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Slope, not use, determines zoning under the current ordinance, the BZA agreed. But are the two or three flat acres that comprise the house site zoned agricultural? asked Mr. Monahan.
“The BZA has never answered that question,” said Chairman Bird. He noted that the issue was raised earlier by an application for a communications tower on the flat top of Bessie Belle Mountain but the permit request was dropped before it was resolved.
“So we’re unable to determine at this point if (the actual house site) is in agricultural or conservation?” asked Mr. Monahan.
“If you get into that kind of distinction, you going to set a precedent that’s going to bust this zoning ordinance wide open!” warned Col. Luke.
Chairman Bird noted that the ordinance specifies that a piece of steep land surrounded by moderately sloped agricultural land is zoned conservation. “But the ordinance is silent on the reverse.” Generally, when an ordinance provides one thing and doesn’t provide another, the omission is deliberate, he said. “So off hand, I think it’s in a conservation district because the predominant slope is over 14 percent.”
Checking the uses allowed in that zoning category, the BZA confirmed that all land uses in a conservation zone are by special permit. “The zoning ordinance is not explicit. It trusts everything to our discretion. That’s a daring thing to do!” noted Chairman Bird.
Holton Montague, adjoining landowner to the west of the proposed retreat center, also voiced concern over its impact on the water table, recalling that area streambeds have often dry during droughts. He also questioned the county’s ability to police and control a venture there.
Mr. Monahan pointed out that the BZA must have expert testi
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