Clerical error leads to development possibility

By Seth Rosen | 978-7245
Monday, April 23, 2007

It started as an honest, and unintended, clerical error by the Charlottesville planning staff.

When a historic property in the Woolen Mills neighborhood, containing the Timberlake-Branham house, was subdivided in 2001, a staff member forgot to add the new parcels to the city’s list of individually protected properties. Two years later, no one caught the mistake as the city went through a meticulous citywide rezoning process.

The result was that the new parcels lost their special protection status, and any future development plans on the sites would not be vetted by the Board of Architectural Review. Without the additional layer of oversight, the Woolen Mills neighborhood might be forced to accept a degree of development incongruous with the adjacent historic house.

It was not until last year - after property owner Preston Coiner, himself a member of the BAR, floated the idea of building 10 to 12 houses on one of the parcels - that Woolen Mills residents unearthed the error.

Now those residents are demanding the city reinstate the historic protection designation. “We really want them to do the right thing: acknowledge the mistake and fix it,” said Victoria Dunham, a Woolen Mills resident.

Last week, Dunham and nearly a dozen other Woolen Mills residents brought their case to the Board of Zoning Appeals, petitioning it to overturn a decision by city staff that the properties are not protected and that the BAR has no authority to guide the sites’ future development.

Yet for at least the next month, the battle will continue. Though a majority of BZA members said they did not believe the board had the authority to do what the residents were asking, they decided to seek legal guidance and postpone a ruling until next month.

BZA members need to “think through everything we’ve heard tonight and obtain counsel to clarify what in my mind is some pretty muddy waters,” said Kevin O’Halloran, chairman of the BZA.

But that has not placated Woolen Mills residents, who are worried about the precedent the case could set. If their appeal fails, they wonder what recourse Charlottesville residents have when the city makes a mistake.

“For the city to state [it] can legislate through error, that opens a Pandora’s box,” Dunham said. “It’s a disaster and shakes the foundation of our faith in our government. When citizens show oversight, they get a shrug.”

The Timberlake-Branham house, which sits at 1512 E. Market St. and is used as an adult day care center, was built in 1886, and was added to both the state and national register of historic places in the early 1980s. In 1989 the then-owner subdivided the property, but the city’s tax maps were not updated because the property did not change hands, said Read Brodhead, a Charlottesville zoning administrator.

There is much confusion over what happened four years later. The Planning Commission placed the house and surrounding site on the city’s list of individually protected properties. But according to Brodhead, there is no record of the exact boundaries of the historic designation.

Coiner bought the 7-acre property in 1996 under the impression that only the land around the Timberlake-Branham house was protected, not the second subdivided lot.

“We bought the property 11 years ago and were told that one part was historic and one wasn’t,” Coiner said.

Woolen Mills residents, on the other hand, believe the entire property was protected, since subdividing land does not alter its zoning designation.

Coiner subsequently subdivided the property and received approval in 2001 from the Planning Commission to build the Woolen Mills Self Storage complex. The Planning Commission was never told that the site was covered by a historic protection designation.

In fact, it was not until Coiner broached the idea last year of building 10 to 12 houses on the property between the storage facility and the Timberlake-Branham house that residents uncovered what city staff is calling a “technical mistake.”

If the BZA rules in favor of the Woolen Mills residents, Coiner could still proceed with his plan to build up to a dozen houses on the site. He would just have to bring the project before the BAR, which regulates design.

Coiner said going through the BAR process could cost him an additional $25,000 to $35,000, and could force him to make design modifications to the project. “It does add additional cost and another layer to it,” he said.

During the BZA hearing, Coiner’s lawyer, Fred Payne, argued that the board does not have the authority to rezone the parcels. Several board members said that while they sympathized with the views of the neighbors, they did not believe it was in their purview to make any changes.

“I think we have a very narrow scope here,” said James Garrett, a BZA member. “Perhaps an injustice was done. Perhaps there was a mistake. But I don’t think this group can reach that determination.”

In the end, the board voted unanimously to seek an outside legal opinion and revisit the issue during its May 17 meeting.

Bill Emory, who brought forward the appeal, said that a ruling for Coiner could jeopardize the trust of the community.

“If you can do something by mistake and then that’s the law - and there’s no appeal or nothing citizens can do - that’s scary,” he added.

Other Woolen Mills residents said that there must be a mechanism in place to override staff mistakes.

“It’s a frightening and unspeakable precedent to take property interest by typo,” said Anne Coughlin, a University of Virginia law school professor.

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