windmill-thumbIn the latest case of local zoning enforcement insanity, Mark Graham, Director of Albemarle County’s Department of Community Development, Amelia McCully, Albemarle County Zoning Administrator, and Sally Thomas, Albemarle County Board of Supervisors member, all acknowledge the existence of an illegal windmill in Albemarle County, but they refuse to address it. The stated reason? There is proposed/pending Albemarle County Government discussion of windmills which might make this one legal (and, it’s a “useful model”).

On 5/7/2009, Albemarle County Zoning Administrator, Amelia McCully confirms via email response to a citizen inquiry, that the windmill is “not approved” by the County:

From: Amelia McCulley <AMCCULLE@albemarle.org>
To: xxx@aol.com; Mark Graham <mgraham@albemarle.org>
Sent: Thu, 7 May 2009 4:26 pm
Subject: RE: windmill-RIO RD

To the best of our knowledge, this windmill was not approved by the County.
Family “rights” do not change this situation.

The next day, Mark Graham astoundingly responds that both the Albemarle County Board of Supervisors and Albemarle County Planning Commission are aware of the “issues.” He then digs himself into an even deeper hole with the bewilderingly arrogant assertion that he has directed his staff to ignore an acknowledged violation of Albemarle County Zoning Code:

From: Mark Graham
Sent: Fri 5/8/2009 8:45 AM
To: xxx@aol.com; Amelia McCulley; Sally Thomas
Subject: RE: FOOD FOR THOUGHT

Ms. Napoleon,

Yes, this department is aware of the wind turbine on Rio Road.  However, as the Board plans to consider an ordinance where these these might become an allowed use, I have directed the  Zoning staff to focus their attention on other priorities until we work through this issue.

I appreciate your concerns with wind turbines and I believe both the County Board and the Planning Commission are aware of those issues.  While there is not yet a draft ordinance proposal, there is direction that staff and the Planning Commission should draft a proposal for consideration.  Thus, nothing  has been decided with respect to wind turbines and there will be opportunties for you to share your thoughts with the Planning Commis sion and County Board prior to any decision being made. Once there is an ordinance proposal for consideration, I would be happy to email you a copy and provide you the dates of public hearings where you would have the opportunity to express your concerns directly to the County Board and Planning Commission.  I would also be happy to forward your comments on the proposal to the Planning Commission and/or County Board prior to the public hearings.

Respectfully,

Mark B Graham

Supervisor Sally Thomas (who has taken an oath to uphold the law,) “assesses” the windmill as apparently worthy of being in violation of the law. Thomas even refers to the offending windmill an ineffective but “useful” model:

From: xxx@aol.com [mailto:keswicknapoleon@aol.com]
Sent: Monday, May 11, 2009 9:29 AM
To: Sally Thomas
Subject: windmills

Pat, for myself, I regard the Rio Rd wind turbine as a useful model.  It lets us  all see what a 35 foot tall wind turbine looks like, sounds like, and how it  produces electricity.  Turns out it doesn’t produce much electricity and its  unproductive situation may be a more effective dissuader than all our  conversations.  I hope any of your friends planning to put up turbines will (a)  ask that person how effective it is and (b) remember we’ve defended our tower  policy all the way to the federal court of appeals, and won.  Once we have an  ordinance I am confident we will enforce it.  And yes, we have required very+ expensive towers to be taken down.  I hope you’ll be willing officially to let us know about the towers that are already erected at that time, and maybe  unofficially let me know now as I would be interested in assessing their  situation.
Sally

In a series of 9/29/09 e-mail follow ups to Graham and McCulley, the county resident again points out the Rio Road windmill and asks if it is a violation of current Albemarle County Zoning Code.

From: xxx@aol.com
Sent: Tuesday, September 29, 2009 10:57 AM
To: Amelia McCulley; Mark Graham
Subject: Fwd: windmill

A simple yes/no answer is fine.

—–Original Message—–
From: xxx@aol.com
To: amcculle@albemarle.org; mgraham@albemarle.org
Sent: Tue, Sep 29, 2009 10:54 am
Subject: windmill

Is the windmill structure hovering over Rio Rd. still in violation of the current Albemarle zoning code? I request an answer here.  Thank you, Pat Napoleon

McCully is silent, but Graham answers for her:

From: Mark Graham <mgraham@albemarle.org>
To: xxx@aol.com; Amelia McCulley <amcculle@albemarle.org>
Sent: Tue, Sep 29, 2009 4:40 pm
Subject: RE: windmill

Yes

FYI, We have an ordinance amendment for small wind turbines planned for a Planning Commission public hearing on November 17th.  That ordinance would make small wind turbines such as this one an allowed accessory use.

Noting that two senior Albemarle County Zoning officials are ignoring an acknowledge violation of the code, the citizen seeks clarification:

From: xxx@aol.com
Sent: Tuesday, September 29, 2009 8:41 PM
To: Mark Graham; Amelia McCulley
Subject: Re: windmill

I see…It continues to be in violation of the code… on this date.

The next day, sensing that he’s just stepped into a quagmire, Graham attempts to backpedal from his previous positions:

From: Mark Graham <mgraham@albemarle.org>
To: xxx@aol.com; Amelia McCulley <amcculle@albemarle.org>
Sent: Wed, Sep 30, 2009 3:46 pm
Subject: RE: windmill

While we have not actually investigated this property and use, a casual observation suggests it is likely a violation.  They could claim it existed prior to the zoning ordinance, placing the burden on us to prove otherwise.

To be clear, we are not ignoring the property.  Instead, recognizing that a wind turbine may become an allowed use in the time it would take to fully process a violation, we’ve assigned it a low priority and focused our limited resources on more immediate violations.

In conclusion:

  1. Amelia McCully, Albemarle County Zoning Administrator, has been aware of a blatant zoning violation in her jurisdiction since May 2009, yet she has refused to address it.
  2. Sally Thomas, Albemarle County Board of Supervisors member, has been aware of a blatant zoning violation in her jurisdiction since May 2009, yet she has refused to address it.
  3. Mark Graham, Albemarle County Director of Community Development, has been aware of a blatant zoning violation in his jurisdiction since May 2009, yet he has refused to address it. In fact, (and in spite of his claim to the contrary) Graham has directed his staff to ignore it.

Given this information:

  1. It is incumbent on Albemarle County Executive, Bob Tucker, to take appropriate disciplinary action regarding his staff’s legal insubordination.
  2. It is incumbent on Albemarle County Attorney, Larry W. Davis, to publicly clarify the County’s policy on discretionary enforcement.
  3. And, it is incumbent upon Albemarle County voters to take appropriate disciplinary action against elected officials who knowingly supported such violations of County law.

In the United States of America, justice is supposed to be “blind,” but in today’s Albemarle County, it appears that breaking the law is sanctioned for some and verboten for others. Whether or not the law applies to you is no longer determined by legal code, but rather it is dependent upon who you are and what you have done.

Tom Slonaker alleged in a recent lawsuit against Albemarle County, that County Government was “arbitrary and capricious” in their zoning enforcement efforts. Let the evidence presented herein serve as absolute vindication of his claim.

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