HomeMy WebLinkAbout11/19/2020 - Regular TOWN OF VINTON
311 S. POLLARD STREET
VINTON, VIRGINIA 24179
PHONE: (540) 983-0605
FAX: (540) 983-0621 ANITA MCMILLAN EMAIL: amcmillan@vintonva.gov PLANNING AND ZONING DIRECTOR
November 6, 2020
TO: VINTON PLANNING COMMISSION
Mr. Keith Liles, Chairman
Mr. David “Dave” Jones, Vice-Chairman
Mr. Robert “Bob” Benninger
Mr. Andrew “Ty” Braxton
Ms. Sarah Reid
RE: Virtual Work Session and Public Hearing
Thursday, November 19, 2020
A brief work session of the Planning Commission will be held at 6:30 p.m., which will be followed by
a public hearing at 7:00 p.m. A link to the zoom meeting will be provided prior to the meeting.
Please see the enclosed agenda and supporting materials for the meeting; including the approved
December 17, 2019 minutes of the joint public hearing of the Planning Commission and Town Council
and the Planning Commission 2018 and 2019 Annual Reports. Additionally, seven sets of the Planning
Commission minutes will need to be approved under a consent agenda, therefore, please review each
of the enclosed minutes. Note that the joint minutes from December 17, 2019 have already been
approved. Should you have any questions and/or edits for the minutes, please call Julie Tucei at 540-
983-0605 or email her at jtucei@vintonva.gov by noon on Monday, November 16, 2020.
The purpose of the public hearing is to receive public comments regarding the petition of Giacomo
Montuori, for a Special Use Permit (SUP) for a proposed commercial indoor amusement use, located
at 700 Hardy Road, Vinton, Virginia, tax map number 060.20-05-64.00-0000, zoned GB General
Business District.
Please let me know if you are UNABLE to attend this zoom meeting on November 19th as soon as
possible by emailing me at amcmillan@vintonva.gov or calling me at 540-983-0605. Thank you.
Sincerely,
Anita J. McMillan
Planning and Zoning Director
Enclosures
c: Richard “Pete” Peters, Acting Town Manager/Economic Development Director
Nathan McClung, Principal Planner
Vinton Planning Commission
Thursday, November 19, 2020
Work Session - 6:30 p.m.
Public Hearing - 7:00 p.m.
PARTICIPATION WILL BE BY ELECTRONIC COMMUNICATIONS PURSUANT
TO SECTION 15.2-1413, CODE OF VIRGINIA (1950), AS AMENDED,
ORDINANCE NO. 1016 AND SECTION 4-0.01(G) OF CHAPTER 1289 OF THE
2020 ACTS OF THE VIRGINIA GENERAL ASSEMBLY
The Vinton Planning Commission will hold a Work Session at 6:30 p.m. and a Public
Hearing at 7:00 p.m. on Thursday, November 19, 2020, using electronic communication
means without the public being present. Participation by Planning Commission members,
staff, and the public will only be available through electronic means. The public will have
access to observe the Work Session and Public Hearing through a livestream on the
Town’s Facebook page at www.facebook.com/vintonva. Citizens may register to speak
at the Public Hearing by calling the Town Clerk’s Office at 540-983-0607 or by sending
an email to sjohnson@vintonva.gov by 12 Noon on Wednesday, November 18, 2020.
Once registered, the citizen who wishes to address the Planning Commission will be
provided the Zoom meeting information and will be allowed to join the meeting and
address the Planning Commission by electronic means.
AGENDA
Consideration of:
WORK SESSION – 6:30 P.M.
I. Call to Order—Roll Call
II. CONFIRMATION THAT MEETING IS BEING HELD IN ACCORDANCE WITH
ORDINANCE NO. 1016 AND SECTION 4-0.01(G) OF CHAPTER 1289 OF THE
2020 ACTS OF THE VIRGINIA GENERAL ASSEMBLY AND ROLL CALL
III. Introductions
1. Introduction of new members: Ms. Sarah Reid and Mr. Andrew “Ty” Braxton
IV. Briefing
1. Briefing on petition of Giacomo Montuori, for a Special Use Permit (SUP)
for a proposed commercial indoor amusement use, located at 700 Hardy
Road, Vinton, Virginia, tax map number 060.20-05-64.00-0000, zoned GB
General Business District.
Vinton Municipal Building
311 S. Pollard Street
Vinton, VA 24179
Phone (540) 983-0605
Fax (540) 983-0621
Mr. David “Dave” Jones, Vice-Chairman
Mr. Robert “Bob” Benninger
Mr. Andrew "Ty" Braxton
Ms. Sarah Reid
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V. Comments of Planning Commissioners and Planning Staff
VI. Adjournment of Work Session
REGULAR SESSION – 7:00 P.M.
VII. Call to Order—Roll Call
VIII. Consent Agenda:
1. Consider approval of the minutes:
a. Work Session and Public Hearing, August 2, 2018
b. Work Session, January 15, 2019
c. Work Session, March 7, 2019
d. Work Session, April 11, 2019
e. Work Session, June 7, 2019
f. Work Session, October 4, 2019
g. Work Session, November 14, 2019
IX. Public Hearing to receive comments concerning:
1. Petition of Giacomo Montuori, for a Special Use Permit (SUP) for a
proposed commercial indoor amusement use, located at 700 Hardy Road,
Vinton, Virginia, tax map number 060.20-05-64.00-0000, zoned GB
General Business District.
a. Chairman opens public hearing
• Report from staff
• Receive petitioner’s comments
• Receive public comments
• Commissioners discussion and questions
b. Chairman closes public hearing
c. Commission takes action on proposed petition for a special use permit
X. Overview of the Survey Results for the Zoning and Subdivision Ordinance
Updates
1. Sign Ordinance Revisions
2. Accessory Dwelling Unit Regulations
3. Homestay Regulations
4. Off-Street Parking Regulations
5. Dimensional Revisions
6. New and Revised Use Regulations
XI. Adjournment
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Chapter 12
Special Use Permits
12-100 Introduction
Under Virginia Code § 15.2-2286(A)(3), a governing body is authorized to grant special exceptions “under
suitable regulations and safeguards.” Special exceptions are also known as special use permits or conditional use permits
(the term special use permit is used in this chapter, except as otherwise noted), though they may not all necessarily
serve the same purpose in a particular locality, as discussed in section 12-200. See Virginia Code § 15.2-2201 (definition
of special exception).
A governing body may delegate the authority to grant special use permits to the BZA. Virginia Code § 15.2-
2309(6). For example, a BZA could be delegated the authority to consider special use permits for off-site signs. A
governing body may also withdraw that authority. Chesterfield Civic Association v. Board of Zoning Appeals, 215 Va. 399,
209 S.E.2d 925 (1974) (BZA had no power or authority to consider an application for a special use permit where,
after the application was filed but before it was considered by the BZA, the county’s zoning regulations were
amended to withdraw the authority of the BZA to consider special use permits and to reserve that power in the
board of supervisors).
Key Principles to Know About Special Use Permits
Whether granted by the governing body or the BZA, special use permits are legislative in nature.
Uses allowed by special use permit are considered to have a potentially greater impact than those allowed as a matter of
right.
Special use permits must be evaluated under reasonable standards, based on zoning principles.
Impacts from special uses are addressed through conditions.
Conditions must be reasonably related to the impacts to be addressed, and the extent of the conditions must be roughly
proportional to the impacts.
Decisions by a governing body granting or denying special use permits are presumed correct and reviewed under the
fairly debatable standard; decisions by a BZA granting or denying special use permits are also presumed correct, but the
presumption may be rebutted by showing to the satisfaction of the court that the board of zoning appeals applied
erroneous principles of law, or where the discr etion of the board of zoning appeals is involved, the decision of the board
of zoning appeals was plainly wrong, was in violation of the purpose and intent of the zoning ordinance, and is not fairly
debatable.
12-200 The nature of special use permits
Zoning district regulations typically delineate a number of uses that are allowed as a matter of right, and a
number of uses that are allowed by special use permit. Uses allowed only by special use permit are those considered
to have a potentially greater impact upon neighboring properties or the public than those uses permitted in the
district as a matter of right. Board of Supervisors of Fairfax County v. Southland Corp., 224 Va. 514, 297 S.E.2d 718 (1982).
The special use permit procedure, by its very nature, presupposes that a given use may be allowed in one part of a
zoning district, but not in another. Bell v. City Council of City of Charlottesville, 224 Va. 490, 297 S.E.2d 810 (1982)
(rejecting claim that city’s zoning ordinance violated the uniformity requirement of Virginia Code § 15.2-2282).
Although by definition special exceptions pertain to uses (Virginia Code § 15.2-2201 (definition of special exception)), it
appears that the meaning of use in this context may be broader. In Board of Supervisors of Fairfax County v. Robertson, 266
Va. 525, 587 S.E.2d 570 (2003), the county’s zoning ordinance allowed “deviations” from certain setback regulations
with conditions, if approved by the board of supervisors. The deviation was an alternative procedure to obtaining a
variance from the BZA. The Virginia Supreme Court classified the deviation as a special exception, “analogous” to a
special use permit or a conditional use permit, and analyzed it the same way as it would those types of permits. In
Town of Occoquan v. Elm Street Development, Inc., 2012 Va. LEXIS 104 (2012) (unpublished), the Virginia Supreme Court
characterized a special exception to disturb steep slopes as a density-related permit.
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A special use permit is different from a variance. See chapter 13. A special use permit cannot alter the provisions
of a zoning ordinance. Northampton County Board of Zoning Appeals v. Eastern Shore Development Corporation, 277 Va. 198,
671 S.E.2d 160 (2009); see also Board of Supervisors of Washington County v. Booher, 232 Va. 478, 352 S.E.2d 319 (1987),
discussed in the following paragraph; Sinclair v. New Cingular Wireless, 283 Va. 567, 727 S.E.2d 40 (2012) (though not
deciding whether a county’s regulations allowing the disturbance of steep slopes was a special exception, the waiver
regulations were analogous to a special exception and were legislative in nature).
A special use permit also cannot be granted by implication. Board of Supervisors of Washington County v. Booher, 232
Va. 478, 352 S.E.2d 319 (1987). In Booher, the landowner obtained a rezoning of his land in 1975 from A-2 to B-2,
and informed the board of supervisors of his intention to establish an automobile graveyard and junkyard. Neither
of those uses was allowed by right or by special use permit in the B-2 zoning district. In 1981, the county amended
its zoning regulations requiring a conditional use permit for those uses, but only in the M-2 zoning district. The
board denied Booher’s application to rezone his property to M-2 and ordered him to discontinue the use and
remove the vehicles from his property. The Virginia Supreme Court concluded that the Booher’s use did not have
nonconforming status, adding that “[i]t may be that the Board intended . . . to grant Booher a special exception. But
an automobile graveyard was not then and is not now a permitted use in the B-2 zone. Booher did not apply for a
special exception in that zone [and] the Board had no power to grant an exception by implication. . .” Booher, 232 Va.
at 481-482, 352 S.E.2d at 321.
Whether granted by the governing body or the BZA, special use permits are legislative in nature. Board of
Supervisors of Fairfax County v. McDonald’s Corporation, 261 Va. 583, 544 S.E.2d 334 (2001); Richardson v. City of Suffolk,
252 Va. 336, 477 S.E.2d 512 (1996); Ames v. Town of Painter, 239 Va. 343, 389 S.E.2d 702 (1990) (when granted by a
BZA); Koehne v. Fairfax County Board of Zoning Appeals, 62 Va. Cir. 80 (2003).
Although zoning regulations may require that an approved special use begin within a certain period of time,
Virginia Code § 15.2-2209.1(B) extends the period of validity for special use permits outstanding on January 1, 2011
until July 1, 2017 if the special use permit is related to “new residential or commercial development.” This statutory
extension pertains only to the date by which the use must be started, and does not apply to any requirement that a
special use be terminated or ended by a certain date or within a specified number of years (see discussion of that issue in
section 12-510).
A locality’s special use permit regulations may allow the permit to be revoked if the use is found to be in
violation with the permit’s conditions, at least on activities directly connected to the permit. Alexandria City Council v.
Mirant Potomac River, LLC, 273 Va. 448, 643 S.E.2d 203 (2007); see Lawless v. Board of Supervisors of Chesterfield County, 18
Va. Cir. 230 (1989). In Mirant, the Virginia Supreme Court held that the city could not revoke a special use permit
for purported violations of certain emission control limits in its state-issued stationary source permit to operate
because those purported violations were beyond those having a nexus to the purpose of the special use permit.
BZA’s have express statutory authority to revoke a special use permit under the procedures provide by statute.
Virginia Code § 15.2-2309(7).
12-300 Limitations on the uses for which special use permits may be required
A special use permit may not be required within an agricultural zoning district for any production agriculture or
silviculture activity (Virginia Code § 15.2-2288) and qualifying small scale biofuels production (Virginia Code § 15.2-
2288.01). In the absence of a substantial impact, a special use permit also may not be required within an agricultural
zoning district for usual and customary activities at farm wineries (Virginia Code § 15.2-2288.3), usual and customary
activities at limited breweries (Virginia Code § 15.2-2288.3:1), usual and customary activities at limited distilleries
(Virginia Code § 15.2-2288.3:2), and usual and customary activities at agricultural operations (Virginia Code § 15.2-
2288.6). Activities as farm wineries, limited breweries, limited distilleries and agricultural operations that are not
usual and customary may otherwise be subject only to reasonable restrictions, which may or may not warrant a special
use permit.
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A special use permit also may not be required for the following uses, provided that statutorily prescribed
circumstances exist: (1) cluster developments (Virginia Code § 15.2-2286.1); (2) manufactured housing in agricultural
zoning districts (Virginia Code § 15.2-2290(A)); (3) group homes of 8 or fewer persons or residential facilities for 8 or
fewer aged, infirm or disabled persons, which must be allowed by right in zoning districts where single family
residential use is allowed by right (Virginia Code § 15.2-2291); and (4) family day homes of five or fewer persons,
which must be allowed by right in zoning districts where single family residential use is allowed by right (Virginia
Code § 15.2-2292).
A special use permit also may not be required as a condition of approval of a subdivision plat, site plan or building
permit for the development and construction of residential dwellings at the use, height and density permitted by right
under a zoning ordinance. Virginia Code § 15.2-2288.1. These limitations do not prevent a locality from requiring a
special use permit for: (1) a cluster or town center as an optional form of residential development at a density greater
than that permitted by right, or otherwise permitted by local ordinance; (2) a use in an area designated for steep slope
mountain development; (3) a use as a utility facility to serve a residential development; or (4) nonresidential uses
including, but not limited to, home businesses, home occupations, day care centers, bed and breakfast inns, lodging
houses, private boarding schools, and shelters established for the purpose of providing human services to the
occupants thereof. Virginia Code § 15.2-2288.1.
Summary of the Uses for Which a Locality May Not Require a Special Use Permit
Production agriculture, silviculture and small scale biofuels production, and certain activities at farm wineries, limited breweries, limited
distilleries, and agricultural operations in an agricultural zoning district.
Cluster developments except where a cluster or town center is allowed as an optional form of residential development at a
greater density than that permitted by right (see discussion of Virginia Code § 15.2 -2288.1, below).
Manufactured housing in an agricultural zoning district.
Group homes of 8 or assisted living facilities for 8 or fewer aged, infirm or disabled persons in a zoning district where single
family residential use is a by right use.
Family day homes of 5 or fewer persons in a zoning district where single family residential use is a by right use.
Tents serving as a temporary structure for 3 days of less used for activities such as weddings and estate sales.
As a condition of approval of a subdivision plat, site plan or building permit for a residential development where the dwellings meet
the use, height and density requirements allowed by right, with exceptions in Virginia Code § 15.2 -2288.1.
Temporary family health care structures established in compliance with Virginia Code § 15.2-2292.1.
To address solely aesthetic considerations outside of a historic district established under Virginia Code § 15.2-2306.
In Town of Occoquan v. Elm Street Development, Inc., 2012 Va. LEXIS 104 (2012) (unpublished), the developer was
the contract purchaser of a 3.68 acre parcel zoned R-3, which allowed up to 16 multi-family units per acre.
Approximately one-half of the parcel had slopes greater than 20% and the town regulations required a special use
permit to disturb or develop on those slopes. Although staff recommended approval of the special use permit with
12 conditions, to which the developer agreed, the town council denied the permit. The developer sued. The town
contended that Virginia Code § 15.2-2288.1 did not apply to the town’s steep slopes regulations and that the entire
parcel was not developable by right because the by right density could be calculated only in compliance with the
steep slopes regulations.
The Virginia Supreme Court rejected the town’s arguments, concluding that Virginia Code § 15.2-2288.1 “expressly
prohibits a locality from requiring a special use permit as a precondition to development that is otherwise permitted
under a zoning ordinance,” and that the town’s steep slopes regulations interfere “with residential development that is
otherwise permitted within the zoning district.” The Court also rejected the town’s argument that the developer had no
right to disturb the steep slopes in the absence of a special use permit, concluding that the town “cannot permit this
development by right and simultaneously require an SUP as a condition of development on the property. . . By
requiring an SUP, the Town has politicized what should be a ministerial decision . . . [T]he steep slopes SUP
requirement . . . has no bearing on any density calculation in this instance.” To reach that conclusion, the Court
characterized the special exception as a density-related permit which was therefore prohibited by the statute. Lastly, the
Court rejected the town’s argument that the Chesapeake Bay Preservation Act gave it the power to require a special use
permit.
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The requirement for a special use permit also may not be based solely on aesthetic considerations. Allstate
Development Co. v. City of Chesapeake, 12 Va. Cir. 389 (1988) (finding that requirement for special use permit for
modular houses in a district, but not for stick-built houses, arose solely because the neighbors did not like the
appearance of modular houses); but see Virginia Code § 15.2-2306, allowing localities to require architectural compatibility
within districts established under that section.
12-400 Procedural requirements prior to and during a hearing on a special use permit application
A number of procedural rules apply to the conduct of a hearing on a special use permit application, but the
procedures differ depending on whether the special use permit is granted by the governing body or the BZA.
12-410 Special use permits considered by the governing body
Special use permits considered by the governing body are subject to “suitable regulations and safeguards”
established by the governing body. Virginia Code § 15.2-2286(3). These suitable regulations and safeguards should
include the requirement that the planning commission, if its review and recommendation is required, and the
governing body, take timely action. One approach is to impose the same timelines required for zoning map
amendments, e.g., requiring a recommendation from the planning commission within 100 days (Virginia Code § 15.2-
2285(B)) and requiring the governing body to act within 12 months. Virginia Code § 15.2-2286(7).
In addition, notice must be provided as required by Virginia Code § 15.2-2204(C). See chapter 34.
12-420 Special use permits considered by the BZA
Special use permits considered by the BZA are subject to the following procedures:
Scheduling the hearing on the special use permit application. The BZA must “fix a reasonable time for the hearing” on a
special use permit. Virginia Code § 15.2-2312.
Notice of the hearing. The BZA must “give public notice thereof as well as due notice to the parties in interest.”
Virginia Code § 15.2-2312. Notice of the hearing must be provided as required by Virginia Code § 15.2-2204.
Virginia Code § 15.2-2309(6).
At the hearing; the right to equal time for a party to present its side of the case. The BZA must offer an equal amount of
time in a hearing on the case to the applicant and the staff of the local governing body. Virginia Code § 15.2-
2308(C).
Decision. If the BZA decides to grant a special use permit, it may impose such conditions relating to the use for
which a permit is granted as it may deem necessary in the public interest, including limiting the duration of a
permit, and may require a guarantee or bond to ensure that the conditions imposed are being and will continue
to be complied with. Virginia Code § 15.2-2309(6). See section 12-500 for a discussion of the minimal standards that must
guide the decision-making process; see section 12-600 for a discussion of conditions.
Time for the decision. The decision must be made within 90 days. Virginia Code § 15.2-2312. This time period is
directory, rather than mandatory, and the BZA does not lose its jurisdiction to act on a variance after the time
period has passed. See Tran v. Board of Zoning Appeals of Fairfax County, 260 Va. 654, 536 S.E.2d 913 (2000) (BZA
did not lose jurisdiction to decide appeal after 550-day delay).
Required vote. The concurring vote of a majority of the BZA’s members present and voting is necessary to grant a
special use permit. Virginia Code § 15.2-2308.
Findings to support the decision. Findings are not required unless they are required by the zoning ordinance. Newberry
Station Homeowners Association v. Board of Supervisors of Fairfax County, 285 Va. 604, 740 S.E.2d 548 (2013).
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12-500 Minimal standards must guide the decision-making process
A use allowed by special use permit is permitted “only after being submitted to governmental scrutiny in each
case, in order to insure compliance with standards designed to protect neighboring properties and the public.” Board
of Supervisors of Fairfax County v. Southland Corp., 224 Va. 514, 521, 297 S.E.2d 718, 721-722 (1982); Daniel v. Zoning
Appeals Board of Greene County, 30 Va. Cir. 312 (1993). An application for a special use permit must be examined by
public officials, and be guided by standards set forth in the zoning ordinance, to determine the impact the proposed
use will have if carried out on the property. Southland Corp., supra.
Special use permit regulations adopted pursuant to Virginia Code § 15.2-2286(A)(3) “need not include standards
concerning issuance of special use permits where local governing bodies are to exercise their legislative judgment or
discretion.” Jennings v. Board of Supervisors of Northumberland County, 281 Va. 511, 520, 708 S.E.2d 841, 846 (2011),
quoting Bollinger v. Board of Supervisors of Roanoke County, 217 Va. 185, 186, 227 S.E.2d 682, 683 (1976). Thus, in
Jennings, the Virginia Supreme Court upheld the county’s granting of “special exception permits” “subject to such
conditions as the governing body deems necessary to carry out the intent of this chapter.”
In Bollinger, the Court upheld the county’s granting of a conditional use permit for a landfill under a zoning
regulation that simply stated: “The location of commercial amusement parks, airports, borrow pits and sanitary fill
method garbage and refuse sites shall require a conditional use permit. These permits shall be subject to such
conditions as the governing body deems necessary to carry out the intent of this chapter.” In affirming the granting
of the permit, the Bollinger Court was persuaded by the thorough review conducted by the county, even though the
standard for granting the special use permit was broad, stating: “it appears the Board acted only after it had the
benefit of thorough studies, numerous tests, and after due deliberation on its part. These studies and tests revealed
that the land is suitable for landfill purposes. The terms and conditions imposed by the Board indicate that it was
well aware of the uses of surrounding land and the characteristics of the property involved.”
In Cole v. City Council of City of Waynesboro, 218 Va. 827, 832, 241 S.E.2d 765, 769 (1978), the city’s zoning
regulations allowed the city council to issue special use permits “whenever public necessity and convenience, general
welfare or good zoning practice justifies such special exception or use permits which may be granted by the council
adopting an ordinance granting the same after considering the recommendations of the city planning and zoning
commission.” In holding that a special use permit for a 151-unit apartment complex on a 3/4-acre parcel was
invalid, the Virginia Supreme Court said that the above-cited standards in the ordinance were “an open invitation for
a special exception to be granted without any consideration being given to certain basic principles of law applicable
in the zoning field. It permits a lack of adherence by City Council to a fundamental rule that zoning regulates the use
of land.” Cole, 281 Va. at 833, 241 S.E.2d at 769. The critical distinction between Jennings/Bollinger and Cole is that the
standard in Cole was stated in the disjunctive – the city council could consider “public necessity and convenience,
general welfare or good zoning practice.” In other words, the city council was not tied to the zoning statutes or good
zoning practice when it considered a special use permit, and this rendered the city’s regulations invalid.
At bottom, all that a zoning ordinance must provide is that the governing body’s consideration of a special use
permit be taken within the framework of the zoning statutes and the principles that apply to zoning. In granting a
special use permit, specific findings are not required unless mandated by the zoning ordinance. Newberry Station
Homeowners Association v. Board of Supervisors of Fairfax County, 285 Va. 604, 740 S.E.2d 548 (2013) (“While a zoning
ordinance must set forth standards under which applications for special exceptions are to be considered when local
governing bodies delegate that legislative power, the ordinance need not do so when the local governing body has
reserved the power unto itself”). Typical standards applicable to special use permits include consideration of: (1) the
impacts of the special use on the character of the district; (2) the impacts of the special use on the welfare of the
landowners and occupants of land in the district, see Bell v. City Council of City of Charlottesville, 224 Va. 490, 297 S.E.2d
810 (1982); and (3) consistency with the comprehensive plan. National Memorial Park, Inc. v. Board of Zoning Appeals of
Fairfax County, 232 Va. 89, 348 S.E.2d 248 (1986) (upholding denial of special use permit to operate crematory based
on the negative impact of the proposed use on neighboring properties and inconsistency with comprehensive plan).
Other factors that may be considered include: (1) the character of the property; (2) the general welfare of the public;
and (3) the economic development of the community. Bell, supra. These factors are also akin to those delineated in
Virginia Code §§ 15.2-2283 and 15.2-2284. See Laffoon v. Board of Zoning Appeals, 91 Va. Cir. 391 (2015) (invaliding the
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board of zoning appeals’ approval of a special exception pertaining to setbacks where the board failed to make the
required findings and, instead, based its decision on the fact that the city’s commission of architectural review had
approved the project; the zoning ordinance required that “the board shall be satisfied” that, among other things, “the
departure from the applicable yard and/or lot coverage requirements is the minimum necessary to accommodate the
intended purpose of the dwelling”) (italics in original).
If specific standards are adopted, deference should be given to the governing body in determining whether the
standards were considered when the action was taken. In Shenandoah Mobile Co. v. Frederick County Board of Supervisors,
83 Va. Cir. 113 (2011), the applicant challenged the board’s denial of a conditional use permit contending that the
board failed to give adequate consideration to the standards in the zoning ordinance. The circuit court rejected this
argument, noting that the motion maker “touched on” four of the six standards and that it knew “of no requirement
that each individual Board Member express the reasons for voting for or against the motion.” Shenandoah, 83 Va. Cir.
at 116. The court otherwise found substantial evidence in the record to support the board’s decision. Another circuit
court has held that the governing body is not required to make specific findings with respect to each and every
potentially relevant clause in the comprehensive plan, nor each and every clause of the purpose and intent section of
the zoning ordinance. Koehne v. Fairfax County Board of Zoning Appeals, 62 Va. Cir. 80 (2003) (county’s special use
permit regulations that the proposed special use be “in harmony with the adopted comprehensive plan” and “in
harmony with the general purpose and intent of the applicable zoning district regulations”). Part of that analysis will
depend on the language of the zoning ordinance.
As shown in Bollinger, the courts will look at the decision maker’s analysis of the facts and how they are applied
to the standards, even if the standards are broad as they were in Bollinger and Jennings. Compare to Mutter v. Washington
County Board of Supervisors, 29 Va. Cir. 394 (1992), where a circuit court concluded that a special use permit issued
without consideration to the locality’s comprehensive plan and whose justification was devoid of any meaningful
studies or analysis was unreasonable. In Mutter, the court concluded that the county’s approval of a solid waste
convenience station in an environmentally sensitive location with traffic safety issues was unreasonable, arbitrary and
capricious. The court noted that the board failed to consider the county’s comprehensive plan, conduct any site
testing, consult with various environmental and other state agencies, and failed to even consult with the county’s
landfill manager for his assessment of the suitability of the site.
Lastly, a proposed special use permit need not necessarily be granted merely because an applicant adheres to the
applicable zoning regulations. County Board of Arlington County v. Bratic, 237 Va. 221, 377 S.E.2d 368 (1989). Rather, a
special use is prohibited unless an applicant obtains a permit. Amoco Oil Co. v. Zoning Appeals Board of the City of
Fairfax, 30 Va. Cir. 159 (1993) (upholding the denial of special use permit because a number of the applicable special
use permit criteria were not met).
12-600 Impacts from special uses are addressed through conditions
If a special use permit is granted, the potential impacts are addressed through reasonable conditions. Byrum v.
Board of Supervisors of Orange County, 217 Va. 37, 225 S.E.2d 369 (1976). Under Virginia law, the conditions imposed
must bear a reasonable relationship to the legitimate land use concerns and problems generated by the use of the
property. Cupp v. Board of Supervisors of Fairfax County, 227 Va. 580, 318 S.E.2d 407 (1984). A special use permit may
not be denied indirectly by approving the special use permit but imposing unreasonable and impossible conditions
on its use. Byrum, supra; see also, Virginia Code § 15.2-2208.1. See section 10-540 for a discussion of Virginia Code § 15.2-
2208.1, which applies to both proffers and special use permit conditions.
A BZA is authorized to “impose such conditions relating to the use for which a permit is granted as it may
deem necessary in the public interest, including limiting the duration of a permit, and may require a guarantee or
bond to ensure that the conditions imposed are being and will continue to be complied with.” Virginia Code § 15.2-
2309(6).
12-610 Conditions imposed by the governing body are to address impacts and are not voluntary
Unlike proffers that accompany a rezoning considered by the locality’s governing body, special use permit
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conditions are not volunteered by the landowner and need not be developed through negotiation. Conditions may
be imposed as the governing body or the BZA determines to be appropriate as “suitable regulations and safeguards”
for special use permits. Virginia Code § 15.2-2286(A)(3). As explained by John H. Foote, Planning and Zoning,
Handbook of Local Government Law, § 1-10.03, p. 1-61, (2015), the phrase “suitable regulations and safeguards” is
“uniformly understood to mean that the locality may unilaterally impose reasonable conditions on the issuance of
such permits or exceptions, in contrast to proffers that must come voluntarily from the applicant.” See also Staples v.
Prince George County, 81 Va. Cir. 308, 320-321 (2010) (condition imposing 14-day limit stay rule on campground was
upheld because there is a reasonable basis to distinguish campgrounds from sites with permanent dwellings; a “local
governing body is permitted to impose involuntary conditions on the grant of a special exception”).
Special use permit conditions also may require administrative approvals by others. Fuentes v. Board of Supervisors of
Fairfax County, 2000 Va. Cir. LEXIS 130, 2000 WL 1210446 (2000) (conditions imposed that required Health
Department review and approval of a sewage treatment/disposal system and a groundwater monitoring system were
not unlawful delegations of legislative authority; the board was authorized to delegate these administrative functions
in a special use permit condition).
In connection with residential special use permits, if a landowner proposes affordable housing, any conditions
imposed must be consistent with the objective of providing affordable housing; when imposing conditions on
residential projects that specify the materials and methods of construction or specific design features, the governing
body must consider the impact of the conditions upon the affordability of housing. Virginia Code § 15.2-2286(A)(3).
Special use permit conditions pertaining to uses involving alcoholic beverages have been the subject of both
judicial review and additional legislation. In County of Chesterfield v. Windy Hill, Ltd., 263 Va. 197, 200, 559 S.E.2d 627,
628 (2002), the Virginia Supreme Court held that a condition in a special use permit stating “[n]o alcoholic beverages
shall be permitted” was not preempted by the Alcoholic Beverages Control Act (see Virginia Code § 4.1-128)
because it was a “valid zoning ordinance . . . regulat[ing] the location of an establishment selling . . . alcoholic
beverages,” as permitted by the Act. Similarly, in City of Norfolk v. Tiny House, 222 Va. 414, 281 S.E.2d 836 (1981), the
Court held that an ordinance requiring a special use permit for adult uses (such as sellers of alcohol and adult movie
theaters) within 1,000 feet of one another did not violate Virginia Code § 4.1-128. The governing bodies of the cities
of Norfolk and Richmond also are enabled under Virginia Code § 15.2-2286(A)(3) to impose other conditions on
retail alcoholic beverage control licensees. Norfolk may impose conditions providing that the special use permit will
automatically expire upon a change in the ownership, possession, management or operation of the property.
Richmond may impose conditions requiring automatic review of the permit upon a change of ownership or
possession of the property, or a transfer of majority control of the business, and may revoke the permit after notice
and a public hearing.
One recurring issue of interest is whether a governing body may impose limitations on the life of a special use
permit. BZAs have express authority to impose limitations on the life of a special use permit (Virginia Code § 15.2-
2309(6)), local governing bodies do not have such express authority. The governing body of the City of Norfolk is
enabled to impose a condition on any special use permit relating to retail alcoholic beverage control licensees which
provides that the permit will automatically expire upon the passage of a specific period of time. Virginia Code § 15.2-
2286(A)(3). No similar express authority exists for other governing bodies for general purposes, and a number of
localities have accordingly concluded that they do not have implied authority to impose such a condition. Some
localities conclude otherwise. Under a Dillon Rule analysis, governing bodies are enabled to grant special use permits
under “suitable regulations and safeguards.” Virginia Code § 15.2-2286(A)(3). The General Assembly has not directed
how or what those suitable regulations and safeguards must be. Therefore, if a time limitation (or the authority in
the zoning ordinance to impose such a condition) is reasonable, the condition should be considered to be within a
governing body’s authority. An alternative solution to this question is to obtain the agreement of the applicant for
such a condition. See Board of Supervisors of Prince William County v. Sie-Gray Developers, Inc., 230 Va. 24, 334 S.E.2d 542
(1985) (subdivider may voluntarily agree to make improvements to existing access roads and will be bound to that
agreement, even if the county did not have the authority to otherwise require such improvements as a condition of
subdivision approval).
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12-620 Conditions must be reasonably and proportionally related to the impacts resulting from the use
When a locality seeks the dedication of land or other property (such as fees) as a condition of a land use
approval, such as a condition to a special use permit, it must be certain that these conditions of approval: (1) have a
nexus that is related to the impact of the proposed development; and (2) are roughly proportional to the extent of
the impact. Koontz v. St. Johns River Water Management District, 570 U.S. ___, 133 S. Ct. 2586 (2013); Nollan v. California
Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141 (1987); Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309 (1994);
see also Virginia Code § 15.2-2208.1 (creating monetary remedy for imposition of unconstitutional conditions).
If this two-pronged test is not satisfied, the locality has imposed an unconstitutional exaction. This principle
applies even when the locality denies the permit because the applicant is unwilling to agree to or accept such a
condition. Koontz, supra. See section 6-440 for further discussion of exactions.
12-630 Developing condition language
Special use permit conditions typically originate from the locality’s staff. Following are some suggestions for
writing, reviewing, and revising proposed conditions:
State each condition clearly: Each condition should be a declaratory statement, using clear and concise language as to
what must be performed, when it must be performed, when it must be completed, and, if applicable, how it
must be performed.
Write each condition with the dignity of a zoning regulation: A condition becomes part of the zoning regulations
applicable to the property. Therefore, it should be written with the dignity of a zoning regulation, using
terminology found in the zoning ordinance.
Select words carefully: The words in a condition must be carefully selected. Use the word “shall” rather than
“should” or “may.” If a condition requires that the owner cannot proceed until the county engineer approves a
plan, the condition needs to state that “the owner shall obtain approval of the plan from the county engineer
before . . .,” rather than stating that the owner “shall submit a plan.” Never use “etc.” in a condition.
Consistently use the same word to refer to the same person, place or thing: A person, place or thing always should be
described or identified by the same word.
Use complete sentences: Conditions should be written in complete sentences.
Ensure that each condition is comprehensive: A condition should be written in comprehensive language that addresses
the reasonably foreseeable issues that may arise from the condition.
Ensure that each condition imposes standards that are enforceable: Every condition must be reviewed by the zoning
administrator’s office to ensure that the condition imposes standards that are enforceable. Part of the issue of
enforceability pertains to the clarity of the language used, but the other part pertains to whether the language
actually imposes a standard that can be enforced. Because the zoning administrator will have the task of
enforcing the conditions, be certain that the zoning administrator has the opportunity to provide comments as
to not only the language, but the subject matter (e.g., a condition that restricts a restaurant use to between the
hours of 5:00 a.m. and 1:00 a.m. may require a zoning inspector to be in the field between 1:00 a.m. and 5:00
a.m. if the hours of operation become an enforcement issue).
Be careful not to make the condition too specific: In providing clarity, conditions can become too specific so that they
become overly restrictive. Examples of being too specific include referring to the applicant by name (because
the special use permit runs with the land), providing a specific measurement for height, distance, or something
similar in an absolute when you intend to establish a minimum or a maximum.
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Ensure that each condition imposes only requirements that address identified impacts: Conditions may only address impacts
resulting from the use. Ensure that the conditions do not modify, waive, substitute or relax otherwise applicable
zoning regulations.
Use similar language for similar situations: The locality’s staff should propose language that is similar to language
previously approved for a similar type of condition.
Be certain that the time of performance is clearly stated: Be certain that the language clearly states when the owner must
do the promised or required acts.
Ensure that the conditions are well-organized: Ensure that the conditions are well-organized by having conditions that
are related to one another located next to one another.
Ensure that the conditions do not impose, or would not be perceived to impose, an obligation on the locality, VDOT, or any other
public entity: Conditions address impacts from a special use and they should be drafted so as not to impose, or be
perceived to impose, an obligation on the locality, VDOT, or any other public entity. This problem often arises
in the context of establishing the timing for performance. For example, a condition stating that the “final site
plan shall be approved by the site plan agent prior to commencing the use” could be read to mean that the
director must approve the site plan. Alternative wording to address this issue would be, for example, “The
applicant is required to obtain approval of the final site plan by the site plan agent prior to commencing the
use.”
Consider requiring that conditions be satisfied before the application for a needed approval is submitted: When a permittee
requires additional approvals in the process, such as a site plan, there may be some conditions where it is best to
require that a condition be satisfied before the permittee even applies for the site plan rather than some later
point in the process, such as prior to issuance of a certificate of occupancy.
Be certain that referenced documents are properly identified: References to plats or plans should identify the title, last
revision, and the entity preparing the plat or plan. References to ordinances should be identified by section
number and include language such as “as the section was in effect on [date of special use permit].” References
to letters, memos, staff reports, and similar documents should clearly identify the recipient, the author, and the
date.
12-640 Ensure that the conditions make sense
Once a condition has been put to writing, the locality’s staff must make certain that it is understandable,
unambiguous, and enforceable:
Review draft conditions with a critical eye: The locality’s planner must ignore his or her insider’s understanding of the
application and put himself in the position of a reader who knows nothing about the project and: (1) ask
whether the proposed conditions are clear, concise, and comprehensive in a way that a future reader will easily
understand; (2) drop all assumptions and preconceived notions and be critical; (3) identify the ambiguities and
eliminate them; (4) identify all superfluous text and eliminate in; and (5) ask whether each condition would make
sense to somebody ten years from now.
Have a peer review the conditions: The planner should ask others not directly involved with the application to review
the conditions. It is important to have someone without an insider’s knowledge of the application to see if he or
she can understand the conditions and identify ambiguities.
All appropriate departments review the conditions: The planner must ensure that all departments and the locality’s
attorney review and comment on the conditions. Because the zoning administrator will have the task of
enforcing the conditions, be certain that the zoning administrator has the opportunity to provide comments as
to not only the language, but the subject matter (e.g., a condition that restricts a restaurant use to between the
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hours of 5:00 a.m. and 1:00 a.m. may require a zoning inspector to be in the field between 1:00 a.m. and 5:00
a.m. if the hours of operation become an enforcement issue).
Attach copies of referenced regulations: Zoning regulations referenced in a condition should be attached so that there
is no question about the identified regulation.
12-700 Consideration of a special use permit application; reasonable and unreasonable grounds on which
to base a decision
A decision on an application for a special use permit is a legislative act and, as such, the governing body or the
BZA has wide latitude in making a decision. The cases discussed below discuss reasonable and unreasonable
grounds on which to base a decision.
12-710 Reasonable grounds to deny a special use permit
The decision to deny a special use permit is reasonable if the landowner fails to meet all of the requirements of
the zoning ordinance for the granting of a permit. County of Lancaster v. Cowardin, 239 Va. 522, 391 S.E.2d 267 (1990),
discussed below. Adverse impacts on the character of the neighborhood resulting from a proposed use are a common
reason to deny a special use permit. County Board of Arlington County v. Bratic, 237 Va. 221, 377 S.E.2d 368 (1989),
discussed below. Even if the landowner satisfies all of the technical requirements for the issuance of the special use
permit, the decision-making body nonetheless retains discretion to approve or deny the permit. Bratic, supra. A
special use permit also may be denied because the proposed use is inconsistent with the comprehensive plan.
National Memorial Park, Inc. v. Board of Zoning Appeals of Fairfax County, 232 Va. 89, 348 S.E.2d 248 (1986). The
decision-maker also should consider the factors delineated in Virginia Code § 15.2-2284.
In Board of Supervisors of Rockingham County v. Stickley, 263 Va. 1, 556 S.E.2d 748 (2002), the board of supervisors
denied a special use permit that would have allowed the applicant to raise and release game birds on his farm. The
board was concerned about the risk posed by these birds carrying contagious diseases and transmitting them to
poultry. In what boiled down to a battle of conflicting expert witnesses, the Virginia Supreme Court held that the
board’s denial of the special use permit was proper because its evidence demonstrated a “significant risk” to poultry
from the release of pen-raised game birds, and that this evidence was amply sufficient to make that issue fairly
debatable.
In Board of Supervisors of Fairfax County v. Robertson, 266 Va. 525, 587 S.E.2d 570 (2003), the board of supervisors
denied a special exception that would have allowed the applicant to construct three houses within a 200-foot setback
on his property. The applicant was required to submit a study addressing projected noise levels or projected traffic.
The purpose for the study was to identify impacts and how to address them. The applicant’s acoustical engineer
based his conclusions on a noise study performed in 1997, but the study failed to address projected (future) noise
levels. As a result, the applicant’s proposed conditions failed to include measures to reduce exterior noise on the
property. The county’s acoustical engineer analyzed future noise levels and concluded that on some parts of the
applicant’s property, future noise levels would exceed those provided in the comprehensive plan by 2010. Not
surprisingly, the Virginia Supreme Court found sufficient evidence of reasonableness to make the board’s denial of
the special use permit fairly debatable.
Five Reasonable Grounds to Deny a Special Use Permit
The landowner fails to meet all of the requirements for the granting of the permit; even if all of the requirements
satisfied, the decision-maker retains authority to deny the permit if sound zoning principles justify the decision.
The proposed use is inconsistent with the comprehensive plan.
The proposed use would have adverse impacts on the character of the neighborhood.
The proposed use would have adverse impacts on roads or create a hazardous traffic situation.
The proposed use would have an adverse impact on the abutting property.
In Cowardin, one of the county’s prerequisites to obtaining a special use permit for two boathouses was the
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issuance of a certificate of occupancy for the structures. Since the certificates had not been issued, the Virginia
Supreme Court concluded that the board had established a reasonable basis to justify its denial of the permit.
In Bratic, the landowner claimed that he had satisfied all of the technical requirements for the granting of a
special use permit to allow a two-family dwelling on his property and, therefore, the county board could not deny his
application. The Virginia Supreme Court rejected this argument, stating that a governing body “is not stripped of all
discretion in the issuance of a use permit merely upon a showing that the technical requirements of a zoning
ordinance have been met.” Bratic, 237 Va. at 226, 377 S.E.2d at 370 (1989). In reaching that decision, the Court
emphasized the legislative nature of special use permits. The Court found that even if the county’s technical
requirements were satisfied, the board’s denial was supported by probative evidence that the area in question in the
interior of a neighborhood was predominantly single family, though there was a mix of single family, two-family,
triplexes, and even commercial, on the edge. The board’s evidence also explained that the area in question was
“fragile,” meaning that it was subject to change, because of requests for two-family dwellings.
In CAH Holdings LLC v. City Council of the City of Chesapeake, 89 Va. Cir. 389 (2014), the trial court upheld the city
council’s denial of a conditional use permit for a car wash even though the city’s planning staff and planning
commission recommended approval, and the applicant’s noise expert stated that the car wash could comply with the
city’s noise regulations. The trial court held that the city council based its decision on the conclusion that the
proposed use was incompatible with the nearby residential neighborhoods.
In Gittins v. Board of Zoning Appeals, 55 Va. Cir. 495 (2000), a neighbor’s testimony that a proposed playground
structure was an “eyesore” that detracted from the value of her property, and that a realtor had told her that the
existence of the structure would affect the marketability of her home, was sufficient for the circuit court to sustain
the BZA’s denial of a special use permit. In order to grant the permit, the BZA would have had to find that the
structure would have had no detrimental impact on other properties in the immediate vicinity.
In In re Hurley, 2001 Va. Cir. LEXIS 64, 2001 WL 543793 (2001), the circuit court held that the BZA properly
denied the applicants’ special use permit for a home business on the ground that the proposed use would be
disruptive to a low density residential neighborhood. The home business was a commercial label-printing business
with six employees that produced between 100,000 and 500,000 mailing labels per day on 30 computers. The court
held that the BZA properly determined that the home business did not meet the requirements for a special use
permit, including the requirement that the use not “constitute sufficient non-residential activity as might modify or
disrupt the predominantly residential character of the area.”
Adverse impacts on roads resulting from the proposed use also may be a reasonable basis to deny a special use
permit. In Freezeland Orchard Co. v. Warren County, 61 Va. Cir. 548 (2001), the circuit court upheld the board of
supervisors’ denial of a special use permit. The circuit court held that the fact that the applicant obtained VDOT
approval of its entrances onto a public road did not preclude the board from exercising its legislative judgment in
determining that the proposed use of the road would be “hazardous or in conflict with the existing and anticipated
traffic in the area,” one of its criteria for evaluating special use permits. The court noted that the board received
extensive public input at the public hearings. Similarly, in Heater v. Warren County Board of Supervisors, 59 Va. Cir. 487
(1995), the circuit court upheld the board of supervisors’ denial of a special use permit for a small subdivision in an
agricultural zoning district on the ground that the proposed use would be hazardous or in conflict with the existing
and anticipated traffic in the area. The fact that the applicant had obtained VDOT approval for the proposed
entrances onto a public street because they met the minimum standards for sight distance did not preclude the
board from exercising its legislative judgment.
12-720 Unreasonable grounds to deny a special use permit
The denial of a special use permit will be reversed if the governing body or BZA ignores its standards and then
fails to present any evidence to justify its decision. In Daniel v. Zoning Appeals Board of Greene County, 30 Va. Cir. 312
(1993), the circuit court reversed the BZA’s denial of a special use permit for a mobile home park where the
applicant produced evidence that the county’s applicable standards were satisfied and the county presented virtually
no evidence and failed to demonstrate that the BZA’s decision was consistent with the applicable standards.
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Apparently, the only “evidence” to support the BZA’s decision was the opposition of the citizens, but the court said
that although the opponents “may be justified in their fears, . . . angry complaints and vague concerns cannot,
standing alone, be enough. The [BZA] must be able to point to some evidence of its own to confront [the
applicant’s] uncontroverted presentation.”
The denial of a special use permit is arbitrary if the decision is not related to any zoning interest, but is instead
motivated principally by the heavy opposition of neighbors expressing concerns not related to any zoning interest.
See, e.g., Marks v. City of Chesapeake, 883 F.2d 308 (4th Cir. 1989) (where city council denied permit to allow palmistry
and fortune telling solely to placate neighborhood opposition, which was based on religious and moral grounds,
rather than zoning grounds, its decision was arbitrary).
12-730 The claim of discrimination based on prior approvals
If it is shown that the standards are being applied in an inconsistent and discriminatory manner, a court may
find that the denial of a special use permit does not have a rational basis. Board of Supervisors of Fairfax County v.
McDonald’s Corporation, 261 Va. 583, 544 S.E.2d 334 (2001). However, the Virginia Supreme Court has rarely found a
rational basis to be lacking. Because special use permits are evaluated on a case-by-case basis and the facts in each
case are unique, the bar for a party challenging a decision to establish that a decision lacks a rational basis is high. See
section 6-300 for a discussion of the equal protection clause.
In EMAC, LLC v. County of Hanover, 291 Va. 13, 781 S.E.2d 181 (2016), EMAC, the owner of land that would
be part of a proposed development, challenged the board of supervisors’ denial of the extension of a conditional use
permit for a sign along Interstate 95 at the southern end of a proposed outlet mall on its property, but extended the
portion of the same conditional use permit for a sign on a separate parcel owned by another developer (Northlake)
at the northern end of the proposed outlet mall. EMAC claimed that the denial was discriminatory. The Virginia
Supreme Court rejected EMAC’s claims because EMAC and Northlake were not similarly situated since: (1)
Northlake was an applicant for the conditional use permit but EMAC was not, even though EMAC was a
landowner on which one of the signs would be located; (2) the county code required that an application for a
conditional use permit include permission from the owner to the county to allow county representatives to enter its
land to inspect, which EMAC, not being the applicant, never granted and, as a result, the conditional use permit was
void ab initio as to the southern sign that was to be on EMAC’s property; and (3) unlike Northlake, EMAC did not
have an agreement with the outlet mall developer to operate the sign on its property.
In McDonald’s, the restaurant sought a special use permit to allow a drive-through window; the board had
granted special use permits for drive-through windows at other businesses in the area. Nevertheless, the Virginia
Supreme Court concluded that there was a rational basis for the board to deny McDonald’s permit because: (1) the
McDonald’s property was much smaller than the other properties; (2) the McDonald’s property was a single-use site;
the other properties were in shopping centers; (3) the McDonald’s property was directly accessed from public roads;
the other properties were not; (4) the McDonald’s property had a single access; the other properties had multiple
access points; (5) the access point on the McDonald’s property was much closer to an intersection than the access
points on the other properties; and (6) the estimated vehicle trips per day were much higher on the McDonald’s
property.
In County of Lancaster v. Cowardin, 239 Va. 522, 391 S.E.2d 267 (1990), the board denied special use permits for
two boathouses. One of the landowners claimed that the denial of his permit was discriminatory because the board
had approved a permit for a boathouse for a neighbor several months earlier. The Virginia Supreme Court rejected
this argument, noting that a “claim of discrimination cannot prevail if there is a rational basis for the action alleged
to be discriminatory.” The Court found a rational basis for the board’s decision, stating that the board could
properly consider the effect of boathouses on local waters and distinguish the landowner’s request from that of his
neighbors because the neighbor’s boathouse was on a different body of water and that there were no boathouses on
the body of water that this landowner sought to establish his boathouse.
In County Board of Arlington County v. Bratic, 237 Va. 221, 377 S.E.2d 368 (1989), the board denied a special use
permit to establish a two-family dwelling. The landowner claimed that the denial of the permit was discriminatory
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because the governing body had previously granted permits for two-family dwellings in situations “similar” to the
landowner’s case. The Virginia Supreme Court rejected this argument, first noting that a claim of unlawful
discrimination cannot prevail if there is a rational basis for the decision and finding a rational basis in that case in the
board’s “effort to preserve the single-family character of the interior of the Neighborhood.”
In Hopkins v. Council of the City of Norfolk, 2014 WL 8187041, the petitioner challenged the city council’s decision
denying his application for a special exception that would have allowed him to re-establish an apartment use for his
8-unit building that had, over the years, become nonconforming. If allowed by special exception, the petitioner’s
building would be subject to new development standards. Although the city council had recently approved two
special exceptions for other nonconforming apartment buildings, the circuit court concluded that the city council’s
denial of the special exception in this case was fairly debatable and not discriminatory. The key distinction between
the petitioner’s application and those of the two special exceptions that were approved was that the two special
exceptions approved reduced the density otherwise allowed, where the petitioner’s application would not have
reduced the density.
12-740 Reasonable grounds to approve a special use permit
A review of the Virginia case law reveals that very few approved special use permits have been challenged. In
Campbell v. Fairfax County Zoning Appeals Board, 41 Va. Cir. 155 (1996), one of the requirements at issue for a special
use permit to allow a club to establish a swimming pool and increase its size and boat slips was whether the club’s
membership was “limited to residents of nearby residential areas.” Both the objecting neighbors and the county
presented evidence of the makeup of the club’s membership, and the court concluded that because there was no
established definition of “nearby residential areas,” the meaning of the term was fairly debatable and the BZA’s
approval of the special use permit was upheld.
12-750 Unreasonable grounds to approve a special use permit
Of course, a governing body cannot approve a special use permit if the underlying zoning district regulations do
not authorize the proposed use.
In Northampton County Board of Zoning Appeals v. Eastern Shore Development Corporation, 277 Va. 198, 671 S.E.2d 160
(2009), the board granted a special use permit for a condominium development and, under the zoning ordinance,
“Condominium-type ownership (VA Code)” was allowed by special use permit. The zoning administrator
disapproved the site plan because the landowner proposed apartment buildings, a prohibited use in the zoning
district. The BZA affirmed. The landowner argued that the special use permit for the “condominium” use referred
to multiple unit structures such as apartment buildings. The Court analyzed the district regulations and rejected the
landowner’s argument, finding that the purpose of the zoning district was to limit residential density and that various
prohibited classifications, which included apartment buildings, referred to the physical structure of buildings. By
contrast, the special use that allowed “Condominium-type ownership (VA Code)” applied to the legal form of land
tenure to be adopted. Thus, the Court concluded that the board of supervisors could not have granted a special use
permit that would allow apartment buildings, stating: “Although the board of supervisors might have amended the
zoning ordinance after following the proper procedure, it was not at liberty to disregard it. Acts of a local governing
body that are in conflict with its own ordinances exceed its statutory authority and are void and of no effect. Thus,
the County’s granting of a special use permit was not effective to alter the provisions of the zoning ordinance.”
Northampton, 277 Va. at 203, 671 S.E.2d at 163. In other words, the county’s and the BZA’s interpretation of the
zoning ordinance was correct – the special use permit granted by the board of supervisors allowed “Condominium-
type ownership (VA Code),” not apartment buildings, because the board did not have the authority under its own
regulations to grant a special use permit for apartment buildings.
In Bennett v. Nelson County Board of Supervisors, 75 Va. Cir. 474 (2004), the board approved a conditional use permit
for a vegetative rubbish recycling facility to allow the grinding of stumps by a stump-grinding machine on property
in an agricultural zoning district. The staff report noted that the proposed use was contrary to the comprehensive
plan and that it was “an industrial use and is not permitted by right or by a conditional/special use permit” in the
district. Nonetheless, the board granted the permit. Not surprisingly, the court found that the board’s action was
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invalid, explaining that not only was the use not allowed by permit, but also that the use would create noise, smoke,
particulate matter, and the possibility of spontaneous combustion that was incompatible with the surrounding
residential and business properties, and that the proposed industrial use in an agricultural district was surround be
single-family residential properties, multi-family residential properties, businesses and a resort. The court concluded
by stating that “[r]easonable minds cannot differ that this is inappropriate.”
In Laffoon v. Board of Zoning Appeals, 91 Va. Cir. 391 (2015), the trial court invalidated the BZA’s approval of a
special exception pertaining to setbacks because the board failed to make the required findings. The zoning
ordinance required that “the board shall be satisfied” that, among other things, “the departure from the applicable yard
and/or lot coverage requirements is the minimum necessary to accommodate the intended purpose of the dwelling”)
(italics in original). Rather than adhere to the standard in the zoning ordinance, the BZA based its decision on the
fact that the city’s commission of architectural review had approved the project.
12-800 Appeals of decisions to the circuit court
Decisions to grant or deny a special use permit may be appealed to the circuit court.
12-810 Timeliness, standing, and compliance with applicable zoning regulations
A person aggrieved by a decision of the governing body may appeal the decision to the circuit court within 30
days. Virginia Code § 15.2-2285(F). A person aggrieved by a decision of the BZA, or any aggrieved taxpayer or any
officer, department, board or bureau of the locality, may appeal the BZA’s decision to the circuit court by filing a
petition for writ of certiorari within 30 days. Virginia Code § 15.2-2314.
Persons challenging a decision as a person aggrieved must allege that they are aggrieved within the meaning of
the Virginia Supreme Court’s decision in Friends of the Rappahannock v. Caroline County, 286 Va. 38, 743 S.E.2d 142
(2013).
Once timeliness and standing are addressed, the next issue is whether the decision was made in compliance with
the applicable zoning regulations. If the decision was made in violation of the zoning regulations (e.g., there was an
express prerequisite for eligibility to obtain the permit, such as having a specific pre-existing underlying zoning
designation), the action will be found to be arbitrary and capricious and not fairly debatable, thereby rendering the
decision void and of no effect. Newberry Station Homeowners Association v. Board of Supervisors of Fairfax County, 285 Va.
604, 740 S.E.2d 548 (2013), quoting Renkey v. County Board of Arlington County, 272 Va. 369, 376, 634 S.E.2d 352, 356
(2006).
12-820 Evaluating a special use permit decision under the fairly debatable test
If it is shown that the decision was made in compliance with the applicable zoning regulations, the decision to
grant or deny a special use permit is valid if the decision is reasonable, i.e., whether there is any evidence in the record
sufficiently probative to make a fairly debatable issue of the decision to approve or deny a special use permit.
Newberry Station Homeowners Association v. Board of Supervisors of Fairfax County, 285 Va. 604, 740 S.E.2d 548 (2013)
(upholding approval of a special exception for a transit authority bus maintenance facility even though, among other
arguments, the applicant failed to submit a list of hazardous or toxic substances as required by the county’s
application requirements; the zoning regulations did not require the board to consider hazardous or toxic substances
when considering a special exception); Board of Supervisors of Rockingham County v. Stickley, 263 Va. 1, 556 S.E.2d 748
(2002) (upholding denial of special use permit), followed in Board of Supervisors of Fairfax County v. Robertson, 266 Va.
525, 587 S.E.2d 570 (2003) (upholding denial of special exception); CAH Holdings LLC v. City Council of the City of
Chesapeake, 89 Va. Cir. 389 (2014) (upholding denial of conditional use permit for a car wash even though the city’s
planning staff and planning commission recommended approval, and the applicant’s noise expert stated that the car
wash could comply with the city’s noise regulations, where the city council based its decision on the conclusion that
the proposed use was incompatible with the nearby residential neighborhoods). This standard applies even if an
applicant has produced evidence that a denial was unreasonable. Robertson, supra.
12-15
The Albemarle County Land Use Law Handbook
Kamptner/June 2017
As applied to a denied special use permit, the courts will assume that the request for the special use permit is an
appropriate use of the property and that the denial of the application is probative evidence of unreasonableness.
Board of Supervisors of Fairfax County v. Robertson, 266 Va. 525, 587 S.E.2d 570 (2003); County of Lancaster v. Cowardin, 239
Va. 522, 391 S.E.2d 267 (1990); County Board of Arlington County v. Bratic, 237 Va. 221, 377 S.E.2d 368 (1989). At that
point, “the dispositive inquiry is whether the [locality] produced sufficient evidence of reasonableness” to make the
governing body’s denial of the permit fairly debatable. Robertson, 266 Va. at 533-534, 587 S.E.2d at 576; Cowardin,
supra; Bratic, supra.
The fairly debatable test should be relatively easy to satisfy since the determination is not whether the applicant
or the locality had more evidence supporting its position, but simply whether the locality’s decision was based on
probative evidence. It is critical, therefore, that the legislative record contain evidence supporting the decision, and that
the decision be based on probative evidence rather than opinion, fears, desires, speculation or conjecture.
STAFF REPORT
PETITIONER: Giacomo Montuori PREPARED BY: Nathaniel McClung
CASE NUMBER: 20-001 DATE: November 6, 2020
Application Information
Request: Special Use Permit: Commercial Indoor Amusement Use (Arcade)
Owner: T & J Investments of Roanoke Inc.
Applicant: Giacomo Montuori - Authorized Agent
Site Address/Location: 700 Hardy Road
Tax Parcel ID #: 060.20-05-64.00-0000
Lot Area: 0.62 AC (27,007 sq. ft.)
Zoning: GB General Business
Existing Land Use: Currently vacant; previous use was a dry-cleaning establishment
Proposed Land Use: Arcade use and an ice-cream and coffee shop within the same space.
Specified Future Land Use: General Commercial
A. NATURE OF REQUEST
Mr. Giacomo Montuori, an authorized agent for T & J Investments of Roanoke, Inc., requests a special
use permit (SUP) for a proposed commercial indoor amusement use, which is a use permitted by SUP, in
the GB General Business district, subject to the approval of the town council. In conjunction with the
amusement use, the space will also be used for an ice-cream and coffee shop.
B. APPLICABLE REGULATIONS
Article IV, District Regulations, of Appendix B, Zoning, of the Town Code
Division 6, GB General Business District
The intent of the GB general business district is to accommodate a wide range of retail and service uses
which serve the community as a whole or cater to the traveling public. The district is intended to be applied
along primary traffic routes and to areas having direct access to such routes, in order to provide safe and
efficient access while avoiding the routing of traffic onto minor streets or through residential areas. The
district regulations are designed to afford flexibility in permitted uses of individual sites in order to
promote business opportunities, economic development and the provision of services. The district
regulations are also designed to provide for harmonious development and compatibility with adjacent
residential areas.
§ 4-34 (b), Special Uses. The following uses and structures are permitted in the GB general business
district, subject to approval of a special use permit by the town council as set forth in article VII of this
appendix:
(1) Commercial indoor amusement uses, including game rooms, billiard and pool halls, and video
arcades. Establishments which provide multiple coin operated amusement or entertainment
devices or machines, which would include pinball machines, video games, and other games of skill
or scoring, and would include pool and/or billiard tables, whether or not they are coin operated.
C. ANALYSIS OF EXISTING CONDITIONS
Background – Historically, the vacant building had previously been used as a dry-cleaning establishment.
In 2016, site plans for 700 and 708 Hardy Road were approved for a drive-thru facility that would serve
the proposed conversion of the vacant building (700 Hardy Road) into an ice-cream and coffee shop. The
site plan was officially approved on September 16, 2016, and approved site plans are valid for up to five
(5) years from the date of approval.
Since the previous approval of this site plan, which was exclusively for the drive-thru and ice-cream/coffee
shop, the New York Pizza restaurant, represented by Mr. Giacomo Montuori, is now intending to
incorporate a new use into this existing structure that would include a family-friendly arcade. In the Vinton
Zoning Ordinance, an arcade use falls under the classification of a “commercial indoor amusement use.”
The Ordinance definition for this use states that it is “a building, [or] portion of a building or area outside
of a building, where four or more video game machines, pinball machines, pool or billiard tables or other
similar player-operated amusement devices or any combination of four or more such devices are
maintained for use by the public.”
In addition to this use requiring a special use permit from the Vinton Town Council, per the Roanoke
County/Town of Vinton Building Commissioner, Morgan Yates, a change-of-use would be required in
order to meet the requirements of the Virginia Uniform Statewide Building Code. Specifically, in terms
of intended uses, it will need to go through the change-of-use process to allow for a mixed classification
for both the A-2 group (coffee shop/ice-cream shop) and A-3 group (amusement/arcade use). The building
will need to be reviewed by a Registered Design Professional (RDP) to ensure it meets the requirements
for each of these use types and approved by the Roanoke County/ Town of Vinton Building
Commissioner.
Location – 700 Hardy Road, Lot A, Line Adj. for T & J Inv. & Montuori.
Topography/Vegetation – The existing structure is located on a level lot that is comprised mostly of
impervious surfaces.
Adjacent Zoning and Land Uses – The land uses within the vicinity of the subject property are summarized
below.
Direction from Property Zoning District Land Use
D. ANALYSIS OF PROPOSED DEVELOPMENT
Site Layout/Architecture - The current property comprises of a vacant building and parking areas that are
utilized for the restaurant located at 708 Hardy Road. The structure was constructed in approximately
1972, and has an estimated finished floor area of 3,200 square feet. It is a commercial style building with
a façade/roof that are comprised of similar materials and match the architectural style of the existing
restaurant structure to the east.
Site Access – The parcel can currently be accessed via three (3) commercial entrances that accommodate
for both ingress and egress. The parcel’s existing parking lot is contiguous with other parking areas to the
east and extends to another restaurant establishment (Burger King) on a neighboring property which has
an entrance that is controlled by a traffic light.
Utilities – Public water and sewer services are available for the existing structure.
E. COMPREHENSIVE PLAN/FUTURE LAND USE
The 2004 – 2024 Town Comprehensive Plan designates this property and the surrounding properties as a
General Commercial land use area.
F. STAFF CONCLUSION
The proposed use, as indicated in the special use permit application, is consistent with the general
characteristics of the Hardy Road corridor and the intent of the GB General Business District. Staff would
like to state that, with a special use permit request, the Planning Commission and Town Council are given
the opportunity to review the proposed request and impose such conditions as reasonably necessary to
ensure the use will be compatible with the surrounding area and consistent with the purposes of the Zoning
Ordinance.
November 6, 2020
Mr. Giacomo Montuori
708 Hardy Road
Vinton, VA 24179
Dear Mr. Montuori:
Please be advised that the Town of Vinton has received your petition for a Special Use Permit (SUP) to
operate a commercial indoor amusement use (arcade), located at 700 Hardy Road, Vinton, Virginia, tax
map number 060.20-05-64.00-0000, zoned GB General Business District.
The Planning Commission will hold a public hearing on Thursday, November 19, 2020, at 7:00 p.m.,
to receive public comments on the SUP request and make a recommendation to the Town Council. The
Town Council will consider the Planning Commission’s recommendation, receive public comments, and
make a final decision to either approve or deny the SUP request on Tuesday, December 1, 2020, at 7:00
p.m.
Prior to the Planning Commission public hearing on Thursday, November 19, 2020, the Planning
Commission will hold a work session at 6:30 p.m. The Commissioners will be briefed on your SUP request
during this work session. You are not required to attend the work session, but may attend to observe if
you wish to do so. In light of the ongoing COVID-19 emergency, participation in the work session and
public hearings by Planning Commission members, Council members, staff, and the public will be
available through electronic or other alternative means. Please note that you must register in advance
to participate. If you would like to participate virtually in both the work session and the public hearing(s),
please register in advance by calling the Town Clerk’s Office at 540-983-0607 or by sending an email to
sjohnson@vintonva.gov by 12 Noon on Wednesday, November 18, 2020, for the Planning Commission
public hearing, and/or by noon on Monday, November 30, 2020, for the Town Council public hearing.
Please give me a call at 540-983-0605 should you need further information concerning this notification.
Sincerely,
Anita J. McMillan
Planning and Zoning Director
c: Richard W. Peters, Acting Town Manager
Susan Johnson, Town Clerk
Planning and Zoning Department
311 S. Pollard Street Vinton, VA 24179 Phone (540) 983-0605 Fax (540) 983-0621
November 6, 2020
First Class Mail
Dear Property Owner:
Pursuant to the provisions of Section 15.2-2204 of the 1950 Code of Virginia, as amended, the Town of
Vinton, Virginia, hereby gives notice of the following public hearings: Planning Commission public
hearing to be held on Thursday, November 19, 2020, at 7:00 p.m., and Town Council public hearing
to be held on Tuesday, December 1, 2020, at 7:00 p.m. The Planning Commission will also hold a
work session on Thursday, November 19, 2020, at 6:30 p.m., or shortly thereafter. The purpose of the
public hearings is to receive comments concerning:
Petition of Giacomo Montuori, an authorized agent, for a Special Use Permit
(SUP) for a proposed commercial indoor amusement use, located at 700 Hardy
Road, Vinton, Virginia, tax map number 060.20-05-64.00-0000, zoned GB General
Business District.
In light of the ongoing COVID-19 emergency, participation in the work session and public hearings by
Planning Commission members, Council members, staff, and the public will be available through
electronic or other alternative means. Please note that you must register in advance to participate. If
you would like to participate virtually in both the work session and the public hearing(s), please register
in advance by calling the Town Clerk’s Office at 540-983-0607 or by sending an email to
sjohnson@vintonva.gov by 12 Noon on Wednesday, November 18, 2020, for the Planning Commission
public hearing, and/or by noon on Monday, November 30, 2020, for the Town Council public hearing.
Further information concerning this issue may be obtained in the Planning Department located at 311
South Pollard Street, Vinton, Virginia 24179, (540) 983-0605. Interested persons may be heard at each
of the above public hearings.
Given under my hand this 6th day of November, 2020.
Anita J. McMillan
Planning and Zoning Director
Secretary, Vinton Planning Commission
Planning and Zoning Department
311 S. Pollard Street Vinton, VA 24179 Phone (540) 983-0605 Fax (540) 983-0621
Property Owners Notified by First Class Mail for 11/19/2020
060.20-05-30 626 Spruce St T & J INVESTMENTS OF ROANOKE INC 616 CAMILLA AVE ROANOKE VA 24014
060.20-05-31 622 Spruce St T & J INVESTMENTS OF ROANOKE INC 616 CAMILLA AVE ROANOKE VA 24014
060.20-05-32 0 Spruce St T & J INVESTMENTS OF ROANOKE INC 616 CAMILLA AVE ROANOKE VA 24014
060.20-05-40 621 Pine St T & J INVESTMENTS OF ROANOKE INC 616 CAMILLA AVE ROANOKE VA 24014
060.20-05-41 625 Pine St T & J INVESTMENTS OF ROANOKE INC 616 CAMILLA AVE ROANOKE VA 24014
060.20-05-42 0 Pine St T & J INVESTMENTS OF ROANOKE INC 616 CAMILLA AVE ROANOKE VA 24014
060.20-05-44 624 Pine St T & J INVESTMENTS OF ROANOKE INC 616 CAMILLA AVE ROANOKE VA 24014
060.20-05-61 716 Hardy Rd K & V PROPERTIES LLC 616 CAMILLA AVE ROANOKE VA 24014
060.20-05-60 708 Hardy Rd MONTUORI LENORA AMENDED/RESTATED TRUST 616 CAMILLA AVE ROANOKE VA 24014
060.20-05-63 0 Hardy Rd MONTUORI LENORA AMENDED/RESTATED TRUST 616 CAMILLA AVE ROANOKE VA 24014
060.20-05-43 626 Pine St MONTUORI FAMILY TRUST-MONTUORI LENORA TRS 616 CAMILLA AVE ROANOKE VA 24014
060.20-05-62 0 Hardy Rd MONTUORI FAMILY TRUST-MONTUORI LENORA TRS 616 CAMILLA AVE ROANOKE VA 24014
060.20-05-45 622 Pine St TINSLEY JOHN LINDSEY 622 PINE ST VINTON VA 24179
060.20-03-77 627 Hardy Rd JOHN M OAKEY INC P O BOX 1579 ROANOKE VA 24007
060.20-03-78 713 Hardy Rd JRN INC C/O SAVAGE SAVAGE AND BROWN P O BOX 22845 OKLAHOMA CITY OK 73123
060.20-03-05 535 Hardy Rd PM PROPERTIES INC P O BOX 385 ALLENTOWN PA 18105
LEGAL NOTICE OF PUBLIC HEARING
TO WHOM IT MAY CONCERN:
Pursuant to the provisions of Section 15.2-2204 of the 1950 Code of Virginia, as amended, the Town
of Vinton, Virginia, hereby gives notice of public hearings to be held by the Planning Commission
on Thursday, November 19, 2020, at 7:00 p.m., and by the Town Council on December 1, 2020,
at 7:00 p.m. The Planning Commission will also hold a work session on November 19th, at 6:30
p.m., prior to the public hearing.
The purpose of each public hearing is to receive comments concerning:
1. Petition of Giacomo Montuori, for a Special Use Permit (SUP) for a proposed
commercial indoor amusement use, located at 700 Hardy Road, Vinton, Virginia,
tax map number 060.20-05-64.00-0000, zoned GB General Business District.
Further information concerning each public hearing, may be obtained in the Planning and Zoning
Department located at 311 South Pollard Street, Vinton, Virginia 24179, 540-983-0605. Interested
persons may be heard at the above public hearings. In light of the ongoing COVID-19 emergency,
participation in this public hearing by Planning Commission members, Council members, staff, and
the public will be available through electronic or other alternative means. The public may comment
on this request by emailing nmcclung@vintonva.gov, by calling 540-983-0605 or writing to the
Principal Planner, Vinton Municipal Building, 311 S. Pollard Street, Vinton, Virginia 24179.
Voicemails, emails and other messages containing comments on the request will be provided to both
the Commission and Council members. The public also may be able to comment during the
electronic public hearings. Citizens interested in this option must register in advance by calling the
Town Clerk’s Office at 540-983-0607 or sending an email to sjohnson@vintonva.gov by 12 Noon on
Wednesday, November 18, 2020, for Planning Commission public hearing, and/or by noon on
Monday, November 30, 2020, for Town Council public hearing. The public can observe these
meetings through a livestream on the Town’s Facebook page at www.facebook.com/vintonva.
Additional information concerning the meetings and the public hearings will be made available on
the Town’s website at least three days before each meeting date.
Comments and grievances can be submitted in writing to the Town Manager’s Office, Town of
Vinton, Virginia at 311 South Pollard Street, Vinton, VA 24179 or by phone at (540) 983-0607, or
Virginia Relay Service 711 until December 1, 2020 at 5pm.
Persons requiring special assistance to attend and participate at this public meeting should contact
the Town Manager’s office at (540) 983-0607.
Anita J. McMillan,
Planning and Zoning Director
-------------------------------------------------------------------------------------------------------
Please publish in The Vinton Messenger for two Thursdays, November 5, and November 12, 2020.
Please send invoice and affidavit of publication to:
Anita J. McMillan
Planning and Zoning Office
Vinton Municipal Building
311 South Pollard Street
Vinton, VA 24179
(540) 983-0605
Town of Vinton Roanoke Valley Television
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1
Memorandum
To: Town of Vinton Planning Commission
From: Nathaniel McClung, Principal Planner
Date: November 6, 2020
Re: Community Outreach Campaign and Survey Results
The extensive revision process of the Vinton Zoning and Subdivision Ordinances required Town
staff to develop a community outreach plan that would consolidate the proposed revisions and
additions to various sections into major topical categories. Consolidating the proposed additions
and revisions into major categories and subcategories would facilitate the public feedback
process by allowing individuals to make comments in either a wholesale or piecemeal format.
Overall, the major subject areas determined included the following:
• Signage regulations
• Accessory Dwelling Units (ADUs)
• Homestays (AirBnB, Vrbo, etc.)
• Off-Street Parking Regulations
• Dimensional Regulations (setbacks, building height, etc.)
• Proposed New and Revised Use Regulations
• Landscaping, Buffering, and Screening Requirements
• Subdivision Ordinance Revisions
To facilitate this conversation and provide a means of giving feedback on these proposed
revisions, fact sheets were created for each of the major subject areas along with online surveys
for individuals to complete. The fact sheets and survey links were made available on the Town
website on an individual webpage, and a social media campaign including paid advertising was
utilized to expand the outreach. Additionally, this webpage and the intended revisions were
included in an article that was posted in The Vinton Messenger. Although the Planning
Commission has been briefed on all of these subject areas in the past year, it is crucial for the
members to review the feedback provided by the public in order to guide our future research and
conversations on the revision process.
In terms of public feedback, some categories had a greater number of responses and comments
posted than others. All of the survey results for each subject area will be attached to this
memorandum to guide the conversation for the November meeting. The ongoing COVID-19
emergency has delayed the intent to hold in-person community meetings and workshops. In light
of this, Town staff recommends that the future adoption of these revisions be put on hold until
these types of public outreach events and activities are able to occur.
1
Town of Vinton Planning and Zoning
Proposed Sign Ordinance Revisions
PROPOSED SIGN ORDINA NCE SURVEY ANALYSIS
• 11 responses
o 8 Town residents
o 3 Non-residents (sign company representatives)
ARE YOU A RESIDENT O F THE TOWN OF VINTON ?
HOW LONG HAVE YOU LI VED IN THE TOWN OF V INTON?
2
EXEMPTED SIGNS, DISP LAYS AND DEVICES
SELECT WHICH SIGN TY PES YOU AGREE SHOULD BE INCLUDED IN THE
EXEMPTED SECTION OF THE ORDINANCE:
CONCERNING FLAG SIGN S, DO YOU AGREE OR DISAGREE WITH A MAXIM UM
NUMBER OF THREE (3) PER LOT AND EACH FLA G NOT EXCEEDING
TWENTY -FOUR (24) SQ. FT.?
3
ADDITIONAL COMMENTS
• No Confederate flags, it's trashy and sends a bad signal to potential visitors and tourists.
It is not a "Welcome to Vinton" sight for most people.
• I think this is too lenient and should be restricted to 2 flag signs not exceeding 20 sq. ft.
PROHIBITED SIGNS SECTION
DO YOU AGREE OR DISA GREE THAT PORTABLE S IGNS, AS DEFINED IN THE
FACT SHE ET, SHOULD BE PROHIB ITED?
ADDITIONAL COMMENTS ON PORTABLE SIGNAGE
• Difficult to regulate in an ongoing situation. They just move from place to place to avoid
permitting.
• Portable signage conveys an image of impermanence and reinforces the idea of
potential high turnover, a possible result of an unfavorable business environment.
• My experience with these signs they are often are placed on property without
landowner permission and are left long term. If allowed the owner of the portable sign
should provide documentation they have the proper landowner permission during the
permitting process. They should not be allowed on the right of way of the Town and the
State. If allowed they should be available for everyone regardless of on or off premise
usage.
• I think they are tacky and many businesses use them longer than their original purpose
of a temporary sign solution
4
DO YOU AGREE OR DISA GREE THAT SIGNS ON V ACANT LOTS (EXCEPT F OR
LOTS THAT ARE FOR SA LE OR LEASE) SHOULD BE PROHIBITED?
DO YOU AGREE OR DIS AGREE THAT COMMERCIA L SIGNS HELD OR CARR IED
BY A PERSON TO ATTRA CT ATTENTION SHOULD BE PROHIBITED?
5
DO YOU AGREE OR DISA GREE THAT MANNEQUIN SIGNS SHOULD BE
PROHIBITED?
TEMPORARY SIGN REVIS IONS, NON-RESIDENTIA L
BASED ON THE CURRENT AND PROPOSED REGULATIONS AND PROC EDURES
FOR TEMPORARY SIGNS, WHICH SET OF REGULA TIONS WOULD YOU
PREFER THE TOWN ENACT GOING FORWARD:
ADDITIONAL COMMENTS ON PROPOSED REGULATI ONS:
• Having no permits for temp signs leads to more staff time investigating how long a temp
sign has been in place.
• Having to get a permit for every little thing is annoying, BUT strict enforcement is crucial
if permitting is eliminated.
6
DO YOU AGREE OR DISA GREE WITH THE MAXIMU M NUMBER OF (2)
TEMPORARY FREESTANDI NG SIGNS ALLOWED PER LOT?
ADDITIO NAL COMMENTS ON MAXI MUM NUMBER:
• Allow the person that owns the property decide.
• In addition to max limit, there should also be a size regulation. These temporary yard
signs during election years can be an eyesore.
• These signs serve a temporary and short term service to the businesses. Beyond a week
in my opinion can be excessive and they tend to become clutter.
7
DO YOU BELIEVE 32 SQ UARE FEET OF TOTAL S IGN AREA FOR TEMPORA RY
WALL OR FREESTANDING SIGNS IS ADEQUATE F OR A BUSINESS OR
ORGANIZATION TO ADVERTISE EFFECTIVEL Y? KEEP IN MIND, A -F RAME
SIGNS AND WINDOW SIG NS ARE NOT INCLUDED IN THIS CALCULATION.
ADDITIONAL COMMENTS ON NON -RESIDENTIAL T EMPORARY SIGNAGE:
• I suggest increasing it to 64 sq ft anything smaller is too small for the traveling public to read.
The standard size for off premise signage is 300 sq feet.
• Allows too much signage and leads to sign clutter.
8
NON -COMMERCIAL SPEECH SIGNAGE
DO YOU BELIEVE TWELV E (12) SQUARE FEET I N T OTAL AREA OF SIGNAGE
IS SUFFICIENT FOR NO N -COMMERCIAL SPEECH SIGNAGE FOR A SINGLE
LOT?
ADDITIONAL COMMENTS:
• Billy-Bob doesn't need to hoist his giant plywood political billboard up the side of his
garage.
• It depends on where you're driving. If the highway speed limit is 25mph then 12sq ft is
probably fine. If it's 45/55mph then you'll likely be unable to read the information on a
12sq ft sign unless it's just a couple words. I do agree that a limit should be placed, and
you don't want to complicate it terribly, but consideration should be given to the speed
vs size ratio that most sign makers try to consider when selling a sign to a
company/individual.
9
SIGN MEASUREMENT RUL ES
DO YOU PREFER THE CU RRENT OR PROPOSED ME THODOLOGY FOR
DEFINING SIGN AREA?
OBSOLETE SIGN REMOVA L
I S 6 MONTHS OF INACTI VITY A SUFFICIENT AM OUNT OF TIME TO
CONSIDER A USE VACAN T OR OBSOLETE, AND M OVE FORWARD WITH
REQUESTING THE SIGNA GE BE PAINTED OUT OR REMOVED?
ADDITIONAL COMMENTS:
10
• 6 months is a relative short amount of time. In the case of a damage off premise sign. It
sometimes takes 3-6 months to obtain the necessary approvals from the State and work
through the permit process with a locality.
1
Town of Vinton Planning and Zoning
Accessory Dwelling Unit Regulations
ACCESSORY DWELLING U NITS SURVEY ANALYSIS
• 9 Responses
o 8 Town residents
o 1 Non-residents
ARE YOU A RESIDENT OF THE TOWN OF VINTON?
HOW LONG HAVE YOU LI VED IN THE TOWN OF V INTON?
2
ZONING DISTRICTS AND RENTABILITY PROVISIONS
DO YOU BELIEVE ACCES SORY DWELLING UNITS (ADU) SHOULD BE ALLOWED
TO EXIST IN THE TOWN OF VINTON?
IF YOU BELIEVE THEY SHOULD BE ALLOWED, DO YOU BELI EVE ADUS
SHOULD BE RESTRICTED TO SPECIFIC ZONING DISTRICTS OR AS AN
ACCESSORY USE ANYWHE RE A DETACHED SINGLE FAMILY DWELLING
(MEETING LOT REQUIREMENTS) IS PERMITTED?
3
SELECT WHICH OPTION YOU PREFER IN RELATI ON TO THE ABILITY OF
THESE UNITS TO BE RENTED OR NOT:
OFF-STREET PARKING R EQUIREMENTS
ADDITIONAL COMMENTS:
• I only think an add’l space should be required if it’s rented out. If it’s for caretaking
family only— grandma probably isn’t driving anyway and to require that to take care of
an aged parent would be an additional burden for a family.
4
ADU SIZE REQUIREMENTS
SELECT THE MINIMUM A ND MAXIMUM SIZE REQUIREMENTS THAT BEST
MATCH YOUR PREFERENCE:
ADDITIONAL COMMENTS:
• Maximum 1000 sq. ft. - should not be tied to the size of the principal dwelling. By doing
so just rewards larger houses owned by wealthier people. Minimum should be 300 sq.
ft.
• I don't know the housing stock in Vinton well enough, but possibly consider other
percentages based on housing stock in Vinton, in order to prevent too large or too small
units.
5
RECOMMENDED GENERAL STANDARDS
SELECT ONE OR MORE S TANDARDS BELOW THAT YOU AGREE SHOULD BE
ENFORCED WITH AN ADU . ANY STANDARDS YOU DISAGREE WITH, LEAVE
BLANK.
6
RECOMMENDED DEVELOPM ENT STANDARDS
SELECT ONE OR MORE STANDAR DS BELOW THAT YOU AG REE SHOULD BE
ENFORCED WITH AN ADU . ANY STANDARDS YOU DISAGREE WITH, LEAVE
BLANK.
1
Town of Vinton Planning and Zoning
Proposed Homestay Regulations
H OMESTAYS SURVEY ANALYSIS
• 13 Responses
o 9 Town residents
o 3 Non-resident
o 1 Unknown
ARE YOU A RESIDENT O F THE TOWN OF VINTON?
HOW LONG HAVE YOU LI VED IN THE TOWN OF V INTON?
2
HOMESTAY USE IN VINTON
DO YOU THINK THAT SH ORT -TERM RENTAL UNIT S/HOMESTAYS (E.G.
AIRBNB, VRBO, ECT.) SHOULD BE ALLOWED IN THE TOWN OF VINTON?
ADDITIONAL COMMENTS
• They will be there whether they're allowed or not, so it's best to try to regulate them.
• As someone who has used AirBnBs in Virginia and other countries, I believe they are a
great alternative to motel/hotels, especially for visiting families. If managed properly, an
AirBnB is a much more comfortable accommodation, and provides a more relaxed and
welcoming atmosphere for exploring the region.
• Vinton doesn’t have hotels and people travel the parkway it would be nice to entice
people to stay locally to also enjoy the natural and commercial items vinton offers.
• I would like to use it as means of second income.
• I have relatives in Vinton and would stay in an Airbnb when I came to visit. I travel all
over the world, and always stay in Airbnb's. They're cheaper and are often a great way
to meet the locals. As I save on accomodation, I spend more going out to restaurants.
Therefore, I'm helping the local economy.
• Great way to bring revenue to the town.
• Air BnB’s allow hosts a source of supplemental income to help pay bills and other costs.
Air BnB’s allow visitors to see into the community better than a hotel. If people are
interested in moving to the area, this helps them understand which spots in town may
suite them best.
• Brings people to the town of Vinton thereby improving the local economy and
supporting local businesses (restaurants, etc).
• It would help the local economy Guests have nowhere to stay in Vinton currently.
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DO YOU BELIEVE THE T OWN OF VINTON HAS TH E MARKET CO NDITIONS
AND IS A GOOD LOCATI ON TO SUPPORT A DENS E NETWORK OF
HOMESTAYS?
ADDITIONAL COMMENTS
• Given Vinton's proximity to Roanoke and Smith Mountain Lake, as well as the
prospective downtown enhancements, I believe it's an ideal place for homestays.
• I do not think they should heavily regulate trying to get a piece of the pie since vinton
doesn’t offer any viable stay alternatives.
• Vinton is surrounded by outdoor access and opening up Vinton to the availability of
short term rentals would drive more people to the area for vacation, which could lead
to long term home buyer (That is what hooked us on the area). All of this would
generate more tax revenue and provide businesses with more opportunities for profit
and growth.
• Airbnb's would add to the tax base of Vinton. When people are allowed to rent out a
room or two, they have more disposable income. They buy more at the stores, eat out
more or restaurants, or have more money to fix up their houses, thus adding value to
the community.
• It seems very outdated and out of touch with the rest of the world to not allow people
in their private homes to host people. Airbnb is the way of the future.
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RECOMMENDED USE REGU LATIONS
DO YOU THINK THE DWE LLING SHOULD BE REQU IRED TO BE THE PRIMA RY
RESIDENCE OF THE HOS T OCCUPANT?
DO YOU THINK THERE S HOULD BE A LIMITATION SET ON THE TOTAL
NUMBER OF RENTAL DAY S IN A CALENDAR YEAR ?
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DO YOU AGREE WITH TH E MINIMUM CONTRACT R ENTAL PERIOD OF 24
HOURS WITH A MAXIMUM CONTRACT RENTAL PER IOD OF 14 DAYS?
DO YOU AGREE WITH T HE MAXIMUM NUMBER OF ADULT GUESTS IN A
HOMESTAY UNIT BEING LIMITED TO SIX (6)?
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DO YOU THINK THAT TH EY PRINCIPAL GUEST O F THE HOMESTAY SHOULD
BE AT LEAST EIGHTEEN (18) YEARS OF AGE?
ADDITIONAL COMMENTS:
• If the homestay location is an ADU, then the primary residence of the owner should be
the primary dwelling of the property.
• I agree with a minimum of 24 hours “a day” but think we should increase the max stay
to 4 weeks. Also larger families come to stay and vacation together. If the town of
vinton is worried about raucous House parties with more than 6 guests, Those are
limited by the owner on those various home stay apps. If the home can hold large
families comfortable I don’t see why this wouldn’t be permitted. Or maybe limit 6 to
apply to adults only not including children.
• The maximum contract period should not be limited to 14 days. It should be up to the
guest and the renters availability as to how long the stay can last.
• I don’t support a cap on how many people are allowed per house. Instead, I support a
cap of 2 people per bedroom. If the house allows for more than 6, great. If it is only 1
bedroom, it can not support 6 people.
• I think Vinton is losing tax revenue by not allowing these legally. Both guests and hosts
are protected under Airbnb rules I only stay in Airbnbs when I travel.
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REGISTRATION SUSPENS ION AND CANCELLATION
DO YOU BELIEVE THAT THREE OR MORE SUBSTA NTIATED COMPLAINTS
WITHIN A 12 -MONTH PE RIOD FOR VIOLATI ONS OF THE VINTON TOWN
CODE OR THE USE AND SAFETY REGULATIONS O UTLINED IN THE SECTI ON
ARE ADEQUATE GROUNDS FOR REGISTRATION SU SPENSION AND/OR
CANCELLATION?
IF YOU HAVE ADDITION AL COMMENTS RELATED TO THIS SECTION, PLE ASE
WRITE THEM HERE:
• 2 complaints max
• There should be an appeal and hearing process before suspension or cancellation.
• I don’t think all violations are created equal. I do think there should be a limit and then
cancellation but perhaps serious violations vs minimal stuff.
• I support the permit being revoked if 3 REASONABLE complaints occur. My concern is
one upset neighbor may complain about items just to complain knowing the permit
could be revoked.
• It would depend if they were investigated and not just some unhappy neighbor making
things up.
1
Town of Vinton Planning and Zoning
Proposed Off-Street Parking Revisions
OFF-STREET PARKING S URVEY RESULTS
• 7 Responses
o 6 Town residents
o 1 Non-resident
ARE YOU A RESIDENT OF THE TOWN OF VINTON?
HOW LONG HAVE YOU LI VED IN THE TOWN OF V INTON?
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MAXIMUM MOTOR VEHICL E PARKING REQUIREMEN T
DO YOU AGREE WITH TH E PROPOSED MAXIMUM M OTOR VEHICLE PARKING
REGULATION THAT WOUL D LIMIT THE TOTAL NU MBER OF PARKING
SPACES SERVING A COMMERCIAL USE TO NO T EXCEED 125 PERCENT OF
THE MINIMUM PARKING STANDARD REQUIREMENT ?
ADDITIONAL COMMENTS:
• Consider an incentive to have even less as the maximum.
• Abolish parking lots, encourage walking.
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MAINTENANCE OF PARKI NG AREAS
DO YOU AGREE WITH THE PROPOSED R EQUIREMENT THAT REQU IRES ALL
PARKING AND OFF -STRE ET LOADING AREAS TO BE MAINTAINED IN A S AFE
CONDITION AND GOOD R EPAIR AT ALL TIMES? (INCLUDING SIGNAGE A ND
PAVEMENT MARKINGS)
PERVIOUS OR SEMI -PER VIOUS SURFACING
DO YOU THINK THAT PE RVI OUS OR SEMI -PERVIOUS SURFACING,
INSTALLED AND MAINTA INED ACCORDING TO TH E STANDARDS LISTED,
SHOULD BE ALLOWED TO BE USED FOR OFF -STR EET PARKING AND
LOADING AREAS?
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ADDITIONAL COMMENTS:
• Pervious surfacing is better for the environment because it reduces run-off and damage
to the natural water table.
1
Town of Vinton Planning and Zoning
Proposed Dimensional Revisions
DIMENSIONAL REVISION S SURVEY RESULTS
• 6 Responses
o 5 Town residents
o 1 Non-resident
ARE YOU A RESIDENT O F THE TOWN OF VINTON?
HOW LONG HAVE YOU LI VED IN THE TOWN OF V INTON?
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R -B DISTRICT FRONT Y ARD SETBACK
DO YOU AGREE OR DISA GREE WITH REDUCING T HE FRONT YARD SETBAC K
IN THE R -B DISTRICT FROM 25 FEET TO 15 F EET?
ADDITIONAL COMMENTS:
• I agree with the argument in the proposed revisions document.
• I think it's fair to reduce the setback to bring existing structures into compliance.
• I do not want a house built next to mine so someone can make a profit.
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CB DISTRICT PROPOSED DIMENSIONAL CHANGES
DO Y OU AGREE OR DISAGREE WITH INCREASING THE HEIGHT LIMIT IN THE
CB DISTRICT FROM 35 FEET TO 45 FEET (FOU R (4) STORIES), WHIC HEVER
IS LESS?
DO YOU AGREE OR DISA GREE WITH THE RECOMM ENDATION OF
CONTINUING TO ALLOW A ZERO -FOOT MINIMUM FRONT YARD SETBACK
DISTANC E IN THE CB DISTRICT ?
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DO YOU AGREE OR DISA GREE WITH ESTABLISHI NG A MAXIMUM FRONT
YARD SETBACK DISTANC E IN THE CB DISTRICT OF 15 FEET?
ADDITIONAL COMMENTS
• I believe in the CB district that walkability is important, and would only agree with the
zero minimum setback if there were adequate sidewalk area for pedestrians. Also, max
setback of 15 feet could be prohibitive of any business that wanted to attract patrons
with features such as outside dining or any other attractive aspect.
COMPREHENSIVE LOT COVERAGE REQUIREMENTS
DO YOU THINK THAT MORE, OR ALL, ZONING D ISTRICT(S) SHOULD HA VE
MAXIMUM LOT COVERAGE REQUIREMENTS?
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ADDITIONAL COMMENT O N MAXIMUM LOT COVERA GE:
• All zones except Central Business or "Downtown" should have max lot coverage
requirements
SHOULD MAXIMUM LOT C OVERAGE PROVISIONS A PPLY TO BOTH
RESIDENTIAL AND COMM ERCIAL PROPERTIES?
ADDITIONAL COMMENT O N COMMERCIAL & RESID ENTIAL PROVISIONS:
• Yes, but there should be options to increase lot coverage by mitigating stormwater with
other solutions.
SHOULD ACCESSORY BUI LDINGS AND STRUCTURE S COUNT TOWARDS THE
MAXIMUM LOT COVERAGE CALCULATION?
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I N REFERENCE TO THE Q UESTION ABOVE. WOULD A MAXIMUM NUMBER OF
ACCESSORY BUILDINGS BE MORE APPROPRIATE THAN A MAXIMUM LOT
COVERAGE PERCENTAGE FOR RESIDENTIA L PROPERTIES?
I N ADDITION TO BUILDI NGS AND STRUCTURES, SHOULD IMPERVIOUS
SURFACES (E.G. PAVED DRIVEWAYS, ETC.) CO UNT TOWARDS THE
MAXIMUM LOT COVERAGE CALCULATION AS WELL ?
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WILL AN INCENTIVE PR OGRAM TO INSTALL MOR E FORMS OF BEST
MANAGEMENT PRACTICES (BMPS ARE METHODS THA T HAVE BEEN
DETERMINED TO BE THE MOST EFFECTIVE AND PRACTICAL MEANS OF
PREVENTING OR REDUCI NG NON -POINT SOURCE POLLUTION TO HELP
ACHIEVE WATER QUALIT Y GOALS. BMPS INCLUD E BOTH MEASURES TO
PREVENT POLLUTION AN D MEASURES TO MITIGA TE POLLU TION.)
SUPERSEDE THE NECESS ITY OF LOT COVERAGE MAXIMUMS?
ADDITIONAL COMMENTS:
• Alternatives such as providing public greenspace, using green roofs, gray water systems,
stormwater reuse, etc. should be considered as incentives to increase lot coverage.
1
Town of Vinton Planning and Zoning
Proposed New and Revised Use Regulations
NEW AND REVISED USE REGULATIONS SURVEY A NALYSIS
• 6 Responses
o 5 Town residents
o 1 Non-resident
ARE YOU A RESIDENT O F THE TOWN OF VINTON ?
HOW LONG HAVE YOU LI VED IN THE TOWN OF V INTON?
2
ALTERNATIVE FINANCIA L INSTITUTIONS
DO YOU AGREE THAT AL TERNATIVE FINANCIAL INSTITUTIONS
(PAWNBROKERS, PAYDAY LENDERS, ETC.) SHOU LD REQUIRE A SPECIAL
USE PERMIT TO BE LOCATED IN THE C ENTRAL BUSINESS (CB) DISTRICT?
ADDITIONAL COMMENTS:
• Honestly I don't believe these types of businesses should be allowed in the CB district. I
don't think payday lenders should exist at all, it's a predatory business that undermines
the financial security of lower income individuals and families.
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RESEARCH AND DEVELOP MENT FACILITY
DO YOU AGREE WITH PE RMITTING RESEARCH AN D DEVELOPMENT
FACILITIES, AS DEFIN ED, BY -RIGHT IN THE GB AND CB DISTRICTS IF THE
SUPPLEMENTAL STANDAR DS ARE ME T?
ADDITIONAL COMMENTS:
• This type of facility tends to provide higher paying jobs, and the employees of such a
facility would be good for downtown hospitality and service industry businesses.
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PET DAYCARE FACILITY AND ANIMAL -RELATED FACILITIES WITH
OUTDOOR COMPONENTS
DO YOU AGREE THAT PE T DAYCARE FACILITIES SHOULD BE ALLOWED I N
THE TOWN OF VINTON I F THEY FOLLOW THE SU PPLEMENTAL
REGULATIONS SET FORT H?
WHICH SUPPLEMENTAL R EGULATIONS DO YOU AG REE SHOULD BE SET
FORTH IF AN ANIMAL-R ELATED FACILITY (INCLUDING VETS AND ANIMAL
HOSPITALS) CHOOSES T O HAVE OUTDOOR COMPONENTS INCLUDED WITH
THEIR USE? (SELECT A S MANY AS NECESSARY)
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ADDITIONAL COMMENTS
• I'm not sure about the number of animals, seems kind of random. Does it go without
saying that they will have to meet the noise ordinance? One, 5 or 15 barking dogs is
annoying, but it seems the noise ordinance should address this.
BREWERIES AND DISTIL LERIES
DO YOU AGREE THAT BREWERIES AND DISTILLE RIES SHOULD BE ALLOW ED
BY -RIGHT IN THE M -1 AND M -2 INDUSTRIAL D ISTRICTS?
ADDITIONAL COMMENTS:
• Shouldn't the outdoor music just meet the noise ordinance? If the sound of outdoor live
music can't extend past the property line it will seriously hamper a business's ability to
have live music. Live music and beer go hand-in-hand in these businesses.
• Only if the facility offers public accommodations, such as tours, tasting room, etc.
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RETAIL STORES AND SH OPS, LARGE FORMAT
DO YOU AGREE OR DISA GREE THAT ANY NEWLY CONSTRUCTED OR
ENLARGED BUILDING CO NTAINING GREATER THA N 30,000 SQ. FT. OF
FLOOR AREA DEVOTED T O A RETAIL AND RELAT ED ACCESSORY USE
SHOULD REQUIRE A SPE CIAL USE PERMIT IN B OTH THE GENERAL BUSI NESS
(GB) AND CENTRAL BUS INESS (GB) DISTRICTS ?
MIXED -USE BUILDINGS
DO YOU AGREE WITH RE MOVING THE FLOOR ARE A RESTRICTIO N FOR
RESIDENTIAL USES IN A MIXED -USE BUILDING IN ORDER TO INCENTI VIZE
MORE MIXED -USE DEVEL OPMENTS OR REDEVELOPMENTS?