PUBLIC HEARING AGENDA REQUEST

Owners/Applicants:

Board of Supervisors Meeting Date: 

Katherine Ellsworth & Peter Petronzio

April 9, 2009

Staff Lead:

Department: 

Melissa Dargis, Assistant Chief of Planning

Community Development

Magisterial District:                                                                                                                PIN:
Marshall                                                                                                               6962-30-1310-000

Service District:
None

Topic: 

 A Resolution to Approve SPEX08-MA-017 & SPEX08-MA-020:  Applicants Wish to Obtain a Category 20 Special Exception in Order to Remediate or Repair an Existing Failed Septic System and a Category 23 Special Exception to Allow for Structures Associated with the Septic System to be Installed in the Federal Emergency Management Agency (FEMA) 100-Year Floodplain

 

Topic Description:

The applicants request a Category 20 Special Exception to allow for an individual sewage discharge system to remediate an existing failed system.  This request is to serve an existing three bedroom single family residence (located on a .74 acre parcel) owned by the applicants.  The system proposed is an engineered design of Advantex/Intermittent Sand Filter discharge system that discharges to an unnamed tributary of the Rappahannock River.  The system installation also requires a Category 23 Special Exception since the system will be located within the FEMA 100-year floodplain.  The majority of the property is within the FEMA 100-year floodplain.  According to the Statement of Justification and the project engineer, no other system is suitable for the soil types on the parcel. 

Current facilities inside the house include an incinerator toilet, kitchen sink, bathroom sink, a bathtub, and a shower.  The applicants have indicated that they wish to add two bathrooms upstairs and upgrade the existing bathroom on the first floor.

Virginia Department of Health (VDH) permit approval is required for the sewage treatment portion of the system.  The requirements include preliminary review by the local VDH office during the Special Exception application process, and final review by the VDH Richmond office after Board action on the Special Exception. The type of system proposed will require an annual maintenance contract to be performed by an authorized Advantex service provider.

A Virginia Department of Environmental Quality (DEQ) VPDES permit will also be required for the discharge portion of the system.  Due to the length of easement required downstream from the discharge system (250 feet for this particular type), it appears that a portion of the discharge ditch may be located on an adjacent property.  If that is the case, per state code, this requires a recorded easement.  The applicant must comply with 12 VAC 5-640-450 2., entitled "Ownership and Easements" before VDH will issue its permit:

 

"The easement shall be 25 feet on either side of the low point of the dry ditch or intermittent stream for the entire length of the restricted access area. All easements must be in perpetuity and shall be recorded with the clerk of the circuit court prior to issuance of the construction permit."

 

In addition to the aforementioned requirements, Section 17-17 of the Fauquier County Code requires that the applicants notify all downstream property owners for a distance of one mile that they are submitting a request for discharge into state waters. Notices must be sent, and in fact were sent, by certified mail prior to the Board of Supervisors taking action on this item. 

The proposed system will allow for the sewage to be highly treated before it is discharged and introduced back into the environment.  The system is designed for a maximum flow of 450 gallons per day which will be discharged into the stream over a 24-hour time period.  Health Department standards assume six (6) people occupy a 3-bedroom house.

VDH has records for this site from 1969 seeking an on-site sewage disposal system to replace the existing failed system.  A note from 1969 indicated a Sand Filter discharge system was recommended, but never installed.  Another application for an on-site system was submitted in 1992, but denied due to unsuitable soil and landscape.  In January 2008, VDH confirmed that their regulations deem this a repair due to the fact that untreated wastewater is being discharged on the property.

This application was originally submitted in April 2008, but did not go to Planning Commission hearing until January 2009 as the applicants were preparing additional technical studies, as requested, in response to referral agency and staff requests.  The agency comments in this report reflect the most up-to-date submittal received. 

If the improvements to the structure exceed 50% of its assessed value (about $150,000) then under federal law the applicants are required to bring the entire (existing) structure into compliance with federal regulations by raising the first floor above the base flood elevation (BFE) and floodproofing the foundation of the structure.  In a meeting with staff in April 2008, one of the applicants agreed that the proposed improvements would be over 50% ($70,000).

 

Location,  Zoning and Current Land Use:

The property is located at 9671 Springs Road, which is at the corner of Opal Road and Springs Road.  It is in the Village of Fauquier Springs and zoned Village (V).  The site was most recently used as a residence.  A map of the parcel is shown below. 

ZONING MAP

 

                      

  

FLOODPLAIN MAP

 

                      

 

Surrounding Zoning and Current Land Use:

The parcel is surrounded by properties zoned Village (V) and Rural Agricultural (RA).  Properties in the village are residential and commercial.  The Fauquier Springs Country Club is across Springs Road.

Site History:

The site contains a historic building complex known as “Brown’s Merchant Mill,” which features a rare surviving early twentieth century merchant mill with a gas-powered system and a frame Victorian style farmhouse that served as the miller’s house.  Frank Y. Brown and his daughter, Kate, ran the corn mill and general store on this property through the first half of the 20th century.   The mill grindstones, belt, hopper, and wooden casing (but not the gas motor) were still retained in the mill building up until 2007. (If they are still in the building, their retention on the historic site where they were used should be encouraged.)

Conditions for any Special Exceptions for this property should incentivize the preservation of the existing historic buildings.  The applicant will be eligible to apply for state and federal tax credits to recoup between 25-45% of the rehabilitation costs, if Springs Valley is listed on the National Register.   Public hearings for consideration of the Springs Valley National Register Historic District are tentatively scheduled for May and June 2009.  

The house on the property is a 3-bedroom single family dwelling built in 1874.   Up until about the 1960’s, the property also contained a General Store.   The previous owner lived in the house until she had to move into an assisted living facility.  At that point the property was put on the market.  The first potential buyer tied up the property for more than three years with multiple contract extensions and a lawsuit.  When a judge finally dismissed the case, the applicants purchased the property in 2007.

Historically the residence was served by an outhouse, and the inside untreated gray water was discharged directly into the ground water or into the stream behind the house.  The previous owner was granted the use of an indoor incinolet (incinerator toilet) by VDH in order for her to have some type of indoor toilet in her later years.

Comprehensive Plan/Land Use:

The Comprehensive Plan locates this parcel in the Village of Fauquier Springs. The village has a long history, much of which is centered around the nearby country club, which was previously a health spa and hotel (Fauquier White Sulphur Springs Resort).  The Comprehensive Plan notes that “The 1914 Map of Fauquier County reveals a number of residences along Opal Road that still remain today as defining historic features of the Village of Fauquier Springs.”   This would indicate that preserving the structures (residence and shop) would preserve an integral part of the local history of the area.  However, as with the house, repairs to the shop may require additional approval for fill in the floodplain. 

Special Exception Analysis:

The applicants have met the requirements set forth in Section 5-2000, Category 20 Public Utilities and submitted the appropriate application materials for the Special Exception.  The Zoning Ordinance states that a Special Exception for a private individual sewage treatment system which discharges into an open ditch or water shall be allowed only to replace an existing sewage system which is presently serving an existing use.  The applicant has requested the discharge system to serve an existing single family residence with a failing septic system.  That existing sewage system must have failed and have been certified by the Virginia Department of Health to pose a real or potential health threat and a discharging sewage treatment system is the only alternative for the repair.

According to VDH and based on the Authorized On-Site Soil Evaluator (AOSE) and Professional Engineer (PE) evaluations, along with previous application denials by VDH, an alternative sewage discharging system appears to be the only available option for on-site disposal.  While the Health Department had some concerns with this application, the designing PE submitted the application under §32.1-163.6 of the Code of Virginia (GMP 146, House Bill 1166). 

Site Suitability/Environment:

The site contains poor conditions for septic development.  The majority of the property is within the FEMA 100-year floodplain.   In 1992 and 2004 on-site systems for the site were evaluated.  On both occasions there was no acceptable area on the property found for disposal.  Thus, if there are no on-site options, discharge or easement (off-site) are the only options.

 Staff and Review Agency Comments:

Planning

Although it is not part of this application, staff notes that the driveway ingress currently used is off-site and on an adjacent property and possibly also on VDOT right-of-way.  The driveway then goes across the entire frontage (with no apparent turnaround room) to egress in the intersection of Opal Road and Springs Road.  A new VDOT entrance evaluation (and subsequent permit) is recommended so the applicants have a safe method of ingress/egress to their property.   

Zoning

Category 20 Special Exception

1.      A site plan is required for this use per Zoning Ordinance Section 3-320.7.

2.      The following Zoning Ordinance standards are applicable:

a.       5-006 General Standards;

b.      5-2001 Additional Submission Requirements (for Category 20 Uses);

c.       5-2002 Standards for All Category 20 Uses.

Zoning Staff defers to Planning Staff the assessment of standard compliance.

It is clear that there is a need at this location to remediate a failed septic system.  However, a determination must also be made to quantify the intensity of the existing use.  The existing use has been determined to be the 3-bedroom house, as it was when constructed in 1874.  A residential use is appropriate in this village location.  Expansion of such a use could be detrimental given environmental conditions.

Category 23 Special Exception

  1. The application/justification identifies a special exception being requested for structures associated with a septic system to be installed in the FEMA 100-year floodplain.  However, if, now or in the future, there is to be renovation of the existing house exceeding 50% or more of the fair market value or if there is any expansion or enlargement, then the requirements of Zoning Ordinance Section 4-408 shall apply.

This information was provided to the applicants in April 2008.  They have chosen to take the risk and proceed with the Category 20 and 23 Special Exceptions prior to investigating how Zoning Ordinance Section 4-408 may affect their property.

  1. The following Zoning Ordinance standards are applicable:

a.       5-006 General Standards.

b.      5-2301, Standards for All Category 23 Uses.

The following findings are required by the Board in order to grant this Special Exception:  That the granting will not result in (a) unacceptable or prohibited increase in flood heights, (b) additional threats to public safety; (c) extraordinary public expense, (d) create nuisances, (e) cause fraud or victimization of the public, or (f) conflict with local law or ordinance. (Section 5-2301.6).  The Board must also find that the special exception will be “necessary to provide the applicant with reasonable use of the parcel of land in question, taken as a whole.” (Section 5-2301.7)

c.       4-406, Special Exception Uses (in the Floodplain District).

d.      4-407, Use Limitations in the Flood Plain District.

e.       4-408, Existing Structures in a Floodway.

The applicants’ engineer provided additional calculations and technical material to the County engineering department for review.  It was determined that the on-site treatment system shall be flood-proofed so that potential points of inflow and infiltration, other that the discharge point, into the system will be above the 100-year floodplain elevation. This includes the tank seams, tank and treatment unit inlets and outlets, tank and treatment unit access ports and the ultraviolet disinfection unit inlets and outlets.  In addition, no fill or installation of structures associated with this project will create an increase in velocity or elevation on adjacent properties.

Special Exception conditions have been drafted to this effect.

Technical Division

Engineering

The Engineering Division has reviewed the plans for the above referenced project sealed on December 4, 2008 by Jeffrey T. Hancock.

Conditions of Approval

1.      A land disturbing permit will be required prior to construction if the total land disturbance exceeds 10,000 square feet.

2.      The on-site treatment system is to be flood-proofed so that potential points of inflow and infiltration, other than the discharge point, into the system will be above the 100-year floodplain elevation. This includes the tank seams, tank and treatment unit inlets and outlets, tank and treatment unit access ports and the ultraviolet disinfection unit inlets and outlets.

3.      No fill or installation of structures associated with this project will create an increase in velocity or elevation on adjacent properties. 

The three aforementioned conditions have been added to the Special Exception conditions. 

Soils

Category #20, SPEX08-MA-017

Code Compliance

1.      The following components must meet setback requirements that are found in Chapter 17 of the County Code (Section 17-15 Table III).  Septic tanks must be located more than 100 feet from impounded waters.

In the August 2008 submittal, the applicants’ engineer states that all tanks will be 100 feet from impounded waters.

2.      County Code Section 17-15c allows for the placement of a subsurface disposal system on an adjacent property by easement in cases where it is to repair an existing, malfunctioning system.  The decision of using a discharging system should only be considered after all other alternatives have been shown not to be possible (County Code Section 17-17, and VDH’s Alternative Discharging Regulations).  Provide evidence that all other alternatives have been explored and why they are not viable.

The applicants did pursue off-site easements.  According to the applicants, none of the adjacent property owners was willing to allow an off-site drainfield on their properties.  

Findings

1.      Using the Fauquier County Soil Survey, 98.7% (0.821 Ac.) of the site is listed as map unit 3A which is frequently flooded, well drained, very deep and is found in floodplains.  It is rated “NOT SUITED” for development using conventional septic tank and drainfields due to the potential for flooding.  This map unit also may contain hydric soil inclusions.

Information for the applicant.

2.      Based on the design provided by the applicant, all of the components for the discharging system will be in the 100-year floodplain.  Roughly 93% of the site is located within in the 100-year floodplain.  A small portion, about 0.058 acre in the northern corner of the property is outside of the floodplain.  Due to the fact that the proposed system is located in a flood prone area it should be considered as a potential source of contamination for surface waters.

A Special Exception condition requiring floodproofing of the system has been drafted.

3.      The applicant will need to apply to the Virginia Department of Health in order to place the components of the system in the floodplain (12VAC 5-640-240.6 “All portions of a discharging system, except for the discharge pipe and the step type post aeration, if required, shall be located above the 100 year floodplain.”)

Information for the applicant.

Recommendations

1.      This office recommends the applicant explore the option of looking for a suitable drainfield area on an adjoining property or any other potential possibility.  County Code Section 17-15c allows for the placement of a subsurface disposal system on an adjacent property by easement in cases where it is to repair an existing, malfunctioning system.  The decision of using a discharging system should only be considered after all other alternatives have been shown not to be possible (County Code Section 17-17, and VDH’s Alternative Discharging Regulations).  In comments by Raymond P. Freeland, P.E. on August 8, 2008 it states that “All other alternatives have been explored and are not viable options.”  What options have been explored and why are they not viable options?

The applicants did pursue off-site easements.  According to the applicants, none of the adjacent property owners was willing to allow an off-site drainfield on their properties.   

Future Actions

Approvals from the Virginia Department of Health (VDH) and Department of Environmental Quality (DEQ).

Information for the applicant.

Conditions of Special Exception Approval

1.      The following components must meet setback requirements that are found in Chapter 17 of the County Code (Section 17-15 Table III).  Septic tanks must be located more than 100 feet from impounded waters.

A Special Exception condition has been drafted to address this point.

2.      County Code Section 17-15c allows for the placement of a subsurface disposal system on an adjacent property by easement in cases where it is to repair an existing, malfunctioning system.  The decision of using a discharging system should only be considered after all other alternatives have been shown not to be possible (County Code Section 17-17, and VDH’s Alternative Discharging Regulations).  Provide evidence that all other alternatives have been explored and why they are not viable.

See staff comments above.

3.      County approval shall be contingent upon the applicant’s ability to get all applicable state approvals.

This information is important for the Board of Supervisors to consider.  VDH and DEQ will not formally evaluate a permit request without an approved Special Exception.  So although it is paramount that the applicants meet state requirements, the Special Exception approval is the first step in obtaining these approvals for the applicants.

Category #23, SPEX08-MA-020

Code Compliance:

1.      County Code Section 17-15c allows for the placement of a subsurface disposal system on an adjacent property by easement in cases where it is to repair an existing, malfunctioning system.  The decision of using a discharging system should only be considered after all other alternatives have been shown not to be possible (County Code Section 17-17, and VDH’s Alternative Discharging Regulations).  Provide evidence that all other alternatives have been explored and why they are not viable.

See staff comments above.

Findings

1.      Using the Fauquier County Soil Survey, 98.7% (0.821 acre) of the site is listed as map unit 3A which is frequently flooded, well drained, very deep and is found in floodplains.  It is rated “NOT SUITED” for development using conventional septic tank and drainfields due to the potential for flooding.  This map unit also may contain hydric soil inclusions.

Information for the applicant.

2.      Based on the design provided by the applicant, all of the components for the discharging system will be in the 100-year floodplain.  Roughly 93% of the site is located within in the 100 year floodplain.  A small portion, about 0.058 acre in the northern corner of the property is outside of the floodplain.  Due to the fact that the proposed system is located in a flood prone area it should be considered as a potential source of contamination for surface waters.

A Special Exception condition requiring floodproofing of the system has been drafted.

3.      The applicant will need to apply to the Virginia Department of Health in order to place the components of the system in the floodplain (12VAC 5-640-240.6 “All portions of a discharging system, except for the discharge pipe and the step type post aeration, if required, shall be located above the 100-year floodplain.”)

Information for the applicant.

Recommendations

1.      This office recommends the applicant explore the option of looking for a suitable drainfield area on an adjoining property or any other potential possibility.  County Code Section 17-15c allows for the placement of a subsurface disposal system on an adjacent property by easement in cases where it is to repair an existing, malfunctioning system.  The decision of using a discharging system should only be considered after all other alternatives have been shown not to be possible (County Code Section 17-17, and VDH’s Alternative Discharging Regulations).  In comments by Raymond P. Freeland, P.E. on August 8, 2008 it states that “All other alternatives have been explored and are not viable options.”  What options have been explored and why are they not viable options?

See staff comments above.

Future Actions

Approvals from the Virginia Department of Health (VDH) and Department of Environmental Quality (DEQ).

Conditions of Special Exception Approval

1.      County Code Section 17-15c allows for the placement of a subsurface disposal system on an adjacent property by easement in cases where it is to repair an existing, malfunctioning system.  The decision of using a discharging system should only be considered after all other alternatives have been shown not to be possible (County Code Section 17-17, and VDH’s Alternative Discharging Regulations).  Provide evidence that all other alternatives have been explored and why they are not viable.

See staff comments above.

2.      County approval shall be contingent upon the applicant’s ability to get all applicable state approvals.

See staff comments above.

VDOT

No Comment.

John Marshall Soil and Water Conservation District

The Virginia Erosion and Sediment Control Law excludes “septic tank lines or drainage fields unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system” as a land-disturbing activity. Therefore, this site will not need an erosion and sediment control plan. Silt fence will still need to be installed downslope from any disturbance to control sediment flow.

Virginia Department of Health

In accordance with 12VAC 5-615-10 et seq., the Virginia Department of Health accepts private evaluations and designs from Authorized Onsite Soil Evaluators (AOSEs) and from professional engineers (PEs) in consultation with an AOSE.

Based on the AOSE and PE evaluations, along with previous application denials by this department, an alternative sewage discharging system appears to be the only available option for on-site disposal.  However, because nearly the entire parcel is located within the 100-year floodplain, the designing PE will have to submit the application under §32.1-163.6 of the Code of Virginia (GMP 146, House Bill 1166) since such installation is not permitted by the Alternative Discharging Sewage Treatment Regulations.  Under HB 1166, it is at the discretion of the designing engineer to determine that the proposal will protect the public health and environment. 

This office still has concerns about safety measures during a flooding event.  Remote monitoring should be required, since alarms can easily and immediately be turned off at the control panel on- site.  In the event of extreme weather, there may not be electrical power to set in motion any alarms or automated procedures and the availability and/or accessibility of pump and haul may also be compromised. 

A Special Exception condition requiring floodproofing of the system has been drafted.

When evaluating potential environmental impacts one should first seek to avoid the impact.  If the impact cannot be avoided, it should be minimized.  If it cannot be minimized, the last effort is to mitigate.  The applicants feel they cannot avoid the potential impact by acquiring an off-site disposal area.  However, their engineer has designed a floodproofed system that should minimize or possibly remove the threat to the environment by preventing the interface of untreated sewage and surface water (creek).

Planning Commission Summary and Action of March 26, 2009:

The Planning Commission held a public hearing on these Special Exception applications and forwarded a unanimous recommendation of approval, subject to a series of development conditions.  This item was early advertised for the April Board of Supervisors’ meeting, per Supervisor Schwartz. 

The applicants have provided copies of the downstream notification letters and off-site easement request letters.  Thus, they have met the requirements set forth in Section 17-17 of the Fauquier County Code and sent letters to downstream property owners within one mile of the proposed discharge site.  See Attachment 4 for copies of the letters and negative responses to the easement request.

Planning Commission Summary and Action of January 29, 2009:

The Planning Commission discussed this item at their work session.  A public hearing was held. The public hearing was postponed until March 26, 2009 to allow time for the applicant to address Planning Commission requests.

Per the request of the Planning Commission, the applicant spoke to and also mailed certified letters to adjacent property owners requesting an easement for an off-site drainfield.  None of the adjacent property owners has indicated they would allow such an easement. See Attachment 4 for copies of the letters.  

Summary and Recommendation:

The existing 3-bedroom farm house and its property, including the old blacksmith shop, carry much history for the area.  These Special Exceptions present the opportunity to have the house and mill restored and once again become an active part of the fabric of the community.  Special Exception conditions have been drafted to address the remediating of the failing septic system and restoration of the house and historic mill.

Ultimately, it is not clear if the applicants will be able to do what they envision with the house.  Even if they obtain Special Exception approval for the septic system and its associated fill in the floodplain, there may be other hurdles if improvements are 50% or more of the assessed tax value.  These include the federal regulations that require the first floor to be above the BFE and floodproofing the foundation.  The applicant must obtain Department of Environmental Quality (DEQ) and Virginia Department of Health (VDH) permit approval and may also need to obtain the appropriate easement language for that permit.  The FEMA 100-year floodplain, environmental health issues and historical significance of the site are critical considerations and have been addressed in the Special Exception conditions.

 

Requested Action of the Board of Supervisors: 

Conduct a public hearing and consider adoption of the attached resolution.

 

Identify any other Departments, Organizations or Individuals that would be affected by this request:

Virginia Department of Health

Virginia Department of Environmental Quality

 

Attachments:

1.         Statement of Justification

2.         Special Exception Plat

3.         Downstream Notification Letters

4.         Off-site Easement Letters & Responses

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