- Last Updated on Wednesday, 10 December 2008 17:15
- Published on Wednesday, 10 December 2008 17:15
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The Board of Zoning Appeals (BZA) upheld the findings of the Town's Zoning Administrator at a hearing on October 21, 2008 regarding Monroe Point and Chesapeake Townhome Development (CTD). That decision has now lead to an appeal by the developers which will look at the process by which the decisions of the public officials will be examined. What the BZA upheld was Chuck Bird's, the zoning administrator's, findings that the planting remediation schedule for the development was still not complete more than two years later and that in addition to what was originally specified in the plan, the developers, Mike Dzaman and Jonathon Natelson would have to plant an additional 450 additional canopy and under-story trees.
So why the additional tree requirement? It appears that additional trees are necessary for two specific reasons. One, while the developers were given “some permission to encroach into the buffer” for some utility work to be done, such as by Dominion Virginia Power and Verizon, no permission was given for what amounted to “clear cutting”; the removal of all vegetation.
While it does appear that some of the larger trees were left intact, it is evident that all of the under-story growth was removed. Again, it would have been permissible for some removal for “sight lines and vistas”, but “too much under-story was taken out”, which according to Bird, at a previous date, meant the “plan had a major deviation.”
The second reason for the additional planting requirement is that the plan that was approved was done so based on information provided by the developers. They did an initial tree count and used that number to support the planting remediation. One might say the number was taken at face value by the town in “good faith”. However, “the information given on the plan was not accurate,” said the Town's Zoning Administrator at an earlier date. The inaccurate information that was supplied was that there were 1,700 mature trees of 3” or greater caliper existing. An actual count taken at the property in May of 2007 revealed the inaccuracy.
The summons and attached complaint which have now been served on the town, allege that the actions of the BZA and the Zoning Administrator have been arbitrary and capricious.
Once Monroe Point announced that the planting had been complete, Bird in the course of his due diligence, decided to verify, by actually counting the trees. The counting of the trees at the property took place over a two day period. Bird says that on May 14, he, a DCR representative and the Monroe Point project manager, began counting plants. They counted on the 14th and on the 29th. “There were three of us counting,” explained Bird earlier this year.
Bird said at the time “the buffer area was divided up into 200 foot sections and then we all walked it one way, each one of us counting one of the categories (canopy trees, under-story trees and shrubs). Then we walked it back the other way to count category 2. Then we walked it a third time to count for category 3. Then we all compared our numbers and split the difference.”
For example, if Bird got 66 canopy trees and DCR got 58 canopy trees and the project manager for Monroe Point got 69 canopy trees, the number arrived at by consensus was 64 canopy trees, an average of all three numbers. At the time this count was conducted, the Monroe Point project manager expressed no concerns about the counting methodology. It should also be pointed out that there is a very clear formula in existence and available from DCR for what constitutes a healthy buffer; for every 400 square feet there is to be 1 canopy tree, 2 under-story or sub canopy trees and 3 small shrubs.
Bird is somewhat limited in what he can say about the Monroe Point project now that the matter is facing possible litigation, however, when asked how many hours he has spent on this development, his answer is a very serious “hundreds” and then he begins listing the numerous letters and face to face meetings and phone calls and emails, not just from the developers, but from DCR and the town folk.
There were also plans, altered plans, and site inspections, and at least a half dozen stop work orders and the list goes on. DCR says that in the past three years, this one project has taken up more time than all the others they have worked on put together.
There are fourteen points listed in the complaint that has been filed by Monroe Point and sent to the town. None of the points argue that the violation finding itself is wrong, rather they seem to focus on just overturning this decision to replant the trees, the additional 450 trees. Could it be that the addition of these trees might spoil the view for the residents of the newly erected townhouses? Although this will be the first time in Colonial Beach that developers have filed an appeal with the Circuit Court against the decision of the BZA, it goes on elsewhere in Virginia all the time, so there is case law to study, and a brief review shows that the Circuit Court really does not examine the evidence itself that was presented to the BZA, rather they examine how the BZA reached its decision, the mechanism in place. In fact the decision of the BZA must be “plainly wrong before being disturbed by the court” and it must be found that the “Board applied erroneous principles” and that the decision made by the BZA is “presumed to be correct”.
The ironic thing is, that while the Town gets ready to vote to pay the town attorney an hourly rate to support the BZA and then an answer is crafted to this first legal document and Monroe Point hires their attorneys, that for roughly $20,000 (which includes labor) the 450 additional trees could be planted and that part of the job done. Bird says that had that been the path taken, that he would now be in a “monitoring phase and close to giving the developers back their bond."