Stonefield developer will keep fighting permit violation from city

A drainage channel built by Edens is on the left, with property owned by Great Eastern Management on the right. Edens has said it’s gone as far as it can with erosion control measures, because Great Eastern won’t allow any work done on its property. Photo courtesy of the City of Charlottesville.

A cross-jurisdictional fight over storm-water runoff has pitched one developer against another, and city and county are taking sides as the dispute appears headed for court.

Edens, the developers of Stonefield, a 65-acre shopping center underway at the intersection of Route 29 and Hydraulic Road in Albemarle County, was told by city staff last month that it was in violation of an erosion permit. But at least one county official says the city is holding them over a barrel at the request of another developer.

Edens’ site development plan proposed running a pipe under Route 29 to carry runoff from its site and the land just uphill to an existing channel across the highway that eventually flows into Meadow Creek.

The 72″ pipe, which came out about 30′ from an existing 42″ culvert, ended up within city limits, which meant Edens had to get a city permit to move forward. In late 2009, the company presented its soil erosion plan to the city. Before it unplugged its new pipe, the company would create a channel of loose rock called riprap, designed to slow down the flow of water, to bridge the gap between the pipe and the existing stormwater channel that flows into Meadow Creek.

The city approved the plan, but a property line caused problems in its implementation. The new pipe opened up onto land owned by the U.S. Post Office, which granted permission for the work. But the channel receiving water from both outfall points is on the property of Seminole Square Shopping Center. Seminole owner Great Eastern Management Company refused to grant Edens the easements needed to remove a fence separating the properties and merge the new channel with the old one, saying the rival developer would have to pay extra to safeguard against flooding Seminole’s property downstream.

Edens built to the fence, stopped, and pulled the plug. On June 1, the city notified the company it was in violation of its permit. Edens has appealed to the City Planning Commission and the City Council in turn, both of which have upheld planning staffs’ judgement.

The dispute has come down to language. Does tying in the new riprap mean laying rock to the property line, or to the existing channel itself? Charlottesville Neighborhood Development Services Director Jim Tolbert points to a June memo that shows Edens knew it had to build more than it did.

“If they didn’t think they needed to do something, there would have been no reason for them to plug the pipe in the first place,” he said.

But everybody involved seems to agree on one thing: The riprap may be the sticking point, but the dispute is about more than rocks.

Great Eastern attorney Fredrick Payne said his client has been raising concerns about additional stormwater on its property throughout the development process.

“We don’t care what happens on the west side of 29 as long as it doesn’t impact the east side of 29,” he said. “Our consultants are of the opinion that both the county and the city have an obligation to protect against flooding, and they haven’t done so.” The underlying and more basic issue at hand, he added, is one brought up by Council members: “Does this mean that the owner of a commercial property has a right to put his surface water onto another property owner without the property owner’s permission?”

Tolbert put it more bluntly. “If you own property and someone said, ‘I’m going to build a big development that’s going to compete with you, but I’ve got to flood your property to do it,’ do you not think they’ll want some compensation for that?”

But the threat of flooding is a red herring, said Edens managing director Steve Boyle. His company has spent millions on stormwater management features that will ensure slow release of water through the drainage pipes. His company is more than willing to install additional riprap where the drainage channels meet, he said—they’ve even bonded for it.

All of Edens’ plans and work have met state guidelines, Boyle said, and because Seminole and the city can’t win the war over water, they’re picking a fight over rocks. His company is likely to appeal in Charlottesville Circuit Court, he said.

“We’ve done the right thing,” said Boyle. “We’ve contemplated the impact such a big development would have. We’ve tried to be good stewards and new people in the community, but for whatever reason, this particular neighbor has been resistant in a way where we can’t see eye to eye.”

The neighbor is Charles Rotgin, owner of Great Eastern, and his own public comment record shows he’s not always been a proponent of strict stormwater regulations. In 2009, Rotgin wrote to the state Department of Conservation and Recreation opposing amendments to Virginia’s stormwater permitting rules that would have further restricted developers.

The increased regulation would slow business investment, he said, and he argued for “latitude for local engineering departments to modify or waive certain requirements in instances where they are impractical to implement,” among other modifications.

Rotgin did not return calls requesting comment. But Albemarle County Supervisor Dennis Rooker, whose district is home to the Stonefield development, said he didn’t think Rotgin would insist on the same standards for his own developments.

“There’s not a requirement that I’m aware of anywhere in the state of Virginia when a developer…has to account for all the impacts of a 100-year storm,” Rooker said. “And I would suggest that the development community would never let it get through.”

Rooker said he understands Rotgin is just protecting his interests. But he also said he believes the city has been doing the bidding of the Seminole owner in putting its foot down over the erosion permit. Rotgin might have legitimate concerns about future flooding, Rooker said, but Edens shouldn’t necessarily be on the hook.

“Whether that should be a concern that’s compensable from the other property owner—that to me is a question of private property law,” he said.

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