ONARCHITECTURE- Taking by typo? BZA reviews Woolen Mills dust-up

On April 19, the Board of Zoning Appeals' small conference room in the basement of City Hall resembled a court room, as lawyers, BZA members, and disgruntled neighbors argued over a recent city zoning determination that may have inadvertently unzoned a historic property.  In our March 22 issue, we tried to explain the complex, sometimes confusing situation ["Zoning snafu: Will error in Woolen Mills scrap PUD?"]. 

To recap: when developer Preston Coiner proposed a planned use development  (PUD) on his property behind the Mary Williams Senior Center at 1512 E. Market Street last year, it prompted Woolen Mills residents to look into the history of the property. 

What they discovered was that the site– historically known as the Timberlake-Branham house– had been designated an Individually Protected Property (IPP) in 1993. In fact, as zoning maps showed, the entire seven-acre property had been designated historic. This came as a shock to Coiner, who built the Woolen Mill Self Storage facility along Franklin Street on the property, a project that was approved unanimously by the Planning Commission in 2001.

Did the city mistakenly allow Coiner to build the storage facility on an IPP without BAR review? After some preliminary research, Neighborhood Development chief Jim Tolbert determined the city had to assume the historic overlay covered the entire seven acres.

However, in February, Zoning Administrator Read Brodhead determined that the city failed to add the three new parcels to the list of IPPs before they were officially added to the tax maps in 2001. The city also failed to update the tax maps, which were being converted from paper to digital at the time. After the 2003 Zoning Ordinance took effect, and since the new parcels were still not listed as IPPs, Brodhead reasoned, only the front portion of the property could legally be considered an IPP.

It was that determination that some Woolen Mills residents were appealing. Lawyer Fred Payne was there to argue on behalf of Coiner, and city attorney Craig Brown defended the position of the city and Brodhead's zoning determination. This wasn't Payne's first argument to the BZA: last year he advocated for developer David Turner after Turner cut down a 150-year old beech tree in violation of his special use permit. That incident, at 3 University Circle, initially greeted by talk permit revocation, criminal charges, and hints of jail time resulted in a   mere $200 fine. 

Lawyer Erik Wilke, representing the Woolen Mills neighbors, was clearly angered by Payne's presence, saying, "They're trying to piggy-back onto our appeal, and we think that's unfair." Indeed, Payne's participation in the appeal was a last-minute addition to the proceedings which supposedly carried an April 12 comment deadline. 

"This unsportsmanlike eleventh-hour attempt to highjack the proceedings," said Woolen Mill resident Victoria Dunham, "served the purpose of inserting lots of smoke and mirrors into what was an already confusing undertaking."

As Wilke explained, "We don't think you can un-zone something by mistake. It was an honest oversight by city staff. All we're asking is that the proper steps be followed."

Indeed, as former City Councilor Kay Slaughter (who was on Council when the house was designated historic in 1993) stated in a letter read at the proceedings, "When Council voted to designate this property as an individually protected property, the entire property was considered historic, not just the portion on which the house stood."

Slaughter recalled this being an important matter because, at the time, the long-range plans of the property owners were to build a PUD on the back portion of the property, which would need to be reviewed by the neighborhood and the BAR.  

However, according to City Attorney Brown, it was not the BZA's role to re-write history, regardless of whether mistakes were made. He argued that the Woolen Mills residents had missed their chance to appeal what the 2003 zoning had changed. 

"The BZA does not have the authority to decide if this determination was wrong based on things that happened in the past," said Brown. "You only had 30 days to challenge the decisions made in 2003, and you had to appeal to Circuit Court, not the BZA." 

And as for that 1993 IPP designation? "It's nothing more than speculation what the city intended in 1993," Brown said. 

Payne went even further, refuting Slaughter's recollections, and saying it "was certainly not true" that all seven acres of the property was designated historic in 1993. Besides, Payne argued, "Whatever happened before the 2003 zoning, that's over; that doesn't matter, because the whole city was rezoned."

However, it clearly mattered to the Woolen Mills folks packed into the small conference room.

"I really think it would be frightening and an unspeakable precedent for you to allow taking of property interest by typo, or by some sort of administrative oversight," argued Anne Coughlin, a UVA law professor and Woolen Mills resident. "It's really a very frightening thing, and it doesn't do fairness to the individual parties in this case, here the adjoining landowners. Taking by typo? That's just absolutely wrong."

However, no one appeared more baffled than Coiner, who is perhaps suffering the most from the city's zoning snafu. As far as Coiner knew, he says, the property was split in two in 1989 before the front portion was designated historic in 1993. As he pointed out, when he applied for permits to build the Woolen Mills self-storage facility in 2001 and 2005, city staff mentioned nothing about a historic designation. 

"Some things I hear are like personal attacks on me, and they shouldn't be," said Coiner. "Where were the neighbors in 2001 and 2005?" Again, Coiner insisted that only the front portion of his property was designated historic in 1993. "While I have faith in Ms. Slaughter," he said, "age in time affects memory." 

Apparently, such impassioned pleas registered with BZA members, who clearly struggled to understand the legal and ethical issues surrounding the appeal. In the end, they elected to defer the matter to their May 17 meeting and secure a neutral legal opinion. 

"Would it be appropriate for us to look back at 1993?" asked BZA chair Kevin O'Halloran. "I just don't know the answer. And there are a lot of questions here. I feel like we are in the dark."

This city planning map shows that the entire seven-acre Timberlake-Branham house parcel was designated historic. So how did city staff miss this when the Woolen Mills Self Storage facility was built on the property in 2001?