Board of Supervisors Meeting Date:

Planning Commission

September 10, 2009

Staff Lead:


Andrew Hushour, Assistant Zoning Administrator

Community Development



A Zoning Ordinance Text Amendment to Section 5-001.4 Requiring Special Exception Approval by the Board of Supervisors for Special Permit Uses Allowed on a Property Subject to a Non-Common Open Space Easement

Topic Description: 

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 Supervisorsí 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 farmerís market, would require Special Exception approval by the Board of Supervisors. This process is most similar to the Countyís 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.


Financial Impact Analysis: 

No financial impact analysis has been conducted.

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

Office of the County Attorney

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