Lancaster Board of Supervisors granted an exception to the Chesapeake Bay Preservation Act (CBPA), and it has drawn backlash from district two residents and prompted at least one couple to look into taking legal action.
An exception for a property already in violation
At the July board meeting, the supervisors voted 3-to-2 to approve Wayne and Susan Rogers’ request to build within the 100-foot resource protection area (RPA) buffer on their Estates Road property. Their plan is to expand an 844-square-foot cabin to nearly 2,000 square feet by adding porches on two sides so they can enjoy the view while having protection from bugs, which they said are a problem on the heavily wooded property.
Originally, Susan, a real estate agent, was selling the house for a client but the Rogers fell in love with the property and bought it “in good faith” about a year ago. Only later, after viewing a plat, did they discover that the house appeared to already be in violation. In 1998, it was moved from another spot to its current location on a peninsula. No one has been able to find a site plan for that move and a portion of the house is already in the RPA.
But the Rogers don’t think those details or the CBPA regulations should hinder their plans because the purpose of owning property is to enjoy it and their property is “unique,” they told the board. Due to the land’s unusual geological features, stormwater drains away from the river instead of into it. Since the CBPA regulations were meant to protect bodies of water from runoff, they should be exempted from the 100-foot RPA standards, they argued.
Surveyor Charlie Pruett also spoke on their behalf at the meeting, telling the board that in all of his years in the profession, he’d never seen a property like the Rogers’. He also said when considering the CBPA, the surface flow is what matters. The 100-foot RPA was meant to allow an opportunity for pollutants to be removed from runoff before it went into water. “Given the unique geological features, the exception should be granted,” he said.
Before the meeting, Brian Barnes, Lancaster’s Director of Planning and Land Use, wrote to the board preparing them to face these claims. And during the discussion he repeated that not only did the CBPA seem clear about its intent, it also does not exclude land based on “an anomalous flowpath or any other irregularity,” including slopes. Further, the county’s ordinance requires a 100-foot buffer on all lands defined as RPAs and “does not define a way to exempt it.”
Barnes recommended that the Rogers’ request be denied and the Department of Environmental Quality opposed the exception.
Supervisor Jack Larson, voted against it. He raised issue with the lack of proof that the house was legally moved and the fact that it was already in the RPA. He said the county has enough problems with the state and they shouldn’t take the risk of another one simply to accommodate the desires of two people. Further, he expressed concern about just dismissing DEQ’s input.
Supervisor Bill Lee also voted against the request. He disagreed that an exception should be granted allowing the Rogers to further expand into the protected area when the house was already in the RPA.
But Ernest Palin, the supervisor for district 2, pushed for approval, telling his fellow board members that he met Pruett at the property before the meeting. He confirmed that the land indeed sloped away from the river and he said he didn’t see any erosion.
Facing backlash in August
Before the July decision, Barnes notified the board that four people contacted him to object to the exception. And at the August board meeting, the public comment session was dominated by more property owners telling the board their decision was ill-informed and needed to be reversed.
“How do you give an exemption to the CBPA to a house that shouldn’t have been placed there in the first place?” asked Brenda Burtnett. She filled the board in on the “history” of the house, which according to her, was “plopped” down without a site plan or surveying, which is why no one has been able to find permits.
Burtnett, who watched the July meeting via Zoom, reminded the board that Susan Rogers claimed multiple times she didn’t know the house was in violation of the RPA beforehand. “How could this be true? As a licensed real estate agent and attorney here in town, would it not have been her job to have a complete and thorough knowledge of a property she was hired to represent?”
Burtnett also disputed claims that the Rogers’ property had unique features, saying her property is adjacent and it also slopes away from the water, and in addition to dealing with erosion, her property has had “two significant cave-ins.” Burtnett added that any exemption is supposed to meet six criteria—another point that Barnes brought to the board’s attention in July—and she went through each of them explaining how the board’s decision fell short.
According to Lancaster’s code, the exemption can’t give special privileges denied to other property owners, the exception should not arise from conditions that are self-created or self-imposed, the request must be the minimum necessary to afford relief, and it should not be injurious to the neighborhood, detrimental to the public or of substantial detriment to water quality. Further, an exception is supposed to include conditions to prevent the request from degrading water quality.
“Effectively gentlemen, not only did you grant them exemption for the porch, you effectively grandfathered their house and are also granting maximum vehicle access across the RPA.” She said this decision will continue to put “drastic stress on the shoreline” and the Corrotoman River “at a vulnerable position of erosion.”
“All of us” are concerned Ronald Benson, president of Drum Point Property Owners Association, said of the people in his community. He asked for reversal of the exception which was “granted apparently without the [Rogers being required to do] any of the things I had to go through to make improvements to my property.” He said 100-foot regulation is important and erosion is a problem, which he knows firsthand because he “has had to put down a great deal of rip rap.”
Addressing the issue that people were now coming forward but weren’t present in the July, Benson cited mail delays, which could make a letter mailed in Lancaster take over two weeks to arrive to a recipient in the county. (Barnes would later confirm that he is aware of that issue and is now sending out notices further in advance.)
Ruth Fast, spoke on behalf of herself, her husband and “many others who did not feel comfortable coming to the meeting because of COVID.”
“You didn’t have all of the facts and you had some misinformation as well.” She said this isn’t about one family or one parcel but rather “a community’s long-term effort to do the right thing... So now that you have the relevant facts, we’re asking you to reconsider your decision… and uphold the law.”
Standing firm against reversal
After the board meeting, Brenda and her husband Kevin Burtnett confronted Palin wanting to know what would happen now that the board heard from the people. “We heard you but the decision stands,” he told them.
In a separate conversation, Barnes explained that based on discussions with the county attorney, the only way this decision could be reversed is by a judge. And “the difficulty is going to be that you have to prove that you’re an aggrieved party,” he said. “I’m not an attorney, but I think [the board] would be in more legal trouble by making an exception and going back to change it,” he added.
Supervisor Robert Westbrook said he went into the July meeting prepared to vote against the Rogers’ request but after hearing the property owners, the surveyor, and Palin, he was swayed. Those who expressed disagreement “are taking the spirit of the law as sacrosanct,” he said. “The spirit of the law is to prevent water flow from carrying stuff downhill into the water with runoff. But this property is different. The spirit of the law was followed but the letter of the law was changed because one size doesn’t fit all… Has anyone been hurt by this? No,” he said.
Legal battle and flood of exceptions?
The Burtnetts disagree with Westbrook’s conclusion. First off, they believe the decision is unfair. “Everyone in that neighborhood would like to have built within the 100-foot buffer and no one was able to do that… And they can just come in and say they want it, and they get it,” said Brenda.
Second, when they first moved to Estates Rd., the shellfish were condemned but because of everyone’s hard work, conditions have improved to allow seasonal harvesting. This type of decision puts that progress in jeopardy because it “opened Pandora’s box by setting a new precedent.” More people are gearing up to request CBPA exceptions, the couple said, and it’s going to “create chaos in the water.”
At the July meeting, Larson raised concerns about setting precedent, and Lancaster’s attorney, Jim Cornwell advised the board that this type of special exception could be used by other property owners to argue for their case.
At last contact, Barnes said he hadn’t received any additional requests yet. But if he did he’d likely recommend against them because, as the enforcement person, recommending an exception makes his job hard.
And if his office were to get flooded with exception requests, it would be a problem because “it takes many days of paperwork and research” to address them. But for every person that applies and pays the fees, he’s obligated to bring the request before the board.
Meanwhile, the Burtnetts aren’t sure what their next move will be. They’ve contacted a number of attorneys and discovered fighting the board will be expensive. Some quotes range up to $30,000, and one attorney “who specializes in this area” wants a $7,500 retainer “just so he can start taking our emails,” said Kevin.
But “people are outraged at what happened… How a real estate agent turned into a buyer who then gets a special exception is a head-scratcher. It’s really bizarre. The situation is really just disheartening,” he said.