Board approves special exception to keep accessory structure in stream buffer with bonding and mitigation

The Albemarle County Board of Supervisors voted 5–1 on June 3 to approve a special exception allowing an existing accessory structure at 528 Clark’s Tract to remain within a designated stream buffer, subject to a mitigation and bonding plan.

County staff told the board the property is 7.86 acres and the structure’s primary footprint is about 40 by 40 feet, and that the applicant’s proposal uses a 2:1 mitigation ratio for an estimated 11,000 square feet of impact (staff cited about 23,376 square feet of mitigation). Rebecca, the planner presenting the item, told supervisors the mitigation plan would include shrubs, deciduous trees and native grasses and would prohibit accessory uses such as homestays.

Owners Jeremy and Catherine Kent — represented by attorney Nicole Scrow — described the history that led to the enforcement action, saying prior owners had hosted weddings and built structures without complete permitting and that the Kents relied on representations at closing. Jeremy Kent told the board, “We’ve spent almost $100,000 at this point and we’re not even finished,” and asked that the county allow the mitigation path rather than require demolition.

Supervisor Anne Malek expressed concern about shifting staff recommendations and consistency of enforcement, asking why a packet that originally recommended denial now presented resolutions for approval and noting the county’s interest in upholding stream buffer rules. Staff said the earlier recommendation in the packet is still in the record but that, given the existing disturbance on site, they recommended mitigation under ordinance criteria that allow limited relief when certain findings can be made.

Board members debated whether approving the exception would set precedent and weighed environmental protections against the practical costs of removing a large structure and the owners’ stated reliance on prior representations. Bart Svoboda, deputy director of community development and zoning, said the county does not generally lose enforcement tools over time, but that delayed enforcement can make it harder to reconstruct historical conditions.

Supervisor Ned Galloway moved and Supervisor Lapisto Kirtley seconded the resolution to approve the special exception with conditions including a bonded planting plan to be installed within six months. The clerk reported the roll call as: Pruitt — Aye; Duncan — Yes; Galloway — Yes; Lapisto Kirtley — Aye; Malek — No; Missal — Aye. The motion carried 5–1.

The approval includes a timeline and bond to ensure plantings establish (staff said bonds are typically held until plants are established for two seasons) and a prohibition on accessory commercial uses in the restored footprint. Staff cautioned that DEQ could be asked to consider piping or other state‑level permits independent of the board’s action, but told supervisors there was “no guarantee” DEQ would permit piping to avoid buffer regulation. The board’s approval does not determine outcomes in related circuit‑court litigation that the Kents said is pending.

What happens next: staff will finalize conditions, the applicants must post required bonds and implement the mitigation in the schedule approved by the board; any failure to meet those conditions could prompt enforcement actions. The board’s decision was framed by members as a narrow, site‑specific accommodation rather than a change in policy for other buffer cases.