c/o Henry Day
PO Box 1096
Warrenton , Virginia 20188
August 13, 2003  

Frederick R. Carr

Fauquier County Director of Planning

40 Culpeper Street

Warrenton , VA   20186

Re:       Special 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. 

            High Mountain Farm is a working farm and the purpose of the described pond is agricultural in nature.  Bartons Creek has completely dried during the past two summers and the pond would be used to store water to continue watering cattle and horses during dry periods.  There are no planned or anticipated recreational use of the pond other than for the benefits of the owners of High Mountain Farm and their guests.  The dam, and the associated structures, for the pond are to be constructed in the flood plain of Bartons Creek.

            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 Fauquier County .  However, out of an abundance of caution, I am filing this request to obtain the approval necessary to build the pond. 

            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,

                                                                        Claude Schoch