpreted “reasonable use” in the ordinance to mean that, absent an approved mitigation plan, a stream crossing would not be allowed to provide access to a potential building site if another site exists elsewhere on the property that can reasonably be used and that does not require disturbance of the stream buffer.  Also at issue are the mitigation plans that would be required. Currently at least one development in the rural area is on hold because staff feels that in many cases the mitigation plans are not effective.

Mark Graham, the County’s Director of Community Development, told the Board that staff feels mitigation plans are an imperfect mechanism. “It’s very, very rare that you truly mitigate the impact of the crossing. What we see more often than anything is that the stream buffer is a wooded area, and they’re putting the road through it, and there’s no opportunity on that property to mitigate.”

“I think we should amend the ordinance to make it clear that we are not in effect down-zoning  the entire rural area de facto by virtue of changing the interpretation of the stream ordinance,” Rooker said. He called the current staff interpretation “an unfair selective down-zoning.”

“I don’t think it’s reasonable that somebody who has a 500 acre piece of property with a perennial stream at the beginning of that property is all of a sudden told that there’s virtually no use of that property under the current interpretation of the ordinance except to perhaps allows cows to graze.”

County Attorney Larry Davis had prepared a change for the Board’s consideration after meeting with  Graham and his staff.

“This proposed ordinance would basically make the interpretation that a stream crossing mitigation plan could be approved if they met the mitigation requirements for any development that’s permitted by the underlying zoning,” Davis said. He added he wanted to spend more time adjusting the language. “From what we have discovered, plans have been approved under this interpretation for a number of years, when [the mitigation plan] hasn’t been submitted to the engineering department for its review,” Davis continued.

At the public hearing on February 6th, locally surveyor Roger Ray provided testimony that “hundreds” of stream crossings had been routinely approved by Albemarle, without mitigation plans, until 3-4 months ago. Ray said he favored the expanded buffers so long as mitigation plans were accepted to allow crossings for reasonable use of other building sites on a lot.

Supervisor David Slutzky (Rio) said he thought the public needed more clear direction of what kind of mitigation plans would be acceptable, either in an ordinance or in further staff direction.

“If we can’t get sufficient clarity in the ordinance, we still may want to do some supplemental guidance to give greater certainty so that folks can know what the target is that they have to comply with, and I would want the standard of mitigation to be absolute, meaning that they really did prevent their being erosion materials getting into the water,” he said.

Supervisor Sally Thomas (Samuel Miller) said if the ordinance is going to be amended, she would like to see the mitigation standards to be applied to any development with impervious surfaces nearby. “I don’t want us to be doing something that essentially wipes out what good was done [when the ordinances passed].”

Davis said that would be a challenge to accomplish. “What I’m being told by our staff is that generally, there’s not an opportunity on these sites to do that, on the property itself. In some situations there may be restoration that could be required of stream banks, but on many occasions, the mitigation plans that have been approved over the years have simply meant shoring up and re-vegetating what could be re-vegetated around the crossing,” Davis said.

Graham also commented on one of the other amended ordinances, the one requiring driveways in the rural areas to be built to a standard that will allow safe access by public safety vehicles. “Now if we require a bridge, we have to make them build a bridge to be able to support a fire truck,” he said.

That prompted Rooker to ask Graham which had more of a negative effect on stream quality: grazing cattle or stream crossings. Graham responded that agricultural uses are much more harmful, but that a good farmer typically would not farm close to the stream. Rooker asked if the County had the authority to require agricultural buffers, and Graham said the Chesapeake Bay act gave the County many tools to preserve water quality.

Slutzky said he wanted to have more information about how off-site mitigation plans might work. Supervisor Ann Mallek (White Hall) said she would like to see details of what landowners could expect, depending on their situation. “The more things we can write down the better as far as knowing what our standards are,” she said.

Graham said there is guidance in the County’s design standards manual, but that each crossing impacts its stream in different ways.

Chairman Ken Boyd (Rivanna) said he would support changing the ordinance. Supervisor Lindsay Dorrier (Scottsville) called the whole ordinance unfair.

“I think the current interpretation fits the objectives of our comprehensive plan, so I would not want us to casually redirect staff at this point,” Supervisor Thomas said.

Faced with different opinions by Board members, staff plan to revisit the ordinance and will bring it up at a later Board meeting. In the meantime, Davis suggested that Graham could take a more liberal view of the world “reasonable.” Slutzky said he would prefer Graham continue with the stricter interpretation.