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The purpose of this text amendment is to adopt Zoning
Ordinance provisions that would shift the authority for
approving a special permit from the Board of Zoning Appeals
to the Board of Supervisors for proposed special permit uses
on property encumbered by a Board of Supervisors’ non-common
open space easement.
Requested Action of the Planning Commission:
Conduct a public hearing and consider adoption of the
attached Ordinance.
Staff Report:
Section 2-705 of the Fauquier County Zoning Ordinance sets
forth the general requirements for non-common open space
easements, specifically limiting the use of such properties
to those listed in Section 3-318 of the Zoning Ordinance,
the category for agricultural uses. While not explicitly
stated in the Ordinance, the provisions have, since the
inception of the non-common open space concept in the
County, been interpreted to also allow a dwelling unit,
along with accessory structures and uses associated with
dwellings, to include barns and sheds, tenant houses, pools
and other recreational structures, and home occupations.
An issue has recently been identified relating to the
proposal of a property owner for a major home occupation on
a property subject to a non-common open space easement.
Community Development staff recently received an application
for the major home occupation, a small contracting business,
which is allowed pursuant to Section 6-303.1 of the
Ordinance, subject to approval of a special permit by the
Board of Zoning Appeals (BZA) in the Agricultural (RA) and
Conservation (RC) Districts, among others. The subject
property associated with the application is zoned to the RA
District and is subject to a non-common open space easement
that was entered into with the Fauquier County Board of
Supervisors on August 23, 1988. The application was
accepted and is currently in the public hearing process
before the BZA for consideration at its regularly scheduled
meeting on September 3, 2009.
This application raised the issue of whether or not the BZA
is the appropriate body to review a land use proposal on a
property encumbered by a non-common open space easement. In
such cases, the issues may go beyond the typical Zoning
Ordinance limitations for the special permit, because of
other limitations contained within the easement related to
land disturbance, the preservation of existing vegetation,
etc. Since the Board of Supervisors holds the non-common
open space agreement, the issue was raised to staff as to
what level of review, if any, the Board should have in this
matter and related cases. The Ordinance does not currently
specify what role, if any, the Board of Supervisors should
have with respect to special permit uses allowed on eased
property. For this reason, this text amendment was
initiated by the Planning Commission on June 25, 2009 to
shift responsibility for approval of such uses to the Board
of Supervisors by approval of a special exception in lieu of
special permit approval by the BZA. This would allow the
Board of Supervisors to appropriately consider any issues
related to the easement they hold on the property.
As set forth in the proposed text amendment, those uses that
are currently allowed on a non-common open space property
with approval of special permit by the BZA, such as a major
home occupation or a community farmer’s market, would
require Special Exception approval by the Board of
Supervisors. This process is most similar to the County’s
Agricultural and Forestal District regulations that require
special exception approval for all zoning uses other than a
dwelling unit or an agricultural or forestal use for those
properties located within such a district.
In addition, should the proposed text amendment be approved,
staff is recommending as a matter of policy that the
standard Deed of Easement form used by Fauquier County for
non-common open space be amended accordingly.
Process & Planning Commission Recommendation
The Planning Commission initiated the proposed text
amendment at its regularly scheduled meeting held on June
25, 2009. The Planning Commission held a public hearing on
the proposed amendment at its July 30, 2009 meeting and
unanimously recommended that the Board of Supervisors
approve the text amendment as proposed by staff.
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