Albemarle officials are moving ahead with a review of whether its county code sufficiently regulates the burial of materials such as construction debris, fill dirt, and demolition waste in the rural area.
“The fill and waste provisions have not been reviewed since 1998,” said Bill Fritz, the chief of special projects in Albemarle’s Community Development Department.
Since then, Albemarle, Charlottesville and the University of Virginia have experienced at least two waves of building activity, meaning many brownfield and greenfield have had to be cleared. Both dirt removed through grading and buildings removed through demolition leave a waste product that has to go somewhere.
It has been common practice for waste material and fill dirt to be hauled into Albemarle’s rural area, prompting questions and concerns from residents about truck traffic and potential pollution.
In January, the new Albemarle Board of Supervisors will hold a work session on how to proceed with the review, which will eventually include roundtables with stakeholders. The goal is to have the ordinance updated sometime in 2020.
On November 6, 2019, Supervisors adopted a resolution directing staff to take a look at §18-4.3.1 and §18-5.1.28 of the code because “the use of rural fill and waste areas may be inconsistent with the Comprehensive Plan.”
Another reason is “the placement of fill and waste may cause increased traffic on rural roads that may be inadequate to accommodate increased traffic.”
In one incident last November, 69 loads of used astroturf were trucked from the Park at Darden to property off of Fox Mountain Road. This past May and June, an unknown number of loads of waste were hauled onto another property in Free Union to dump concrete, asphalt, and other debris from the demolished University Hall.
Both incidents triggered complaints from nearby landowners concerned about what was happening and both were investigated by Albemarle zoning inspectors.
The astroturf was later removed because that material was not permitted to be stored on that site, above-ground or below-ground. However, much of the material at the Free Union site was buried in the ground after the Virginia Department of Environmental Quality concluded the material was inert. Questions remain, however, about whether enough inspection has been conducted.
Also common is a practice in which dirt removed from construction sites can be transferred from one site to the other. In most of those cases, neighbors currently do not have to be told what is happening.
This review gives Albemarle residents and stakeholders the chance to demand that the rules be tightened up to give protections to neighboring properties.
Studying fill and waste areas
Supervisors initiated the study of this issue at their November 6, 2019 meeting and agreed to a public process for the review. Fritz said the existing provisions may not be sufficient to address health, safety and welfare.
“The existing regulations are largely technical in nature and they deal with things such as ponding of water, reclamation of the area with covering fill, fencing, dust control,” Fritz said.
“No regulations exist that address the volume or hours of truck traffic.”
As with many activities in the rural area, if the dumping is connected to agricultural use, it is exempt with some exceptions due to the passage of the Right to Farm Act.
“If the fill and waste activity is related to bona fide agriculture, it is exempt,” Fritz said. “However, no mechanism exists to determine what type of activity is supportive of bona fide agriculture.”
Fill and waste areas are governed by Sec. 5-1-28 including provision a.3:
“Each fill or waste area shall only be for the disposal of soil or inert materials. The disposal of any other materials in a fill or waste area is prohibited.”
There are no definitions of “dirt” or “clean fill” in the ordinance, nor the word “inert” which can be defined as chemically inactive.
“We do not have a definition of clean fill but what we have used is dirt,” Fritz said. “Not rock or rubble, but usable soil.”
Supervisor Liz Palmer asked if “fill dirt” could include concrete and asphalt if they are deemed to be inert.
“These are the types of things that as we’re looking at the zoning text amendment that should be clarified,” Fritz said. “There simply is no clear definition in our ordinance. I’ve looked at some other ordinances now that very clearly define the definition between clean fill and inert material. Some localities treat those two things differently.”
In recent history, Albemarle notified the owners of Hidden Fox Farm inspected the property after hearing about many trucks traveling to the property. University Hall was demolished on May 25, and by the end of June, some of the debris had been trucked to the site.
Records obtained through the Freedom of Information Act show that county officials determined the practice was not lawful after an inspection on June 26.
“The dumping of non-inert materials (metals, plastics, fabric, and other materials) was discovered at that time,” wrote zoning administrator Bart Svoboda in an email to DEQ officials. “Following that additional inspection, Staff has concluded that a violation of county ordinances exists.”
Some of the material was removed from the site, but questions remain that should be addressed during this review.
The county’s ability to regulate fill and waste areas is more complete if the material to be transported originates within Albemarle. If it comes from outside, then county officials may not know it’s happening.
“If there’s a project in Albemarle County that is generating waste material, either soil or they are demolishing a building, as part of the review of that particular project, we look at where that material is going to be exported to, even if that area that is receiving the exported material is under 10,000 square feet, because the sending [area is above] 10,000 square feet,” Fritz said. “However, if the material is being generated outside of Albemarle County, either from the city or the University or some other jurisdiction, that doesn’t happen. We only look at it if the disturbance is over 10,000 square feet at the receiving property. And then if it is, the normal erosion and sediment control regulations come into play.”
Section 5.1.28(b) requires a permit if a property owner knows in advance that the area of the fill and waste area will exceed 10,000 square feet. That triggers a provision of Chapter 13 of the county code, the solid waste and recycling chapter, that governs the transport of refuse. Section 13-302 governs the “accumulation, storage and removal of refuse on private property” and would apply to any fill or waste area in excess of 10,000 square feet, even on agricultural land.
Palmer asked Fritz if that meant the county had to rely on property owners to notify staff in advance of receiving that amount of material.
Fritz said yes, though pointed out county usually doesn’t know until there has been a complaint.
The 10,000 square-foot threshold could be reduced to as little as 2,500 square feet, according to Fritz.
The locality has the power to regulate point-to-point transfers within Albemarle’s borders, but from anything outside.
“If the permit has to be issued by the county [to] the demolishing party, they have to include that in their permit information,” said County Attorney Greg Kamptner. “They tell us where they’re taking it, but if it is UVA or the city, we don’t have that information until it reaches the threshold where our regulations kick in. We don’t have that communication between the city or the other permitting authority right now.”
Supervisor Ann Mallek asked if it were possible to get that authority.
“That’s the most important missing chunk right now,” Mallek said. “We are behind the eightball always, and it’s unfair to staff and neighbors to not have any capability. But if we need the authority to get that information, it’s a different question.”
Fritz said the county has been working with UVA to get better notification. In September, the facilities management office sent a full accounting of the astroturf that had been stored on Fox Mountain Road, but it was not required by law.
.Mallek said that there needed to be a legal requirement to make sure that practice continues into the future. That would likely take legislation in the General Assembly.
Another wrinkle is that if the property owner claims the receiving of fill dirt is for an agricultural use, the county’s water protection ordinance does not apply.
“The WPO ordinance does not allow enforcement action on bonafide agricultural activities,” said county engineer Frank Pohl. “That’s state law.”
Pohl is referring to the Right to Farm provision in state code which severely limits local regulation on agricultural activities.
For instance, the county issued a notice of violation in October 2018 to the owner of property of Seven Hills Lane near Crozet, the receiving site for fill dirt from another place that had recently been excavated. The landowner’s attorney appealed, citing that what might or might not be happening on the property is an “agricultural service operation” allowed under 10.8.1 of the zoning code.
Supervisors will hold a work session on the issue in January to further clarify the specific questions that will be asked in the review.