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Fauquier Zoning Administrator has Overstepped

Right Side News ran "Fauquier Cites Farmer for Farming" by Rick Buchanan which brought a great deal of attention to the county's local zoning ordinance.

Just what is going on here in Fauquier County? The truth behind the “event” citations that has a Paris farmer pushing out her hard earned dollars for her defense has now been revealed. How did we get to the point where it costs you $500.00 plus lawyer’s fees to defend an act of kindness offered to the 10 year old daughter of your best friend? And is the posting of events on the internet of what you would like to happen or wish you could have for a successful business now a citable offense? What’s next? Will the Fauquier Zoning Gestapo employ the use of drones to verify that your back yard barbeque is legal, with 1) not too many people 2) not too much smoke 3) a decibel level of fun not too high 4) cars not parked properly in your yard and 5+) on and on and on? Are they right now combing the internet to discover some contrived infraction to cite you for?

Big_Brother_WatchingThe case against the Paris farmer is one that every farmer and citizen in Fauquier County should familiarize themselves with. You may ask what does this have to do with me. In reality, the heavy hand of your Zoning Administrator (ZA) could be citing you if your neighbor brings you to her attention. In a letter written to Ms. Johnson, uncovered by a FOIA request, one of the Paris farmer’s neighbors stated “Most of us in Paris do not want any (emboldened in original letter) business run out of her (the Paris farmer’s) farm.” The Zoning Administrator is apparently listening.

This Paris farmer has now been cited for selling products grown on her farm and having events that either never happened or where simple acts of kindness toward a friend because of complaints from her neighbors. This, I believe, brings into question the far-reaching powers given to the Zoning Administrator and her favoritism shown toward some self-important busy bodies to control what is in their neighborhood, regardless of the law or the rights of others.

In a recent memo of clarification on July 18, 2012, which was published in the Fauquier Times Democrat (FTD), Zoning Administrator Kimberly Johnson stated “The Zoning Ordinance allows sales of agricultural products … as an accessory use to farming pursuant to Section 6-102.23a. (wayside stand or existing building)” and that this “category allows farmers to sell the agricultural products they produce on-site by-right, with no approvals from the County. Sales are limited to items grown on-site.”

After reading this, I was dumb-founded. This exactly describes the case of the Paris farmer who is being cited for not obtaining an Administrative Special Permit to do exactly what the ZA says is “by-right”. In fact, as of July 13, 2012, one year after the BOS passed this change for which the farmer is being cited, not one single Administrative Special Permit has been issued to anyone in Fauquier County!

And now the BOS have given the go ahead for the ZA to determine the fate of every winery in the county and has given language to enable the judgement of the ZA to be used in the same manner she has shown to use in the case of the Paris farmer. Read just some of what the new winery ordinance says and then think about the wide range of power and discretion placed in this non-elected position:

“The Zoning Administrator shall consider the following standards in determining whether or not to grant or reissue an Administrative Permit:

A. The presence or absence of a history of past violations of conditions of permits issued by the County or the Health Department;

B. The consistency of requested Special Event sizes with:

i. The capacity of access roads to accommodate the expected vehicular traffic, including road designation on the Rural Road Classification Map 10.1 in the Comprehensive Plan;

ii. The road safety based on factors such as sight distances, road surfaces, road width and shoulder width;

iii. The designed capacity of the entrance; …

v. The availability and location of parking facilities…

F. The effect of noise on residents in the surrounding areas;…

H. The written comments of nearby property owners and residents received by the Zoning Administrator”

So, if you have been cited by the ZA (guilty or not) it can be used as a reason for the ZA to not issue or reissue an Administrative Permit. And how does one determine the “expected vehicular traffic” for an event that has not happened? How wide is a safe road and shoulder width? What exactly is a safe road surface and when does an unsafe road surface become safe? And my favorite is consideration of the written comments from nearby owners. We already have seen how that was handled and it was not pretty.

All this being said, as my Mom used to say, “The proof is in the pudding”. The Board of Zoning Appeals has an opportunity to correct the wrongs that have been done in the Paris farmer’s case, let the ZA know she has overstepped and begin to rein in the callous disregard of property rights shown in this and future cases. On August 2, 2012 @ 2:00 PM the hearing of this case will be reconvened in the Warren Green Building, 10 Hotel Street in Warrenton, VA. Whether you live here in Fauquier or not, this is a case that could affect you, since precedent will be set here. If you like fresh products from a local farm or love to visit local Virginia wineries, you are a stakeholder in this struggle. So I suggest you come out and see for yourself if we live in a farmer friendly county or not.

Update, July 23, 2012.  The Insitute of Justice issued a letter to the Fauquier Board of Zoning Appeals  and can be viewed here .

Rick Buchanan

Warrenton, VA

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