Heated debate erupts over mountainside feature protections

By Katie Northcott

Tempers flared at the Loudoun County Board of Supervisors business meeting on April 15 after Supervisor Caleb Kershner (R-Catoctin) proposed an amendment to mountainside feature protections.

Kershner’s motion came in the context of the Board’s discussion of the Department of Planning and Zoning Work Plan. Dan Galindo, Director of Planning and Zoning, attended the meeting to give the Board the department’s quarterly update on the work plan. One of the department’s projects is a zoning ordinance rewrite. Kershner asked that staff explore making some of the mountainside feature protections more lenient as part of this rewrite.

Kershner said he wanted to allow the staff to begin to address issues some developers in Loudoun County had been having with ridge feature protections and spring feature protections. He said that for many of these rules, applicants could not even get a special exception, meaning there is no leniency in these protections.

“Right now, there is no ability to even consider any differences to what the standards are,” Galindo said. “So, we would be looking at what the staff could recommend [as] an option that would at least have the potential for the modification. Not something automatic but that gives the Board or even maybe the zoning administrators some leeway to make things work and not be quite so rigid.”

Supervisor Laura TeKrony (D-Little River) questioned the need for this amendment given that the Mountainside Overlay District is a topic that will be addressed in Board’s review of the zoning ordinances in Western Loudoun County. Galindo answered that the motion seeks to address some applications that are currently having trouble due to the rigid protections.

TeKrony preferred that these changes go through the rural ZOAM and CPAM rewrite process since other industries, including the equine industry are struggling with these protections.

“I’d rather fix it in a comprehensive, holistic view than look at it as a one-off because I could bring a bunch of these as one-offs,” TeKrony said.

Vice Chair Michael Turner (D-Ashburn) concurred with TeKrony that it did not seem fair to prioritize one group in the rural CPAM and ZOAM process. He added that he did not know enough about the situation Kershner was trying to address to feel comfortable supporting the motion.

Chair Phyllis Randall (D-At Large) said that she thought the Board should send the issue to the Transportation and Land Use Committee (TLUC) for discussion.

“I think this is what our committees are for: to work out issues or to see if issues even need to be worked out,” Randall said.

Ultimately, the motion to send discussion of the mountainside feature protections to TLUC failed 4-4-1 with Vice Chair Turner and Supervisors TeKrony, Juli Briskman (D-Algonkian), and Koran Saines (D-Sterling) opposed and Supervisor Sylvia Glass (D-Broad Run) abstaining.

The Board discussed a different motion for about 20 minutes before returning to the discussion of the mountainside feature protections. Kershner made a second motion to suspend enforcement of violations in the Mountainside Overlay District until September. Kershner made this motion at the request of County Attorney Leo Rogers who did not want to prosecute an applicant who had committed a zoning violation.

“The idea behind the motion would be to suspend a lawsuit enforcement of violations of Mountainside Overlay District until we have the opportunity to discuss it when Rural returns to the Board in September,” Kershner said.

Rogers indicated that the applicant had been working diligently to comply with the standards but had not been able to come into compliance, yet. He hesitated to file a suit against the applicant because it will be about a year before he can move forward with litigation. By then, the zoning ordinance may have changed. If TLUC had been allowed to discuss the protections, Rogers could have held off the charges.

Briskman reacted in disbelief. She criticized Kershner for failing to contact his fellow supervisors about this issue prior to the meeting.

“So basically, we were trying to change zoning and let this Mountainside Overlay District issue leapfrog everything else for one constituent who is just about to get sued?” Briskman said. “I guess I would advise my colleagues, if you have something you need to get done, if you have a motion, maybe call us.”

Saines and Turner also expressed frustration that Kershner did not explain the situation before the meeting. Turner said he was appalled that the Board was even entertaining the discussion, expressing concern over the precedent that would be set should the Board pass this motion. He worried that individuals would begin coming before the Board asking for exceptions from zoning ordinances.

“To ask this board to vote to absolve one person from compliance with our zoning laws is, I just think, completely and utterly inappropriate,” Turner said.

Randall reprimanded her colleagues for their harshness toward Kershner. She said she was appalled at her colleagues’ lack of courtesy and grace and that there was no reason not to send the discussion to TLUC.

“Had we sent this to TLUC, we might have been able to have some clarity and some difference at this moment,” Randall said. “I think people should always make phone calls. Always. But truthfully, it’s not just one of my colleagues who doesn’t make phone calls.”

Kershner apologized for any lack of communication and clarified his intentions. He encouraged his colleagues to offer a forward-looking solution to an applicant who, he believes, made an honest effort to comply with zoning ordinances but made a mistake.

“This is not an attempt to protect any particular one person, overall. I take offense at that, Mr. Turner, and you should apologize for that, quite frankly,” Kershner said. “What we do for almost every applicant who finds themselves in violation cause they made a mistake or they didn’t make the grandfathering cut-off, we work with that applicant.”

Kershner’s motion passed 6-3.