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Death by A Thousand Cuts – Why Special Exceptions Should Not be the Rule





RE: DEATH BY A THOUSAND CUTS: Family Subdivisions in Non-Common Open Space Easements and Other Special Exceptions

Your July 18 review of a text amendment allowing subdivisions patently foreclosed by the terms of certain non-common open space easements will give you an ideal opportunity to ponder the potentially endless adverse consequences of condemning Fauquier’s best public policies to death by a thousand cuts through the nonsensical overuse of Special Exceptions.

Facially, the term “special exception” implies that individual variations from an established rule will not diminish its ongoing effectiveness. As a practical matter, however, every permitted deviation serves as a precedent for others, undermining the long-term validity of the governing ordinance.

Whether for family subdivisions clearly contrary to the terms of non-common open space easements, or for a hotel described as a “resort” to house farm winery patrons (coming to you soon!), the Special Exceptions sought to allow these uses are direct attacks on the policies forbidding them.

And these attacks are directed at the most vital elements of Fauquier’s zoning ordinance — RA/RC zoning (80 percent of the county’s land area) and the sliding scale density/non-common open space rules.

CFFC believes that, in an ideal land use regulatory world, special exceptions would be unnecessary: Every zoning ordinance chapter would fully embody every permitted use, with detailed standards for each use; the absence of Special Exceptions would emphasize the Board of Supervisors’ determination to disallow deviations from the stated conditions.

Conversely, the mere existence of Special Exception uses signals uncertainty about the Board’s intent, and encourages continuing challenges to an ordinance’s ostensible limits.

It seems to CFFC that it would be prudent for the Planning Commission to henceforth regard every Special Exception application as an implicit demand for change in the rules from which variations are being sought, with the objective of advising the Board of Supervisors to either regularize or entirely foreclose the desired uses.

To illustrate, there is no theoretical end to serial Special Exceptions allowing subsequent purchasers of a property whose seller has exhausted his family subdivision rights pursuant to a non-common open space easement to violate the express terms of their deeds in order to facilitate family transfers. The illogic underlying the original Special Exception would necessarily foreclose subsequent denials based on rational interpretations of the governing documents, enabling the exceptions to entirely swallow the rule.

Similarly, there is little doubt that the Board of Supervisors’ 2014 granting of Special Exceptions for the Blackthorne Inn resort, and the impending applications for renewals thereof, are the direct progenitors of Brian Roeder’s Barrel Oak Lodge applications, raising the question as to whether hotels thinly disguised as resorts will become normalized uses in the County’s vast RA/RC-zoned lands and revealing the shockingly skeletal state of the county’s regulatory distinctions among categories of transient overnight housing uses.

The Board of Supervisors demonstrated, in its June 13 order directing a sweeping rewrite of the county’s non-agricultural fill material storage and disposal rules, that it is both able and willing to confront and rectify its mistakes.

If the Planning Commission believes that subsequent purchasers of properties subject to non-common open space easements should be able to serially violate the terms of their deeds, or that hotels-cum-resorts should be normalized uses in RA/RC-zoned areas, it seems to CFFC that the Commission should act on its determinations and advise the Board of Supervisors to rewrite the rules accordingly, rather than perpetuate the endlessly disruptive uncertainty that current Special Exception provisions embody.


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