Board of Supervisors Meeting Date:

 The Paddocks at Kastle Greens, Inc. 


July 12, 2007

Staff Lead:
Melissa Dargis, Assistant Chief of Planning

Community Development


Magisterial District:
Cedar Run




The Paddocks at Kastle Greens:

A Category 23 Special Exception to Allow for Fill in the FEMA Floodplain (SPEX07-CR-004) for a Proposed 11-lot Subdivision

A Category 20 Special Exception to Allow for Construction of Alternative Wastewater Reclamation Treatment Systems for Each Lot Within the Proposed 11-lot Subdivision (SPEX07-CR-010)


Topic Description:

The following summarizes the two special exceptions to be considered at this public hearing:

Category 23 Special Exception (SPEX07-CR-004)

The applicant seeks to fill in the floodplain to access its site by crossing the FEMA floodplain from Ritchie Road. This new public road will cross the Browns Run Floodplain.  In addition, the applicant seeks to place stormwater management/BMP facilities within the floodplain.

Since the response letter from the applicant’s engineer (Dated: May 29, 2007), no additional information regarding the floodplain has been provided.  All applicant effort has been invested on the individual lot sewage solution options.  Staff had focused originally on the engineer’s statement that the current FEMA floodplain in that location is not correct for the site, and what appeared on the preliminary plat to be stormwater management/bmp facilities within the floodplain.

The Zoning Office has consistently stated that there has been no information presented as part of the floodplain crossing to review; hence, the application cannot be evaluated.  The applicant has provided a justification statement and a special exception plat, but no documented elevations or information demonstrating their crossing will meet the Zoning Ordinance standards (Section 5-2301) for such a crossing.  Special exceptions can be granted once the Board of Supervisors has determined that approval, with applicable conditions, “will not result in a (a) unacceptable or prohibited increase in flood heights, (b) additional threats to public safety, (c) extraordinary public expense, (d) create nuisances, (e) cause a fraud or victimization of the public, or (f) conflict with local law or ordinances.

The Engineering Office provided a list of comments and recommendations regarding the floodplain crossing.  However, the applicant’s Planning Commission request on April 26th to move the special exception applications forward to the Board of Supervisors precluded any further work in this area.

Category 20 Special Exception (SPEX07-CR-010)

This request seeks construction of individual wastewater treatment systems on each lot to handle the household wastewater from the proposed 11-lot development.  The applicant’s representative has shown an evapotranspiration system on each lot.  This system consists of an effluent treatment phase in an aquarobic mini plant.  Then the finished product is discharged into an evapotranspiration bed.  The bed is constructed with an impermeable fabric layer that has filtering material placed on it, such as a sand mixture.  That material is then planted with evergreen trees and grasses.  The bed then recycles the homeowner’s mini-plant water through evaporation and plant transpiration.

Staff notes that Virginia Department of Health (VDH) cannot sign a plat or approve the proposed system.  Through its May 14, 2007 referral to the Planning Commission, the VDH indicated, as currently designed, the applicant’s proposed sewage system would fall under the approval jurisdiction of the Department of Environmental Quality (DEQ).  Consequently, the applicant has asked for waiver of those preliminary plat requirements as part of that application (PPLT07-LE-009).  Further, the County cannot authorize a discharge system.  As a result, the applicant’s engineer added the evapotranspiration bed component to the system it to provide full treatment and disposal on each individual lot.  Per a document filed as part of the July 12 waiver appeal (Aquarobic International; Daniel E. Pavon), the applicant’s engineer provides information which states such a bed has zero discharge.

Project History:

On June 14, 2007 the Board of Supervisors held a public hearing on these items.  Discussion ensued regarding whether the applicant had provided adequate information for the Board to be able to make a decision on the applications.  The Board requested that staff coordinate with VDH and DEQ to have those agencies representatives present at the July agenda review session to address questions and to discuss the jurisdictional approval authority of each agency.  The applicant requested action on its Special Exception applications; however, the Board encouraged the applicant to take additional time and thus, postponed both applications, at its request, for thirty (30) days.

No new material has been submitted since the June 12, 2007 hearing.

Applicant’s Category 20 Statement of Justification:

As indicated, this development application includes individual alternative wastewater treatment facilities for each lot.  The VDH has stated that no other option exists for these lots due to the poor soil conditions.  The systems as proposed meet the requirements/conditions of the Commonwealth of Virginia General Permit (9VAC 25-100) for treatment and discharge of treated effluent from single family users of less than 1000 gallons per day.  Being sensitive to Fauquier County’s concern for direct discharge, this project proposed to intercept the permitted discharge for re-use into designed evapo-transpiration beds where all or most of the treated effluent would be consumed by plant uptake, transpiration and evaporation.  This is based on studies conducted by Dr. Alfred Bernhart with the University of Toronto.  While ET rates vary throughout the US, for our area a rate of 0.13 gal/per day/sq. ft. is a conservative design number.

Each lot within the development will be part of a Homeowners Association.  The requirements of this association will be provided to the County for review and approval prior to approval of the final subdivision plat.  This Association will contract with a service provider to monitor and maintain all of these treatment units as a block.  This will include the monitoring of treatment performance as required by the Commonwealth permit, conducting routine maintenance, responding to service calls and making repairs as necessary to keep the treatment units performing properly.  Homeowners will be made aware of treatment facility operating functions and their responsibilities in being aware of any performance issues.  They will be provided with numbers to call in the event that any alarm or signal goes off or if there are any signs of interruptions in plant operations.  This information will be maintained by the Homeowners Association leadership and with the Contracted Service Provider.  The tanks in these treatment units have some reserve capacity that should provide a buffer between any alarm and the time in which the Service Provider can respond.  Prompt response will be part of the contract agreement with the Service Provider.

Framing of the Issues:

The following defines the issues confronting both the applicant and the county.  First, the Virginia Department of Health rescinded statewide approval of the Aquarobic Filterbed System.  Therefore, no further permits would be issued for that category of drainfield disposal.  Second, discharge systems are expressly not allowed within the Zoning Ordinance and the County Code (Section 17-21); except for established remediation needs resulting from an existing home’s failing drainfield.

The County allows two discrete options for the new homes dependent upon the site soil conditions:  (1) traditional systems or (2) alternative systems.  A traditional on-site sewage disposal system consists of a sewer line, septic tank, distribution box and a series of two-foot to three-foot wide drainfield laterals installed in gravel. These systems are designed to dispose and treat the effluent at a depth of eighteen (18) inches to fifty-four (54) inches and depend on the naturally occurring soil. Traditional systems may use a sewage pump to lift the effluent to a single higher elevation.  There are two alternative systems available and they are described as follows: (a) alternative proprietary pre-engineered systems:  A proprietary pre-engineered system is an alternative non-discharge system, which has received general approval from the state health commissioner; and (b) alternative engineered systems:  Engineered systems are those non-discharge systems, which have not received general approval from the state health commissioner.

The Zoning Ordinance does not allow for discharge systems except in extraordinary circumstances.  Zoning Ordinance Section 5-2002 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 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 to the repair.  In approving such a system, the Board may establish conditions including but not limited to use, maintenance and testing.” 

Initially the sewage disposal for this development was proposed as a community system linked to the Kastle Greens Golf Course’s current system.  The Zoning Ordinance Section 7-500 prohibits public and private central sewer systems outside of any service districts, except to correct existing health problems on developed lots.  Thus, the Board of Supervisors proposed a text amendment to allow for community systems in association with a Rural Health Remediation District.  This text amendment was withdrawn when the applicant withdrew its rezoning proposal and opted to develop subject to the parcels’ subdivision potential density.

The second proposal presented was an Aquarobic Filter Bed system with an expanded filter bed.  The Planning Office received notice from the Health Department of an order rescinding approval of the Aquarobic Filterbed Systems.  Further VDH indicated that the system, as modified by the applicant’s engineer was a deviation for the Filterbed, as designed by Aquaroic International.  Thus (had the approval of the system not been rescinded) the proposal still would have had to be submitted (in full detail) to the VDH Engineers in Richmond for evaluation. 

The third proposal presented was an effluent treatment system combined with a discharge to Brown’s Run (a DEQ designated impaired stream) or to a community collection system.  The collection system would take the treated water from the individual lot mini-plants and place the effluent into the existing Kastle Greens Golf Course ponds for use for spray irrigation at the golf course.  Again, discharge systems are not allowed by the Zoning Ordinance and the County Code (Section 17-20).

The current proposal shows and Aquarobic Mini-Plant for effluent treatment with an evapotranspiration bed to allow for full treatment and disposal on each individual lot.  VDH does not have approval authority for this type of system.  DEQ would issue the permits for each lot.  A formal determination has not been made as to whether this system can be approved under Zoning Ordinance regulations.

VDH has a hierarchy of individual sewage systems.  At the top is the normal septic field.  This is the preferred system. This type of system is "by-right" with the county in the sense that it does not require any additional special exception permits.  If the soils will not support a septic field VDH and the County allow the installation of "alternative" non-discharging systems.  Examples of these systems include Pureflo systems; mound systems and drip systems.  If septic fields or alternative systems won't work, VDH also allows for provisional or experimental systems.  These types of systems require Special Exception approval.  VDH allows "as a last resort" discharge systems. 

To obtain a discharge system permit from VDH the State Water Control Board must issue a finding that no public sewage system is available to serve the property.  A letter from the County would appear sufficient to prove this fact.  In addition to this finding, the applicant's soils engineer would have to prove to VDH that no other system will work.  The Zoning Ordinance requires a Special Exception for such a system.  The problem with this type of system is that County ordinances do not permit the use of a discharge system except in the case of repair or remediation of a failed system or for certain commercial uses (e.g., the Farmer’s Coop).  The ordinance does not permit the use of this type of system for new subdivisions.  If a discharge system were to be proposed, the Board would need to take the following actions to permit the use of such a system: a) a text amendment amending the ordinance to permit the use of discharge systems for new subdivision projects; b) the issuance of the Special Exception to permit the use for the Paddocks; and c) a direction to the Health Department to issue the permits under the state regulations.

In summary, VDH regulations currently prohibit alternative discharging systems except where there is no other alternative available. The regulations also prohibit new subdivisions on these systems under most circumstances.  Lastly, the Zoning Ordinance does not allow for discharge systems for new development.  The following are VDH regulatory references which potentially impact a discharge proposal to in the base of individual on-site discharge systems for each lot:

The following regulation applies to the Virginia Department of Health:

Evaluation of other options required.  The Virginia Department of Health (VDH) will not issue a permit to construct a discharging system, unless all options for onsite sewage treatment and disposal have been evaluated and found unsatisfactory.  The consideration of all options include site evaluation(s) by the VDH and when appropriate, a report prepared by a person having a special knowledge of soil science as defined in §54.1-2200 of the Code of Virginia and the methods and principles of soil evaluation as acquired by education or experience in the formation, description and mapping of soils indicating that no sewage disposal site exists on that property.  Options include a conventional onsite septic system using a pump, low pressure distribution (LPD), or an elevated sand mound or other systems which may be approved by the department under the Sewage Handling and Disposal Regulations, 12VAC5-600-10 et seq.

The following regulation applies to the Virginia Department of Environmental Quality:

12VAC5-640-410. Subdivisions.

Discharging systems may be permitted in existing subdivisions in accordance with this chapter.

No discharging system shall be permitted in any subdivision created after July 30, 1992, when a central sewer system is available or may be permitted to serve the subdivision.  If the SWCB determines that no central sewage facilities are reasonably available or may be permitted, and each proposed site is eligible for registration under the General Permit, then the locality, in which the proposed subdivision is located, may request that the department review the plan for compliance with this chapter.  When subdivisions are proposed utilizing individual discharging systems and dry ditch discharges, the use of easements shall be prohibited for multiple systems discharging to a single dry ditch or intermittent stream unless the owner(s) take necessary action to prevent access by children, animals, or other vectors.


Future Considerations:

It is possible that DEQ may require the individual systems to be connected and discharged to an appropriate holding pond for approved re-use or discharged to a stream.  If the latter fact situation occurs, then the County would have to amend its Zoning Ordinance to allow for such a system and discharge.  Nevertheless, the DEQ approval would need to occur prior to County final plat approval.


Land Area, Location and Zoning:  

The property is located on Ritchie Road (Route 644) east of its intersection with Marsh Road (Route 17).  A map of the property is shown below.                          




Neighboring Zoning/Land Use:

The property is bounded by RA on all sides except the west where some of the parcels have Industrial-1 or Industrial-2 zoning.  It is noted that the western boundary of the parcel is bordered by Route 17 and four (4) small RA zoned lots.  A power line easement runs east-west across the northern most part of the parcel.


Action Requested of the Board of Supervisors:

Hold a public hearing on the Special Exceptions. Consider whether to adopt the attached resolutions of approval or denial:


1)      Resolution to Approve the Paddocks at Kastle Greens Special Exception: SPEX07-CR-010, a Category 20 Special Exception

2)      Resolution to Approve the Paddocks at Kastle Greens Special Exceptions: SPEX07-CR-004, a Category 23 Special Exception

3)      A Resolution to Deny the Paddocks at Kastle Greens Special Exceptions: A Category 23 Special Exception (SPEX07-CR-004) and a Category 20 Special Exception (SPEZN07-CR-010)


Planning Commission Recommendation:

On May 31, 2007, the Planning Commission held a public hearing on both applications, and unanimously recommended denial to the Board of Supervisors.  The basic reasons are reflected in the Planning Commission’s Resolution of Denial (refer to Attachment of this report).



Summary and Recommendations:

Based on discussions with the applicant’s representative, there is some uncertainty as to whether there will be refinements to the type of sewage disposal system due to DEQ.  Although, the Category 20 is required for the systems as proposed, the system design may change with DEQ’s input and permitting process.  Additional engineering and design work may be required.  By requesting the waiver of the required VDH signature and approval on the preliminary plat, the applicant will gain some additional time to work out these refinements with DEQ.  As a procedural note, the Special Exception approvals are required prior to preliminary plat action.  No final plat shall be approved unless a Special Exception authorizing the floodplain crossing and sewage system(s) has been approved by the Board of Supervisors, along with the requisite DEQ operational permit for each individual lot’s sewage disposal system as proposed.

DEQ identifies Browns Run as an impaired stream.  Due to this status, the County is obligated to clean up the stream by 2011.  Agricultural BMPs are required at this site for the proposed equestrian use.

Staff also notes that the waiver requests associated with this project must be completed by the Board of Supervisors as part of the Preliminary Plat.  Further staff notes that the applicant identifies the system as an “alternative” system.  This is how it is classified with DEQ.  The VDH classifies this type of system as “experimental.”


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

Fauquier County Department of Community Development
Virginia Department of Health
Virginia Department of Environmental Quality



  1. Statement of Justification
  2. Special Exception Plat
  3. Planning Commission Resolution
  4. May 29, 2007 Summary of Submittal
  5. May 29, 2007 Response to Comments
  6. May 14, 2007 VDH letter

Please note:  Additional Project Material in Attachments 7-11 was received on July 6, 2007.  It has not been reviewed by staff and is provided as information only. 

  1. July 6, 2007 Clarification Memo
  2. General Discharge Permit
  3. Exhibit 1
  4. Exhibit 2
  5. Exhibit 3


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