The Albemarle County Board of Supervisors has taken action on the first test of an ordinance adopted in the fall of 2020 to regulate the practice of importing dirt from construction sites and other excavations to agriculturally zoned land.
“The fill regulations were developed to protect public health, safety, welfare, and those regulations were designed to limit the scale and impact on roads, the adjacent areas, noise, runoff,” said Bart Svoboda, the county’s zoning administrator.
The owner of two properties just to the west of Chris Greene Lake wants an exemption from all of those rules because he says they restrict a contract he has with the federal government to further develop forested land that was clear cut in 2009 that he now wants to become suitable for livestock pasture.
“I am currently working on a multiyear, federally-funded environmental quality incentive program to improve the overall agricultural production of a 254 acre farm that has been in my family since the 1730’s,” said Tim Kindrick.
The request is the first to come in since Supervisors adopted updated rules for what’s called clean fill on September 16, 2020. The new rules only allow imported fill on two acres per property.
About 90 acres of the property were clear cut in 2009 and the stumps were left to decompose in place in order to prevent erosion.
To move the land into productive use as pasture, Kindrick entered into a contract with the United States Department of Agriculture’s National Resources Conservation Service. One of the items in the meeting packet is a letter from Kory Kirkland with the NRCS. (read Kindrick’s application)
“I have been working with Tim Kindrick on a multiyear project to conserve, improve, and protect the natural resources on his farm. This project promotes improved pasture condition and use, permanent/ perennial vegetation, and some use exclusion on areas that are most vulnerable. Part of the project area includes the area that Mr. Kindrick has proposed to use clean fill dirt as a land treatment to improve existing [conditions] for continued/ improved agricultural use.”
Clean fill means solid matter brought from other sites that could include soil and other inert materials that change the topography of the landscape.
Kindrick told the Board of Supervisors the project is agricultural in nature and that the new rules should not apply due to the Virginia Right to Farm Act. He said he has been held hostage by the new ordinance.
Zoning administrator Bart Svoboda said staff does not see it that way. (county fill-dirt rules)
“Under our ordinance, the zoning ordinance, the activity is not agricultural,” Svoboda said. “Fill activity is specifically excluded as an agricultural activity under state code and local code.”
Svoboda acknowledged that the Virginia Right to Farm Act does restrict localities from regulating many agricultural uses, but clean fill brought in from external sites is not one of them.
“That activity of bringing fill from offsite is not an agricultural use,” Svoboda said. “It supports agriculture but under those definitions it is not agricultural use.”
Svoboda said staff recommended denial in part because there was no plan for how environmental effects would be mitigated under the plan.
Supervisor Jim Andrews questioned the request for exemption from all of the rules.
“My sense is that this is really an attempt to say that this regulation shouldn’t apply at all and asking us to make that determination which seems highly inappropriate,” Andrews said. “Without conditions I can’t understand what I’m really looking at.”
Before we get to the end of the story, we have to go back.
Earlier in the meeting, Brian McCay spoke on behalf of the Earlysville Forest Homeowners Association and said Supervisors should not grant the exemption.
“Earlysville Forest has a right of way easement with the Kindrick family that was signed when the neighborhood was first developed,” McCay said.
The neighborhood dates back to the 1980’s and McCay said the terms give the association an 15-foot easement intended for a driveway that links to Carriage Hill Drive.
“However that driveway is now being used as access for the fill dirt operation requiring repeated trips by heavy dump trucks and is not adequate for that purpose,” McCay said.
When asked by Supervisor Ned Gallaway to further explain the neighborhood’s opposition, McCay spoke a second time saying he was not opposed to the use of the property.
“Our opposition is directly to the use of this access by heavy equipment and we want to stop that basically,” McCay said.
Supervisor Donna Price said she toured the property with Kindrick and saw the installation of mechanisms to keep additional organic material from being washed into the watershed of Chris Greene Lake.
“I did have a tour of part of the property and I did see where livestock exclusion fencing has been constructed to protect the waterways,” Price said. “My concern here is that our ordinance may have someone created what I’d call the law of unintended consequences by limiting the soil to have to come from the farm itself.”
Price said the farm was in existence many years before the homes were built on Carriage Hill Road and that Kindrick had a legal right to use it.
“It is a farm,” Price said. ”A farm naturally engages in some sort of industrial use.”
Price asked for a legal perspective on whether the county’s ordinance was against state rules.
“As Mr. Svoboda said at the beginning, there’s a difference between agricultural use on the one hand and fill use on the other and as Mr. Svoboda also pointed out, there was a recent amendment to state law that specifically amended agricultural activity so as not to include imported fill,” said Deputy County Attorney Andy Herrick.
Supervisor Ann Mallek said the county’s new rules on clean fill were the subject of much public discussion over several years.
“I cannot support someone saying ‘I don’t want this law to apply to me,’ and I think we have to make a decision based on the information we have now and if there’s a future application that comes in with something different, that would be fair to the neighbors and to the process.”
Supervisor Ned Gallaway said he was sympathetic to the landowner, but the county put its ordinance into place for a reason.
“I think even then we knew that this would likely frustrate good actors coming forward but the regulations and the ordinance were put in place to stop the bad actors and the activity that we were concerned about,” Gallaway said.
There are six ways you can get a waiver but Kindrick wanted a blanket exemption from all of the rules. Gallaway suggested a new application that sought to justify the waiver.
Price said she also could not support a blanket exemption.
“But I really want county staff to do what I believe county staff does which is help this community member achieve within the law what he wants to do which is to improve the quality of his farm,” Price said.
The motion to deny the application for a special exemption was approved unanimously.
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