The Northampton Board of Supervisors met on Monday to once again take up proposed zoning changes, including the hot button issues of Planned Unit Developments and chicken litter incineration. Over the past few months, citizens have voiced concerns over the possibility of poultry houses and litter incineration coming to Northampton. Planned Unit Developments (PUDS) have also raised concerns, mainly whether or not there will enough controls once the projects are approved. Mary Miller’s analysis (read it here) covers some of these PUD concerns.
“We have to understand, Bay Creek is a PUD, and no one is complaining much about it,” Supervisor Hubbard said.
“I read in a CBES newsletter, that we could possibly put an agricultural or industrial use in a PUD, with no setbacks. Is that true?” asked Supervisor LeMond.
“In theory, they could,” replied Economic Director Charles McSwain. “Even if someone applied to put chicken houses in a PUD, do think it would be approved?”
“No,” LeMond said.
“You could eliminate the word Agriculture from possible uses,” added Administrator Katie Nunez.
During the presentation, Chairman Hubbard asked Mr. McSwain if he had any contact with Dr. Chandler of Virginia Tech, generally regarded as the State’s leading authority on Planned Unit Development. Hubbard was referring to an email correspondence between Roberta Kellam, Martina Coker and Chandler, which seemed to raise a number of legal issues surrounding the way PUDS may be implemented in the proposed zoning. The email, and involvement of Dr. Chandler generated a memo regarding the following questions proposed to Katie Nunez, the County Administrator:, which requested some clarification from the staff:
To: Katie Nunez; Beverly Leatherbury; Jones Bruce
Cc: Rick Hubbard; Granville Hogg; Larry LeMond
Subject: Draft PUD staff comment
…with regard to the attached “memo” (above) that is purportedly from Northampton County “staff” to the Board of Supervisors. Please answer the following questions as pertains to the PUD discussion:
1. Which “staff” persons authored the PUD discussion provided in the attached document?
2. Is the PUD discussion by “staff” intended to be a legal opinion, and if so, was that legal opinion drafted by or reviewed by a Northampton County Attorney?
3. If the legal opinions embedded in staff’s discussion of the PUD were drafted or reviewed by a County Attorney, which County Attorney was responsible for the PUD discussion?
And response by County Administrator Nunez:
From: Katie Nunez
Cc: ‘Rick Hubbard ‘
Sent: Monday, July 27, 2015 10:08 AM
Subject: RE: Draft PUD staff comment
Legal counsel did not draft nor review the staff memo that is included in the July 27, 2015 Board of Supervisors work session agenda packet.
“Did you ever contact Dr. Chandler?” asked Hubbard.
“No,” replied McSwain. Note: Mr. McSwain had distributed a written brief concerning Mr. Chandler, alleging that he had no “ability to interpret the intent of the Code of Virginia”.
Also referenced, a memo Board of Supervisor’s information package for 27 July 15 prepared by County Administrator Nunez:
The section was reviewed by Chandler who was engaged by R. Kellam and M. Coker to opine on the current draft. Chandler did not contest the adequacy of the section as to prescribing what a PUD is. By its nature, the PUD is intended to “provide flexibility in design…to encourage comprehensive planning of developments and to insure compatibility of developments with surrounding areas.” Thus, his assertion that the PUD provision lacks the “where, when and how” it will be applied is by design. A Board of Supervisor approved PUD is a freestanding ordinance that has been specifically vetted with the comprehensive plan, adjacent use impacts, and community standards through the application review and public hearing process. The review of any PUD application will bring together leadership, staff and outside consultants specific to the nature of any proposal – whether it is housing, some mix of uses or a business park, for example. Providing standards within §154.1 of the code for all of these diverse types of uses could lead to conflicts and confusion by applicants and reviewers as well. It would also be unnecessarily verbose and the goal established by the Board of Supervisors was to reduce the complexity of the zoning code.
Chandler also raises legal questions about the proposed $154.1-219. ln reading the distinguished background of Chandler there was no reference to his legal practice and his ability to interpret the intent of the Code of Virginia. It should be pointed out the $154.1-219 only allows for PUD development. It does not approve it. The measure of legal acceptability of a PUD will come by the terms of any PUD ordinance which must be passed by the Board of Supervisors for any such PUD to take effect.
In establishing fees for PUD district applications, the Board of Supervisors could include, as it does with other fees and permits, the cost of outside consulting staff to assist the County in review and compliance with PUD law and good planning.
“Now this Mr. Chandler,” said Supervisor Hogg. “There have been some questions raised; he raised a legal question about the PUD. Now, he is considered to be the Virginia Guru (on Virginia planning), now has this been reviewed by the attorney? It came out of your office so has it has been reviewed by the County attorney?”
“My understanding is that the Administrator did send a question to the County Attorney. Yes, my understanding from Katy Nunez is that she did and she has the relationship with the County Attorney so the questions may be better to administrator..,” answered McSwain.
“Do I look to the left (at Nunez) or to the right (at County Attorney Leatherbury),” asked Hogg.
Nunez responded, “Bev?”
“Well I, I can just state certainly that the draft of the revisions in the proposed zoning ordinance with respect to the PUDS were certainly reviewed by the County Attorney’s office. I don’t know, I have not had any conversation with respect to Dr. Chandler’s proposal with Ms. Nunez. I don’t know whether Mr. Jones can answer that,” Ms. Leatherbury said.
“Are we to act on this? Knowing whether or not it has been thoroughly reviewed. I’m guessing what it is that I am asking is do I have the confidence level that it will pass muster?” added Hogg.
Chairman Hubbard said, “I think one of the things we already discussed here was, is again that we had asked for some further clarification with I believe Dr. Chandler, and some discussion on possible.”
“I’m sure he’d be happy to do a study,” interrupted McSwain.
Hogg addressed the board saying, “Oh I’m sure that we’re going to study everything to death, but you know, I didn’t know whether or not that there, whether or not the Country Attorney’s office had looked at each one of these items. In other words, that’s what I’m looking at, in other words, has the County Attorney, you know, we’ve said something in Items two and we made some changes to it– is it going to pass muster?”
“I do not believe the County Attorney has changed their position on the draft language provided to the Board of Supervisors containing 154.1-219 which is Planned use Development,” Nunez said.
“He said that we might do some other; at least I do not know if he is a lawyer or not, like you said but I do not understand this memo saying that what we are doing does not pass muster legally, as you say Mr. Hogg, I don’t predict as of this time,” Leatherbury said.
“ I don’t know, in other words again, you’ve indicated there is some sort of correspondence with him, so…” asked Hogg.
“The correspondence originated as a comment from the public,” said McSwain.
“Affirmative,” Ms. Leatherbury said.
Mr. Trala said, “I don’t see any problem with this Mr. Chairman”.
This exchange created some level of confusion, as to whether Chandler’s letter had been reviewed by the other attorney, Bruce Jones. More so, it was noted by Nunez in an email sent to Chairman Hubbard that, legal counsel did not draft nor review the staff memo that is included in the July 27, 2015 Board of Supervisors work session agenda packet. There appeared to be some discrepancies; however the Board made no attempt to attain more clarification in the matter.
Supervisor Bennett voiced concerns that the restrictive language in the proposed zoning could have adverse effects on agriculture in the County, “I have been talking to some farmers, are there some things we are doing, by restricting the zoning that could harm their livelihood. Now, we keep coming back to these chicken houses—.”
“The answer is ‘Yes’,” interrupted McSwain.
“Some of them think their children may want that as a source of income, to supplement. I want farmers to have a voice, to be able to conduct their business. This is Northampton County, this is agriculture,” Bennett said.
Relative to intensive farming and chicken houses, staff member Melissa Kellam advised the Board that the County was in the process of taking steps to control litter incineration, such as requiring that the majority of waste be processed on-site, “The processing of waste should occur on the primary piece of property.”
“ The setbacks, do they refer to Town Edge also in terms of Intensive Farming?” asked Chairman Hubbard.
Ms. Kellam responded, “They’re in your packet. I can’t remember how…. I set it up the same way that was in the current ordinance. I don’t have that draft in front of me.”
“That’s what we did at the last meeting,” said Ms. Nunez.
“Right, that’s what we did at the last meeting,” Ms. Kellam said.
“1500 feet from the Town Edge,” added Hogg.
“1500 feet, use the same as, as currently in the ordinance,” Ms. Kellam said.
“Mr. Chairman, while we are on that subject, I wish that word could get out that there are only nine parcels. I’m still getting emails stating, I understand, there’s 50 chicken houses coming to Northampton County from Tysons and Perdue. I got a phone call Sunday from a constituent wanting to know what’s going on, and nobody’s approached me,” LeMond said.
“Nobody has come into our office,” Ms. Kellam said.
“No farmers knocking at my door to put chicken houses on their property. So I wish that word would get out and people not put these falsehoods out there.” LeMond said.
Kellam added, “Nobody has been our office to submit plans.”
Although it appeared Board Member LeMond was leading staff to confirm that there were no plans, and no one from Tyson or Perdue had contacted them regarding bringing poultry operations to Northampton, an email obtained by the Cape Charles Mirror from a former County employee, seemed to contradict this:
I personally took the call from a Tyson representative and transferred it to McSwain.They have people in the county interested in having chicken farms and they were calling to determine if it’s possible to do. Charles spoke the them for an hour. He said it was a very beneficial call and thanked me for sending it to him. Charles was very pleased that the new zoning would allow Tyson to come in and establish the farms they want, although no specific number of chickens houses or farms were mentioned to me.
Given that this employee was aware of Tyson contacting the County via Mr. McSwain, it would seem logical that Director McSwain would have also passed this information on to the County Administrator, who more than likely would have informed the Board of Supervisors. Given this window of time overlaps Mr. LeMond’s tenure as chairman, it would seem more probable than not that he would have been aware of Tyson’s plans for Northampton County.
When all was said and done, consensus was to take the phrase ‘resource recovery’ out of the draft zoning ordinance and to instead use ‘waste management. According to Ms. Kellam, that would limit any ‘waste stream’, and would only allow 15% to come in from outside Northampton. Kellam inferred that this measure would help to deter anyone from going into the waste incineration business since they would have to base it on waste being imported into the County; since there are only nine parcels eligible for intensive farming, Ms. Kellam felt they would not be able to produce enough to make the business viable, “It would not be feasible—you would need a lot of chickens.” Although Mr. Bennett questioned staff about the exact amount of acreage in the nine parcels, exact figures were not available. Staff did estimate that they were “two acres and up.”