Board Members Present: David Bass
Randy Rinehart
Richard Cogan
Max C. Kennedy, Chairman
George Bailey

Assistant County Attorney: Greg Kamptner

County Staff: Amelia McCulley, Zoning Administrator
Ana Kilmer, Recording Secretary

I. Call to Order

II. Establish a Quorum

III. Matters Not on the Agenda

IV. Appeal Hearing

AP 2004-006 Planned Parenthood of the Blue Ridge, Inc. (owner
Renae Townsend (appellant)

AP 2004-007 Planned Parenthood of the Blue Ridge
Renae Townsend (appellant)

Mr. Kennedy: We have a quorum; all five members are present. As noted in the posted agenda, we have before us today two appeals: AP 2004-006 related to the issuance of a Certificate of Occupancy, and AP 2004-007, related to a stay of operations at the property. They concern the use of the Planned Parenthood of the Blue Ridge property on Hydraulic Road, filed by Renae Townsend on September 17, 2004 and we have an amended appeal filed October 29, 2004, adding appellants Paul Begin, Rosemary Breen, Eddie and Kathy Giles.

I anticipate that the Board will vote majority ruling, separately on AP 2004-006 and AP 2004-007, as well as perhaps on some other matters as they arise. Now, let me read you some other rules: no signs are allowed in the auditorium; lapel pins and buttons may be worn. As courtesy to others, please turn off all pagers and cell phones during the meeting. Cell phones can intercept and interfere with our sound system. There will be no clapping, yelling, booing or other demonstrations. These demonstrations distract from our ability to conduct a productive meeting, and are detrimental to all speakers who are trying to make their points in a civil and respectable environment. We ask you to be courteous and respectful and grant all speakers the same opportunity you would want for yourself to express your opinion on this matter.

In the event things become unruly, a recess will be called until we can proceed in an orderly fashion. Please review the meeting format to see the order of events. Since there are so many speakers, we will keep on track by strictly enforcing the established time limits. Speakers are allowed a maximum of five minutes to speak. The timer will turn yellow when there is one minute remaining. It will turn red and beep at the end of five minutes. Please do not speak from your seat or speak out of turn. Speakers' names will be called out three names at a time. Please come down to the front and be prepared to speak after the previous speaker has completed his or her remarks. Address all comments to the Board as a whole. Debate is prohibited; the public is listening to an opportunity for the BZA, and comments from the public will not be responded to. A speaker may not reserve any time to another speaker. State your position and give facts and other data to back it up. Give written statements and other supporting material to the clerk; please begin by stating your name for the record. If you have an unusual spelling of your name, please spell it for the clerk. Again, please hold all applause during the meeting.

Now, the appellants, Planned Parenthood and the County - all three are represented by counsel, and we have agreed with counsel as to how we would proceed before opening this meeting, and council knows their order, their time limits, and their time for the speakers. After we have heard from counsel, we will open the meeting to the general public, speaking in the order we have stated in this preliminary discussion. And when you speak, you will be called to come forward to the podium, be ready to speak. After the general public has completed their remarks, we will have closing remarks by counsel - first by Planned Parenthood, next by the County, and finally by the appellant. At 3:00 we're going to recess for 15 minutes. And if we don't finish today, we'll adjourn and continue this meeting at our regular monthly meeting, December the 7th. I think that's all, if the Board would care to adopt those comments.

Mr. Bass: Mr. Chairman, I move that we amend our rules of procedure to adopt the guidelines that you just read.

Mr. Cogan: And I'll second that motion.

Mr. Kennedy: All in favor say Aye.

Board Members: Aye.

Mr. Kennedy: Any exception? That's passed unanimously. All right, we can go ahead. Council can come forward first. The appellant was going to come forward first.

Mr. Bass: Mr. Sharman.

Mr. Sharman: Thank you very much, and I heard a number of people behind me asking you all if you could talk up louder…so anyway, I appreciate it. My name is Mike Sharman. I'm an attorney representing a number of citizens who are opposed to the County allowing Planned Parenthood to operate an abortion and sexually transmitted disease treatment facility provided in a residential area, without being required to go through the normal public comment period and special use permit process normally required for a change of use. As you can see, there's a large number of people who have very deeply held beliefs on both sides of this issue, and it would have been very much more appropriate if they had been able to be heard before the use had changed.

When the County approved the special use permit for 2964 Hydraulic Road, it was sold as a real estate and insurance office with 10 employees, but that product was never delivered, and that property was never used for that purpose. What got delivered to the neighborhood was a political activist training ground, an abortion hospital, and a facility for treating sexually transmitted diseases. The real estate and insurance office as approved would have fit in well with the surrounding neighborhood, but Planned Parenthood fits into the neighborhood about as well as a black eye on the Mona Lisa. The two-story building's neighbor to the south is Union Ridge Baptist Church. It is diagonally across the street from the Church of Jesus Christ of the Latter Day Saints. It sits across from the future site of Albemarle Baptist Church, and is a half-mile from Albemarle High School and the Word of Faith Church. It is adjacent to the neighborhoods of Town homes at Garden Court and Townwood Court. Planned Parenthood blueprints dated "October 6, 2003" says it has a hospital elevator, a lab, another AB lab, three exam rooms, a scrub room, two procedure rooms, a recovery room with five beds, a pharmacy and a nurses station. And the County still strains mightily to call it an office.

Renae Thompson as a nearby but not adjoining landowner, and the other landowners - both adjoining and non - have a right to make that argument. And you as a Board of Zoning Appeals have the authority to decide an appeal from the grant of an occupancy permit. The answer to those questions is that Renae and the others have a right to file this appeal, and you have a right to hear it. For purposes of expediency, we have filed a Circuit Court proceeding to assert the rights of the amended - the appellants that we have put on the amended one - so that because of our time constraints, I wanted to get to the facts of this issue. Renae will be able to be the appellant putting that forward, a number of the other landowners will still speak, however, so that you can hear their views. You have the right to hear this appeal, and Renae has the right to file it.

In Borg vs. Board of Supervisors of Botetourt County in the Circuit Court case, the court said as a general rule, "statutes permitting aggrieved persons to appeal are to be liberally construed." In Virginia Beach Beautification vs. Board of Zoning, the Virginia Supreme Court decided that the word "aggrieved" on a statute contemplates a substantial grievance and means a denial of some personal property right legally arguable. The certain deterioration of Renae's property values makes her an aggrieved person. Renae's individual townhouse is just across the parking lot from Planned Parenthood, and Renae is a member-owner of the Garden Court Homeowner's Association, which gives her an interest in Garden Court as a whole.

The Board of Zoning Appeals has the jurisdiction to hear an appeal on the granting of a certificate of occupancy under the broad range of authority given to it by the Albemarle County Code to hear and decide appeals from any order, requirement, decision, or determination made by an administrative officer in the administration or enforcement of this ordinance for any regulation adopted hereto. That's mirrored also in the State Code. A certificate of occupancy necessarily is either an order or a requirement or a decision or a determination. It was made by an administrative officer, and it was done in the administration or enforcement of the Zoning Ordinance or County regulation. Virginia's courts have also clearly established that the Board of Zoning Appeals has the jurisdiction to hear an appeal regarding the certificate of occupancy. No Virginia case has ever said that the Board of Zoning Appeals does not have the authority - there's no division in this issue. There's no statutory or case law basis for claiming that the Board of Zoning Appeals does not have the jurisdiction to hear appeals regarding a certificate of occupancy.

The precise issue on appeal is whether the Zoning Administrator could properly issue a certificate of occupancy to Planned Parenthood using as its basis the special use permit granted to the prior owner for use as a real estate and insurance office. It's a purely land-use issue that we here on before you. The visibility is driven by the emotions of the occupant - that are generated by the occupant. But the issue is purely and simply a land-use issue. The district is residential R-10, and therefore no offices, no medical centers, no hospitals, are permitted there by-right. A professional office or a hospital require a special use permit to locate there, but medical centers are not permitted in that district at all. We can easily see by the findings which are required by the County Code to be made to grant a special use permit to allow a commercial use into a neighborhood, but Planned Parenthood could not have gotten the special use permit originally. And so it's absurd to suggest that they can simply step into the shoes of a prior owner, with no possible recourse by the citizens of the County.

Albemarle County Code 31.2.4.1 says "special use permits for uses in that ordinance can be issued upon a finding by the Board of Supervisors that the use will not be a substantial detriment to adjacent property. The character of the district will not be changed thereby. The use will be in harmony with the purpose and intent of the ordinance, and the use will be in harmony with the public health, safety, and general welfare." Those things were obviously true for the real estate and insurance office, which received the approval with absolutely no public comment whatsoever at either the Planning Commission or Board of Supervisors' stage. But none of them obviously are true for Planned Parenthood. It is a detriment to surrounding property. It might not have been in a commercial district. It is in a residential one. It does absolutely change the character of the neighborhood, and it is not in harmony at all with the surrounding community.

Here's the bottom line to it: the Zoning Administrator could not give to Planned Parenthood an occupancy permit for what the Code says they could not have gotten a special use permit for in the first place. I list out those Code sections or the cases in tab number one of the materials that I gave you. Passed the case law are the definitions and the powers first to the Board of Zoning Appeals to show that you have that authority, and then to show also that the stay should have been, must have been mandatory, was to have been issued in this case, which was our second appeal. And we have the State statute behind that. Then behind tab two, here's basically the answer to this case, is that County Statute 2.3: Conflicting Ordinances: "Whenever provisions within this ordinance conflict with any local, state, or federal statute or regulation with respect to requirements of standards, the most severe or stringent requirement or standard shall prevail." Here the County had the option, they only had three options to choose from as to what to categorize Planned Parenthood. It either would have been characterized as an office - which is what they chose - or it would be characterized as a hospital, which is a use that could be permitted in this area, R-10 area, with a special use permit, or it could be characterized as a medical center, which cannot be put in this area at all. They chose the least restrictive, contrary to what the Code said. The code says in mandatory language: they must review the most strict one.

Let's look at the definitions: first, there is no definition for clinic for change of use, so we get no guidance there. Then there is a definition for hospital in the County Code: it's a building or group of buildings designed, used, or intended to be used, for the care of the sick, aged, or infirmed, including the care of mental, drug addiction or alcoholic cases. This terminology shall include, but not be limited to: sanitariums, nursing homes, and convalescent homes. As we'll see later, Planned Parenthood had described as a hospital. For the medical center, it seems to be more appropriate: it's an establishment wherein medical care is provided on an outpatient basis, as distinguished from a hospital or professional use. An office is just, it says, a room or group of rooms, used for conducting the affairs of a business, profession, service industry, or government. Use is identified in this chapter as administration office, administrative office and professional office or offices.

So what is the least restrictive? Office. What is the most restrictive? Well, I think probably flip a coin in terms of the language between the hospital and the medical center. What is the most restrictive in terms of zoning? Medical center. What does the statute say you must do, the code say you must do? You must determine it to be the most stringent or severe use. Professional office has no definition, and use is the purpose for which any land, water or structure is devoted or occupied, or any activity performed on land, water, or in a structure. You also note another statute says you're supposed to use language in this common-sense law. Well, an office is not Planned Parenthood. It's a surgical facility. It absolutely is not an office. Its use has changed. The purpose for what it is devoted or occupied has changed. You look at your State Statute - because remember your County Code says if it conflicts with any state one, the more restrictive shall apply. So, hospital there says it is to be any facility in which the primary function is the provision of diagnosis, treatment, medical and nursing services, surgical and non-surgical for two or more non-related individuals….and including, and it goes on, chronic disease, short-term, long-term, outpatient surgical, and inpatient or outpatient maternity hospitals. And the Black's Law Dictionary defines maternity as "the character, relation, state, or condition of a mother.

You have to in your decision making, it says you do two things: (1) you decide whether the administrative officer was correct in their decision and then you're guided by your decision of whether they were correct or not by looking at the intent of the statute. One of the intents, well the intent as in 17.1, which says in R-10, the intent of that ordinance, is to provide for compact, medium-density residential development, permit a variety of housing types, and that's basically it. Now when this was approved, it was approved for real estate and insurance offices with two attic apartments, which would have been permitting a variety of housing types. It had to have a special use permit because it also had offices, but it was in keeping with that intent. Planned Parenthood has none of that and is not in keeping with the intent. It must have a special use permit, and as you'll see in the materials, the permit that was given to them was not a special use permit. It was the zoning clearance and occupancy, which said it was under 10, or rather 11, professional offices.

But the only other use that it could be here is hospital, and that's what it's designated as, and has had no special use process permit or anything. You can't jump categories without another special use hearing. The Zoning Administrator, under her rules, she must be guided in all of her actions pursuant to those ordinances and intent, which, as we've just seen, she was not. No certificate of occupancy at 31.2.1 shall be issued in violation of zoning or other ordinances, which this was. The special use permits are 100% reserved to the Board of Supervisors. A change of use cannot be done by the Zoning Administrator. The public use must be in compliance with the Comprehensive Plan, which this is not.

If you flip over to tab 3, you'll see the materials that were given to the Planning Commission, to the neighbors, and to the Board of Supervisors for the original permit. It was a couple guys - Ken Rogers and James Morris - who proposed a small office building with very little traffic. You can see the questions and answers done by the homeowners in conjunction with Mary Jo Scala, the Senior Planner. Again, looking at very low-impact, low-pressure use of a building that was real estate and insurance at that time; they added the apartments later. Good questions back and forth to the homeowners. In looking at tab 4, you see the Planning Commission. Again, they're looking at two-story professional office building that's real estate and insurance, won't disrupt a residential atmosphere. Then you have Dan Mahon's staffing report showing, going through each of the things that they needed to for a special use permit for that real estate and insurance - looking at it, was it a detriment, was it keeping with the character of the neighborhood - all those things that were appropriate. Did it have any public health, safety, and general welfare problems? And he found there were no health or safety issues, which is absolutely not the case with a facility which does surgical procedures, for which occasionally there's going to need to be emergency care provided. And here you have a triangular lot, which has one entrance, one exit. Ambulances and emergency equipment will not be able to go in and come out easily. It's a distance from the hospital.

Now, turning to page 5, showing you what was shown here, of what was granted in the special use permit. Now you come to the blueprints, their blueprints, Planned Parenthood's blueprints. Now these were given to the County but the public never knew about them because there was no public hearing, because the County absolutely refused to see this as anything other than an office. Well look at the blueprints they were given on October 6, 03. It adds a hospital elevator. It adds an exam room, an exam room, a procedure room, a procedure room, an AB lab, a scrub room, a recovery room with five beds, a recovery room with five beds. That's not a physician's office. A doctor's office lab, and that's just upstairs. Downstairs, it shows again the hospital elevator, the pharmacy, nurses' station, two exam rooms. So Planned Parenthood itself said there was a hospital in its plans. Then look at the next item, that's the application for zoning clearance. They say they are a medical clinic. They say they have administrative and education offices, but they say they're a medical clinic, not an office. Remember, there is no medical clinic - you have a choice of office, hospital, medical center.

Mr. Kennedy: Where does it say medical clinic?

Mr. Sharman: Look right at project information.

Mr. Kennedy: All I see is it says medical.

Mr. Sharman approaches: Right here.

Mr. Kennedy: OK, I'm with you.

Mr. Sharman: So they say they are a medical clinic, and yet you don't have that, so they have to, the County does, the Zoning Administrator should have looked at what category do we have - offices, medical center, hospital. Then she must use the most stringent because your Code says so. She didn't. What if Planned Parenthood described one subsection, the next line after the approval, which the clearance worksheet permitted them as a professional office, but left the section blank under which it was permitted. At the very next page, after the…Mr. Bailey, I'm in the notebook, I don't know if you're choosing not to look at it.

Mr. Bailey:

Mr. Sharman: Under the article that headlined "Black Market Birth Control," on the second page it said "new clinic in Charlottesville." It quotes Planned Parenthood's director David Nova saying that he intentionally set up a hospital here, in anticipation that the legislature was going to pass laws, and said he had to. And he said this new building would provide some security for the whole state. And other documents show that there's only two other facilities that would do that. So, they say they're only here one day a week, but they're going to increase. The President, their own newsletter, which says it was built to specifications of an outpatient hospital. They had to make sure they could complete interior construction as a hospital. They wanted to operate as an outpatient hospital. Dangerous measures force them to build to hospital standards rather than rent clinic office space. Rather than rent clinic office space.

Now look at the very next one, it's an email from Amelia McCulley to Bob Tucker, dated April 20, 2004. She says, "This is not a medical clinic." Well, Planned Parenthood said they were, but she's refusing to see even what they said. She still maintains they're an office, even though even say they're a medical clinic and then describe themselves as a hospital. And then there's a series of documents on needing to get changes to the elevator, in case somebody missed it, the artist in construction put a blow-up of the hospital elevator on the blueprint, and it's saying "hospital elevator," so that nobody can mistake the fact of what this entity is. Then, in one of the materials that's provided by Ms. McCulley for a distinction of other entities, there's the letter from John Shepherd, Manager of Zoning Administration, in which he required Mark Dean, a doctor of osteopathy, to be in a C-1, and saying they were a medical center. Why? Here's the reason why: an outpatient surgical operating room is comparable to a medical center, which the Zoning Ordinance defines as an establishment wherein medical care is provided on an outpatient basis as distinguished from a hospital or professional office. That's exactly what is going on with Planned Parenthood: two procedure rooms, a recovery room with five beds, a scrub room, labs, a pharmacy, nurses station, an elevator designated hospital on it. It's in the wrong place. Look at the next article, in which Mr. Nova says, "we chose this location because it provided high visibility," and they want it to have a large, grassroots organization. You can turn past a number more, back right before tab seven, and you'll see an email announcing Planned Parenthood's first-ever live action cam, and you'll see that they train people to do door-to-door work throughout the neighborhoods.

Mr. Sharman: Thank you.

Mr. Cogan: Will we get an opportunity to ask questions, Mr. Chairman?

Mr. Kennedy: Yes sir.

Mr. Cogan: I'd like to ask a few questions, Mr. Sharman, if I may. On the first tab of your notebook that you gave to us, the first thing is under the caption "person aggrieved," then could you please expand on this issue of whether, or how, Ms. Townsend, becomes a person aggrieved under existing statutory and case law?

Mr. Sharman: Probably the reason I didn't raise this as an issue, because I don't even think it's credible for someone to suggest she's not. Because you look at cases across the nation, looking for distance from facility, there's none that has anybody 100 yards away that says they aren't aggrieved, by a detrimental affect coming in. But counsel for the County had raised it in his preliminary memo, so I wanted to address it straight up. Probably the best case we have in Virginia for it is WAMV vs. Hoff - that's a 1978 one here - an it specifically says that these folks who are landowners or occupants of land located in the vicinity of the site of the proposed tower, they were challenged as having no standing, but the court found out they did. And then there is the Virginia Beach Beautification, in which the commission wanted to come in as an aggrieved party, and the Virginia Supreme Court says no you can't because you are not a person; you have no ownership interest. You've got no dog in this fight other than what are the interests for the general public. For example, if I just close my eyes and point to somebody out here, they have a passionate interest in this case, but they would not be under Virginia law an aggrieved person. Ms. Townsend is in the neighborhood. She owns a home whose value is going to deteriorate - and we will have a speaker later who will mention that, and we have her report under tab eight. It's the report of Cynthia Hash, a realtor, who will be discussing - she has a market analysis that she did - showing the degradation, days on market, et cetera. To use a real quick example, Doug Hurt has been famous for fast sales. The end unit went up for sale almost as soon as Planned Parenthood got their occupancy permit. It's still on the market. That's unusual for this area.

Voice from audience: Gentleman, how can this be a public hearing when you're ejecting people who want to be a part of it? (Applause)

Mr. Kennedy: All right. That's enough. Thank you very much.

Mr. Sharman: And there are a lot more cases that weren't as direct on the point, they just talked about aggrievement. Virginia Beach Beautification says an association which does not have an ownership interest cannot be an aggrieved party, as it mentioned, it has to have some personal or property right. And in this case, Ms. Townsend has the property right of the diminution of the interest of her property values. In WAMV, it had directly addressed the issue of vicinity. Do you have to have…for example, the statute seems to reflect that it's only an abutting landowner that you have to give notice to. So, since it's only an abutting landowner that you have to give notice to, are they the only ones who can be aggrieved? And in WAMV, the Supreme Court said no, it's somebody who is located in the vicinity of the site, even though they were not somebody who had abutment. Are there any other questions; I'd be glad to answer them?

Mr. Kennedy: Does the Board have any other questions?

Mr. Sharman: Does anybody have any questions, particularly on your jurisdiction? Because as I understood it, it was kind of unique for this particular Board to have an appeal for a certificate of occupancy. Again, I believe the cases I cited are real clear on that. But if you have questions, I'd be glad to address it.

Mr. Kennedy: Any questions?

Mr. Bass: No.

Mr. Kennedy. No questions. Thank you.

Mr. Sharman: Thank you.

Mr. Kennedy: All right. Next counsel.

Applause

Mr. Kennedy: Don't take away from his time.

Mr. Kamptner: Good afternoon. My name is Greg Kamptner for the County of Albemarle. I'm speaking on both appeals. Ms. McCulley will step in at about the halfway point…

Audience: We can't hear you.

Mr. Kennedy: Have you got the right mic?

Mr. Kamptner: I hope so. And to finish the presentation. Can everyone hear that?

Applause.

Mr. Kamptner: This may be the first appeal that this body has ever had where the appellants in the case were seeking to use the zoning process to restrict the constitutional rights of another landowner and third parties. Clearly their focus in this case pertains to the abortion services and other family planning services that Planned Parenthood proposes to provide. Members of the Board do have a handout that shows this PowerPoint presentation, and can simply turn around and look at the slides. It may be easier to turn around seeing that you have so many pieces of paper.

Just to show the location, Planned Parenthood's building is on Hydraulic Road. It's that triangular parcel right there. Ms. Townsend's parcel and home is about 300 feet away, right there. This is a highly urbanized part of the County with a mixture of uses. The timeline in this case is very important because it deals with, it's relevant to a number of jurisdictional issues. On November 3rd, 2003 in relation to the building permit, zoning clearance was issued by the County; they determined that the use was a professional office. On August 3rd, 2004, the certificate of occupancy was issued. That certificate only determined that the building complied with the building code. On August 20th, 2004, Ms. Townsend appealed the certificate of occupancy. And on October 29, 2004, the appeal was amended to add David Bream, the Giles, that was 87 days after the certificate of occupancy was issued.

The summary of the jurisdictional issues: the appeals were not timely because they were not filed within 30 days after the November 3, 2003 use decision. The appeals of David Bream and the Giles were not even filed within 30 days of the August 3rd, 2004 certificate. The certificate of occupancy in this case is not appealable to the Board of Zoning Appeals because it dealt only with a code-related decision, not a zoning decision. Ms. Townsend was not aggrieved by the certificate of occupancy. She does not claim she was. And Planned Parenthood at this point, a year after it has obtained its building permit and its zoning clearance, has a vested right to its use. Looking at the appeals of David Bream and Giles, the law requires that an appeal take be taken within 30 days of the decision appealed from. These appellants appealed the August 3rd, 2004 certificate of occupancy, but they do not claim that the building does not comply with the building code. Their appeals were filed October 29th, 2004, 87 days after the certificate was issued, 361 days after the zoning clearance was issued. They do not claim that they were aggrieved by any building code issue.

Ms. Townsend's appeal is also untimely; the same provision of law applies. She appealed the August 3rd, 2004 certificate, but again, she does not claim that the building does not comply with the building code. Her appeal is based on the decision that the Planned Parenthood building is a professional office. Her decision from which she actually appeals is a November 3rd, 2003 zoning clearance. Her appeal is filed 291 days after the November 3rd decision, and it is untimely. Ms. Townsend's appeal also has to be dismissed, all of the appellants must be dismissed because the certificate of occupancy did not contain an appealable decision. The law requires that a person may appeal a decision made in the administration or enforcement of this article or any ordinance adopted pursuant thereto. The August 3rd certificate is cited only that the building "has been inspected and found to be in compliance with the Virginia Uniform Statewide Building Code 2000 Edition." This is a building code decision; it is not a zoning decision, and is not appealable to the Board of Zoning Appeals under 15.2-2311.

The problem with the appeal in this case is that Ms. Townsend simply appealed the wrong decision. If she had a concern with the use - the classification as a professional office - she needed to appeal the 2003 zoning clearance. Ms. Townsend's appeal also must be dismissed because she is not a person aggrieved. It's true that an appeal may be taken by any person aggrieved by any decision, and the law under Virginia is that to be aggrieved the appellant must show a property right denied or burden or obligation posed upon her by the decision appealed. Ms. Townsend did appeal the August 3rd, 2004 certificate of occupancy. But that, as I've said repeatedly, decided only that the building complies with the building code. She did not allege that the building permit decision denied a property right or posed a burden or obligation upon her. A person is not aggrieved when she appeals one decision and then claims that she is aggrieved by a prior decision that is now final. That is precisely what she is doing in this case. The issuance of the certificate of occupancy did not reopen the decision that it became final almost one year ago.

And now, a year after the issuance of the zoning clearance, Planned Parenthood has a vested right to its use, under Virginia Code Section 15.2.2311(C) - "a written decision is not subject to change, modification, or reversal after 60 days have elapsed where the person aggrieved has materially changed his position in good faith reliance on the action." The decision that the use was a professional office was made back in November of 2003 and since that date, Planned Parenthood has completed at least $615,974 worth of interior alterations. It has relocated and consolidated its operations to this building. The timeframe - you have the zoning clearance decision November 3rd, 2003. The next actionable deadline was 30 days after that, when anyone who was aggrieved by that decision could appeal it. It became final when no appeal was filed. Sixty days after that November 3rd decision, the County even lost the ability to reverse that decision.

The summary of the jurisdictional issues: the appeals are untimely and must be dismissed; the August 3rd, 2004 certificate of occupancy was not a zoning decision that could be appealed to the BZA; Ms. Townsend is not a person aggrieved because she claims no injury resulted from the decision that the building complies with the building code; and Planned Parenthood has a vested right to its use. Based upon those four grounds, appeal number 2004-006 must be dismissed.

Regarding appeal number 2004-007: Virginia Code Section 15.2-2311(B) says "an appeal shall stay all proceedings in furtherance of the action appealed from." As a result of the appeal, the appellant claimed that the Zoning Administrator should ask Planned Parenthood to move out of its building. The certificate of occupancy that was issued on August 3rd, 2004, though, was the final step in the development procedures. Planned Parenthood's occupation of its building is not part of the proceedings, and the stay only halts pending proceedings; it does not void certificate of occupancy or any other completed acts. Based on that, appeal number 2004-007 should be dismissed.

We're now going to shift over to the use classification, which Amelia will do the majority of, but I wanted to touch on some points that are related to the case law that applies to this particular case. Because abortion services are provided, this case is a little bit unique. We begin with the general rule that a limited right to abortion is a fundamental and constitutionally protected right, and singling out abortion services for special treatment under the zoning ordinance by classifying the use as a hospital, medical center, or any other use rather than as an office is unconstitutional. A permit for a medical office - these are a couple of case examples - a permit for a medical office use could not be lawfully or constitutionally denied based upon the identity of the occupant, and in that particular case it was Planned Parenthood, nor on the basis that abortion services would be provided. And the final case I will cite, then I'll turn things over to Ms. McCulley, absent a binding definition otherwise - and I think the court was looking at state or federal definitions - classifying a use that provides ob-gyn, abortion, sexually transmitted disease treatment, and other family planning services, as anything other than an office was arbitrary and capricious. In other words, zoning regulations must treat abortion and other family planning services the same as any other medical services.

Ms. McCulley: As Greg said, this is unprecedented. This is really all about abortion, and abortion legislation is not accomplished through local zoning ordinances. So the abortion issue is not properly before you as a use decision. What is before you is whether or not Planned Parenthood is a professional office, if you can get through all the legal deficits in their argument. The Zoning Ordinance language is very clear - it's been read to you before. It talks about rooms' use for conducting the affairs of a business, professional service industry, or government. It's clear language; its language that does not require interpretation. Therefore, you don't look at the intent of the ordinance and the surrounding properties. When it's clear language, you use the plain meaning of the words, and that simply is what you do. Planned Parenthood's use is a professional office use; it involves business activities, medical services, and non-medical services. You heard Mr. Sharman talk about Section 2.3, which talks about conflicting ordinances. He misapplied that section. He says you use the most stringent use category when it's offered to you. That section is entitled "Conflicting Ordinances" - it says when you have one ordinance, such as a subdivision ordinance, that conflicts with another ordinance, such as a zoning ordinance, you use the more stringent of the two. He's misapplied that section.

You see that business, non-medical and medical services are available at Planned Parenthood. These are activities that are typical of a professional office. Business activities include, for example, administration, public policy matters, donor development. There are non-medical services such as educational programs, a library and adoption services, and there are various medical services that you've heard about extensively. The operation of this office is typical of other professional offices. Staffing is provided for business activities and non-business activities. Hours of operation are typical weekday hours of operation. Physical space is arranged in ways that you would expect to find it arranged. There are staff offices, seven, there are conference rooms, there is a Senator Emily Couric Memorial Library, exam rooms, staff support rooms with copiers, etc., labs, procedure rooms, nurses stations, and medical chart room. The exterior and interior of this building looks like an office.

Here's some photos of the building and its environs. First, we begin with some exterior shots. This is taken on Hydraulic Road across the street from the site at the entrance to Roslyn Ridge. Planned Parenthood is a two-story red brick building sort of in the center offset to the left. The next shot - both of these show the building and its neighborhood. On the left, you see again across from Hydraulic Road, but this time on the other side further north, close to the intersection with Hydraulic, Earlysville and Greenbrier Roads. The right is a view from the entrance of Garden Court, looking northward towards the Planned Parenthood building, and I don't think you can really make out the Planned Parenthood building in that shot. On the left, on the same side of Hydraulic Road as Planned Parenthood, looking at a northerly direction again, towards the Planned Parenthood building, taken from the front yard of the well-drillers' business to the appellants property. The right is a view from the appellant's front sidewalk, looking towards Planned Parenthood. You will note that you cannot see the Planned Parenthood building from that view. Left and right show the well-drillers' business, which is located in the appellant's backyard, on the other side of Garden Court, across from the Planned Parenthood building.

Now some shots of the building interior. You'll note again, this is typical of the interior of a professional office. On the left, you have a waiting room. On the right, you have a corridor off of which you see several offices. On the left you have a recovery room, on the right, you have a nurses' station and reception area. On the left, this is the Senator Emily Couric Memorial Library and then an examination room. Left is a lab, right is a procedure room. Left is where medical charts are kept for the patients. Right is a support area with a copier. This use decision is consistent with other professional office uses. First Med in Pantops Shopping Center provides non-emergency medical care, similar floor plan. Northridge Office Building on 250 West contains medical offices that also conduct surgical procedures, and medical services such as are provided at Planned Parenthood are also allowed and provided at ob-gyn offices.

Mr. Kennedy: Let me interrupt you and ask you, now that classification is definitely professional office? It does not call it professional office? We look in the zoning code, and the classification would be professional office for those places?

Ms. McCulley: That's right.

Mr. Kennedy: OK.

Ms. McCulley: That's exactly right. On the left, there's a photo of Northridge on Route 250 West. As large as that building is, with the surgical procedures that are provided within that building, and their medical services, the County classified it not as a hospital, not as a medical center, but as a professional office building. On your right, First Med at Pantops, again, an office building. On your left, Pediatric Associates West Office, an office building. On the right, another view of First Med. Planned Parenthood's building is not used as a hospital. You see the definition of hospital. Planned Parenthood does not meet that definition. Therefore, under the Albemarle County Zoning Ordinance, it is not a hospital. You've also heard that Planned Parenthood's office is a medical center. It is not a medical center. The Zoning Ordinance provides a definition of medical center as "a use where medical care is provided on an outpatient basis as distinguished from a hospital or professional office." In two respects, Planned Parenthood's use does not meet the definition of a medical center. First, it is not an outpatient facility because it is not connected with a hospital. Secondly, medical care is not the sole purpose of that use. Also, you see under the second bullet that zoning has consistently determined that a use as a medical center with a primary medical activity completely or almost completely involves surgical procedures. You've heard that the procedure which is at question here - which is abortion - occurs one day a week, one day out of five, that's 20% of the time, and on those days, other activities occur. So, it's not the only activity on that day. It also only occupies 8% of the building space of the entire Planned Parenthood building. Another example of something that has been classified by County zoning administrative staff that was used in Mr. Sharman's presentation was a Martha Jefferson outpatient surgery facility. That is exclusively procedure-driven. That is a medical center.

The appellant's use arguments are wrong - they point again and again to the Planned Parenthood's description of a use on an application form that calls it a medical center or a medical clinic. That is not determinative to the rest of the use. Staff does not adopt everything that every applicant puts on their application as our use decision. We wouldn't be doing our job if we did that. I'll also draw your attention to attachment "M" which is the application for zoning clearance by First Med. On that application, they also called their use "medical center." Staff did not find it was a medical center, we found that it was a professional office.

Secondly, you keep hearing about the fact that it's built to hospital standards. That's irrelevant. That's apples and oranges. Architectural standard does not determine the use of a building. You could decide to upgrade the architectural standard of your house and instead build it to commercial standards; that would not make it a commercial use. That would be an absurd finding.

The zoning officer's decision was an informed decision. We looked at building plans; we sought information from Planned Parenthood. We conducted peer review among many zoning administrative staff. You've also heard that the prior special permit is a different zoning use than the current use that Planned Parenthood makes of the property. And that it also incorrect. The special permit is listed with the conditions as one of your attachments. Not one condition of that special permit speaks to the use of that building. Not one condition. The condition was approved as a professional office in the special permit for that building; it is being used as a professional office. In summary, we ask that you find that the case be dismissed for the several legal grounds that we have cited. If you do decide to consider the use argument, we ask that you affirm the Zoning Administrator's decision because it is correct.

Mr. Kennedy: Thank you.

Mr. Bailey: I've got some questions.

Mr. Kennedy: All right. Mr. Bailey has some questions. Come back.

Ms. McCulley: Yes sir.

Mr. Bailey: I read all of your preliminary reports when they were sent out a couple weeks ago. And there's one thing that bothered me. And that's the certificate of occupancy. The person that signed that, how long had he been working for you?

Ms. McCulley: Isn't that John Grady? I'm not sure who it's signed by. I don't have that in front of me. I'll have to get the file. Could you ask your question so I understand how that's relevant.

Mr. Kennedy: It was signed by John Grady, a long-time employee as I understand it.

Ms. McCulley: Thank you, sir. John Grady just retired, he had worked for the County for 32 years before his retirement.

Mr. Bailey: I thought so. I worked with him many years. He signed it. You had a question about him signing the certificate of occupancy?

Ms. McCulley: No sir. We discussed it before he signed it.

Mr. Bailey: Thank you ma'am.

Ms. McCulley: Thank you.

Mr. Cogan: May I ask a question of Mr. Kamptner, Mr. Chairman?

Mr. Kennedy: Another question.

Mr. Cogan: For Greg, please. In your memorandum dated November 2nd, on page 3, you state that the appellant is not a person aggrieved within the meaning of Virginia Code or Albemarle County Code. So my question is, in a particular case like this one, who could qualify as an aggrieved person?

Mr. Kamptner: Well, if Ms. Townsend wanted to appeal the zoning clearance, she had to do it within 30 days, and then she needs to not only allege but also establish that there would be some adverse impact, some burden placed on her property, some loss of property right.

Mr. Cogan: I understand that. But, if she wouldn't qualify as an aggrieved person being pretty close to this operation, who in your opinion could qualify as an aggrieved person?

Mr. Kamptner: Well, it's anybody who can show harm. You have to show harm. Depending on the particular use or activity, you could be thousands of feet away. But if you can't show harm, you could be right next door and not be a person aggrieved. And in this case, if she lived right next door and she claimed based on this appeal, where she has appealed essentially a building code decision, she's not aggrieved by the fact that the building was found to be in compliance with the building code. She hasn't alleged anything like that. She's alleging that she's hurt by the use, but that use decision became final a year ago.

Mr. Cogan: Thank you for your answer.

Mr. Kennedy: All right, next counsel. I see some people have raised their hand. There will be time for public speakers later on.

Mr. Cogan: That's a sign of applauding, and we appreciate that.

Mr. Kennedy: Well, I appreciate that.

Mr. Carter: Good afternoon. My name is Richard Carter. I represent Planned Parenthood of Blue Ridge, Inc. Planned Parenthood accepts the staff report and adopts the memorandum of the Assistant County Attorney. I will not take my full 20 minutes. I will take some time, though, to emphasize some of the points in the report and in the memorandum. October 29, 2004 is too late to appeal. October 29, 2004 - that was just last week. The law is clear that the appeal must happen within 30 days of the matter being appealed from. The CO was issued more than 30 days from October 29th, so therefore, that cannot be appealed. Now the plaintiff, or appellant, says that she - I'm talking about Townsend now - says that she is appealing the issuance of the certificate of occupancy. Now this is very important. She's not appealing the special use permit. She's not appealing the zoning clearance. She's appealing the certificate of occupancy. The certificate of occupancy only states that the building was built according to the state building code. Therein the papers filed, there is no allegation by Ms. Townsend that the building is not within the state building code.

So we have this, "I appeal the CO, but there is nothing wrong with the CO." She's really appealing the zoning clearance. That decision was made November 3, 2003, and the zoning clearance decision was that the building is a professional office. Now the appellant wants you to think that when the zoning clearance was given, no one knew how this building was going to be used, and that's not true. When the zoning clearance was given in November of 2003, it was obvious that Planned Parenthood was going to use this building, and how it was going to be used. And how do we know that? Because they applied for zoning clearance. No appeal was made to the zoning clearance, so the BZA does not have jurisdiction to decide this appeal. An appeal of a certificate of occupancy is not found in the law. The Board of Zoning Appeals can only do what the statute says it can do. And the certificate of occupancy does not fit the definition of any of the items that can come before you. There is no complaint that the building has not met the building code.

Now, this person aggrieved, I think we've, you've asked questions about that. I agree with the County Attorney. You can look at his memorandum. The facts are the real estate values do not support the allegations of reduction in prices, the traffic. Planned Parenthood accounts for less than ½ of 1% of Hydraulic Road's daily volume. How do people get aggrieved; they go NIMBY. This is the same thing - "not in my neighborhood, I don't want you there." Why did the Supreme Court say, well if there's a 300-foot tower in the vicinity, you don't have to live next door to that tower to be aggrieved. I guess not; you can stand anywhere in your vicinity and see the tower. So there's a difference in each case rises and falls on its own separate facts on what is aggrieved and what is not aggrieved.

Now Planned Parenthood has a vested right for the use of this building. Sixty days have elapsed since the issuance of the zoning clearance. Planned Parenthood has materially changed its position in good faith and reliance on that decision. On the zoning clearance. Planned Parenthood, relying on the zoning clearance, spent considerable funds on completing the interior of the building, relocating and consolidating its services.

What is the legal conclusion here? Thirty days after November 3, 2003, there was no aggrieved person came forward, and no aggrieved person can appeal. Sixty days after November 3, 2003, the Zoning Administrator and other zoning officers cannot reverse the use decision. Why do we have these time limits? Why do we have this? We have it because if I'm going to use a building for a particular purpose, and I go to the Zoning Administrator, and I say, "can I use this, I need a zoning clearance." The Zoning Administrator reviews it and gives me a letter. For thirty days after that letter, I'm subject to using that building at my own risk, because an aggrieved party can appeal within the thirty days. Sixty days after that clearance, I'm using that property at my own risk, because the Zoning Administrator - or any other zoning official - could change that clearance. At some point in time, there has to be a cut-off. Am I going to do what I told the Zoning Administrator I was going to do, because that's what I told her in the zoning clearance request. Some point in time, if I do that, I've got to feel and know that I can use it in accordance with the way I said. That's why we have these timelines. That's why, after sixty days, I should be able to use this. Now if I'm not using it in accordance with the zoning clearance, the Zoning Administrator is going to take complaints, is going to investigate it, and, in the end, I could end up in court as a defendant for violating the zoning rules.

But that doesn't have anything to do with the sixty-day, the thirty-day rule. They're there for a purpose, and if you think about it, they make sense. Now, this professional office, the plaintiff's real complaint is that Planned Parenthood's use does not fall within this definition. You see, it's like so many of these things - they can't get in the front door, so I think I'll get in the side door. The front door says "it's too late to appeal the special use permit"; I can't do that because the time's run…so what am I going to do, I'm going to go in the side door and appeal a certificate of occupancy, and it doesn't work. As pointed out in the staff report, this is just wrong. The definition of an office, as on page 3 of the Zoning Administrator's report, "a room or group of rooms used for conducting the affairs of a business, profession, service industry, or government. The uses identified in this chapter as administrative office and professional use, or offices.

Now the plaintiff wants to say that this is a hospital. That's not true. Look at page 3, staff report. Definition of hospital. Doesn't fit the definition. Plaintiff tries to say that Planned Parenthood is running a medical center. Staff has already pointed this out. Doesn't fit the definition of a medical center. A medical center has medical care as its primary objective. As pointed out on page 4, staff report, medical care is only one of seven primary activities. Planned Parenthood has both medical and non-medical services. Education, library, adoption, business services, public policy activity, donor development, administration. So it doesn't fit the definition of a medical center. Look, note paragraph B-3 on page 4 of the staff report. For what is the administrative zoning practice in the County. She showed you, all the other places in the County, very similar to this. What are they called? Professional offices. The Zoning Administrator and zoning staff have been consistent in the way they have defined these uses. The difference is, this use has overriding political tones to it, that's why we're here today.

The plaintiff emphasizes that Planned Parenthood on its application for zoning clearance said "medical clinic." They said it, medical clinic. I don't care if they said medical hospital. I don't care if they said veterinary hospital. It is what it is. And we all know it is not what the applicant says what the use is, but what the use really is. If I was representing an applicant, I would try to put down the broadest, nicest, easiest use. This applicant, they just, they didn't do it from a legal point of view, or a zoning ordinance point of view. They put down medical clinic. So did one of the other applicants, but that's not what it is. If the applicants were to be believed, then someone wanting a more intense use would call it something with a lesser use - that's what I would probably do. It is up to the zoning official to decide the use, and that is what was done in this case. A similar argument is true when the plaintiff argues that the building was constructed to architectural standards of a hospital. So it must be a hospital. Putting an auditorium in a building by itself doesn't make a building a school. It is the use that makes it what it is. This is what they're appealing is the use. The use has been approved. It was approved November, 2003.

And although a somewhat interesting but incorrect argument is that the intended use as originally set out as professional office is a different professional office use than what Planned Parenthood has. The special use permit runs with the land. It does not run with the owner. If Ken Rogers was going to put his insurance business there, and Jim Morris was going to put a real estate business there, that is not binding on owners down the line. If that were true, just think about it. It would put such a burden on subsequent owners that they couldn't use it for anything other than that. The zoning clearance, which plaintiff failed to timely appeal ruled that the Planned Parenthood continued to meet the terms of this special use permit. The stay, the second appeal, is a red herring, that's not founded in the law. The activities of special use permit, the zoning clearance letter we see all over, there's nothing to stay.

In summary, the use meets the definition of professional offices. It is the use, not the words, on the application. The plaintiff waited too long to appeal the zoning clearance. The use is what it was going to be determined by the zoning official, is what was determined by the zoning official. The zoning official said the use was proper. Planned Parenthood relied on zoning clearance to its detriment by completing a building and using it as it was told it could. Now, the use is vested. There is no provision for the Board of Zoning Appeals to hear this appeal on the issuance of a CO, and the plaintiff is attempting to fit a political issue into the world of zoning. It does not fit.

Now, we will have only a few speakers, respecting time and respecting repetition. But there are many people here today who support Planned Parenthood. I am going to ask without clapping, without saying anything, without doing anything other than standing up, for those people who support Planned Parenthood to please do so. And now I'm going to ask you to sit down.

That's all I have. If there's any questions, I'd be happy to answer them.

Mr. Kennedy: Thank you. All right, that ends the counsel's presentations. Now the counsel can have their speakers come forward, and as we've agreed, there'll be a maximum of ten speakers for a maximum of five minutes each, and we'll start with the speakers for the appellant. I've got some lists up here, but I'm not too sure which is which, and I think he's going to call them.

Kurt Elward: I appreciate your indulgence today, and I appreciate the opportunity to present to the Board. My name is Kurt Elward, and I'm a physician in the, on Whitewood Road, who is literally about 100 yards from Planned Parenthood. I appreciate the opportunity to convey several important concerns regarding the status of Planned Parenthood. I would like to challenge, with all respect, the staff report about choosing consistent criteria, and also express the fact that there are clear variances from use permit that are of specific concern. I'm not a lawyer. I will probably not speak as well as your very good lawyers here, but I would like to just convey things from my expertise as a physician. First, I can take no issue at the zoning of the facility for the non-surgical activities; that is clearly in the rights, and they have every right to do so. I do take issue with what I see as an attempt to seek to have approval for more intensive surgical procedures, and claim an argument that it doesn't constitute the primary ongoing activity. Even with my office's zoning permit, I could not to begin to do gall bladder surgery in my office, and then claim under applicable zoning restrictions I can do anything I want because I do everything else. I see sore throats, I see rashes, I do a lot of other things than gall bladder surgery. So I have my full rights within the zoning restrictions. I find that very, very challenging. It is in fact the invasive, serious, and significant surgical procedures that are at issue, and those activities cannot be minimized by a plethora of other functions that happen to occur at the facility. Moreover, I think they're mis-characterizing the facility, and doing so at the County's peril. First, it claims to be a professional medical office. Actually, it's a little confusing, because they claim on the website it's a hospital, so it might be helpful for them to clarify. I think taking the first step is to find out what exactly they do want to do there. Indeed, some parts of Planned Parenthood at this facility may actually function as a professional office. But there are other activities that go far beyond the definition of a simple professional office. It is in fact the important and central functions of Planned Parenthood that operate as a medical center, and a quote from page 3 of the staff report: "an establishment where medical care is provided on an outpatient basis." You know, they claim in their response that their activities compare to those with regular primary care physicians. I would take issue with that. As a primary care physician in the same neighborhood, what they are planning to do with the facility is far beyond any primary care use. Their definition of outpatient care using Webster's isn't in keeping with standard medical terms. They admit, however, that even using this definition, it pertains to the scheduling of specific surgical procedures. Now possessing extensive surgical facilities for termination of pregnancy at any point in gestation would clearly meet the very definition that they dispute. They reference "leep procedures," which is a surgical procedure for someone's cervix and lancing boils, it's a surgical procedure performed in many other offices. If that were the extent of their activities, gentlemen, they would certainly have a case. However, they must realize that surgical pregnancy terminations are far beyond that type of procedure. They go far beyond lancing a boil, and its unfortunate that they use those comparisons. Two comparisons with the other offices listed are both inaccurate. They reference First Med incorrectly. Now I am well aware that you could go use (?) from urgent care center; unfortunately, it is nothing similar to the surgical activities planned for the Planned Parenthood site. Again, the owners may be confusing; they're casting simple fractures and suture lacerations with terminations of pregnancy. I encourage the Board to review the actual extent of medical services of First Med and decide on their own. Their reference to Northridge is also somewhat specious. There has been extensive process of (JCHR) approval for that facility; there has been none at Planned Parenthood. Northridge has full-time attendant positions on staff, with a clearly defined protocol of on-call physicians, and has an electronic medical record that can be accessed anywhere in their system. Whereas, Planned Parenthood has a single visit from a doctor once a week. Now I have personally reviewed building plans from Planned Parenthood in detail, and this facility has two procedure rooms that seem designed for operating room capabilities, including surgical scrub rooms. They have a five-bed recovery area with a full nurses' station. I submit that one does not need five recovery beds for procedures like lancing boils. It is far from the average physician's professional office, and I can only accurately describe this as an outpatient surgical medical center. Now it might be of interest in all fairness to include Planned Parenthood, give examples of any professional obstetric office here in Charlottesville that approximates the extent of services being offered at their facility. I submit that the Planned Parenthood statement that their surgical services are the same as other obstetricians' professional office activities is in fact, false. And I greatly appreciate your time and indulgence. Thank you.

Mr. Jones: I will call three names. If you would line up here in the order that I call them, you can get the speakers moving through quickly: Renae Townsend, Steven Smith, Melissa Smith.

Renae Townsend: Good afternoon. My name is Renae Townsend, and I'm here to talk about Planned Parenthood's controversial location, next to my home at 1558 Garden Court. Planned Parenthood is operating there under an existing special use permit as a professional office building, which was obtained but never used by a prior owner. That special use permit was approved by the Albemarle Board of Supervisors. First of all, I want to make you aware that I know Planned Parenthood provides an array of reproductive health care services, those of which I applaud. But one that they are most known for, and the one that concerns me is the fact that Planned Parenthood performs abortions. To touch on my first concern, allow me to delineate the following: it is a known fact that Planned Parenthood deals with protesters on a regular basis. It is also known that Planned Parenthood is heavily insured with a sophisticated security system to protect itself because of the controversial nature of the organization. Police have been called when protesters step on Planned Parenthood property, or when there is a bomb or anthrax threat. Planned Parenthood Federation of America's own website lists the statistics: to quote directly "the tally of escalating violence against health facilities that began in 1977 include 678 blockades, with 33,827 arrests, 502 bomb threats, 77 attempted bombings are arsons, and 40 bombings." To continue to quote Planned Parenthood's website directly, "in the wake of the September 11th terrorist attacks on the U.S., Planned Parenthood offices across the country received hundreds of death threat letters claiming to contain anthrax bacteria. I respectfully submit that we, the appellants at Garden Court, are substantially harmed by the fact that we are now involuntarily located adjacent to Planned Parenthood. I also believe that we as neighbors have been imposed upon because Planned Parenthood moved into our neighborhood without our proper notification. And we have been to suffer an obligation that is quite different from that suffered by the general public. We can prove this by the mere location of Planned Parenthood next to our backyards and near our living rooms, where our children and grandchildren play and live. As a resident of Garden Court, I pass within yards of this building on a daily basis, on my way to and from work, and on my way to and from my daily exercise routine. I have already noticed protesters against them, and activists supporting them around the premises of both Planned Parenthood and Garden Court. Who in their right mind would want their children to foolishly play around the residences of Garden Court, when yards from our homes is a building that is known to attract protesters, is a magnet for bomb threats, and will sometimes will need to have ambulances racing to enter its small parking lot? I believe the integrity of my home, Garden Court, has been compromised.

My second concern pertains to the issue of future depreciation of land values and marketability of Garden Court. It used to be that Garden Court often sold within a two-day period. Now, the end unit at 1650 Garden Court, which abuts Planned Parenthood's property on both sides - backyard and side - was on the market since August. More than two months have passed, and there has been no sale on this unit. This is very unusual for our neighborhood.

The last concern I would like to voice is the surreptitious way in which we, as Garden Court residents, were notified about Planned Parenthood's move into our neighborhood. I can truthfully state that I knew nothing of Planned Parenthood's move until the summer of 2004 when other concerned persons came to my home and handed me a flyer notifying me of the unsuspected change. In the memo submitted by Mr. Kamptner, the County's attorney, he mentions that Garden Court appellants didn't appeal the use decision in the November 3rd, 2003 zoning clearance within the 30-day period. He claims that once the 30-day period ran out, the decision became final and the Board of Zoning Appeals lost jurisdiction to consider an appeal of that decision. My question is this: how could we, the appellants of Garden Court, have done this when we were ignorant of the fact that a zoning clearance was granted to Planned Parenthood in the first place. During the summer of 2003, the only thing we had been informed of, was that the new office building next to us was going to be a real estate office. Planned Parenthood is not a real estate office. We, the appellants at Garden Court, were not notified during this time, and that the zoning clearance was granted to Planned Parenthood. In the memo, Assistant County Attorney Kamptner states that hundreds of building permits, zoning clearances, and certificates of occupancy are issued each year by the County. Is he inferring that we, the appellants of Garden Court, should have known of Planned Parenthood's intent prior to the granting of the special use permit to someone else for some other purposes? And we should have taken the responsibility on a weekly basis to review these hundreds of building permits and zoning clearances?

Mr. Sharman: Thank you, ma'am.

Renae Townsend: So thank you.

Mr. Kennedy: Thank you, Renae. Next.

Steve Smith: Thank you. My name is Steve Smith, and I'm a medical student. I recently purchased my townhome in Garden Court, which directly abuts Parcel 13-A the Planned Parenthood medical center complex. I am here to speak to you today, not about the merits of Planned Parenthood. I believe that the issue is neither pro-choice, nor pro-life, but pro-law. I came to Charlottesville eager to start my studies and live in our lovely community, and given Charlottesville and Albemarle County's history of rising real estate values and market stability and my long road ahead in training, it made sense to buy a home as soon as possible. This I did. Before I purchased 1642 Garden Court in late spring of this year, I even had my real estate agent check into the parcel of land behind my home. I was worried that some sort of disruptive or obnoxious neighbor could be being built. I was reassured when my real estate agent found that the parcel was zoned residential or office space, and that an office building was being constructed. Rising property values and market stability, right? I should have been subscribing to Planned Parenthood's Spring 2004 Newsletter, where they said that they planned to, and I quote "construct a hospital in the space provided." Fellow citizens and gentlemen, that does not sound like a residential or professional office building to me. Nor does the fact that the plans for the medical center include - and I quote from the blueprints - a hospital elevator, scrub room, and two procedure rooms. Visiting a professional office building, say a real estate agency here in Charlottesville may be stressful - take it from me. However, I seriously doubt that many folks have to spend time in a recovery room with five beds, quoting again from the facility's blueprints. Is the medical complex in my backyard actually a professional office building? I suppose it depends on what your definition of is, is. But what the County of Albemarle must consider is that it is their legal and moral duty to protect us as citizens. The reason we have zoning laws is to prevent citizens from suffering losses because of inappropriate land use. While the value of my property will not suffer from Planned Parenthood having an administrative office building on Parcel 13-A, it has been damaged by the three-ring circus that has been operating behind me for the past couple of months. The County appraises the value of my property as convenient, trendy housing for young professionals. Are they ready to appraise it again now that is next to the dumpster of a medical center? In the end, is the County of Albemarle ready to accept the potential consequences of allowing this to continue, illegal by its own zoning laws? My home is well within range of any anti-abortion terror. Are you, gentlemen, ready to answer for your decision to endanger my home and even myself? I am asking you to protect me by enforcing the law.

Mr. Kennedy: Thank you, sir. Next person.

Melissa Stell: Hi, good afternoon. My name is Melissa Stell. I am a resident here in Albemarle County. I first became aware of what was going on with this building, I guess it was last spring. A neighbor, a friend of mine, lives in that neighborhood, and she had been out walking with her family and they, as you do, stroll around to find out who's building what additions and what house is for sale, et cetera, and went up to the building to find I guess the building permit where you could see at all, and was stunned to discover that this was going to be a Planned Parenthood building. At that time, I was just, I was amazed. It's right down the street from a high school, it's next to two churches. And there's so many different levels on which this concerns me. First, being near the high school. I think that it's sending a message to our young people that is wrong, and I think it's not protecting them from themselves in some ways, and let me explain what I mean by that. Youngsters that age, their frontal lobe is not fully developed, they're impulsive, and they're not good at decision-making. I myself as a young woman found myself pregnant in an unplanned pregnancy, and I was bad at making decisions and I was impulsive, and because of the convenience of ease for me to just go quickly "oh, I've got to do something about this, run in, get an abortion, and go home…it's devastated my life. I mean, I considered suicide for several years. I'm not saying that it might not be an option for some people. I personally don't think it should be, but it is the law in our country. But, I considered suicide and have suffered from it. Just this morning, I was talking to a colleague of mine, and she had actually wanted to be here for the Planned Parenthood side, and she said the same thing, that she had a similar experience when she was young, and had an abortion in one day, and has since then has never been able to get pregnant again. And now she's in her 50's and grieves every day that she does not have that child. So, I think it's an important message to, I think we have to protect our community and the kids right down the street from saying that this is a quick, easy, option for you…it shouldn't be that way.

Secondly, it is a residential neighborhood. There are backyards as some people have mention, that back right up to this building. Children playing in the backyards, et cetera. From personal experience, I am also a nurse. I have worked in labor and delivery for over 12 years, and I'm very familiar with first and second trimester abortions. And I will guarantee you that there will be women coming out of the clinic that are pale, that are shaky, that are nauseous, that may be bleeding. And that's not the right place. It needs to be closer to the…I think they should be in the hospital, personally, from a professional point of view. But I guess that's up to the lawyers to argue about. But I would think that families having a picnic on their deck need to be watching that. Secondly, I think it's going to be very tempting for the staff of that facility, when things go awry, to not want to call emergency services. Now, I'm sure that they make every effort to be very safe in everything that they do, but it just happens. There is a certain percentage of people who end up with perforations and get septic in their bowels and die, that bleed and hemorrhage, and the ambulances pulling up to that door, and I don't think that's good in that neighborhood either. So, thank you for hearing my comments.

Mark DeLoche: Allow me to introduce myself. My name is Mark DeLoche. I'm pastor of the Albemarle Baptist Church here in Charlottesville, and I want to thank you so much for the opportunity to address this gathering today.

(feedback on microphones fixed)

Mark DeLoche: When we as a church first heard about the Planned Parenthood of the Blue Ridge here, we were obviously greatly dismayed. And let me say unequivocally today that we as a church are opposed to abortion, and particularly this clinic. We are for three reasons. First of all, God's word teaches us that abortion is morally wrong. In fact, many years ago, God said to the prophet Jeremiah, before I formed thee in the belly, I knew thee, and before thou came as forth out of the womb, I sanctified thee, and I ordained thee a prophet unto the nations. And I remind all of us today that the speaker here in that scripture that I just read was God himself. And God says that God knew Jeremiah, and listen, he knew that what some what term as a fetus was actually a person. He knew that this unborn child was not simply tissue, but this unborn child was one that he would actually call to be a prophet. And by the way, that unborn Jeremiah did become a prophet for God. Very clearly, God considers the unborn child to be in fact, a child. Now I recognize that men in their limited minds, may consider them only a fetus, but the creator of heaven and earth considers them human children. Therefore, as a congregation, which we're neighbors there, we believe that to take the life of any innocent human being, regardless of the age, whether one minute old or 100 years old, is morally wrong. Secondly, we believe that this abortion clinic is the wrong place at the wrong time, for the wrong neighborhood. In fact, this neighborhood consists of much residential housing, as we've heard today, some quiet businesses, and several houses of worship. And that final one there, particularly, makes this the wrong location. I mean, any church worth its salt, if it stands on the side of God, would be opposed to an abortion clinic. And to invite the inevitable conflict into a community to me, seems precarious. In fact, they don't put cats and dogs in the same cage. And not only that, but the infrastructure as we've heard also at this location, really makes it the wrong neighborhood. This clinic has no deceleration lane, which seems dangerous to me, if an ambulance has to come flying down Hydraulic Road. It's going to have to make stops quickly, and that can cause traffic problems. However, the infrastructure does support unaborted children playing in their own backyards, or on church playgrounds. It supports adults enjoying leisurely afternoons not worrying about traffic snarls. Thirdly, this abortion clinic, by its very presence in our neighborhood, will engage us in public dialogue. I say our neighborhood because our church stood the test of public scrutiny in this very building here on many occasions, whereas to my knowledge, they did not. We paid the price both through time, as well as money, to be considered as neighbors, in this area. So, gentlemen, I ask you today, to strongly consider this: that to invite really conflict into a peaceful, quiet setting, to me is unthinkable. Thank you for your consideration.

Eddie Giles: I'd like to say good afternoon everybody, and first of all my name is Eddie Giles and I live at Garden Court. I'm one of the Board members. And for the record, I'd like to note that number one, I am pro-choice; number two, I am not here to put Planned Parenthood on trial here. This is a totally different issue that I want to talk about. It's about the zoning. When the building was first in progress to be built, we were told that it was a real estate office, and insurance office, and all that. But once the building was basically completed and sat a while, we heard it was going to be a Planned Parenthood building, and I really started thinking about it. Now I'm not against, I'm going to tell you right now, I'm not trying to shut down Planned Parenthood because you know you can't do that, lets get that clear right now on the record. And my concern was once this building is here, it would affect my property value, my house value. When I come down the road on the weekends, during the weekends, and come into the entrance of my driveway, do I have to endure with protesters standing there holding up signs. And we have had protesters. But, they were non-violent, very courteous, holding up signs? But will it get to a point that there will be protesters that will be violent? Will I have to deal with someone coming to my driveway going to throw a rock at me for some reason? That's my concern, that's one of my most concerns. And also, about the building. Seeing the pictures that were shown up on the screen here. He showed pictures of the one on 250, the one on Pantops. All of those buildings are there, they are commercial, they are medical. But if you notice where they were at, they were in…like the one on 250 is in a big open field; it's not near any residential areas. The one on Pantops is in a shopping center; it's not in any residential areas. The other one shown, I'm not sure where that was. I think it was off Hydraulic. Now, there are some houses behind that, but it's not sitting right in the middle of a residential area. But one of my concerns was, as far as where it is located, we will be getting hate mail, are we going to be targeted, driveways being blocked. What's it going to involve? When they do protesting, traffic comes up and down the road every day. Every time a protest comes about, we've got to call our boys out in uniform. We've got to stop traffic so I can go in, slow people down. It concerns me. It really does concern me. If the building was in another location, another part of town, where there will be medical facilities of this kind, doctors offices and all that, that's understandable. But where it is located right now, I have a problem with that. I do have a serious problem with it. So I come to you today to think about the issue. And like I said, it's about the zoning, it's not about shutting down the Planned Parenthood. It's not about that. It's about the zoning. What it was supposed to be and what it is now, that's what I'm concerned about. Thank you for your attention.

Cynthia Hash: Hi, I'm Cynthia Hash. I'm a local realtor. I'm speaking according to local statistics. What I did was a comparative market analysis with objectivity from the Charlottesville Area Association of Realtors Multiple Listing Program. It's basically a glorified website that only realtors and appraisers can actually access, and of course, their approved assistants. In other words, I could probably email any one of you a listing or report, but you would not be able to extract any comparative market analysis information on your own, unless a licensed realtor or appraiser actually prepared it for you. What I've done is by quarter and by year over the last two years, a market analysis for average price, number of properties, average per square foot, whether it's stable or increasing market results, or declining market results, average days on the market as well. One of the most important ways to define a "hot market," would be the days on market. And one of the interesting statistics that I noted is that if I were to - and I did this - as far as median price range versus average price range. Median price range is probably a very accurate way, is a very accurate way, probably more so than even the average prices because average prices will include possible distortions such as multi-million dollar properties as well, whereas the median prices would end up being, you know, 50% of the homes in the area sold for this price and under that price, 50% above that price. The average price, for instance, in the second quarter of 2004 rose, and what my statistics are doing here is staying within the Garden Court community, because that is the nearest community to the Planned Parenthood center, and so comparing second quarter 2004 to second quarter 2003, the average price rose by 1.5%. That's quite low, in comparison to the rest of Albemarle County, which rose by about 14%. So Garden Court was actually 9.5% under the County average. The - I'm not going to read you all the statistics - there's four pages for you to read on your own, but I will make a couple of comments in regards to some of those. The number of properties that are for sale in the third quarter of 2004 versus the first quarter of 2004, just taking those quarters, rose by about 71% just in Garden Court area. In my opinion, the number of properties for sale increasing so drastically is a direct result of the possible stigma that might be attached to an abortion clinic. You would think that as a realtor, I'd be real tickled with an incredible increase in numbers of properties for sale, but I'm looking at this strictly as if I were a Garden Court resident. Now, on the days on the market, comparison between the third quarter 2004 versus the first quarter 2004; this is days on the market - it's one of the best ways to accumulate whether this is a hot market so to speak. The number of days on the market actually increased in Garden Court by 10%, which if you obviously, the increase between those quarters when they overwhelmingly increased above the same in 2003, and the increase in days on market is actually considered a declining market result and can certainly be interpreted as a pattern caused by stigmatized properties nearby. Now in 2003 on the other hand, the results were more typical of the market place, which is in contrast to the 2004 days on the market.

Paul Begin: My name is Paul Begin. I live at 1560 Garden Court. I'm here to express and protest the Planned Parenthood in what is essentially the backyard of my living community. I'll abbreviate. Many residents at Garden Court choose the community because it is secluded. Most of us are professionals without children who enjoy peace and quiet in off hours. I work at home. Most of my leisure activities take place on or around Garden Court. My wife and I run on a daily basis, swim in the community pool and read on the patio. Planned Parenthood's unannounced appearance jeopardizes this atmosphere and our lifestyle. We have already experienced several protests in front of our community. As a result, our nicely cultivated grounds are peppered with "No Trespassing" signs, as is the Planned Parenthood property. For its part, Planned Parenthood is using the facility in the community as a training ground for its grassroots activists. Moreover, once Planned Parenthood begins to perform second and third trimester abortion procedures - which it presumably could because its acknowledged to be built a hospital - it is likely that there will be occasional calls for a rescue squad or ambulance. Jogging around the block, as we frequently do, is problematic with sign-clad citizens lining Hydraulic Road on Saturdays and evenings. While laying around at the pool or sitting on the patio with newspapers, we are likely to be interrupted with chants, sirens, and general commotion. It's true that no one is fighting the well-drillers association behind us, but nobody is repeatedly protesting there. And I realize that this isn't something that's going to happen every day, 24 hours a day, but it is something that has happened, and that I presume will happen on occasion. Apart from this, my primary motivation in taking action against Planned Parenthood is its affect on the overall value of our homes. For months we watched as the building was under reconstruction, wondering what it would be used for. Usually, this sort of information is posted well in advance. Only in this case, the sign and subsequent knowledge I found out through a flyer, was not made known until the Planned Parenthood sign went up on the day in which the facility opened, leaving us to feel deceived. What's worse, several residents at Garden Court, self included, purchased our townhomes as an investment. I was a finishing graduate student who will be moving from the area in only a few years. I viewed Garden Court as an excellent place to begin to build equity. The prices have risen on a consistent basis, and homes sell quickly, often in less than a day. Consequently, Garden Court is ideal for someone who cannot afford to go through a lengthy selling process, but wants to buy a home and build equity during a brief three or four years in Charlottesville. But, as we can see, this is now also in jeopardy, as the market value will undoubtedly be affected by the perceived safety of the area. Unfortunately, Planned Parenthood does occasionally have these incidents as we talked about earlier. It just happens to happen. The townhome directly behind Planned Parenthood has been on the market for several months now without any success. I think, maybe two months or something. Since this is so contrary to our neighborhood's usual sale experience, one can only assume that potential buyers are deterred by its proximity to Planned Parenthood, which is only feet away, and the potential hazards which come with this proximity. In short, I ask you to please reconsider this location for Planned Parenthood. Its arrival was sneaky and unannounced, it brings undesirable elements to what would be a private and peaceful community, and it compromises the value of our home, that's hurting our economic future. Thanks.

Katherine Parker: Good afternoon, I'm Katherine Parker, a resident of Albemarle County for eight years. From 1981 until 1996, I was President and CEO of Planned Parenthood of the Blue Ridge. I am proud to say that the Charlottesville Planned Parenthood center was established under my tenure, and it has flourished with the very strong support of our community since it opened in 1990. The founding group that asked Planned Parenthood of the Blue Ridge, based in Roanoke, to assist them in establishing a Planned Parenthood center in Charlottesville included physicians, student health and health department professionals, heads of youth serving agencies, educators, community leaders, and philanthropists. Many of those founders are in this auditorium today. Their common bond was, and continues to be, a commitment to advancing reproductive health and education services that improve the health and lives of women and their families in the Charlottesville/ Albemarle Community. Over the years, support for Planned Parenthood's education, health care, and public policy programs has grown, and the center has increased both the range of services it offers and the number of people it serves. Opponents are not new to Planned Parenthood, but their tactics have changed. The vocal minority who oppose reproductive freedom have been frustrated in their efforts to force their beliefs on the majority of citizens who favor reproductive choice. So they have adopted an incremental approach to making access to birth control and abortion more difficult and less available. Bills in our Virginia legislature that would require abortion providers to meet hospital standards are just one example of their tactics. In order to safeguard the reproductive health care services for women and their families in our community, Planned Parenthood of the Blue Ridge built the new Herbert Jones Center for Reproductive Health to meet the standards of our opponents' legislation at considerable additional expense. Make no mistake about it, gentleman, this attack on Planned Parenthood's certificate of occupancy has nothing to do with land use. It is a very transparent, orchestrated, and desperate attempt by anti-choice groups to block access to reproductive health care services provided by Planned Parenthood, because Planned Parenthood preempted their agenda by building the center to specifications. Planned Parenthood has been a good citizen in our community for 14 years. Through its education, health, and public affairs services, Planned Parenthood has contributed to the well being and health of thousands of people in our region. The new center is a testament to the value of Planned Parenthood, and we look to you to enforce your own regulations and affirm Planned Parenthood's continuation of service to our community. Just as a footnote, I would call your attention to the headline under the Planned Parenthood story in today's Daily Progress. The headline was about the decline in HIV/Aids in our community through education. Planned Parenthood has contributed to that decline, as it does every day in its preventative health care services. I urge you to consider all of the facts before you and support Planned Parenthood.

Jack Marshall: I'm Jack Marshall, for 16 years a resident of White Hall District in Albemarle County. I spend my professional life in international family planning, including eight years with the World Health Organization. Since my retirement, I've worked on health and population issues, here in my own backyard. Several years ago, I chaired a team that produced a strategic plan for teen pregnancy prevention in our area, and I am currently on the Board of the Planned Parenthood of the Blue Ridge. But I'm speaking to you today as one of the hundreds of donors to the new Planned Parenthood facility on Hydraulic Road. My wife and I, and neighbors and friends, are proud to have been part of the broad-based community effort to help meet the reproductive health needs of central Virginia women, men, and teens. This building was not built for speculation like some new commercial strip-mall. Planned Parenthood has worked as a non-profit organization in our community for over a decade, so we know what kind of educational, counseling, and health care services area residents want and need. This new building was carefully designed to meet those needs. Not a penny for this new facility came from government funds, or are any of the costs of operating the center supported by tax dollars. This building was planned and financed by local volunteers, mostly folks from Albemarle County and Charlottesville, many of us here in this room. We are retirees and housewives, working teachers and nurses and small business owners, Republicans, Independents and Democrats. We've contributed money and time because we know that people, especially younger women, sometimes lack access to the information and health care they need to make and implement responsible decisions about having a baby, or about avoiding or treating sexually transmitted diseases. Half of all pregnancies in America are unintended. We who support this new center are morally committed to helping avoid lives ruined by unintended pregnancies, to helping reduce the number of unwanted children, to helping prevent women's deaths from unsafe abortions. Just as funding for this building comes from a broad-based group of local community members, so to do the clients served in this facility represent a broad spectrum of local residents. All races and religions and ages - from young teens to women in their 60s and 70s who need annual gynecological exams. From women who have full insurance coverage, to those who can't afford to pay anything for health care. I want to emphasize that despite the opposition of a visible minority, Planned Parenthood represents a cross-section of this community. Though some might consider it an inconvenient fact, it is the wives and sisters and daughters of all of us in this room who need and use Planned Parenthood services. As you know, the effort to close this facility - disingenuously hidden in the guise of concern about legal and zoning issues - is part of an orchestrated, extra-legal effort to reduce the accessibility of abortions. Indeed, the tactic of manipulating local zoning ordinances is spelled out in Chapter 56 of this book: Closed: 99 ways to stop abortion, a well-known resource in anti-abortion circles. Our opponents' appeal of Planned Parenthood's certificate of occupancy is identical to their unsuccessful attempts to revoke the certificate of occupancy of the Women's Health Care Center in Falls Church two years ago. I resent the implication of those who would close this facility that their values are somehow more righteous than mine. Their moral stance should not trump that of the majority of residents in our community who support the Planned Parenthood mission, and will continue to turn to this facility for education and counseling and health services. Thank you for your attention.

Mr. Kennedy: As we said earlier, we were going to recess at 3:00, and it's one minute to 3, so rather than recess in the middle of somebody's talk, I say we'll recess right now for 15 minutes.

(Recess)

Mr. Kennedy: Some people may have been confused about thinking they weren't going to have a chance to talk. The speakers that are speaking now are those that are selected by the respective counsel. And after they are finished, we will open it up for public hearing. When the public hearing comes along, public speakers, we won't know what side you're speaking on because they haven't been selected by the counsel and you're speaking on your own. I suppose we can discern from what you say which side you're on. I just want to tell you everybody will have a chance to talk. I think they've already signed up. Thank you. We're back after recess.

Mark Giles: I'm Mark Giles, I'm CEO of Virginia National Bank. As you may or may not know, Virginia National Bank is a local bank. We have a thousand local customers; we have well over 9,000 different customer relationships. I'm well aware that within this group are individuals who fall on either side of the fence - some are pro-Planned Parenthood; some are against Planned Parenthood. Ordinarily, we take great care not to talk about who are customers are. We respect their confidentiality very much. In this case Planned Parenthood asked us to speak as the bank that has lent them money for this construction/renovation project on Hydraulic Road. In late 2003, VNB agreed to provide construction/renovation financing for Planned Parenthood's new building. At that time, within VNB, we discussed the emotionally charged debate that surrounds Planned Parenthood. We came to the conclusion that regardless of which side of the moral debate individuals within VNB were on, it was clear to us that (1) Planned Parenthood and supporters represented a legitimate and meaningful part of this community, (2) that Planned Parenthood was an economically sustainable organization - that they were here to stay, and (3) that VNB should not start drawing distinctions that would preclude us from working with Planned Parenthood. I've come here today to express my opinion with respect to an appeal of an issuance of a certificate of occupancy. I've also come here to express my opinion as a lender that finances a wide variety of building and renovation projects in this community. As all of you know, financing is a key component of virtually every building or renovation project. When any construction plan gets far enough along that a lender is willing to commit to provide financing, that commitment is made - based in significant measure - upon the predictability of the owner's ability to complete the project as planned. Then, when the lender actually begins advancing money for construction and the owner starts paying its contractors for work performed, those funds are advanced with the knowledge that completion according to code will result in a certificate of occupancy being issued. I cannot imagine how any lender could advance money for a construction or renovation project if there was a material probability that a certificate of occupancy might not be issued even if the wiring and plumbing conformed to code, and the project had been completed in conformance with all of the required plans and specs. If such a risk existed, it would have to be clearly identified and understood at the front end of the lending process, not after the, not well after the fact. I urge you to keep this in mind today as you consider the matter before you. Thank you very much.

Earle Hilgert: Gentlemen, my name is Earle Hilgert. I'm a Presbyterian minister, and a professor of New Testament studies emeritus at McCormick Theological Seminary in Chicago. For the past 12 years, I have been a resident of Albemarle County. I'm speaking in support of Planned Parenthood, and would like to say a few words regarding moral values, with which Planned Parenthood is deeply involved. The basis of morals in both our Jewish and Christian traditions is the command: you shall love your neighbor as yourself. These words lie at the heart of non-profit organizations that are devoted to the social welfare of human beings, organizations such as Planned Parenthood. To education, for healthy family life, for the plight of orphan children, and the relief of women who find themselves faced with daunting reproductive situations are all expressions of their concern for moral values. But there are other moral values involved here. One of these is fair play. Planned Parenthood has spent hundreds of thousands of dollars in building a state-of-the-art facility that meets the health standards of the state for their programs. Only now, after the money is spent, and the labor invested, are the claims against them being brought. That, gentlemen, is not fair play. And fair play is a moral value. Another moral value is the freedom to follow one's conscience within the law. A minority who hold deeply an understanding of morality that is not shared by others, and that minority seeks to force their standards upon the majority of the population. This is not fair play. It is not democratic, it is not in harmony with our nation's legally expressed moral values. I hope you will allow Planned Parenthood to continue its good, legal, and moral work.

(Applause)

Mr. Kennedy: Let me interrupt just a minute. I know everyone is interested in everything that's being said. But just please don't applaud and take that time out, and let the speakers speak so we can get everybody in to speak on the agenda.

Elizabeth Snook: Hi, my name is Elizabeth Snook, and I am 16. I am a junior in high school, and I feel as though my front lobe is well-developed enough to make a substantive statement here today. I believe we should love our neighbor as ourself, and I apologize for those of you who were hissed for what you said. I appreciated hearing all sides of this issue today. And I would like to point out and thank my mother and my grandmother for being here today and always. With that said, with the controversy over Planned Parenthood, I have heard a wide variety of arguments, and my attention is called to two controversial issues that affected me as a teenager. The first is abortion, which Planned Parenthood works to keep safe, legal, and rare. And with that said, I would prefer to discuss the issue more relevant to today's debate, which is the building's proximity to a public high school of nearly 1,500 students. My purpose in speaking today is not to discuss abortion, but rather to explain while Planned Parenthood is an essential service to teenagers. Opponents have argued that the building is too close to Albemarle High School, that its convenience to teens will encourage otherwise uninterested teenagers to further explore sex. I disagree. Some have argued today that the building does not fit the neighborhood. Planned Parenthood is about education, so I think in that respect it could not be more at home near a high school. Those who will seek Planned Parenthood services are already either sexually active or actively curious.

Mr. Kennedy: Let me interrupt. Can we do something about the feedback? We won't take that from your time.

Ms. Snook: And in the case of those who are already sexually active or actively curious, low-cost, confidential and close-by guidance encourages responsibility. Closing this building or even moving it farther away from the school will not suddenly cause teenagers to make healthier choices. The building's location is actually ideal. I feel that having it where it is now is more likely to promote healthier choices among those students who are already sexually active. For instance, say they were to visit Planned Parenthood on their way home from school. Sexually experienced teenagers are more likely to visit the center when they are absent of peers. While they are there, they can experience a supportive and informative staff that will openly discuss matters of sexuality and risky behavior, as well as suggest healthy alternatives. Openly discuss them - that is exactly why the center is needed and why it must be so convenient. Some kids don't like to talk to their parents about these things. But the truth is, if they have no one to talk to, they are bound to make bad decisions, and the conversation needs to start somewhere. So if not at home, what better place then down the street?

David Heilbronner: Thank you for allowing me to speak today. My name is David Heilbronner, and I am a physician who practices in Charlottesville, and lives in Charlottesville. Also, I'm the father of two teenage daughters. I first moved to Charlottesville in 1955, and have lived in both the city and the County over the years, with time away for school, residency, and fellowship. So I come here today as a professional and a resident, and not as an outside ringer with no direct involvement in the community. As you know, Planned Parenthood was founded to provide comprehensive planning services, and the key word here is comprehensive. Sadly, it is one small area of these comprehensive services which has become the flashpoint for emotional and all to frequent violent outbursts. I'm not here to speak today on this isolated issue, however. It is critical to maintain within our community the ability for women of all ages, races, marital status, educational and economic levels to receive the care and health information they desire and deserve. Ironically, in this current debate, I have heard the comments, "would you want a place like this near your school?" And "what kind of message does this send to our children?" Since when is a facility which provides health education contrary to the goals of school and community. It is only with education and a learned understanding of all ramifications of sexual activity and family planning that the single volatile issue of abortion services, which I think has forced this hearing, can be avoided. There are those who feel the building should have been zoned a hospital. Granted, among the services provided at the Jones Center are medical procedures. However, many of the other offices around town and the County perform medical procedures ranging from tooth extractions and oral surgery to the excision of skin lesions, carpal tunnel releases, and colonoscopies. The list could go on and on. If it is ruled that the Jones Center must close or move, the same must be done to those medical and dental offices in which such procedures are performed. Obviously, in the 49 years since I first arrived here, there has been tremendous change. The Planning Commissions and Zoning Boards of the city and County have worked hard to maintain some semblance of continuity and reason to the growth and development of the area. Regarding the present discussion, all legal aspects of the application and building process were appropriately followed by Planned Parenthood of the Blue Ridge. This included notification to the neighbors, and completion of appropriate permits and applications. It is certainly no secret as to what Planned Parenthood's goals and services are. As a result, this request for reconsideration should be denied. Thank you.

Rev. Patricia Gulino Lansky: My name is Reverend Patricia Gulino Lansky. I'm an ordained minister, currently serving with my husband, Don Lansky, as co-ministers at Unity Church in Charlottesville. Unity Church is a Christian denomination, and as well we do welcome and honor the truth in all religious paths. And we are located on Hydraulic Road, right down the street from Planned Parenthood, just a short way down the block. I am also a licensed clinical social worker in the Commonwealth of Virginia, and have been in agency and private practice for the past 20 years in Florida as well as Virginia. I was also raised a Roman Catholic, and I am truly privileged to be here today to give my support to Planned Parenthood. Through my experience as a licensed clinical social worker, my colleagues and I always felt very confident in referring clients to Planned Parenthood. We knew that we could trust Planned Parenthood to give unbiased information and education on reproductive health care, safe sex, and other personal issues - information that sometimes is not always readily available in our families, our schools, or our churches. Planned Parenthood is well-respected in social services, and is known to demonstrate values that are in alignment with social work values, such as a client's right to self-determination, and a right to privacy. I believe that Planned Parenthood plays a vital role and will be a tremendous asset in our community. I actually approached them to be able to be there today because I feel that it is important to be a good neighbor. This is a core belief in our faith at Unity Church. Jesus himself instructed us to love one another, and love is more than just an emotion. Loving your neighbor means to take action to help them. Growing up as a Catholic, I am keenly aware of the very sensitive and emotional issues that Planned Parenthood courageously addresses. Certainly, I am aware of the painful feelings on both sides of the debate, surrounding some of the services at Planned Parenthood, and I do respect, and I absolutely honor the people's feelings about these complex and complicated issues. However, I believe consistent with our Christian faith is that every individual has a direct link with God through prayer, and the ability to access their own divine wisdom, their own inner guidance, and their own direction from Holy Spirit. Planned Parenthood can provide the tools to make an informed decision, and I have great trust that any woman is given unbiased information about all sides of her reproductive health care issues, she will make the right choice for herself. Ultimately, this choice is between her and her God. My belief is that one of the deepest desires of people of every faith is to be an instrument of God's peace. So I want to thank you, this Board, for providing the time and space today for people to share their views and opinions. In an open forum like this, we can better understand each other. And my prayer is truly, that we will all leave here today as instruments of God's peace, and practice the love and harmony and understanding that Jesus taught all of us. Thank you for your time.

Peter Pufki: My name is Peter Pufki. I am the Chief Executive Officer of Children's Home Society of Virginia. We are a partner of Planned Parenthood. We are an adoption agency, known primarily as an adoption agency, and Planned Parenthood of the Blue Ridge and Children's Home Society of Virginia have the first partnership to offer additional adoption services onsite in the nation. Children's Home Society of Virginia was founded in 1900 by an act of the General Assembly. The mission of the agency is to find permanent homes for all children, and provide related counseling to both and adoptive families. Since our beginnings, we have found permanent homes for more than 12,000 children. We have provided counseling to many more birth parents than that, for not all of our clients choose adoption. We are, after all, an agency that believes that professional counselors do not have a preconceived notion about what the outcome of our counseling should be. Every year, we see women who use our services as a way to make informed decisions about their own abilities to parent. At times, we see very young women who want help in broaching their own situation about an untimely pregnancy with their own parents. Once that is accomplished, many families pull together and raise a child together - grandparents and parents sharing equally in the tasks. At other times, women seek our counsel in understanding the rights and responsibilities of an absent birth father. Some desire help in talking with the baby's birth father about a pending birth. Some birth families need to have the respite provided by our foster care services while they make their minds up about their abilities to be the kind of parents they want their children to have. And some birth parents choose adoption. Children's Home Society offers a wide variety of choices to birth families who wish to explore adoption. We work with families who want a traditional placement, where we accept the custody of the child and choose the adoptive parents. We work with those who desire the openness of a parental placement, a way for the birth parents to meet and choose the family who will raise their child. We'll also work with every legal option between these two extremes. An example of this would be where Children's Home Society of Virginia passes an annual update from the adoptive parent to the birth parent who has an interest in her child but does not wish to be an interacting parent in his life. We place all of the children who come into our care - healthy, medical fragile, black, white, and children of other cultures. Our job is to ensure that there is a permanent family for each child regardless of his or her condition. We place the children who enter our care and work with several public agencies to place children in the public foster care system as well. I hope you can tell from these brief remarks that we are interested in keeping options open for those we serve. Our desire for women to have the facts to make informed decisions is what led to our partnership with the Planned Parenthood of the Blue Ridge. They too want women to be thoughtful about their options. Further, our partnership places one of our counsels on site at the Hydraulic Road facility. That is because both Planned Parenthood and Children's Home Society want women to have immediate access to additional information. It is healthier and more expedient for a woman to walk to another office for immediate access to additional information then to refer her to another facility and hope she has the strength to get there after she's made her first step. Children's Home Society has provided all of the services we just mentioned to women whose first contact was Planned Parenthood. We take mutual pride in offering comprehensive services to the community. If Planned Parenthood of the Blue Ridge is banned from providing services to women here, Children's Home Society will be banned as well. It would seem that we all want our daughters to have the ability to make informed decisions. It would also seem senseless to remove a source of that information from them. Thank you for allowing me to speak, and I wonder if I'm the only person here who finds it peculiar that people who oppose Planned Parenthood may picket, demonstrate, make bomb and anthrax threats, and then say those things reduce their property values.

Kelli Palmer: Good afternoon. My name is Kelli Palmer, and I am a landowning neighbor of the Planned Parenthood Dr. Herbert C. Jones, Jr. Reproductive Health and Education Center, located at 2964 Hydraulic Road. Planned Parenthood is an asset to our community. This is an organization that first and foremost serves to educate. And as we all know, education is key to informed decision-making, on any topic. A brief story: a few months ago, my husband and I were discussing the new Planned Parenthood location with a neighborhood friend, actually, a couple of friends. The couple took a whimsical trip down memory lane recounting the joyful moment 30+ years ago when they learned that they were going to be parents, in a Planned Parenthood office. Nationally, Planned Parenthood has worked for 87 years to make sure that people have the information and means to decide freely and responsibly about whether and when to become parents. Regionally, Planned Parenthood provides numerous educational tools for individuals and groups through the Senator Emily Couric resource library. Topics include, but are not limited to, abstinence, pregnancy and childbirth, puberty, menopause, HIV and Aids, abortion, adoption, parenting, and sexual abuse prevention. Planned Parenthood also provides professional training for individuals, groups, and organizations. You've heard this all before. Additionally, Planned Parenthood offers model programs with curricula that can benefit the community, neighborhood, and schools. "Follow Your Star" is one of their programs - it's for girls feeling good about growing up. The program encourages family communication and appreciation of the female development process - puberty. We've already heard from a high school student who has attested that these are much needed services. Locally, Planned Parenthood is a good neighbor: they provide educational services that are an asset to our community. I am a proud member of this community, and I'm happy to know that Planned Parenthood is available to my husband and me as we begin to consider the expansion of our own family. Opposition to the mission of Planned Parenthood - not technical errors on the part of the Zoning Administrator - are driving this effort. Please remember that as you make your decision.

David Nova - I'm David Nova, President and CEO of Planned Parenthood of the Blue Ridge. In 1916, the first Planned Parenthood was shut down ten days after opening. The volunteer staff was arrested and charged with the crime of providing information about birth control. Since then, many if not most Planned Parenthood centers have faced attempts to shut them down. Hearings such as this one are a part of an all too common pattern of disruption by those who would deny the women the moral right to make their own personal decisions regarding sexuality and childbirth. Because it is no longer illegal to use birth control or have an abortion, our opponents must invent new reasons and new methods to keep Planned Parenthood from serving women, couples, and teens. Attempting to revoke our certificate of occupancy under the guise of zoning irregularities is just their latest tactic. In recent years, our opponents of Planned Parenthood of the Blue Ridge have literally attempted to shut our doors by gluing our locks shot. That is why our Hydraulic Road facility now uses keyless entry system. To discourage protesters from harassing our patients or staff, we've established a "pledge a picket" program, whereby 70 of our supporters donate money per picketer per day. When our opponents send anthrax hoax letters to our Charlottesville center, we initiated security precautions to prevent future attacks. Now, our opponents have introduced legislation in Virginia requiring any medial facility averaging two or more abortions per month to meet the architectural standards of an outpatient hospital or else shut down. And so, in anticipation of such a law, and with the strong financial support of this community, the Dr. Herbert C. Jones Reproductive Health and Education Center on Hydraulic Road was constructed to meet the architectural footprint of a hospital. Our new center includes 16x18' surgical theaters with adjacent scrub rooms, specialized duct work, fire suppression systems, a hospital-wide elevator, and hospital-wide corridors. Yet simply because we're shaped like a hospital does not mean we are a hospital. We are not a hospital based on current state law, and we will never be a hospital based on Albemarle County's zoning statutes. The irony is that our opponents' legislative agenda triggered us to build on Hydraulic Road in the first place. Were it not for them, we would still be renting modest office space. And because of the, we have scrupulously complied with zoning regulations. We knew that no matter the circumstances, our opponents might try to use zoning ordinances to deny this community the services we provide. That is why we're here today. Unfortunately, in their zeal to use zoning regulations against us, the competent judgments made by the Zoning Administrator have been unfairly called into question. Ms. McCulley has been caught in the crosshairs of an ideological battle that has nothing to do with zoning. Our opponents would have you believe that because our corridors are wide enough to meet the standards of a hospital, that we should therefore be zoned as a hospital. Yet, the decisions of the Zoning Administrator are not based on proposed widths of corridors. Ms. McCulley's charge is to determine proper zoning based upon use, not architecture. As a non-profit organization providing educational programming, medical services, and advocacy activities, we are zoned appropriately. Fortunately, the Board of Zoning Appeals does not have to make its decision based on ideology, but instead, upon the strict interpretation of the statutes. I have every confidence that you will do so, in order that we can continue to operate on Hydraulic Road. In August 2003, more than a year ago, I sent a letter to the neighboring churches and homeowners associations letting them know early on that we had purchased the Hydraulic Road property. In the letter, I stated that Planned Parenthood would be a good neighbor. We have kept that pledge, and we will continue to honor our pledge to be a good neighbor. It is our intention and our right to be in this neighborhood for decades to come. Today, 890 neighbors and friends of Planned Parenthood came here today wearing "I support Planned Parenthood" stickers and to appear to you on our behalf. We look forward to the day when more of our neighbors will recognize Planned Parenthood's many important contributions to the betterment of this community. Thank you.

Mr. Kennedy: I think that concludes all the speakers for the counsels' parties, and now we will open the hearing to the public. And we've got an order on the sign up a sheet, if you'll call them three at a time, they can come forward…and I think we've limited that to five minutes. We debated it some, but I think we said it would be five minutes.

Missy Smith: My name is Missy Smith. I am a real estate agent in Washington, D.C. I am a pro-life activist. In 1999, it came to light in the secular press about the trafficking of baby body parts. I don't know if you all know about the trafficking of baby body parts, but I have a price list here which I will leave. I understand that you all may be interested in seeing this. It's important probably to comprehend the protocol with abortion. First of all, Planned Parenthood has a non-taxable status, and they have a budget of $750 million, so I don't know why the people her in Charlottesville had to pay for their own "abortuary," but in any event, $257 million of that is out of our taxpayer pocket. We pay for Planned Parenthood. I was pro-choice until I found out the information that hit the secular press. Mona Sharon, the syndicated columnist who is very well known, wrote an editorial that was picked up by the Washington Times called "The Trafficking of Baby Body Parts." And of course you may all know that Planned Parenthood is the largest purveyor of abortion in America, as well as in the world. These baby parts are feeding into a multi-million dollar industry, a research industry. This business is a big…..is it funny?

Mr. Kennedy: Order.

Missy Smith: As we all know, the pharmaceutical companies have the largest and the deepest pockets in the country, and they are using the baby body parts for research. Most people don't understand about stem cells. But it any event, the trafficking of baby body parts does take place. If there are research, fetal research organizations, they will purchase these. National Institutes of Health. This is not laughable. There were hearings on the hill. There was enough evidence that they bought this entire thing. It is against the law to traffic baby body parts, and the ways that the abortuaries get around it is they say that it's a fee for service. But those body parts total to $7,000. Now a late term abortion can cost $3,000 and if you add $7,000 for baby parts, then you've got a nice $10,000 a head. This is about greed, this is about money, this is not about services. 93% of Planned Parenthood's services are abortion. They are not educational. In any event, I think that 20/20 and Chris Wallace did a segment on the trafficking of baby body parts, so if now Senator Colburn believed that there was enough evidence to get it to hearings on the hill, it is not laughable. Dean Alberti, Jr. was a fetal tissue retrieval technician for atomic, the opening lines here, and he testified on the hill to his participation in dissecting babies that were born, and nine times out of ten he said, when he opened up the chest cavity that the heart was still beating. It was not in his contract that he dissect and send these body parts to Georgetown University, National Institutes of Health, Children's Hospital in Philadelphia. And he said he would not do it if they were alive, and he was brought a live set of twins and he told the abortionist that it was not in his contract, the abortionist took saline solution, covered the fetuses with water and drowned them and then said, "here, now, dissect them, they're not alive." So, I think everybody should understand what this is.

(Applause)

Mr. Kennedy: Please take it easy on the applause and the other comments, then we can get on with the hearing, save a lot of time so everybody can go home sooner or later.

Sherri Moore: Thank you gentlemen. My name is Sherri Moore, and I'm the President of the Charlottesville Planned Parenthood Council, and the first thing I'd like to do is just clear up two misstatements. The first is the statement that we have five hospital beds in our recovery room. In fact, they are five lounge chairs; they're basically Barcolounge chairs in the recovery room. There's also constant reference to ambulances coming in and out of our driveway. Planned Parenthood has no ambulatory care. We have, our patients come in, the women come in, and they walk out on their own volition. I'd like to speak for all those hundreds of women and men who were here earlier today and were not able to obtain a seat, and also all of those who were unable to attend today because they were working or had other obligations with children. And also for the hundreds who contributed over $1.1 million in six months to build Planned Parenthood, and asking you to please not be misled by the unfounded and exaggerated fears of our opponents. Please do not revoke this permit that was legally and properly obtained, and please allow us to continue to protect and provide reproductive health care to the women of this community. Thank you, gentlemen.

Patricia Pullen: Hi. I'm Patricia Pullen. I'm a resident of Albemarle County, and first of all, I'd like to thank the members of the zoning commission. This could not have been a very pleasant afternoon for you, and I really appreciate your allowing so many different opinions to be brought before you. I'm not real sure that it was necessary. The issue here seems to be quite clearly, using the facility for abortion, and it's been a very thorny issue for me. When Roe vs. Wade was passed, I thought "What in the cat hair have we done?" But I've come to a lot of conclusions about that and one of the things I would like to talk about just briefly is an article by Dr. Glenn Harold Stasson, who [teaches] Christian ethics at the Theological Seminary. And he is so pro-life that when his wife got rubella in the first trimester, they decided to have the child, and I've taught special ed. for 20-some years, and some of the first children I taught were rubella victims. These are really, really, seriously impaired children. To make the conscious decision to have one is a real dedication to pro-life, believe me. And he is pro-life; however, he is also a statistician, and he's been getting a lot of statistics since the election in 2000, and he's found out that since the election in 2000, abortions have gone up by over 52,000, and part of that is because of the economy. The economy has gone down, and it's down around here also in certain places in the County and in the city and in the state. So I'm a little confused about some of our opponents here. I wonder, if abortion is raised because of economics, and there are three issues that Dr. Stasson brings up. One is that 2/3 of the women say they can't afford to feed another mouth, and they don't have the funding, they can't get any help from anywhere else. I just read in my local hometown newspaper that two food pantries are closing. Now, where are these people going to get food for that? So we don't have enough food for people. We don't have enough economic support to support another family, another member of the family. Second, when the economy is down, men don't get married. They just won't. They'll make babies, but they won't get married and that just seems to be a fact of life. And so the women are left with the babies if they wish to have them. So they decide no, they don't have the support for that, so they don't have babies. And last is that the biggest issue that Dr. Stasson found - and remember this is a theological seminary fellow who teaches, an ethicist - there's no health care for the women or for their children, and they don't want to bring a child into the world with no health care. So I'm a little confused here. I looked at all these people who were here today from both sides of the issue, and my heart said, "What in the cat hair are you doing here?" Why are you here for something that's really a non-issue for this zoning commission that's very kindly listening to us when they shouldn't have to be. Why are all these people out here if they want to reduce abortion, on both sides. Why are we out here pounding on our representatives' doors saying give us health care for our children and our women, give us food for our children and our women. And, I'm just a little confused at some people's Christianity I suppose, but I thank you again, gentlemen.

Cale Jaffe: Hi, my name is Cale Jaffe. I'm here obviously as a father, as a six-year resident of Charlottesville/Albemarle, and also as a friend of Planned Parenthood, and also as a lawyer to offer a little friendly unsolicited advice. You can do with that as you will. I think the last speaker's comments really highlight the inappropriateness of having the Board of Zoning Appeals get involved in what's a hot-button social issue. This is clearly an attempt to go around the back and use a Board that should be focusing on setbacks and variances to try to have a hearing on abortion rights and pro-choice issues. This kind of hearing is completely appropriate for the General Assembly in Richmond. For better or worse, and mostly for worse for our side, those debates are going on in Richmond. But I would encourage you gentlemen to consider what would happen if we entertained the idea that BZA should be used for social legislation. And I think you'd end up with a lot more days like today where you end up debating issues not just pro-choice issues but gay marriage, gun rights, basically every social hot-button issue, you could end up having an auditorium full of people and take another day. I'd encourage you to dismiss this appeal and keep the Board of Zoning Appeals focused on the zoning issues that it was charged to consider.

Patrick Flynn: Hi, my name is Patrick Flynn, and I'm a resident here in Albemarle County. I want to thank the Board here for your service to our community. I was trained as a civil engineer, and my wife and I decided to live in Albemarle County. We like it a lot here; it's a great County to live in. My reason for being here is to encourage the Board to enforce the zoning laws that are in existence, especially with this issue where a lot of people in the area think of abortion is wrong. And so it doesn't matter what else is in the center - I mean it matters, great they are serving the community. But the point here is that abortion procedures are going to take place. And people have said, there may be only one per week. I don't know if that's true or not, but the fact is, abortions are taking place there, and nobody wants to live near that. I certainly don't want that in the community myself. People are, land values can be detrimentally affected as this takes place. I just want you to consider the people who live here and feel opposed to it. I can see that it's a political issue for many people here, but as a citizen, I encourage you to do what's right for Albemarle County, for those of us who live here. Thank you very much.

Jeffrey King: My name is Jeffrey King. I'm an ordained minister and also a local pastor, pastor of Rose Hill Baptist Church in Albemarle County. I would like to thank the Board for your leadership, your time to hear the concerns of the citizens. God bless you for that. I do like to think that we all can find comfort - regardless of what side you're on of the issue - that we have so many citizens concerned about our children. I think this auditorium wouldn't be filled today if our community wasn't concerned about our children. We have different opinions on what's our best way to protect our most precious resources in our community. Now I do believe our most precious resource is our children. And, I'll remind you of an article I read in the Daily Progress back in October - October 11th of this year, entitled "Survey…Albemarle County," this article is talking about how wonderful life is in Albemarle County, that we're one of the best communities in the country to live in. The survey also voiced some concerns that our citizens have. And this article says that planning issues remain a touchy subject, according to a new survey. And also it says that residents' satisfaction with the County's efforts to protect natural resources dropped in the last two years - from 85% satisfaction to 74%. I know as a leader myself, as the leader of a local congregation, whenever you see a drop…I think we should take note, and what do we need to do to get the trend back up again. And I do believe that to get the trend back up again, allowing an abortion clinic to operate within walking distance of a high school is not the best direction to go in. You gentlemen, God gave you the power to make decisions that for better or worse, not to be afraid to say "hey, we made a mistake, what can we do to compensate for that, regardless of the cost." It's easy to look into the long term and see what the general consensus is, what the popular opinion is, but not to misuse the God-given authority that God has given us, we should not always lean to the most popular opinion, but lean to that inner voice that teaches us - whether we choose to listen to it or not. The day is going to come when we have to give an account. 13 Romans says that there is no authority, except from God, and the authorities that exist are appointed by God. So please, listen to the inner voice within you, and not choose popular opinion. Use the God-given authority that God has given you. Remember that in history, the most powerful turning points in our human history - turning points for good - occur when people in leadership positions weren't afraid to go against popular opinion, weren't afraid to make a decision regardless of the cost, because they obeyed the inner voice that God placed within them. As a leader and a pastor, I believe with all my heart that allowing an abortion clinic to operate within walking distance of a high school on Hydraulic Road is not in the best interest of protecting our children. I thank you for your time, and I pray that as you make decisions, they are not according to popularity; they are according to what's best for our most precious resource - the children of our community.

Elliott Neidley - My name is Elliott Neidley, and I'm a resident of Greenwood, and I've worked in Social Services for 25 years, and I'm a father of two children. The reason I'm here is I'm really aggrieved by the amount of fear that people feel on this issue, and I really deeply pray that the Christian community does not use fear. But I also wanted to say that just personally, in 1977, a partner of mine and I - she became pregnant, and it was my conviction that she should have an abortion, and I believed that since it was legal that it was OK. And I convinced her to have that abortion, and for a long time believed that was the right decision, and that it was the right decision for her. Since then I have become a Christian, and I believe that was the wrong decision; however, I choose to pray for others and not to scare them, and I pray that the Lord forgives me for the decision that I made, but I don't condemn others. I just pray that the Lord Jesus show us the truth, and that he shows you the way that you should go.

Daisy Stevens Rojas: My name is Daisy Stevens Rojas, and I am a resident of actually the Four Seasons area, which is between Hydraulic and 29. So, I do feel very strongly that this Planned Parenthood is in my neighborhood, so I've written something to share with you: In 1995, a young unmarried woman entered the Arlington Road Planned Parenthood clinic suspecting she was pregnant. Initially, all she wanted was a free test. After getting a positive on the pregnancy test, the counselor immediately met with her. Learning the client's circumstances - which included a non-supportive family, a partner who was much older and married to another woman, the counselor offered the option of abortion. Armed with this information, the girl told her family that she was pregnant. The attitude of her family was extremely hostile, the boyfriend was unsupportive and abusive. The teenager subsequently lost her job, had her vehicle repossessed, and found herself homeless. The services of abortion offered by Planned Parenthood seemed like the only option to end her misery. As our community discusses the recent addition of a Planned Parenthood clinic in our school district, I would like to note a few points of concern: (1) I originally thought the Planned Parenthood clinic in Charlottesville was a resource for all types of family planning, including desired pregnancy, but after researching the website and other publications, I have since discovered that the only services provided other than birth control and abortion are referrals to services such as the Health Department and Pregnancy Help Center. In fact, although available in other areas, the Charlottesville clinics have done nothing for mothers who exercise the option of maintaining a pregnancy, despite whatever difficulties it imposed; (2) I am sure all of us present know the name Planned Parenthood does not evoke thoughts of happy young families in the delivery room. Although planning a family is a wonderful, happy event, the focus of this clinic is prevention. I certainly think our youth needs effective education and resources for prevention, but I hope that most families would agree that abortion is not the preferred avenue. Rather, as a community who emphasizes education, I feel that we should focus on prevention through discussion and creative youth activities that focus on families. In another publication titled "Fact Sheet," I discovered that the Planned Parenthood Federation of America has instituted a training program in Virginia where interns can learn the skill of successful abortion procedures. This is of great concern to me as a woman. Who is performing these procedures? Why should our women be study vehicles at this difficult emotional time in their lives? And does this focus make a clinic more interested in performing the abortion, rather than helping a woman to truly consider her options. The location of the new Planned Parenthood clinic is within walking distance to our most populated high school - Albemarle High, and on the bus route for Jack Jouett Middle School, Greer and Agnor Hurt Elementary Schools, one of which my children attend. The former locations on Arlington and Pantops seemed to maintain a slightly less conspicuous operation. Is the focus of this office to provide more access to our local youth, although our state requires children under the age of 18 to have parental consent before getting an abortion? The services link on the homepage for Planned Parenthood of the Blue Ridge gives instructions for how to avoid that stipulation: "If you cannot obtain the consent of your parent or guardian, you can meet with a judge who may allow the abortion to be performed without parental consent. At least if the clinic were in a less obvious location, we as families and neighbors would have more opportunity to privately educate our children and present options before they make the decision to go to Planned Parenthood. I raise the question to our community - knowing the business of Planned Parenthood, if this clinic is a necessary addition, how can we protect our impressionable children from witnessing our business. And for women like the one introduced in the beginning - she is me. I find it hard to explain to my eldest son the difficult choice I made after leaving Planned Parenthood that day in 1995. The choice I made to go against my family, the counselor's advice, and almost everyone I talked to, to maintain my pregnancy, and provide the world with a healthy, gifted child, without the services of Planned Parenthood.

Kathleen Bunch: My name is Kathleen Bunch, and I come before you wearing many hats. I am a local Catholic very involved in my church. I am one of those peaceful, prayerful, protesters that stands out every Thursday morning. We are very peaceful and we will remain so. I also come to you as a single mother, who just recently completed graduate school despite the odds against me that both society and Planned Parenthood would say were too hard to overcome. I have several concerns with Planned Parenthood being within a three to four mile radius of my current residence. One of them being that it is within walking distance, and within the bus route, of CATEC, Albemarle High School, Jack Jouett, Greer, Agnor Hurt, and not a far car distance when senior lunch is happening at Charlottesville High School. Planned Parenthood presents themselves to be a non-medical facility, yet when I went to their website, there are 13 medically-related procedures on their current list of services, and only 2 non-medical. They also present themselves to be an all-option facility, yet for the past four years have failed to adopt out any children from the current existence of the Planned Parenthood in Charlottesville. They have also failed to hire a full-time adoption partner with them, hence making their priority the abortion in an already-pregnant situation. I would also just like to address - I find it kind of ironic this meeting happening at 1:00, many high school students were not able to attend. We did hear from one 16-year-old, but I would also just like to bring everyone's attention - it's my understanding that Planned Parenthood did canvas not just the local area, but a large variety of areas surrounding Charlottesville and Albemarle County, which may not represent as the neighborhoods in the vicinity have opposed, the true view of those that are in this locality, And I will prayerfully say that I hope you all will make the decision that you are most convicted to make. Thank you.

Dick Brown: My name is Dick Brown. My wife and I are retired federal careers who have lived in Albemarle County now for five years. In my golden years, I spent my Fridays volunteering for the Red Cross blood donor services, and I also do volunteer work in Virginia public schools. I have listened - tried to listen thoughtfully to all the testimony today, and I'm not here to try to assert my view, which favors choice, over that of the people on the other side of the issue, exactly. I think both sides have had good points to make. It doesn't seem to me that some of the people who have spoken today like Renae and Steven see only abortion as the issue; I think there are some legitimate concerns about their property values. I listened thoughtfully to Cynthia Hash, whom I know as a Red Cross blood donor and respect, and it was interesting to hear what she had to say. But I'm not sure that I found her data compelling, that there's really a case yet to be made or understood about dropping house values in that immediate area. The fact that there was a 71% increase in house listings may be significant; we don't know exactly why all those happened - there may have been random factors going, but it certainly helps explain why maybe the equilibrium price of houses in that immediate neighborhood has not been rising so fast. I think when adverse affects on property values are alleged, we can't immediately assume it's already happening or will happen. It is smart to spend some time looking at data to try to confirm that. To the extent that access to abortion services is a subtext of this dialogue, I think like Reverend Lansky, I speak for many of us for free choice in saying that we respect and honor the opinions of those who believe abortion is morally wrong, without sharing those views. We differ from that view without in any way seeking to derogate it, or curtail the right of abortion opponents to lead their own lives according to their convictions or religious teachings. Nobody here is trying to impose abortion on any who do not wish to have such a procedure. Our hope for those who oppose abortion on principle is that they will accord the same respect to the views of us who favor choice. Most importantly, however, we should all respect the process of those who have not made a decision about a pregnancy that is unwanted, perhaps even posing a threat to the health of life of the expectant mother. They should have the right to be fully informed before making that decision, and to have access to any legally open option. It's OK if we don't all have the same viewpoint on abortion. If we can learn to stop talking past each other a little bit, and engage more constructively on issues like this one. Perhaps we can all enrich each other's capacity to cope with some of life's more vexing decisions, even if we don't all make the same choice. What I don't find OK is the idea that a subset of the population should impose its opinions on all of us, or perhaps foreclose options for some of us because we do not all believe as they do. Tolerance and pluralism have been a compelling American value for the entire duration of our history as a nation, and I believe it is an important key to our future as well. Thank you very much.

Sallie Park: My name is Sallie Park. I live in Fluvanna County, and that's near enough I think to use the services of the Albemarle Planned Parenthood. And I have four little granddaughters, and I'm speaking for my concern for their future in terms of having such a facility available if they should choose. The technical reasons for being here before the Board of Zoning I think have been adequately responded to, and especially with the effective Power Point presentation. That's sort of a back door for the real reason why we're here. Just briefly, for the person concerned about the dangers posed by Planned Parenthood, I think they're blaming the victim. They should direct their concerns to the people who would do violence. And to the person who was concerned about property values, this is a free market society; there is no constitutional protection of one's property values. But there is constitutional protection of freedoms and the right of choice. I think it's sort of synchronistic that this conversation is taking place in the land of Jefferson and Madison, who were framers of the constitution. And I think we need to be reminded that they adamantly believed in the necessity for a secular government. They were wise in realizing the absolute need for separation of church and state, and I think that's the real reason we're here, is because of religious beliefs people are opposed to freedom of choice. And Dick Brown just, I think very eloquently, expressed his and I think many of ours, respect for differences of opinion. But Thomas Jefferson also believed in the importance of education in a democratic society, and I think Planned Parenthood provides that information, so that people can make wise decisions. So I hope that we are, and I thank you for giving a platform here, of a discussion that's often shoved underneath. It really doesn't belong before a zoning Board, but thank you for letting us express our views on this very critical issue. But, I have the right to my opinion, and have a view toward abortion that's a very serious issue, and I respect those who are opposed, but when you get back down to it, this is a democracy, and I will respect their right if they choose not to have an abortion, but I believe in the right of those who do choose to support the right of abortion. We need to have that in a free society, but basically Planned Parenthood is far, far more than the issue of abortion.

Oriah Lee: Hi, thanks for hosting us. I know that this is not really the intent of what you're here for. I specifically wanted to speak today, and especially after hearing Ms. Townsend talk about being ignorant of the process of the permit. I'm sorry, but being ignorant of the law doesn't make you any less responsible for following it, and I would like to see the current special use permit upheld. I'm a nurse, I'm a labor and delivery nurse. I'm an OR nurse, I'm a recovery room nurse, I'm a newborn nursery nurse. What I see in the photographs is not a hospital. What I see in their recovery room is nothing but chairs. It doesn't look like my recovery room, and I would like to see you uphold the special use permit. Thank you.

Mr. Kennedy: Is that the list of speakers? All right. Now we've got the closing summary arguments by the counsel. So, first will be attorney for Planned Parenthood, then we'll have the County, and then we'll have the appellant. Well, we could ask, I didn't know what our rule was for sure on that. Does anyone else here wish to speak or turn in any information even though their name is not on the list? Come forward then.

Tricia Branch: My name is Tricia Branch, and I don't have any planned statements, because I hadn't planned on speaking, but I want to respond to several statements that were made. I'm a certified residential appraiser in the state of Virginia. I do residential appraisals in Albemarle County. I have for 16 years. I have recently done an appraisal in Townwood subdivision, adjacent to the property. I have done an appraisal in the past six months in Garden Court subdivision; I have done an appraisal in Birnham Woods subdivision in the past year. In my research to-date, I have not found any declining values. We are asked to address those issues - whether the neighborhood is stable, declining, or increasing values. I did not find that there were declining values. I think that the jury is still out on that question. I'm not saying that I know for sure that won't happen, but I will tell you that in my research - and I do appraisals for private lenders, I do them for banks around here, I do them for relocation companies, so I have plenty of experience - the statistics are not there yet, and so I don't think you can sit there and say that Planned Parenthood is definitely going to cause those values to decline. I only found that the values were increasing in those neighborhoods similar to the values throughout Albemarle County. As everybody knows, our real estate values have skyrocketed. I found similar situations in those subdivisions, so I'm not saying that for sure it will not occur, but I do not feel there is any proof that this clinic has caused declining values in those neighborhoods. Speaking specifically to the unit in Garden Court that has been on the market now for 60 days, I don't think you can say that's because of Planned Parenthood. Maybe it doesn't show well; maybe it's in terrible condition; maybe the seller is not motivated. There can be lots of factors that could have affected that not selling in what they prescribe as one to two days for most homes. So that's all I want to say, is that I don't think there's any definite proof yet that Planned Parenthood is going to cause these people's values to decline. Thank you.

Danielle: Hi, my name is Danielle, I'm 15 years old, and I'm incredibly nervous right now. I was supposed to be in school today, and I got out of school to come and see this. So despite what that woman said, I did try to come here, and I know, I encouraged lots of my friends to come too. But me and my friends at AHS - I could not agree more with the 16-year-old girl who talked about it. I agreed with everything that she said. All of my friends need this education. It's just incredible what they're doing for us down at Planned Parenthood, and I love every minute of it.

Dr. Jim Turner: Gentlemen, I would like to point out as another gentleman, that none of us have ever been pregnant, and none of us have ever had to make the kind of decisions that women do. My name is Dr. Jim Turner; I've spent my entire medical career delivering babies and trying to prevent unwanted pregnancy. Planned Parenthood has been in existence for many, many years. It was started because contraception used to be legal, of course abortion was illegal, and a lot of women died in back alleys having abortions because abortion was illegal and contraception was illegal. We have come a long way since those days, and the mission of Planned Parenthood has been to prevent unwanted pregnancies. It is not an abortion mill. The abortions that were done in abortion mills were done in illegal centers, or done by untrained doctors down in the country. One in Scottsville in fact, when I came here as a young medical student, I heard all about it. I won't dwell on the details of that. But I would like to tell you that the arguments about abortion are personal beliefs, and I respect them in every one. But I don't respect misinformation. The purpose of Planned Parenthood all over this world, and in Charlottesville, is to teach, counsel, and guide young men and women about the issue of pregnancy. My mother when we were about 14 years old down in Orange, Virginia, set my twin brother and I down and said, in so many words, when we were entering puberty, the most important God-given gift you will ever have is to be able to father a child, and be careful with it. Don't be irresponsible with it. And I must say, thanks to the good Lord above, I was a very lucky man. I don't think I ever caused any disruption in a young woman's life. If I did, I regret that. But for people to come here and to imply that the citizens of Charlottesville want abortions and want to profit from abortions and want to sell baby parts is absolutely outrageous and I'm embarrassed about that, and as a matter of fact, I have never demonstrated, until right at the end of that talk, I yelled out, "that's outrageous," and it was outrageous, and now I feel happy to be able to say it to everyone here. I want you not to forget, and obviously you all are here to settle a legal argument, and I want to thank you for sitting here. You're all busy men. To hear the non-legal part of it, and that's the only reason that I'm able to get up here and speak. But don't forget about the mission of Planned Parenthood. In 1982, when Roe vs. Wade was enacted, it made abortion legal. It didn't mean that we wanted to go out and beat the drum to increase that service. It meant that we needed to try harder to prevent unwanted pregnancy in the first place. Thank you.

Sonny Knight: My name is Sonny Knight. I'm a registered nurse. Just my luck to follow a doctor, as usual. That was a great speech. I'm up here, first of all, I want to thank you for sitting through this. It's been a long day. This is a hot-button. If Roe vs. Wade was appealed tomorrow, it would be a hot-button, and it will always be a hot-button. Like everybody else here, I have my opinion, I'm not going to burden you with that. It's my understanding that you're the Zoning Board, and my hope is that when it comes down to it and you all make your decision that you will in some way remember what's been said here today - these two sides, when people are very emotional and they feel very, very strong, and you will take that and you will remember that, and you will put that aside, and you will go back to what I think you're here for, and that is to go back to the legalities of it, and that is the zoning, and the question is, what's the zoning. Did these people get their zoning legally? Are they doing something wrong now? Has something changed? Is it illegal now? That's something you have to make that decision on, and I hope you all will base your decision on that, not on these things, which is for the constitution and these emotional questions about abortion are based on law for other courts, and not for the zoning Board. Thank you very much.

Ava Kessler: Good afternoon. My name is Eva Kessler. I'm trained as a reproductive biologist, in other words I used to make test-tube babies for people who couldn't have children. I think it's very important to have Planned Parenthood, because if we don't, half of the patients that came in were people that have no information, and needed to have a test-tube baby because when they needed the information, they didn't have it. We had girls that unfortunately needed these services as young as 11 and 12; they didn't have them when they needed them, ended up sterile, and their only chance was having a test-tube baby. The other thing is that I resent greatly that people who do this service were selling body parts and making money off of babies. None of the doctors I've worked with have ever profited from anything like that, and the people I know in NIH, I certainly don't know anybody who's doing that, and I think that if we don't have these services, then we are going to see that yes, we're going to need something greater than this. I also would like to say that the nurse here who came up and said that she treats special children. Sometimes, yes, there are families who have two or three kids with genetic defects, and it's hard. When people have maybe two or three kids with severe Down's Syndrome, sometimes even though they've gone to college for four years, two parents and the grandparents cannot afford to have a third Down's Syndrome child. And unfortunately, they have to make the decision what to do. If we consider people who want to have children at our clinic sometimes, we have people with illnesses that wanted them so bad that it was OK to try to get pregnant and die, because there was no way that we could deliver a baby so early. That's OK, too, I guess - they died trying. But there are people too that if they have another child should have the option too to feel that if they needed an abortion to preserve the family that they had and the quality of life or to be alive for those other children they have, then there's no guarantee that they might be able to carry this child to full term and never see them again. I think that's important. I don't know what all half of the things we're discussing here have to do with the zoning Board, but thank you for your time.

Susan Anderson: Hi, I'm Susan Anderson. I'm on the Board of Planned Parenthood of the Blue Ridge, and I'm a teacher. And I thank you for the opportunity today to speak to you in this auditorium. Lane High School is named for my great-grandfather, and I've never been in the building before, and I'm really glad to be here today. I just want to stress to you how important Planned Parenthood is to our young people. A lot of students I've had over the years, and I've been teaching for 20 years, have used the resources of Planned Parenthood, and they've greatly needed them, and it's a wonderful, wonderful organizations. So please do support the statutes of this city. Thank you.

Mr. Kennedy: That's it for the public, and we're going to have a five minute recess, and then we'll come back and listen to closing arguments by counsel.

(Recess)

Mr. Kennedy: Before you start, we've gotten a lot of letters, and I just want to put them in the record. And they are both pro and con. There's one from Mallek, there's one from Carnahan, there's one from Vancho; there's one from Melvin; there's one from Tynan; there's one from Ingersoll; there's one from Cliborne; there's one from Phemister - hope I pronounced that correctly; there's one from Perriello; there's one from Reid; there's one from Strickler; there's one from WhiteHill; there's one from Grayson, Zakin, Somers, Nguyen, and one from Tabb. There's also one from Bernard, there's one from Blaemire; there's one from Lavelle; and there's some people who had signed a petition - unfortunately, I can't read their names, but I'll put them in the record. I just can't read their signatures, I just can't do anything else with them. So that's here for the record.

Now, we'll have the appeals. They'll be five minutes each, and we'll start with Planned Parenthood.

Richard Carter: Thank you, Mr. Chairman. On behalf of Planned Parenthood, I too appreciate the attention that you've been giving everyone today, and you'll be glad to know I won't use my five minutes. I don't know what a person buying property is supposed to do. They made a full disclosure to the Zoning Administrator and the zoning department as to what they were going to do. They got the zoning clearance, they bought the building, it was a shell, built it out, they got the CO. They did everything right. The appellant did nothing until the CO was issued. Now, I'm sitting here listening to both sides, and I'm trying to think why did they wait until the CO was issued? Why didn't they appeal the zoning clearance? They all know what each other's doing. The people who are not for Planned Parenthood, they can tell you everything that's on their website; they can tell you everything that Planned Parenthood's doing. They know how many people are coming in and out. They know everything that's on that site. They knew everything that Planned Parenthood was doing before they moved to Hydraulic Road. So I'm just wondering if it isn't disingenuous that "oh, we didn't know," "oh, this was a surprise,", "oh, I was walking around one day and I saw the sign." It just makes me wonder. So what do they do, they wait until the building's finished. But it's too late. Whether it's by design or not, it's too late. Remember the timelines I reviewed with you. Remember the reasons for them. It's obvious what they want. They want to stop abortions. This is not the forum to do that. I appreciate your attention. Thank you very much.

Mr. Kennedy: The County.

Mr. Kamptner: Thank you, Mr. Chairman. One of the advantages of being a lawyer in a hearing like this is I have the advantage of simply sticking quickly to the statutes and the case law that should govern this decision. As I stated earlier, the BZA has no jurisdiction. The decision that Planned Parenthood's use is a professional office is now a final decision. It became a final decision almost a year ago; it's a thing decided. Appellant in this case simply appealed the wrong decision. She claimed that notice was not provided. The zoning clearance, the building permits, the ownership of pieces of property were all public records. Does the law require that the County send out notices to all adjoining property owners, in this case an appellant who lives approximately 300 feet away, whenever a zoning clearance or building permit is issued? Absolutely not. The law in this case is clear, that the appellant has 30 days to appeal a decision. If they don't do it, they are out of a remedy. So what did she do? She appealed the certificate of occupancy. That as we stated in the first part of our presentation dealt only with the building code decision, and that decision was that the building was in compliance with the uniform statewide building code. She does not claim that there was any error made in that decision. She does not allege any harm arising from the fact the County determined that that building is in compliance with the building code. Therefore, she's not aggrieved. You heard a lot of testimony today regarding the values of property, but it's the value of the property with respect to the use, not with the building code determination. Therefore, all of that value testimony that you heard - if it is to establish aggrievement - has no relevance in this particular decision that's in front of you. With respect to the special use permit changes and the allegation which takes up much of the appellant's appeal, paragraph 17 to 53, I believe, in her appeal. That's a complete misunderstanding of Virginia land use law, particularly special use permits and zoning. The special use permit runs with the land - it allowed a professional use. Any kind of professional use was allowed on that property with that special use permit, just like any land - take away the special use permit - it has R-2 zoning. The first person who establishes a use there who asks for the rezoning, to allow, let's say a townhouse. That piece of land is not forever restricted to that particular use. Any use that's allowed in the R-2 zoning district is allowed as a matter of right. With respect to the statements by the first physician who spoke in opposition to the County's decision asking that the Board look into classifying the uses based upon the type of surgery or the invasiveness of this surgery - neither the County, the Board, nor the Board of Supervisors are equipped to make those kinds of decisions. The use classifications of office, medical center, and hospital are generally broad; they do not get into specific types of procedures. The cases that I cited in the first part of my presentation make it clear that this is a domain that the County has no business in, in its land use regulations. There were a number of people who spoke about concerns about the proximity of this facility to Albemarle High School and churches, and I found one case in which those arguments were raised by a city: City of Deerfield Beach (a city in Florida), where the plaintiff sought to establish a medical facility and one of its services was abortion services. With respect to the claim raised by the city that the center was too close to a Catholic church, the court said "a legitimate state interest does not exist in protecting a church from stopping intrazoning district neighbors whose activities it opposes on religious grounds." You will note that in appellant's submitted appeal, she does note the proximity of the churches. With respect to the proximity to schools, the city's attorney attempted to raise that defense, stating that children would be walking past the facility on the way to school and that students would have access to the abortion operation. The court said that the argument "the argument is an admission by defendant's counsel that the city commission impermissibly sought to interfere with the abortion decision by restricting abortion facilities to less accessible areas so that knowledge of the availability of abortion services in Deerfield Beach would be limited." We don't hide abortion facilities.

Mr. Kennedy: Thank you.

Mr. Sharman: First, I'd ask that the materials that I submitted be made part of the record.

Mr. Kennedy: What?

Mr. Sharman: I'd ask that the materials that I submitted be made part of the record.

Mr. Kennedy: Oh, OK.

Mr. Sharman: I have a number of clients, one of them is Mr. Giles, who spoke, and who wants to adamantly mention to the Board as well as to everybody else - he's pro-choice. I have other clients, such as Ms. Townsend, who is pro-life. Both of them are here not for their political reasons. They're here to ask you to apply the zoning laws. Nothing I could say, nothing you could do, would have any affect on the right of Planned Parenthood to exist in Albemarle County. That's that. It wouldn't have anything to do with their right of ownership in that building. It would simply be a decision - was the Zoning Administrator correct in issuing an occupancy permit to allow them to occupy that property for the use they intended? Not their administrative office issue, but their medical procedure issue. That's the issue we bring before you today. If you look at, behind tab 9, I just lay out the important laws, the conflicting ordinances. Regardless of what Ms. McCulley says she thinks this law says, this law says what this law says. When you have conflicts in your ordinances, you're supposed to do the more severe standard requirement, that's what it says. Then, the state of Virginia Code says you are to just make a decision on whether her decision was correct, and then you are to look at the intent of that ordinance. What was the intent of that ordinance, the R-10, to keep it for residential. The other uses that you've heard about, the other properties that you heard about, aren't in residential, property, zones. They're in commercial or multi-development. They're not in residential zones. That's the issue. The issue is was she correct. Well, she was not correct by her own statement. I also put in that email again from her, that April 28th email in which she says, "this is not a medical clinic." That is important because the vesting that Mr. Kamptner talked about, that the right of the owner is vested after a certain period of time, is correct, unless the decision was the result of malfeasance by the administrative officer, which is exactly what happened here. When she has right before her the application which says it's a medical clinic. And yet, she doesn't even agree with the owners' decision of what it is - it's malfeasance. She isn't looking into what it is. Then, it's in contradiction with the own officers. The next document that I put in there for my closing is that September 3rd, 2004 letter from John Shepherd, Manager of Zoning Administration, in which he says "an outpatient surgical operating room is comparable to a medical center, which the Zoning Ordinance defines as an establishment where medical care is provided on an outpatient basis, as distinguished from a hospital or professional office." How, how, how, will you ever distinguish that from Planned Parenthood? In this forum, or in the Circuit Court, the Court of Appeals, the Virginia Supreme Court, or on. How can anybody rationally do that is arbitrary and capricious to say Planned Parenthood isn't, they are. What would you call a building that has blueprints of Procedure Room #1, Procedure Room #2, AB Room, Scrub, Recovery, Hospital Elevator, a number of other exam rooms and other labs? It's not an office - the use has changed. The question is will you apply the law. One of the speakers had maliciously suggested that Ms. Townsend and saying the appellants had done anthrax and bomb threats and now they wanted to appeal, and I just wanted to vehemently as my last message say my clients are the ones who have followed the law scrupulously. As soon as they had the opportunity for appeal, they did. There is absolutely no way that they were given notice of the zoning clearance pending for them to have appealed that. They weren't the people that by code are to be notified, and they did not know, and we've stated that in the record. There's no subterfuge on our part. None. They didn't know. They're here because it is your job to take the law and the facts, apply the two, and do it dispassionately, regardless of what your emotions or preferences are. John Adams said a long time ago, "we're a nation of laws, not of men." He did it while defending the British soldiers who had shot the colonists at the Boston Massacre. It might be difficult sometimes, but I ask you to do that.

Mr. Kennedy: Thank you sir. All right. That seems to conclude all the matter, and the matter is before the Board. What's your pleasure?

Mr. Bailey: Mr. Chairman, I don't feel right about voting on the issue, because I think we're dealing strictly with abortions, and I worked two abortion cases where two babies were murdered, and I still have it in my mind, and I just don't think it would be right for me to vote on it. I'd like to be excused, if you would.

Mr. Kennedy: Well, I guess that's your prerogative to abstain if you don't want to vote on it.

Mr. Bailey: That's what I'm going to do.

Mr. Kennedy: OK, so we're down to four people. That creates a little bit of a procedural problem, because it's not easy to get a majority always. So, if we're two to two, then the determination stands. I just want to tell people that, tell Mr. Bailey that.

Mr. Bailey: Mr. Chairman, if it comes up as a tie, I'll change my mind, and I'll vote. I don't want to vote on it.

Mr. Kennedy: I don't think you can do that. I think you have to hang in there or not.

Mr. Bass: Mr. Chairman, I think we need to make it clear. Mr. Bailey needs to say he's recusing himself or he's not.

Mr. Kennedy: That's right.

Mr. Bailey: I'll recuse myself.

Mr. Sharman: Mr. Bailey, if you could please again…I did not hear, and I'm not clear as to reasons?

Mr. Bailey: I was the sheriff in the 1970's, and during the 70's I had two babies murdered, I thought. And it's still in my craw, and I didn't like it then, and I still don't. I did send people to the penitentiary over it. But that didn't satisfy me.

Mr. Kennedy: So you're recusing yourself?

Mr. Bailey: Yes, sir.

Mr. Kennedy: All right. You're going to stay here but still not participate. OK. All right. With that understanding we'll proceed.

Mr. Cogan: Mr. Chairman, I think all of these fine people who have come here today understand that this Board isn't going to make any decision based on whether or not they agree with the activities of Planned Parenthood or not. That's not an issue. The only issue before us is a zoning issue. And, with your permission, Mr. Chairman, I'd like to start off with an opening statement, and I'd like to do a little housecleaning. Then I'll express my views regarding this entire issue.

I want to start off by saying that in reviewing the information supplied to me, all the documents and the overall history of the case, I have not found any indication of favoritism on the part of the County, nor have I found any attempt at deception on the part of the occupants in the building in question. At the same time, while I believe the past procedures may have been properly administered, this is not to say that I agree with the decisions made or the opinions applied in the past. Questions regarding proper timing have been raised, and I have taken these into consideration in formulating my own opinions. In making any decision about the appeal, I have applied my own interpretation of the facts as presented, including those presented at this hearing, as well as the various codes, statutes, case laws and definitions contained in the Zoning Ordinance. I've given full consideration to the technical and legal aspects of the appeal, but I am also adding an element of common sense.

As to the housecleaning, you all got a pack of attachments, and I'd like to remind some of you that some of these attachments are really not anything that had to do with any application by Planned Parenthood. For example, Attachment "M" is actually a zoning clearance worksheet for a Kevin Smith. Now I guess probably the purpose of that was to use that as an example. I also feel that Attachment "J" is not really relevant. And I am a little concerned about using examples, because if you want to use an example, you have to go into great depth about what those examples represent, and if they are germane or relevant to the case at issue before us today. So, I'd like to make that comment.

As to Attachment "C," which is the approval of the special use permit, there's been a lot of discussion that the only restriction on that issuance were the four conditions listed. However, I'd like to note that below Issue Number 4 is a statement "in the event that the use, structure, or activity for which this special use permit is issued shall not be commenced" and so forth, so this approval of the special permit definitely refers to that particular use or activity that was put before the Board of Supervisors at the time the special use permit was applied for and subsequently issued. The special use permit was not issued for a medical center, it was issued for professional office, so we have to keep that in mind as well. Mr. Kamptner - and this has been brought up also - in page 6 of his November 11 memorandum mentioned that Planned Parenthood has a vested right under Virginia Code. But as I read that, it says that any written order, requirement, decision or determination be subject to change modification, or reversal cannot be done by any Zoning Administrator or other administrative officers after sixty days of its lapse. Well, we're not a Zoning Administrator, and we're not an administrative officer. We're the Board of Zoning Appeals appointed by the Circuit Court, so I think that we're exempt from that part of the statute. I'm not an attorney, but that's the way I'm reading it in my position as a member of this Board of Zoning Appeals.

Mr. Kennedy: Well wouldn't that mean that the right is vested, and we couldn't overrule it?

Mr. Cogan: No, what it says is that the administrator cannot remove the vested right after sixty days; it doesn't say the Board of Zoning Appeals can't do it. That's my point. Let me just go on with what I've got here, because if I do it this way, it will be a little quicker for everybody.

I'm troubled by the fact that the special use permit granted in 2000 was to a different person for a different use. It is claimed by the County that "the certificate of occupancy only represents compliance with the Virginia Statewide Building Code, and there is no infraction in this regard; thus an appeal based upon the CO should not be granted." However, I believe the CO represents the culmination of prior events, without which, it could not have been issued. See specifically in our [County Code] Section 31.2.1, and that spells out very clearly. The first prior event was the issuance of SP 2000-35 to a different owner for a different use. To say that the special permit runs with the land and is all-binding is incorrect. The change in the use from that use claimed at the time of the application for the special permit could invalidate the special permit, especially if the new use goes beyond uses permitted under a special permit in that particular district. I believe that that is the case here, as this use - even though it only represents a portion of the overall use - can only come under the definition of medical center, which is not permitted in the R-10 zone, even with a special permit.

The next event leading to the issuance of the certificate of occupancy was the zoning clearance. The application indicated in part "medical clinic." The staff report states that zoning clearance applications are thoroughly reviewed. I believe that the zoning officer and staff made an incorrect decision in granting the zoning clearance, and I base this upon my interpretations of the definitions of professional office and medical center. The definition of "medical center" clearly states it is "an establishment where medical care is provided on an outpatient basis," as is the case here, and then goes on to state that this distinguishes it - this is the magic word, it distinguishes it - from a "professional office." In my opinion, this definition of medical center clearly eliminates any medical outpatient activity from coming under the definition of professional office. It is irrelevant that there can be cited examples of other facilities providing outpatient care while categorized as professional offices. These are all different cases with different situations in different zoning districts, and they could be wrong also.

While it would have been preferable to have the appellant file within 30 days of the issuance of the zoning clearance, I find it to be an impractical expectation. Zoning clearances are not advertised or publicized. While they are public record, they are not commonly known to the public, while certificates of occupancy are commonly known. I maintain that the certificate of occupancy is reflective of the prior SP 2000-35 and the zoning clearance. Therefore, when considering all aspects of the appeal, I am considering these two issues as being part of the CO, even though no appeal was timely filed with respect to the SP and the zoning clearance. I do not believe that SP 2000-35 is valid for the present use, and I do not believe a correct decision was made in issuing the zoning clearance. The staff report, as well as Mr. Kamptner's memo, state that the medical aspect use of the building represents only a small percentage of the overall use, and therefore is not a consideration. I disagree. If a retailer in a commercial zone retailed 90% of what he sells but manufactured onsite 10% of his product, he would be in violation of the commercial zone because part of his activity is only allowed in industrial zone.

The key questions is whether the appellant has been aggrieved, or is she not influenced any more than anyone else generally. I had a very difficult time making a decision on that, and I wrestled with that for a long time, and I was going to reserve my decision on that until after this public hearing was over, and everybody had had a chance to speak. And having heard all the testimony given here today, I've determined that in fact the appellant was, or is, an aggrieved party.

I don't know if I should jump over to 2004-07. It's very quick. Do you want to wait on that? That's the appeal about the stay.

Mr. Kennedy: I think we ought to take those appeals up separately.

Mr. Cogan: OK, well I'll hold off on that. That's all I have to say for now. Thank you Mr. Chairman.

Mr. Bass: Mr. Chairman. Respectably, with due respect to Mr. Cogan, I disagree on some issues. Starting with number one, the timeliness of the appeal. I believe that the certificate of occupancy, the CO, I'll call it, was appealed in a timely fashion. And I believe that from reading our ordinances, that any member of the public can appeal a CO. It is issued, I understand, by the Department of Community Development, but I consider the Zoning Administrator actively involved in that department. I feel, though, that there were no arguments presented here today that would convince me that there is reason to overturn or reverse the Zoning Administrator on the certificate of occupancy. It seems the building does meet code, and there have been no arguments that it doesn't. So though I would agree that the CO was appealed in a timely fashion, I haven't heard evidence that we should reverse the Zoning Administrator's decision that it was proper.

Number two, on the aggrieved nature, I am not able to find that the potential devaluation in real estate is a legitimate aggrievement in terms of a pecuniary interest, a material interest that is imminent, that is realized, as opposed to one that might hypothetically happen. The other aspects of aggrievement that we typically see in land use issues - noise, odors, visibility like the tower in the Virginia Beach case - I see none of that present in this situation. The only arguments presented dealt with a decline, a potential decline in real estate value. I don't think there's been enough evidence suggested that that convinces me that Renae Townsend is an aggrieved party. The other petitioners in the amended appeal, they're not timely, and we haven't discussed that, but I would be happy to make a motion that the amended appeal is not pertinent because it did not meet the 30 day rule on the certificate of occupancy. But I cannot be convinced that there's aggrievement there on the part of Ms. Townsend.

That brings me to the argument that was made, that I think was probably one of the strongest reasons to uphold the, to affirm the Zoning Administrator's decision, and that is the issue of vested rights. It seems ultimately proper that in 1995, the General Assembly changed the Virginia Code to protect people from the possibility that a government official would change their mind on something that somebody had a vested interest in, meaning they'd taken a decision by a government employee and then invested lots of money into their venture - whether it be a building, as it is in this case, and then find that someone has changed their mind. The Virginia Code protects people against that possibility after sixty days. And clearly, from the time that the zoning clearance was issued - which dealt with, that had Planned Parenthood's name on it. The zoning clearance, which we all have, was about Planned Parenthood, not an office building in general. They went ahead and finished out the building, and I believe the Virginia Code protects them, as I think it should protect us all.

The last point I would make would deal with the use, and I must admit, this is perplexing, and I've been back and forth on it in my own mind. As in many cases before this Board, we wish that the Zoning Ordinance as written had been written more clearly when we deal with issues like this, and it would be wonderful if the supervisors and the planning staff were so forward looking that they could anticipate when they word things, all the issues that come up a decade later, for example. And this is a case where one can look through that ordinance and depending on how you want to read it, find some support in words like "medical clinic," or words like "professional office," depending on what side you're on. I think that in today's practice - first of all, a doctor has a professional office; no one has argued that a doctor isn't professional. I think in today's practice of medicine, a lot of things take place in doctor's offices that the County staff has discussed that are in nature -for example, like colonoscopies and sedated dentistry for extractions - that are in nature somewhat clinical, and they definitely meet the outpatient standard as opposed to a hospital, but in talking with physicians I find they like to do as many of these procedures as they can in their office if they can be
done safely. It's more efficient for them, for the patient, and I believe that there are lots of examples of medical procedures that are similar to a first-trimester abortion - that are taking place in men and women's health throughout the nation. I don't know that our ordinance gives us a tremendously clear alternative between professional office and medical clinic, but I believe that this looks to me - despite the labels on the floor plan - to be an office, a professional office, and at least half the activities there would be not related to hospital or medical clinic.

In any case, no matter what the Board might decide on the use issue, I think there's no argument that the person in my judgment - Renae Townsend - is not aggrieved, and even if the use issue were decided in her favor that the sixty day rule with the statute on vesting, on vested interest, would overrule any possibility that the Zoning Administrator should reverse her decision, or [rather] we should reverse the Zoning Administrator's decision.

I would be prepared when the chairman thought it was appropriate, to move to affirm the Zoning Administrator on 006.

Mr. Kennedy: I think I concur mostly with what you said. Administratively, let's see how we can move along. I think the first thing we ought to take up is whether the other appellants that were added by the amended complaint are timely, and dispose of that issue. And if we'd have a motion on that, we'll take that up now.

MOTION (Mr. Cogan): I'll make such a motion, Mr. Chairman, that the other four appellants were not timely in their filing for an appeal.

Mr. Bass: I second that motion.

Mr. Kennedy: It's been moved and seconded that the other four appellants were not timely and they will be dismissed. And it's been seconded. All in favor, call the roll.

Ms. Kilmer: Mr. Cogan?

Mr. Cogan: Aye.

Ms. Kilmer: Mr. Bass?

Mr. Bass: Aye.

Ms. Kilmer: Mr. Bailey?

Mr. Bailey: I won't vote on that.

Ms. Kilmer: Sorry. Mr. Kennedy?

Mr. Kennedy: Aye.

Ms. Kilmer: Mr. Rinehart?

Mr. Rinehart: Aye.

Mr. Kennedy: So those appellants are dismissed. Is there any other motion at this time.

Mr. Cogan: Do you want to finish this first and then get on to 007?

Mr. Kennedy: Yeah. Let's finish 006.

MOTION (Mr. Bass): Mr. Chairman, I move that we affirm the Zoning Administrator on 006.

Mr. Rinehart: Second.

Mr. Kennedy: It's been moved and seconded that we affirm the Zoning Administrator on 006. I've forgotten the prefix - 2004-006. All in favor call the roll.

Ms. Kilmer: Mr. Cogan?

Mr. Cogan: No.

Ms. Kilmer: Mr. Bass?

Mr. Bass: Aye.

Ms. Kilmer: Mr. Rinehart?

Mr. Rinehart: Aye.

Ms. Kilmer: Mr. Kennedy?

Mr. Kennedy: Aye.

(Applause)

Mr. Kamptner: Mr. Chairman, just for the record, would the basis for that decision be for the reasons articulated by Mr. Bass?

Mr. Kennedy: Well, I've concurred with Mr. Bass, and I voted with that concurrence, so I would say for the record, that was for those reasons.

Mr. Rinehart: Mr. Chairman, I would just like to, if you will, affirm my position on Mr. Bass' points. I echo what he has put in the record.

Mr. Kennedy: All right. Let's take up 007.

Mr. Cogan: I just had a brief statement as to AP 2004-007. I agree with the County that the stay should not have been granted. The stay is only to be issued to stay procedural matters, not ongoing activities. Additionally, there are no ongoing procedural matters to be stayed at this time in relation to this building and its occupants. So, I would make a motion that we affirm the Zoning Administrator on AP 2004-007.

Mr. Rinehart: Second.

Mr. Kennedy: It's been moved and seconded that this Board affirm the Zoning Administrator's decision on 2004-007. All in favor call the roll.

Ms. Kilmer: Mr. Cogan?

Mr. Cogan: Aye.

Ms. Kilmer: Mr. Bass?

Mr. Bass: Aye.

Ms. Kilmer: Mr. Rinehart?

Mr. Rinehart: Aye.

Ms. Kilmer: Mr. Kennedy?

Mr. Kennedy: Aye. So that decision is affirmed. All right. That concludes….we've got on the agenda old business, but I think we can defer that.

Mr. Kamptner: Before we adjourn, do you wish the County to return to you at the December meeting with a written decision stating forth the reasons for your decision, on both appeals?

Mr. Kennedy: We've been doing what's tantamount to an order, in which counsel will have to get together. And then that order will have to be submitted to us for our concurrence or approval.

Mr. Bass: And made public.

Mr. Kennedy: And made public, or whatever we want to do with it. But counsel can use that for the basis of an appeal, or whatever they want to do with it.

Mr. Rinehart: I move for adjournment.

Mr. Cogan: Second.

Mr. Bass: All in favor, call the roll.

Ms. Kilmer: Mr. Cogan?

Mr. Cogan: Aye.

Ms. Kilmer: Mr. Bass?

Mr. Bass: Aye.

Ms. Kilmer: Mr. Rinehart?

Mr. Rinehart: Aye.

Ms. Kilmer: Mr. Kennedy?

Mr. Kennedy: Aye. Mr. Sharman, before we adjourn, did you hear the part about the order?

Mr. Sharman: (off tape)

Mr. Kennedy: We've been having counsel get together and do an order, setting forth our findings and the results of our vote, and then I don't know the issue about whether the appeal's going to run or not.

Mr. Bass: Next meeting.

Mr. Kennedy: No. It might run from the order. It might run from the date of this meeting.

Mr. Kamptner: The decision was today. The order will be (off tape).

Mr. Kennedy: I think you'd have to be safe on that, but anyway, be prepared to work on an order with counsel that will be the basis of the appeal.

(Recorded by Ana Kilmer and transcribed by Elisabeth Golden)

Respectfully Submitted,

George Bailey, Secretary Board of Zoning Appeals

Editor's Note: Received January 18, 2005