Author: Lisa Provence

Eric Schmitz came back from the holidays last December and found a letter about plans to develop 17.5 acres on two parcels in front of Western Ridge in Crozet. “I know it well,” he says. “The future development was on top of a stream.” But on the Albemarle County map, the stream was no longer there.

He attended a Crozet Community Advisory Committee meeting about Montclair, the proposed 157-unit development off Route 240, where he was told that when county officials went out there, there was no stream, says Schmitz. “My eyes weren’t lying.”

Why a county stream, which has been on maps for 170 years and is presumably protected by Albemarle’s Water Protection Ordinance, was removed—along with its 100-foot buffers on each side—from county GIS maps shortly before the Board of Supervisors approved the Crozet Master Plan in October 2021, and before a developer asked for a rezoning to build on the stream site, is not crystal clear. 

“We don’t have a good sense of why that happened,” says Joe Fore, chair of the Crozet Community Advisory Committee, which had been reviewing the master plan. “The first thing that seemed strange was that it was very late in the process. People felt blindsided. There was no chance to review.”

The plans to rezone the site sans stream, originally reported by Crozet Gazette, drew widespread opposition among Crozetians, who formed Crozet United and filed a citizen suit under the Clean Water Act against the U.S. Army Corps of Engineers. The basis of the complaint, says Schmitz, is that the developer piped a stream under an invalid permit.

On March 20, 2021, county engineer Frank Pohl and the Army Corps’ Vinny Pero found a stream on the property, according to an email from Pohl obtained under the Freedom of Information Act. By August 31, 2021, Pohl says the map will change because the owner of the parcel—Highlands West LP—had piped a section of the stream. 

During summer 2021, Montclair’s engineer, Justin Shimp, buried a 203-foot portion of the stream, says an email from Shimp Engineering. The county did not require a permit because Shimp said he was moving under 10,000 square feet of earth, explains Pohl in a January 21, 2022, email to Schmitz and Albemarle County Supervisor Ann Mallek. 

Shimp received a verbal okay from the U.S. Army Corps of Engineers under its Non-Reporting Nationwide 18 permit, says the email. Once the stream was underground, the segment no longer required a 100-foot buffer.

Shimp, who has been stalled on other projects involving water, most recently the 0 East High Street 245 apartments in the Rivanna River floodplain, did not return multiple phone calls from C-VILLE.

Through the course of 168 pages of FOIAed emails, county officials began to say the Army Corps had designated the remaining segments of the stream “ephemeral,” making them eligible to be removed from the map as well.

Not true, say three Corps officials, who denied ever reclassifying the stream as ephemeral in a July 22 email. Nor does the group determine whether to remove a stream from the map, says the Corps’ Pero. “We just determine whether it’s a ‘water of the United States.’” And he confirmed that the Montclair stream was, indeed, a “water of the U.S.”

Schmitz calls the ability to pipe streams without county oversight a huge loophole, and he believes a developer could bury an entire stream by doing it in segments. He worries that the same dodging of the Water Protection Ordinance could happen again. “Everyone understands it’s broken,” he says. 

Even Mallek, whose White Hall District includes Crozet, had a hard time getting a straight answer about the “stream erasure.” In a September 5 memo to her fellow supes, she writes, “Despite repeated requests from me since January and again March 2022, and from residents at CCAC and to County staff by community members, the only documentation presented for erasure of the stream in the last days of adoption of the Crozet Master Plan is a reported word of mouth declaration by the [Corps] of non-stream status. Now we learn that report is not accurate.” 

Despite the Corps’ assurance that the stream existed, Community Development Director Jodie Filardo announced at the September 6 supervisors meeting the hiring of an outside consultant to determine whether the two unpiped segments of the stream were, in fact, intermittent streams that required 100-foot stream buffers under the county’s Water Protection Ordinance. 

Filardo noted a “conflict of interest” with county engineer Pohl, who used to work for developer Vito Cetta. County spokesperson Emily Kilroy clarifies that Filardo used “conflict of interest“ in a “colloquial sense,” not a legal one implying financial interest. “There was a concern there may be the perception of a conflict because over a decade ago he worked for the applicant.”

On October 13, Ecosystem Services determined both stream segments were intermittent, and Pohl agreed, saying in an October 19 letter to the property owner that they would be added back to the county GIS stream buffer mapping.

Highlands West hired its own consultant, Wetland Studies and Solutions, which determined part of Segment 2 and all of Segment 3 are ephemeral. On November 18, Shimp filed a notice of appeal with the county.

With the stream buffers back—at least at the moment, Cetta says he plans to resubmit a smaller, 77-unit project in the next month or so. The revised Montclair will have 20 villas in the $625,000 to $700,000 range, and townhouses for $425K to $475K, with 12 carved out as affordable units for Habitat for Humanity.

Asked if he had any insights about why a stream was removed from the GIS map of a parcel he planned to build on, Cetta says, “That’s a county question.” 

For decades, two of Albemarle’s toniest enclaves—Farmington and Ednam Forest—have lived in proximity to a less desirable neighbor. Charlottesville Oil, built in 1950, has long been known for the junked vehicles and debris outside. And inside, when it rained, it poured.  

Albemarle County finally noticed. On April 22, it sent Charlottesville Oil president James F. “Phil” Dulaney Jr. a preliminary determination that “the property at 2839 Ivy Road is blighted.” Among the 10 violations cited are “overall lack of any or no maintenance to the building and outside property,” holes in the roof and floor, hazardous materials, mold and mildew, “unsanitary conditions” inside the building, and no heat for employees.

That was followed by an April 27 letter from county Assistant Fire Marshal Micaiah Ledford, who noted “continuing violations” of fire codes, as well as local and state statutes. He set out a timeline for hazardous materials cleanup, asbestos abatement, and demolition permits for unsafe structural sections.

On July 13, county Zoning Administrator Bart Svoboda sent Dulaney an official notice of violation. He listed the accumulation of tires and trash, multiple inoperable vehicles, structures, and a roofing contractor whose business was not a permitted use. Svoboda warned Dulaney the violations could be subject to criminal and civil penalties, and to bring the property into compliance by August 15. 

Albemarle’s deadline for compliance has been extended because Charlottesville Oil is “making forward progress,” says county spokesperson Emily Kilroy, who clarifies that the property has not been condemned. The county has taken the owners of blighted properties to court, but “that’s not where we want to be,” she says, noting the cost to taxpayers. “The opportunity to address real safety and health issues is a better outcome.”

The fire marshal was involved, she explains, because “unsafe structures pose huge risks to firefighters.” 

In an emailed statement, Dulaney says, “We have completed the asbestos removal phase and are coordinating with Albemarle County to take down what needs to be taken down and fixing up what needs to be fixed up. We look forward to a completed project in the near future.”

Dulaney owns a large portfolio of properties in prominent locations, the most notorious at Rockfish Gap where the Blue Ridge and Shenandoah national parks meet. The Howard Johnson restaurant and Holiday Inn there were thriving businesses when he took control of the primo real estate 50 years ago. 

The site included a gas station and the Skyline Parkway Motor Court, which became the target of arsonists in the early 2000s and has been partially demolished. Dulaney also faced fire code violations in 2011 and 2012 at the former Holiday Inn, by then known as the Afton Inn.

Today, only the orange HoJo’s roof seems to have survived the half century intact, and a popcorn truck is the only business in operation.

Swannanoa, a 1912 palace on the Virginia Landmarks Register and National Register of Historic Places, is also Dulaney-owned, as are the parcels housing Wayside Chicken and the former Toddsbury in Ivy. 

Bruce Kirtley ran the Ivy convenience store for 25 years, closing it in 2019, he said, because Dulaney refused to do any maintenance. A faulty septic system was the breaking point for Kirtley, who told C-VILLE, “If I owned it, I’d fix it. That’s what rational people do. His properties speak for themselves.”

Anderson’s Seafood and Catering has resided under a canopy in the Charlottesville Oil parking lot for eight years. That use is not within the parameters of the zoning violations, says Kilroy.

“So many customers have been concerned that we’d have to move,” says Ted Anderson. “It’s the best location we’ve ever been in.” He says he has five times the business he’s had in previous locations. Dulaney and his associate, Mike Jones, “have been fantastic to work with,” Anderson says, but he does acknowledge that inside the building, “it wasn’t in very good shape.” 

The closer scrutiny of Charlottesville Oil came about after a complaint earlier this year, Kilroy says. C-VILLE Weekly did a story on Dulaney’s properties in 2015 called “The ruins of Afton Mountain: Eyesores along a scenic byway,” which reported—with photographs—the busted-up vehicles at Charlottesville Oil, and asked the director of zoning about the county’s junked vehicles ordinance.

“It’s a fair question,” concedes Kilroy about the lack of action seven years ago. She says the county was unaware of the mysterious “Crozet hum,” a noise ultimately linked to Yancey Lumber in 2018, until a Crozet Gazette reporter got in touch. “If folks see something that needs addressing, they should reach out to us.”

Editor’s note: A previous version of this article misspelled the name of county Zoning Administrator Bart Svoboda.

Nearly a year ago in the early hours of September 13, 2021, Sarah Peaslee got the knock on the door no parent ever wants to hear. A police officer told her that her son, 29-year-old Will Davis, had been struck by a motorcycle crossing Richmond Road—U.S. 250 east—and died instantly.

“Will was coming home from a friend,” she says. Will, the grandson of Charlottesville Observer founder Kay Peaslee, was staying with his mother at Carriage Hill on Pantops, and she acknowledges he jaywalked. “He was jaywalking because it’s frustrating to try to cross.” 

Richmond Road is not the only Albemarle County road built to move cars, not pedestrians, and eight pedestrians have died on county roads since 2016, compared to the five deaths in Charlottesville’s city limits over the past 10 years.

Through the ’80s and ’90s, “the flow of vehicles was considered more important than pedestrians,” says Kevin McDermott, Albemarle’s planning manager. At U.S. 250 on Pantops, “we had eliminated all of the opportunities for pedestrians to cross from the [Rivanna] river to I-64. The sidewalk system is inadequate and that’s why we’ve ended up with a road not safe to walk along or to cross.”

Five-lane Richmond Road is notorious for late-night speeding, says Peaslee. While the speed of the BMW motorcycle that struck Davis has not been determined, after it hit him, it totaled a parked Mercedes at the dealership there and its driver, Robert Nikodem, was hospitalized for weeks, she adds. 

Nikodem has been charged with driving under the influence. Assistant Commonwealth’s Attorney Lawton Tufts declined to comment on the case, and says the investigation is ongoing. C-VILLE was unable to reach Nikodem.

While Richmond Road has seen two pedestrian fatalities in the past two years, it’s not the deadliest road in the county. The worst, says McDermott, is U.S. 29 from the city limit at Hydraulic to Hollymead. “Currently there are only two designated pedestrian crossings,” he says. “Drive on 29 any day, you’re going to see pedestrians dash across four or five lanes to the median.”

He says, “I consider that our most unsafe corridor for pedestrians.”

One option Albemarle’s Board of Supervisors likes a lot is photo speed cameras, which warns drivers, snaps pictures of speeders, and sends a ticket in the mail, but that may be a long-shot in photo-ticketing-averse Virginia.

“It’s very effective,” says Supervisor Bea LaPisto-Kirtley. “To me it seems like a no-brainer. We have to use technology because we don’t have the people to enforce speed limits.” Photo speed cameras are at the top of the board’s legislative agenda, she says.

Delegate Rob Bell carried a photo speed camera bill in this year’s General Assembly, but he says it was geared toward two-lane rural roads where it’s unsafe for police to ticket safely. That bill died in subcommittee. 

Cameras have been used to target redlight-runners and school-bus-passers, notes Bell, but the “idea of the presumption of guilt and mailed tickets is not something generally done in Virginia.”

And when a bill fails 10-0, “I’m not planning to bring it back,” he says.

Albemarle is looking at other ways to make crossing multi-lane thoroughfares safer, says McDermott. Pedestrian crossings are in design for Richmond Road at Route 20/Stony Point Road and at Rolkin Road. 

The 250 Access Management Project would close the center lane used for both right and left turns, which LaPisto-Kirtley dubs the “suicide lane,” and put in a median. The project should be ready for public feedback in spring 2023, with construction two years after that, says McDermott.

The recent federal infrastructure bill offers a Reconnecting Communities grant, dedicated to those areas—often African American—that previously were cut off from economic opportunities by transportation infrastructure. The county is applying for a grant, says McDermott, to “identify places we want to enhance safety.”

Plans for U.S. 29 include a pedestrian bridge north of Hydraulic at Zan Road, and an at-grade crossing south of the Hydraulic intersection, he says.

And unlike in the past, when adding more lanes was often a solution to traffic woes, “We don’t do any major transportation projects without a major pedestrian component,” McDermott says.

Albemarle traditionally has a higher number of traffic fatalities than the city, and county police are using public outreach, public education, and targeted enforcement to address dangerous behaviors by all road users, says county spokesperson Emily Kilroy. 

With the shortage of school bus drivers and more children walking to school, pedestrian safety is an even bigger concern. Police posted a ped safety graphic on social media to lay out the best practices for walking, especially on roads without sidewalks or crosswalks.

Will Davis was “quite adventurous,” a big biker and walker who was interested in community permaculture, mushrooms, and music, says his mother. His family describes him with the phrase, “Where there’s a Will, there’s a way.”

Peaslee may be channeling her son in her efforts to prevent such accidents with safer crossings and attention to speeding and drinking. “I’d like his memory to live on as a safe crossing so that this doesn’t keep happening.”

She sighs. “It’s just so slow to get anything done.”