Frederick R. Carr
Exception Request Under §4-406 of
the Fauquier County Zoning Ordinance permitting the construction of
structures in a flood plain
Dear Mr. Carr:
Please accept this letter as my request, and justification of, a
special exception permitting the construction of a farm pond in the flood
plain of Bartons Creek on High Mountain Farm, located in Scott Magisterial
District and generally along the Landmark School Road, State Route 776 and
as more thoroughly described in the attached plat of John A. Orr, P.E.,
entitled “High Mountain Farm Impoundment Special Exception Plat”,
hereinafter referred to as the Plat.
As you are aware, the Board of Supervisors recently amended §6-102
of the Zoning Ordinance to provide rules and regulations for the
construction of ponds. Under
subsection (24)A.2, ponds requiring approval of the Commonwealth are
permitted in a rural zoning district upon state approval and issuance of a
zoning permit. Under
subsection C.4, the State Water Control Board regulates structures that
have a maximum capacity of greater than 50 acre-feet or a height of a dam
that is greater than 25 feet. Previous
analysis by your staff have indicated that the State Water Control Board
regulated the construction of this dam and attached hereto you will find
the State Water Control Board permit for the building of such dam.
In a recent discussion with the Zoning Administrator, she informed
my attorney, Henry Day, that she interpreted the language of the Zoning
Ordinance to require, in addition to the zoning permit and state approval,
a special exception for building a structure in the flood plain.
As you can see from the attached Plat, the 100 year flood pool and
spillway is all located more than 50 feet from an adjacent property line,
no land is disturbed in the construction of the pond that is less than 25
feet from an adjacent property line and the attached permit represents the
approval of the State Water Control Board.
I will be providing you two other permits as they become available
from the Commonwealth and Corp of Engineers.
Both permits have been applied for and authorized and I am awaiting
final issuance by the respective agencies.
I have reviewed §24A(1) and (2) with my counsel and believe that a
special exception is not required. Section
4-406 is a general statement to the County policy with regard to
structures in the flood plain. Section
6102(24) is a specific provision that provides that ponds shall be
approved by complying with this subsection, and in the case of High
Mountain Farm, obtaining approval from the Commonwealth of Virginia.
I have discussed the issue of a special exception with several
members of the Citizens Committee, who recommended the existing language
of §6-102(24) and no thought was ever given to requiring additional
approvals for ponds in agricultural zones.
In my opinion, requiring a special exception for agricultural ponds
places a burden on agricultural operations in
The pond as proposed meets the criteria established in §6-102(24)
as I have previously stated. The
pond is in compliance with the provisions of the underlying zoning
district, rural agricultural, and satisfies the applicable standards
contained in Article V of the Zoning Ordinance and is not prohibited by
this or any other Ordinance of the County.
In particular, the dam and the pond do not cause any increase in
the level of flooding or the velocity of floodwaters, and in point of
fact, they will act as a deterrent to flooding.
No additional hazard or potential hazard of debris caused by the
movement of floodwaters through the pond that could cause down stream
damage, in point of fact, the pond will capture existing debris in the
pond. The approval of the
special exception by controlling, rather than exacerbating, flooding and
flood potential will not result in unacceptable or prohibited increase in
flood heights, any additional threats to public safety, any extraordinary
public expense, will not create nuisances or cause fraud or victimization
of the public or will not conflict with local laws or ordinances.
To the contrary, I believe that the proposed pond and dam will
improve water quality and flood control in the area.
I thank you in advance for your consideration of this matter and
ask that it be placed on the July Planning Commission, if possible.
If you have questions, you will questions you may contact me by
calling 270-8573 or you may contact my attorney, Henry Day at 349-4300.
Very truly yours,