Board says it cannot alter disputed zoning

By Seth Rosen | 978-7245
Friday, May 18, 2007

Charlottesville’s Board of Zoning Appeals said Thursday that it lacks the authority to alter the zoning of a disputed property in Woolen Mills, turning aside neighbors’ claims that the site should be protected by a historic designation.

The decision means that property owner Preston Coiner will be able to build a series of houses on the parcel without having the project vetted by the Board of Architectural Review, on which Coiner sits. Some neighbors fear that without oversight, the development, expected to be 10 to 12 houses, could overwhelm adjacent homes.

But the saga of the Timberlake-Branham property - dubbed by some neighbors as the “taking by typo” controversy - is far from over. A group of Woolen Mills residents is considering appealing the BZA’s decision to City Council or taking its case to court.

The issue dates back to 1989, when the then-owner subdivided the property, located at 1512 E. Market St. The city’s tax maps, however, were not updated because the ownership did not change.

Four years later the city placed the site on its list of protected properties, but there are conflicting views of the boundaries of the historic designation. Coiner, who bought the 7 acres in 1996, contends that only the property around the Timberlake-Branham house became protected, not the second subdivided lot.

The neighbors retort that there is no evidence to doubt that officials meant to protect the entire property, as subdividing a property does not change its zoning. The minutes of the Planning Commission meeting when the decision was made do not clarify the issue, said Read Brodhead, a city zoning administrator.

In 2001, Coiner further subdivided his property and city staff did not add the new parcels to the protected list. Two years later, a citywide rezoning cemented those changes. A February 2007 letter written by Brodhead states that a “technical mistake” led to the parcels losing their protected status, something Coiner disputes.

The neighbors asked the BZA to reinstate the historic property status, thus ensuring Coiner had to bring any future development before the review board.

But the BZA, with the aid of an outside lawyer, determined it did not have the authority to do what the neighbors were requesting and had to abide by the language in the 2003 rezoning ordinance.

“Our counsel told us that all of the history, which is unclear, is irrelevant, and that we as a board were charged with looking at the ordinance passed in 2003,” said Kevin O’Halloran, chairman of the BZA.

Erik Wilke, a lawyer representing Woolen Mills resident Bill Emory, said that despite the 2003 rezoning the city should still fix the error. “Clearly a mistake was made and we hope the City Council would take it upon themselves to rectify it,” he added.

Woolen Mills residents said the decision sets a dangerous precedent by not giving residents recourse if a property accidentally loses its protected status.

“What does it say about the process when citizens have to take this sort of action themselves and the city doesn’t have the mechanisms to correct its errors?” Victoria Dunham said.

Though Coiner declined to discuss his property after the BZA meeting, O’Halloran urged him to take into consideration the concerns of neighbors when he is designing his residential project.

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