AGENDA DATE: 11/2/2016
TITLE:
Title
Millwood Land Trust-ACE Conservation Easement Request
BODY
SUBJECT/PROPOSAL/REQUEST: Approval of cemetery use under ACE open-space easement
ITEM TYPE: Consent Action Item
STAFF CONTACT(S): Foley, Walker, Kamptner, Herrick, Clark, Goodall
PRESENTER (S): N/A
LEGAL REVIEW: Yes
REVIEWED BY: Thomas C. Foley
BACKGROUND: On August 26, 2003, the Millwood Land Trust entered into an ACE open-space easement on Tax Map Parcels 06500-00-00-084A0 and 06500-00-00-08600 (108.9 acres). The easement is co-held by the County and the Public Recreation Facilities Authority (the “PRFA”).
The deed anticipated the future transfer of a portion of the property to the adjacent Zion Hill Baptist Church (the “Church”) for expansion of the church’s cemetery. Section 2(A)(1) of the deed provides (in part): “The Property shall not be otherwise further divided or subdivided except for the sole purpose of conveying a portion of the Property abutting Zion Hill Baptist Church to the church for cemetery purposes.”
However, though the above section clearly permits subdivision of a cemetery lot, the deed does not expressly permit use of the land as a cemetery. Therefore, any cemetery use of land under this easement would need to be approved in writing by the co-holders under section 2(C)(7) of the deed, which exempts certain uses from the deed’s general prohibition on commercial uses. It permits:
“7. Uses or activities not expressly excepted herein, but which are determined by each Grantee in writing not to be a commercial or industrial use, and to be consistent with this Easement. In making this determination, the Grantees may consider, among other things, whether the scope of a use or activity excepted herein has evolved over time as a result of changes in the law or customary practices.”
Because the easement is co-held by the County and the PRFA, the Board and the PRFA need to approve this use before it may commence.
STRATEGIC PLAN: Rural Areas: Preserve the character of rural life with thriving farms and forests, traditional crossroad communities, and protected scenic areas, historic sites, and biodiversity
DISCUSSION: The purposes of this conservation easement are laid out in this recital:
“WHEREAS, the Grantee’s acquisition of this easement furthers the purposes of the ACE Program in that the acquisition, among other things, assures that Albemarle County’s resources are protected and efficiently used, establishes and preserves open space, preserves the rural character of Albemarle County, and furthers the goals of the Albemarle County Comprehensive Plan to protect Albemarle County’s natural, scenic and historic resources, promotes the continuation of a viable agricultural and forestal industry and resource base, and protects Albemarle County’s surface water and ground water supplies.”
Expansion of the adjacent cemetery onto this site, which was anticipated in the subdivision restrictions of this deed, would require conversion of wooded land to open land cover. Because tree clearing for agriculture and forestry is permitted under the deed, this conversion is generally consistent with the easement. Use of a small portion (two acres) of the land as a cemetery for a rural church would be generally consistent with the rural character of Albemarle County.
The Community Development Department has received a subdivision plat that would transfer two acres of the Millwood Land Trust property to the adjacent church for use as a cemetery. On September 8, 2016, the PRFA made a finding that the cemetery use of the proposed two-acre lot by the Church would not be an industrial or commercial use, and that that use would be permitted under section (2)(C)(7) of the deed of easement, provided that no structures other than grave markers were constructed on the lot.
The owner and/or applicant must also still obtain a special use permit before commencing cemetery use in the Rural Areas (RA) zoning district. A current determination that cemetery use is permitted under the ACE open-space easement is a separate and distinct determination from the special use permit requirement of the zoning ordinance. Before cemetery use commences, the Board can expect to receive a separate application for a special use permit.
BUDGET IMPACT: There is no budget impact.
RECOMMENDATION:
Recommendation
Staff recommends that the Board find (a) that the proposed cemetery use of the proposed two-acre lot by the Church would not be an industrial or commercial use, and (b) that that use would be permitted under section (2)(C)(7) of the ACE deed of easement, provided that no structures other than grave markers were constructed on the lot.
ATTACHMENTS:
None