PROFFER STATEMENT

NORTH POINTE CHARLOTTESVILLE, LLC

REZONING APPLICATION: #ZMA-2000-009, SP.2002-72

 

May ___, 2004

 

 With respect to the property described in rezoning application #ZMA-2000-09 and SP-2002-72 (the “ZMA”), North Pointe Charlottesville, LLC is the contract purchaser of Tax Map 32, Parcels 20, 20A, 20A1, 20A2, 20A3 and 29I (the “North Pointe Property”), Violet Hill Associates, L.L.C. is the fee simple owner of Tax Map 32, Parcels 23, 23A, 23B, 23C, 23D, 23E, 23F, 23G, 23H and 23J (the “Violet Hill Property”), Virginia Land Trust is the fee simple owner of Tax Map 32, Parcel 22K (the “Virginia Land Trust Property”) and the Estate of Edward R. Jackson is the fee simple owner of Tax Map 32, Parcel 22H (the “Jackson Estate Property”).  The respective parties are collectively referred to herein as the “Owner”, which term shall include any successors in interest.  The North Pointe Property, the Violet Hill Property, the Virginia Land Trust Property and the Jackson Estate Property are referred to collectively as the “Property”. CWH Properties Limited Partnership, the fee simple owner of the North Pointe Property, unites herein to evidence its agreement to the proffers.

 

Pursuant to Section 33.3 of the Albemarle County Zoning Ordinance (the “Ordinance”), Owner hereby voluntary proffers the conditions listed in this Proffer Statement, which shall be applied to the North Pointe Property if the ZMA is approved by Albemarle County.  These conditions are proffered as part of the ZMA and it is agreed that: (1) the ZMA itself gives rise to the need for the conditions, and (2) such conditions have a reasonable relation to the rezoning requested.  

 

 

I.          REZONING APPLICATION PLANS AND ILLUSTRATIONS

 

1.1            Plans and Illustrations.  Owner’s development of the Property (also

referred to herein as the “Project”), subject always to the provisions of Section 8.5.5.3 of the Ordinance as it exists as of (insert date of approval of rezoning) (“Section 8.5.5.3”), which allows certain variations from approved application plans subject to the provisions thereof, shall be in general accordance with Owner’s application plan entitled “North Pointe Community”, prepared by Keeney & Co., Architects, last revised April 8, 2004 and attached hereto as Exhibit B and the other plan exhibits referenced in Section 1.2 hereof (the “Application Plan” or “Exhibit B”), and as provided in the Ordinance.  Owner has presented, as part of its Rezoning Application, a number of conceptual plans and illustrations for various purposes, but principally to provide justification for the rezoning action it is seeking.

 

Comment: This is not a proffer and should be deleted.  Zoning Ordinance § 8.5.4 states in part that once an application for a planned development is approved, the application plan becomes part of the zoning regulations applicable to the planned development.

 

1.2      Plan Exhibits. These proffers shall include the following plans and all pages thereof, which (except for the Application Plan) are limited to the purpose for which they are referenced in a proffer:

 

·              Exhibit A –       Title Page

·              Exhibit B –       Application Plan

·              Exhibit C –       Stormwater Management and Stream Conservation Plan    

·              Exhibit D-2 –    Internal Road Cross Sections

·              Exhibit E –        External Road Improvement Plan

·              Exhibit F –        Development and Road Phasing Plan

·              Exhibit G –       Open Space Areas and Green Way

·              Exhibit H –       Existing Property Boundaries

·              Exhibit I –         Conceptual Grading Plan

·              Exhibit K –       Sanitary Waste Water Drainage Plan

 

Comment: Exhibit D-1 should be added because Exhibit D-2 is meaningless without Exhibit D-1.

 

II.        THIS SECTION INTENTIONALLY DELETED

 

III.       DENSITIES

 

            3.1       Total Buildout.  The total number of dwelling units shall not exceed 893 and the gross floor areas for commercial and office uses shall not exceed those set forth in the tables on Exhibit A.  The gross floor area of public schools and libraries, buildings for religious purposes, structures within common areas, storage structures not exceeding 1,500 gross square feet, and temporary nonresidential mobile homes as provided in Section 5.8 of the Ordinance do not count toward the limitation for commercial and office use gross floor area.

 

Comment: This proffer is satisfactory.

 

            3.2       Limited Adjustments to the Residential Portion of the Application Plan.  The Owner reserves the right to adjust the residential mix shown in the table on Exhibit A such that each dwelling unit type (Single-Family Detached, Multi-Family and Single-Family Attached shall reflect a range of 23% to 43% of the total dwelling units.

 

Comment: As provided in Zoning Ordinance § 8.5.1(d)(9), the application plan needs to state the total number of dwelling units (density) and the dwelling types.  The Planning Commission recommended that the relative proportions of each of the three housing types range from 23% to 43% of the 893 total permitted dwelling units.  Because this proffer pertains to the phasing of residential areas, it  should be deleted and replaced with a special use condition that states:

 

1.         Residential mix.  The types of dwelling units shall consist of single-family detached,           multi-family, and other (consisting of townhouses, duplexes, attached housing and any          other unidentified housing types).  The relative proportions of each of the three        dwelling types shall range from 23% to 43% of the 893 total permitted dwelling units.

          3.3         Limited Adjustments to the Commercial Portion of the Application Plan.  The 

commercial and office buildings shall be devoted to the uses as set forth in the Commercial Land Use Breakdown Table on Exhibit A.  The square footage of the commercial and office uses may be adjusted within a range of up to 10%, provided the maximum square footage for all such uses shown in the Table is not exceeded, and further provided that Buildings 14 and 6/7 may have a footprint no larger than 88,500 square feet and Building 7 may have a footprint no larger than 72,000 square feet.  No building shown on the Application Plan or in the Commercial Land Use Breakdown Table on Exhibit A shall be restricted to a single story.  Commercial uses shall include those uses permitted under the PD-MC zoning classification.

 

Comment: The reference to Building 7 should be changed to Building 36.  The last sentence should be deleted.

 

                                     3.4      Phasing of Construction.  Prior to the issuance of a building permit that would authorize the construction of more than the first 331,696 square feet of gross floor area for commercial and office structures, building permits shall be issued by the County for at least 224 dwelling units.

 

Comment: Because this proffer pertains to the phasing of residential areas, it should be deleted and replaced with a special use condition that states:

 

1.         Phasing of residential units.  Prior to issuance by the County of a building permit that      would authorize the construction of more than the first 331,696 square feet of gross floor    area for commercial and office structures, certificates of occupancy shall be issued by the   County to at least 224 dwelling units.

 

The numbers used in this condition require that COs be issued to 25% of the dwelling units before building permits are issued to allow construction of more than the first 50% of commercial/office floor area.  This condition could be further revised to require a mix of housing types in the first 224 dwelling units.

 

IV.    STORMWATER MANAGEMENT AND STREAM BED CONSERVATION

 

4.1       Flood Plain. The area of the 100-year flood plain within the Project and shown on the Application Plan shall remain undisturbed except for road crossings, public utility facilities and their crossings, and pedestrian and biking trails, and only to the extent such exceptions are permitted by County ordinances and regulations.  Upon the request of the County, Owner shall provide a survey and prepare the necessary documentation and dedicate the land within such flood plain to the County.

 

Comment: This proffer is satisfactory.

 

4.2       Stormwater Management Plan. The stormwater/BMP plan for the Project shall be prepared, and all stormwater management facilities for the Project shall be designed and constructed, to accommodate all current stormwater discharge from Tax Map Parcel 032A0-02-00-00400 (Northwoods Mobile Home Park Development) and from the existing developments on the northeast and northwest corners of Proffit Road and U.S. Route 29.  The stormwater management facilities shall mitigate the stormwater quality and quantity impacts to the same extent as required by the Ordinance for the Project

 

Comment: The last sentence of this proffer should be revised to state: “The stormwater management facilities shall mitigate the stormwater quality and quantity impacts, for the stormwater generated both within the Project and offsite as described herein, as though the entire preexisting condition of the drainage area is an undeveloped wooded site.”  The proposed language provides a better description of the condition of the off-site drainage area and the stormwater quality and quantity impacts to be addressed.

 

            4.3       Stream Buffers.  On Flat Branch, Owner shall establish and maintain an undisturbed fifty foot (50’) buffer on each side of the stream for the section south of Northside Drive East extending southward to the proposed regional stormwater facility, as shown on the Application Plan.  Subject to the regulations of Section 17-319 of the Water Protection Ordinance, any required disturbance within this buffer area, such as may be caused by construction of roads, bridges, detention (and retention) ponds, utilities, and pedestrian and biking trails, or any other uses approved by the County, shall be restored in accord with a restoration plan approved by the County’s Program Authority and other applicable regulatory agencies or authorities.  Owner agrees to endeavor to have any monies that are required by the Virginia Department of Environmental Quality and/or the Army Corps of Engineers to be paid towards stream mitigation obligations to be paid into a trust fund (such as the Nature Conservancy Fund) for the purpose of funding qualified mitigation projects within the boundaries of Albemarle County.

 

Comment: The first two sentences of the proffer are satisfactory, though staff notes that the scope of the proffer could be limited to that portion of Flat Branch that is not designated as a perennial stream under the Water Protection Ordinance (the portion that is designated as a perennial stream would be subject to the Water Protection Ordinance’s requirements anyway).  The last sentence of the proffer is not a proffer and it should be deleted.

 

            4.4       Preservation Areas.  The Preservation Areas shown on the Application Plan shall remain undisturbed and shall be protected from development impacts to the reasonable satisfaction of the County’s Program Authority.  Sanitary sewer, including pump stations, and storm drainage outfall may be placed in these areas if said Program Authority has found the environmental impact is the minimum necessary to establish and maintain the use of the Property as shown on the Application Plan or at the request of the Albemarle County Service Authority.  Paths may also be allowed in these areas provided the Program Authority has reasonably determined that the environmental impact is the minimum necessary to establish and maintain those uses.

 

Comment: Because this proffer pertains to the residential areas, it should be deleted and replaced with a special use condition that states:

 

1.         Preservation areas.  The preservation areas shown on Exhibit C  to the Application Plan,             entitled “Stormwater Management and Stream Conservation Plan,” dated             _______________, shall remain undisturbed and shall be protected from development          impacts to the satisfaction of the agent; provided, that:

 

      A.         Sanitary sewers, including pump stations, and storm drainage outfalls may                        be placed in the preservation area if the agent finds that the location, design,                   construction, and maintenance of these improvements will have the minimum                   environmental impact on the preservation area and yet allow the                                             improvements             to adequately serve the project as shown on the Application              Plan; or the Albemarle County Service Authority requests that these                          improvements be placed in the preservation area; and

 

      B.         Pedestrian pathways may be established and maintained in the preservation                      area if the agent finds that the construction, maintenance and use of the                                  pathways will have a minimum environmental impact on the preservation                               area.

     

            4.5       Conservation Areas.  The Conservation Areas shown on Exhibit C shall remain undisturbed; provided that the agent may authorize a land disturbance within the Conservation Areas if the agent finds: (i) the disturbance is necessary in order for a use shown on the Application Plan to be established; (ii) the purpose for the disturbance is to establish and maintain streets, sanitary sewers, storm drainage outfalls, pedestrian paths, and/or stream restoration; and (iii) the construction, maintenance and use of the improvements will have the minimum environmental impact on the Conservation Area necessary for the improvements to be established and maintained, and the long-term impacts are adequately mitigated.  Nothing in this condition shall be construed to obviate the requirements established for stream buffers under Chapter 17 of the Albemarle County Code or shall constitute a waiver of such requirements.

 

Comment: Because this proffer pertains to the residential areas, it should be deleted and replaced with a special use condition that states:

 

1.         Conservation areas.  The conservation areas shown on Exhibit C to the Application Plan,            entitled “Stormwater Management and Stream Conservation Plan,” dated             _______________, shall remain undisturbed; provided that the agent may authorize a          land disturbance within the conservation area if the agent finds: (i) the disturbance is       necessary in order for a use shown on the Application Plan to be established; (ii) the purpose for the disturbance is to establish and maintain streets, sanitary sewers, storm     drainage outfalls, pedestrian pathways, and/or stream restoration; and (iii) the           construction, maintenance and use of the improvements will have the minimum            environmental impact             on the conservation area necessary for the improvements to be          established and maintained, and the long-term impacts are adequately mitigated.              Nothing in this condition shall be construed to obviate the requirements established for     stream buffers under Chapter 17 of the Albemarle County Code or shall constitute a         waiver of such requirements.

 

 

 

V.        TRANSPORTATION

 

            5.1       Street Construction Standards.  All internal streets shall be constructed in accordance with the illustrative urban cross-sections shown on Exhibit D-2.  All streets also shall be constructed in accordance with detailed road plans, including dimensions, submitted by Owner and approved by the Virginia Department of Transportation (“VDOT”) for all public streets, and by the County’s agent for all private streets and accessways.  Public roads shall be (i) constructed to VDOT design standards pursuant to detailed plans and agreed to between Owner and VDOT, and (ii) dedicated for public use and acceptance into the state highway system by VDOT.  Trees and other landscaping within the ROW shall be the responsibility of Owner unless VDOT or the County agrees in writing to assume this responsibility.

 

Comment: This proffer is unnecessary because the Owner has agreed to the network shown on the application plan.  If it remains as a proffer, the last sentence should be revised to state that the trees and landscaping shall be maintained by the Owner, and a level of maintenance should be stated.

 

            5.2       Timing of Completion.  The proffer to construct roads to VDOT standards shall not require completion of construction of such roads, or segments thereof, before the issuance of the first certificate of occupancy for a building or residence served by that road, or segment thereof, so long as adequate bonds are in place and so long as the Zoning Administrator has not determined that safe and convenient access to public roads is jeopardized in accordance with Section 31.2.3 of the Ordinance. Before issuance of certificates of occupancy, however, Owner shall complete that segment of road which serves the building or residence for which a certificate of occupancy is sought with at least the base and one (1) layer of plant-mix asphalt. The final layer of plant-mix asphalt may be withheld until all sewer lines, water lines and other conduits have been placed under the pavement and heavy construction in the area is substantially complete, but will be completed to an approved VDOT pavement depth and design before the request for VDOT acceptance of the road; provided, however, that such final layer shall be installed within one (1) year following the issuance of the first certificate of occupancy for a building or residence served by the affected road segment.  

 

Comment: This proffer is unnecessary and should be deleted.  It states only what is already required, and possibly less than what is required.  The subject matter can be handled as a bonding requirement.     

 

            5.3       External Street Improvements and Phasing.  Owner shall design and construct, in accordance with VDOT standards, and/or make cash contributions towards, as the case may be, the external street improvements reference in the Section 5.3 and as shown on the External Road Improvement Plan shown on Exhibit E.  The improvements to U.S. Route 29 North shall be based on a design speed of 50 miles per hour and a maximum 4 percent cross-slope requirement or as otherwise acceptable to VDOT.  Road improvement proffers in this Section 5.3 shall not include dedication of land unless expressly provided for herein.  The construction by Owner of offsite road improvements shall be conditioned upon the County or VDOT obtaining required right-of-way unless expressly provided herein. Notwithstanding the foregoing, Owner agrees to dedicate to VDOT or the County any required right-of-way that it owns in fee simple.  If all of the VDOT or County required right-of-way cannot be acquired, Owner nevertheless agrees to proceed with all such improvements that can be constructed within available right-of-way.   So long as Owner is ready, willing and able to construct an improvement as provided in these proffers, even though the necessary right-of-way is not available (and in the instances in which Owner has proffered to acquire right-of-way, and the Owner has made good faith efforts to acquire the land necessary for such right-of-way), Owner shall not be precluded from developing the approved density build-out under the applicable zoning, unless the improvement is otherwise required by applicable regulations or ordinances.  The proffers shall be considered satisfied if Owner has submitted plans for such road improvements to VDOT for review and, even through all construction of such improvements may not be complete by the date proffered, a bond has been posted in an amount necessary to satisfy the costs of any uncompleted improvements in accordance with VDOT approved plans.

 

Comment: The second sentence is unacceptable; the wording “or as otherwise acceptable to VDOT” gives the option to the Owner and not VDOT.  The wording should be changed to: “The improvements to U.S. Route 29 North shall be based on a design speed and cross-slope acceptable to VDOT.”  The remainder of the proffer up to the final sentence is conditioned upon right-of-way being available, so if right-of-way is a problem for any improvement identified, that improvement is not being proffered.  The proffer also refers to the rights of the Owner where he has offered to make a good faith effort to acquire right of way, but the Owner does not actually proffer to make a good faith effort.  To assure that necessary off-site public road improvements would be constructed as part of the development of Albemarle Place, the owners of that project proffered cash or a letter of credit in an amount deemed necessary by the County Attorney for acquisition of the necessary right-of-way.   

 

Throughout the following transportation proffers, staff suggests that the Route 29 improvements have an outside completion date, such as five years from the date of approval of the first site plan or subdivision plat.  Also, the specific improvements should be numbered or lettered for easier reference.      

 

The Owner proffers to cause completion of the following road improvements as shown on the Application Plan for acceptance by VDOT or bonded for acceptance by VDOT:

 

                        (a)        Phasing of Public Improvements and unless previously constructed or bonded by others:

 

            (1)        Prior to approval of the first subdivision plat or site plan for the Project, Owner shall have obtained all associated permits and posted all associated bonds required for the construction of the following improvements :

 

·              Middle Entrance on Route 29 ( Northside Drive - SR 1570):

 

§         U.S. Route 29 Southbound –construction of a continuous through lane from the entrance 1,000 feet north and 1,000 feet south by 12 feet wide

 

§         U.S. Route 29 Southbound - construction of dual left turn lanes with taper.

 

§         U.S. Route 29 Southbound – construction of a right turn lane with taper.

 

§         U.S. Route 29 Northbound – construction of a continuous through lane extending from the entrance 1,000 feet north and 1,000 feet south by 12 feet wide

 

§         U.S. Route 29 Northbound – construction of a right hand turn lane, the geometrics of which will be subject to VDOT approval.

 

§         U.S. Route 29 Northbound – construction of left turn lane with taper.

 

§         SR 1570 Eastbound – construction of or restriping of lanes to result in separate left, through and right turn movements. 

§         Entrance road Westbound – installation of a traffic signal with 8 phase timing and associated intersection improvements on U.S. Route 29.

 

§         Existing crossover at Cypress Drive – construction to close the crossover.

 

§         Frontage road from Cypress Drive to SR 1570 – construction of a public street to serve properties currently accessing U.S. Route 29 through Cypress Drive. 

§         Installation of a traffic signal with 8 phase timing and associated intersection improvements.

 

                        (2)        Prior to the issuance of the first certificate of occupancy in the area designated Commercial Phase 1:

 

Comment: The triggering event for the following improvements should be tied to approval of a final site plan rather than a certificate of occupancy.  In addition, wording needs to be added to state that the improvements will be constructed.  Suggested language: “Prior to approval of the first subdivision plat or site plan in the area designated Commercial Phase 1, Owner shall have obtained all associated permits and posted all associated bonds required for the construction of the following improvements:”

 

·        Northside Drive, North Pointe Boulevard, and Leake Road:

 

§         Leake Road and North Pointe Boulevard, in accordance with the design shown on Exhibit D-2, from Proffit Road to Northside Drive; provided, however, that Leake Road, if additional right-of-way (“ROW”) is not available, may be constructed to provide at least two through lanes and as much of the design as can be done within the available ROW as reasonably determined by the County Engineer.

 

Comment: The Leake Road improvements as shown on Exhibit D-2 are conditioned upon right-of-way being available with no proffer that there will be an attempt to obtain the needed right-of-way. 

§         The roundabout and associated lane improvements at the intersection of Leake Road and Proffit Road, as shown on the Application Plan.

 

§         Northside Drive between U.S. Route 29 and North Pointe Boulevard as shown on the Application Plan.

 

                        (3)        Prior to approval of a site development plan that would result in more than 331,696 square feet of total non-residential square footage for the Project, Owner shall have obtained all associated permits and posted all associated bonds required for the construction of the following improvements:

 

Comment: Until this draft of proffers, the trigger for these improvements was 290,000 square feet, and this square footage was a threshold determined by VDOT.  There is no explanation why this number has increased.

 

·        Southernmost Entrance on Route 29, the following items are required:

 

§         U.S. Route 29 Southbound – correction of the vertical curvature in the roadway just north of the entrance 

 

§         U.S. Route 29 Southbound – construction of a continuous through lane extending from the entrance 1,000 feet north and 1,000 feet south by 12 feet wide

 

§         U.S. Route 29 Southbound – construction of dual left turn lanes with taper at the crossover.

 

§         U.S. Route 29 Southbound – construction of right turn lane with taper to serve northernmost entrance to SR 1515.

 

§         U.S. Route 29 Northbound – construction of a continuous through lane extending from the entrance north to match improvements required with the middle entrance, and south 1,000 feet by 12 feet wide.

 

§         U.S. Route 29 Northbound – construction of a right hand turn lane, the geometrics of which will be subject to VDOT approval.

 

§         U.S. Route 29 Northbound – construction of left turn lane with taper into SR 1515.

 

§         SR 1515 Eastbound – construction and/or restriping to provide left turn lane with taper.

 

§         Installation of a traffic signal with 8 phase timing and associated intersection improvements at the intersection with U.S. 29. 

§         Existing crossover at U.S. Route 29 and southernmost entrance to SR 1515– construction to close the crossover.

 

§         Proposed Entrance Road between North Pointe Boulevard and U.S. Route 29. 

 

(4)        Prior to approval of a site development plan or subdivision plat that would result in more than 533 total residential units for the Project, or, if earlier, approval of a site development plan or subdivision plat for any development of either the Virginia Land Trust Property (Tax Map 32, Parcel 22K) or the Jackson Estate Property (Tax Map 32, Parcel 22H), an entrance permit shall be obtained from VDOT for the following improvements:

 

Comment: The road improvements associated with this proffer need to be triggered sooner in the development of the residential phases.  Suggested language: “Prior to issuance of a building permit for the fiftieth dwelling unit within Phase 2 and Phase 3, approval of the first site plan or subdivision plat for any development of either the Virginia Land Trust Property (Tax Map 32, Parcel 22K) or the Jackson Estate Property (Tax Map 32, Parcel 22H), within five years of the approval of the first final subdivision plat or site plan within Phase 2 or Phase 3, or before a certificate of occupancy is issued for the elementary school shown on the Application Plan, whichever occurs first, Owner shall have obtained all associated permits and posted all associated bonds required for the construction of the following improvements:” 

 

Proffer 5.3(a)(4) could be handled as a special use permit condition.  If so, the condition could provide:

 

1.         Transportation.  The street network serving Phase 2 and Phase 3 of the residential areas,             as shown on Exhibit F to the Application Plan, entitled “Development and Road Phasing     Plan,” dated _____________, shall be subject to the following:

 

            A.         The street shown on the Application Plan as Northwest Passage and the                                        improvements to U.S. Route 29 associated with Northwest Passage identified                                below shall be accepted by VDOT for public use or bonded for VDOT’s                                                 acceptance prior to issuance of a building permit for the fiftieth dwelling unit                             within Phase 2 and Phase 3, approval of the first site plan or subdivision plat for                                 any development of either the Virginia Land Trust Property (Tax Map 32, Parcel                                    22K) or the Jackson Estate Property (Tax Map 32, Parcel 22H), within five                                 years of the approval of the first final subdivision plat or site plan within Phase 2                                   or Phase 3, or before a certificate of occupancy is issued for the elementary                                   school shown on the Application Plan, whichever occurs first.  The U.S. Route                               29 improvements are as follows:

 

                        1.         U.S. Route 29 Southbound: construction of a left turn lane with taper.

 

                        2.         U.S. Route 29 Northbound: construction of a continuous through lane                                            from the entrance south to connect with the continuous through lane                                              constructed in connection with the middle entrance U.S. Route 29                                                           improvements as provided in Proffer _______; and, construction of a                                        right hand turn lane.

 

·        For the Northernmost Entrance (opposite Lewis & Clark Drive) on Route 29 the following items are requirements for the entrance permit:

 

Comment: Delete “the following items are requirements for the entrance permit”.

 

§         U.S. Route 29 Southbound – construction of left turn lane with taper

 

§         U.S. Route 29 Northbound – construction of continuous through lane from the entrance south across the North Pointe frontage

 

§         U.S. Route 29 Northbound – construction of a right hand turn lane, the geometrics of which will be subject to VDOT approval

 

§         Entrance road Westbound – lane configurations to be determined in consultation with VDOT and County staff that will accommodate the installation by others of a traffic signal with 8 phase timing

 

Comment: The last bulleted item (Entrance road Westbound) is not a proffer and it should be deleted.

                       

                                    (5)        Prior to completion of the first signal required on U.S. Route 29, Owner shall make a cash contribution to VDOT to compensate VDOT for the cost of a cable or wireless radio system that link the signals between Lewis and Clark Drive and Airport Road at cost not to exceed $35,000 ($5 per linear foot).  

 

Comment: Replace the existing language with the following: “Upon request by the County, Owner shall make a cash contribution to VDOT for the cost of the cable or wireless radio system that will link the signals between Lewis and Clark Drive and Airport Road; provided, however, that the total cash contribution shall not exceed $35,000.”

 

                                    (6)        Prior to the approval of plans for improvements at any  U.S. Route 29 intersection, Owner shall provide VDOT traffic signal network timing plans that VDOT finds acceptably address the impacts of the proposed traffic signals for peak traffic periods.  

 

                        (b)        Contributions of Money:

 

(1)               This Section Intentionally Deleted.

 

                                    (2)        Proffit Road Design and Improvements; Cash Contribution.  Prior to approval of the first site plan or subdivision plat, Owner shall make a cash contribution of $54,200 to the County for the design of a portion of the planned Proffit Road improvements from U.S. Route 29 to a point approximately 300 feet east of the Leake Road intersection.  The scope of work shall be in accordance with a scope of work previously agreed to between VDOT and Wilbur Smith Associates.  At the request of the County, Owner shall either construct a third lane westbound from Leake Road to U.S. Route 29 as shown on Exhibit E or make a cash contribution of $150,000 to the County to be applied towards improvements to Proffit Road.  Construction of the third lane, if required, shall be done concurrently with construction of the Leake Road improvements.

 

Comment: Replace the existing language with the following: “Owner shall develop a set of road improvement plans for Proffit Road from U.S. Route 29 to three hundred feet east of the Leake Road intersection to the satisfaction of VDOT, and construct such improvements as part of the approval of the first final site plan or subdivision plat for the Project.”  Staff notes that the $150,000 proffered for the improvements to Proffit Road between Leake Road and U.S. Route 29 would likely cover the cost of a traffic signal, but would not necessarily cover the actual cost of the needed improvements.

 

                                    (3)        This Section Intentionally Deleted.

 

                                    (4)        Regional Transportation Study; Cash Contribution.  Upon request by the County, Owner shall make a cash contribution of $25,000 to the County or VDOT for the purposes of funding a regional transportation study for the Route 29 corridor, which includes the South Fork and North Fork of the Rivanna River, (“Regional Transportation Study”) and the   Hollymead Growth Area of which North Pointe is a part.  The contribution shall be made within thirty (30) days after requested by the County anytime after the rezoning is approved.  If the request is not made within one (1) year from the date of approval of the first final site plan for the first commercial buildings within the Project, this proffer shall become null and void.  If such cash contribution is not expended for the stated purpose within three (3) years from the date the funds were contributed to the County, all unexpended funds shall be refunded to the Owner.

 

Comment: Other recent large rezonings have each contributed approximately $100,000 toward this study.  Suggested language: “Upon request by the County, Owner shall make a cash contribution of ______________________ to the County or VDOT for the purposes of funding a regional transportation study for the Route 29 corridor, which includes the South Fork and North Fork of the Rivanna River, (“Regional Transportation Study”) and the Hollymead Growth Area of which North Pointe is a part.  The contribution shall be made within thirty (30) days after requested by the County anytime after the rezoning is approved.  If the request is not made within one (1) year from the date of approval of the first final site plan for the first commercial buildings within the Project, this proffer shall become null and void.  If such cash contribution is not expended for the stated purpose within three (3) years from the date the funds were contributed to the County, all unexpended funds shall be refunded to Owner.”

 

                        (c)        Park and Ride.  On the first and all successive site plans in the area identified on Exhibit F as Phase 1 Commercial, Owner shall designate and establish parking areas for Park and Ride use.  The maximum number of spaces shall be 100 and they shall not be further than 500 feet from a bus stop location.  This proffer is specifically contingent upon an alternative plan under Zoning Ordinance § 4.12.8 et seq. being approved by the Zoning Administrator.

 

Comment:  The proffer should be revised to also provide for a minimum number of park and ride spaces.  The last sentence should be replaced by the following: “These parking spaces shall be in addition to the required spaces serving a use unless an alternative under Zoning Ordinance § 4.12.8 et seq. is approved by the Zoning Administrator.”

 

VI.       OPEN SPACE AREAS AND GREENWAY

 

            6.1       Open Space.  Except for the Open Space Permitted Uses as hereunder defined, Owner shall restrict from development all open space areas which are areas not shown as development parcels, Preservation Areas or Conservation Areas on the Application Plan.  In no event shall the total area of such open space areas, which include the Preservation Areas, Conservation Areas, Greenway (defined in 6.2 below), Buffer Areas (defined in 7.2 below), and Park areas shown on Exhibit B, be less than a total of ___  percent (  %) of the total land within the Project to be developed as residential.  These areas shall be for the use and enjoyment of the residents of the Project, subject to the restrictions that may be imposed by any declaration recorded as part of a conveyance of these areas to a homeowner’s association.  Except for the limited improvements set forth in Sections 4.4 and 4.5, no disturbances or improvements shall be permitted in the Preservation or Conservation Areas.  No structural improvements other than utilities, pedestrian and biking trails and common area amenities such as playgrounds, picnic areas and PAR exercise equipment (collectively, the “Open Space Permitted Uses”) shall be constructed in the Green Way, Buffer Areas or Parks areas. Owner does not intend by this proffer to subject these areas to Section 4.7.3 of the Ordinance, except to the extent such Section otherwise applies.

 

Comment:  This proffer needs to be revised because some of the issues it pertains to will be addressed in special use permit conditions or otherwise in these proffers, i.e., the references to Proffers 4.4 and 4.5 and the activities in the buffer areas should be deleted because they will be special use permit conditions; the references to permitted activities in the greenways and parks in proffers below.  Suggested language: “6.1              Open Space.  In addition to any special use permit conditions or proffers related to preservation and conservation areas, Owner shall restrict from development all open space areas which are areas not shown as development parcels on the Application Plan.  In no event shall the total area of such open space areas, which include the preservation areas, conservation areas, greenway (defined in 6.2 below), buffer areas (identified in the special use permit conditions), and park areas shown on Exhibit B, be less than a total of thirty-five (35) percent of the total land within the Project to be developed as residential.  These areas shall be for the use and enjoyment of the residents of the Project, subject to the restrictions that may be imposed by any declaration recorded as part of a conveyance of these areas to a homeowner’s association.” 

 

            6.2       Rivanna Green Way/Accesses.  Owner shall reserve a Greenway along the boundary of the Property and adjacent to the Rivanna River, inside of the flood plain line and a Preservation Area (“Green Way”) as shown on Exhibit G.  The limitations respecting improvements set forth herein in Section 4.4 shall apply.  Owner may grant utility easements across the Green Way if approved by the County.  Access easements to the Rivanna River as shown on the Application Plan shall be for the benefit and use by property owners within the Project.  Upon request by the County, Owner shall dedicate to the County the Green Way as well as the paths shown in the crosshatch on Exhibit G to the County.  If the County accepts dedication of the lake referenced in Proffer 6.4, upon request by the County, Owner shall dedicate to the County the access path east of the middle entrance and leading to Flat Branch as shown on Exhibit G  

 

Comment: The second sentence (“The limitations respecting improvements set forth herein in Section 4.4 shall apply.”) should be deleted because Proffer 4.4 will be replaced by a special use permit condition.

 

            6.3       Trails.  All walking trails shall be classified as shown on the Application Plan and platted at the same time as the subdivision adjacent to the proposed trails is platted.  The trails shall be constructed in conjunction with the improvements for the subdivision and bonded with the streets.  The trails shall be constructed as Class A or Class B trails as identified on Exhibit G, and in accordance with the applicable design and construction standards in the County’s Design Standards Manual.   

 

Comment: Consistent terminology should be used.  The Application Plan refers to “pedestrian pathways.”  The second sentence should state that the pathways or trails will be constructed “by Owner” and that they will be constructed in conjunction with the “subdivision plat or site plan”.

 

            6.4       Lake.   Upon request by the County, Owner shall dedicate to the County the lake shown on the Application Plan for public use, provided that such lake will be available for use by Owner for stormwater management as described in Exhibit C.  

 

Comment: This proffer is satisfactory.

  

VII.   LANDSCAPING AND BUFFERING

 

            7.1       This Section Intentionally Deleted.

 

            7.2       Landscaped Buffer Between Residential Areas and Rural Areas.  Prior to the County granting a certificate of occupancy for the first dwelling unit constructed on one of the lots shown on the Application Plan abutting the “open space buffer” 30 foot deep common area along Pritchett Road (Lots A1-6, H8-20, L15-34 and N2-5), the Owner shall establish and thereafter maintain a heavily            vegetated buffer in the open space buffer common areas.  The buffer, where one does not already exist, shall include the following: (i) an informal mix of screening trees, loosely staggered, 15 feet on-center; (ii) the same species of screening trees shall be clustered in groups and alternate groups of screening trees shall be provided to create a naturalistic landscape; (iii) large and medium shade   trees shall be interspersed among the screening trees; (iv) clusters of ornamental trees shall be provided in groups of 3’s and 5’s; and (v) tall shrubs shall be massed to help integrate the proposed plantings into a natural rural landscape.  Approved plant species shall be obtained from the Albemarle County Recommended Plants List.  Maintenance of the buffer shall be the responsibility of the Owner.

 

Comment: Staff believes that this open space buffer needs to be 50-feet deep in order to be consistent with proffer 7.3 below, and that the entire buffer be in common area.  Because this proffer pertains to the residential areas, it should be deleted and replaced by a special use permit condition that states:

 

1.         Landscaped buffer between residential areas and rural areas.  Before the County issues   a building permit for the first dwelling unit constructed on one of the lots shown on the         Application Plan abutting the “open space buffer” 50-foot deep common area along        Pritchett Road (Lots A1-6, H8-20, L15-34 and N2-5), the owner shall establish and       thereafter maintain a heavily vegetated buffer in the open space buffer common area.      The buffer, where one does not already exist, shall be planted in accordance with a      landscaping plan approved by the County.  The landscaping shall include the following:           (i) an informal mix of screening trees, loosely staggered, 15 feet on-center; (ii) the same           species of screening trees shall be clustered in groups and alternate groups of screening         trees shall be provided to create a naturalistic landscape; (iii) large and medium shade     trees shall be interspersed among the screening trees; (iv) clusters of ornamental trees           shall be provided in groups of 3’s and 5’s; and (v) tall shrubs shall be massed to help   integrate the proposed plantings into a natural rural landscape.  Approved plant species           shall be obtained from the Albemarle County Recommended Plants List.  Maintenance of         the buffer shall be the responsibility of the owner.

 

            7.3       Pritchett Lane Buffer in Open Space.  The owner shall establish as open space, in a manner approved by the County, an area fifty (50) feet in depth between the rear lot lines of the lots backing up to Pritchett Lane (Lots A1-6, H8-20, L15-34 and N2-5) and the Pritchett Lane right-of-way.  The open space shall be owned by the Owner or a homeowner’s association.

     

Comment: Because this proffer pertains to the residential areas, it should be deleted and replaced by a special use permit condition that states:

 

1.         Pritchett Lane Buffer in Open Space.  The owner shall establish as open space, in a manner approved by the County, an area fifty (50) feet in depth between the rear lot lines of the lots backing up to Pritchett Lane (Lots A1-6, H8-20, L15-34 and N2-5) and the Pritchett Lane right-of-way.  The open space shall be owned by the Owner or a homeowner’s association.            

 

Also, the owner needs to amend the Application Plan to be consistent with this condition.

 

            7.4       Pritchett Lane emergency access.  Two emergency access travelways of fifty (50) feet in width shall be established on or near Lots L-16 and H-10 as shown on the Application Plan.  The travelways shall be established and maintained in accordance with the standards in the County’s Design Standards Manual or other appropriate standards approved by the County Engineer.  Upon request by the County, Owner shall dedicate such travelways to the County for public use.       

 

Comment: Because this proffer pertains to the residential areas, it should be deleted and replaced by a special use permit condition that states:

 

1.         Pritchett Lane emergency access.  Two emergency access travelways shall be established on or near Lots L-16 and H-10 as shown on the Application Plan.  The travelways shall be established and maintained in accordance with the standards in the County’s Design Standards Manual or other appropriate standards approved by the County Engineer.  Upon request by the County, Owner shall dedicate such travelways to the County for public use.

 

VIII.            PUBLIC INFRASTRUCTURE AND FACILITIES PROFFERS

 

            8.1       Community Development Authority. Owner shall apply to the Board of Supervisors for the creation of a Community Development Authority as permitted under Virginia Code Sections 15.2-5152, et seq., and other applicable provisions of Chapter 51, Title 15.2 of the Code of Virginia or 1950, as amended (“CDA”) for the purpose of issuing tax exempt bonds to fund the construction of certain public improvements both internal and external to North Pointe, to include, but not be limited to, improvements to existing public roadways, installation of public utilities and stormwater management facilities, construction of new public streets and funds for the construction of other public improvements, including, but not limited to, schools, libraries and police, fire and rescue facilities, among others.  If such application is approved, Owner agrees to the proffers set forth in this Section VIII.  The additional assessments on the property within the North Pointe Community necessary to amortize (repay) the above mentioned bonds shall be established by an independent consultant acceptable to the County and shall provide for prepayment, at the option of purchasers, at the time any property is conveyed, it being the intent that the portion of the bonds relating to the residential areas of North Pointe would, in fact, be prepaid at the time residential lots are conveyed.

 

Comment: This type of CDA should not be included as a proffer.  When the CDA application is considered by the Board of Supervisors, the Board can consider the projects that are appropriate for the CDA to fund and how the CDA will be obligated to do so.  Because the approval of the CDA is a separate and distinct legislative act from the zoning decision, the zoning decision cannot be dependent in any way upon the future approval of the CDA.

 

            8.2       Branch Library.  Upon request by the County, Owner shall dedicate to the County the lot shown on Exhibit B as a public library, consisting of a 15,000 square foot fully graded pad site, with utilities, to accommodate a 12,500 square foot building footprint and up to a 25,000 square foot two story building, together with a nonexclusive easement to the adjacent common area for ingress, egress and sufficient Ordinance required parking for the location of a freestanding Jefferson-Madison Regional Library.  The County’s request for dedication of the land shall be made within 3 years following the latter to occur of (i) issuance of the first residential building permit within North Pointe, or (ii) completion of the infrastructure (including but not limited to streets, water, sewer, electric, gas) required for the use of the land.  If a decision is not made by the later of these dates, this proffer will be null and void.  Owner also agrees, if requested by the County or the Library Board, to have constructed a building and other improvements on such land, to be initially owned and financed by the CDA, which shall then lease the building and improvements to the Library Board.  For any such building and improvements, the rent, on a net, net, net lease would be calculated based on the total costs incurred by the CDA for constructing and up fitting such improvements amortized over 20 years at 125 basis points over the costs of amortizing the CDA loan used to pay for all such costs.  At the end of the amortization period, the improvements would be deeded to the County or the Library Board at no cost.   

 

Comment: This is not a proper proffer because it is contingent on the approval of a CDA.  It should be deleted or if it is appropriate to address the library impacts from this project, the library site should be unconditionally proffered.

 

8.3              This Section Intentionally Deleted.

 

            8.4       Affordable Housing.  Owner proffers to offer a minimum of 3% of the residential dwelling units, one-third from each of the dwelling unit types referenced in Section 3.2 herein and in the Table on Exhibit A, at the price points and under the terms and conditions set forth below.

 

                        (a)         For those units offered for rent, the initial maximum rents shall be as follows:  one bedroom units -- $869 per month; two bedroom units -- $1,159 per month; or, three bedroom units -- $1,319 per month.  For those units offered for sale,  the initial maximum selling prices shall be as follows: one bedroom units selling for $149,000; two bedroom units selling for $179,000;  three bedroom units selling for $199,000 or, in each case, the Virginia Housing Development Authority (VHDA) price limits for first-time homebuyers, whichever is the greater.  With respect to each dwelling unit for rent or sale, the rents or selling price  shall increase from the date of this Proffer Statement by the increase in the Consumer Price Index.

 

                        (b)        All dwelling units under this Section 8.4 shall be rented or sold to individuals or families having less than 90% of the median household income for Albemarle County; provided, however, that the income limits shall be waived for any County employees desiring to purchase such dwelling units.

 

                        (c)        Until the total number of dwelling units proffered hereunder shall have been fulfilled, such dwelling units shall be provided at a rate not less than five (5) per year. 

 

                        (d)        With respect to dwelling units for sale, the Owner or any successors in interest that have purchased individual dwelling unit lots (“successors in interest”) shall give the Piedmont Housing Alliance (through its Regional Home Ownership Center) or such other non-profit housing organization chosen by Owner or a successor in interest, which may include the County Housing Office (collectively, “non-profit housing organization(s)”), at least 60 days notice before each such dwelling unit is to be made available for purchase.  The non-profit housing organization receiving such notice shall have the exclusive right within such 60 day period in which to provide a pre-qualified purchaser and any required financial assistance necessary to purchase the dwelling unit.  If the pre-qualified purchaser has not executed a binding contract for sale (without conditions) of the dwelling unit within such 60 day period, the Owner or successor in interest may thereafter offer the dwelling unit for purchase to the general public at a sales price exceeding the VHDA limits for first-time homebuyers and without any income limits.

 

                        (e)        The County shall have the right, from time to time, on reasonable notice and subject to all applicable privacy laws, to inspect the records of Owner or any successors in interest for the purposes of assuring compliance with this proffer.

 

                        (f)          Owner agrees to contribute $250,000, not less than ratably over the five (5) years following issuance of the first residential building permit in North Pointe and on a matching dollar for dollar basis, $100,000 each to Habitat for Humanity and the Piedmont Housing Alliance and $50,000 to the Albemarle Housing Improvement Program.  To qualify, such matching funds shall have been raised from new donors or as increased contributions over the prior year from existing donors.  Increased budget allocations from the County over those for Fiscal Year 2005 shall qualify for the matching contributions. 

 

Comment: This is revised proffer language that was submitted by the Owner on May 19.  This is not a proper proffer because it is contingent on the approval of a CDA.  It should be deleted or if it is appropriate to address affordable housing, the proffer should be made unconditionally. 

 

If the proffer is made, it is suggested that the Owner proffer that at least 3% of the dwelling units (a total of 27, comprised of a mix of housing types), be available for sale as affordable housing to eligible first-time buyers approved by the County’s Office of Housing, which shall have an exclusive right of first refusal for a specified period of time, e.g., 60 days.  At least five affordable dwelling units would be made available for sale each year until all 27 units are offered.  Affordable rental units need not be proffered.  It is also suggested that the annual cash contribution described above be made directly to the County and applied to the Albemarle Housing Initiative Fund for the purpose of funding affordable housing programs, including those provided by nonprofit housing agencies within Albemarle County.  The cash contribution should not be contingent on matching funds.  Final language for this proffer needs to be developed.  Because this proffer pertains to the residential areas, it could be replaced by a special use permit condition.    

 

            8.5       Additional Transportation Proffers.

 

            (a)        Street Improvements for the Southernmost (Commercial) Entrance on Route 29:  U.S. Route 29 Northbound – construction of continuous through lanes from: (i) VA Route 649, north across property not owned by North Pointe to the southern property line to connect with the continuous through lane referenced in Proffer 5.3(a)(3 ); and (ii) from the end of the continuous through lane constructed north of the southernmost entrance also as referenced in Proffer 5.3(a)(3), to connect with the continuous northbound through lane constructed south of the middle entrance as referenced in Proffer5.3(a)(1), such construction to be completed with the proffer phasing in Proffer 5.3(a)(1).

 

                        (b)        For the Northernmost Entrance (opposite Lewis & Clark Drive) on Route 29:  U.S. Route 29 Northbound – construction of continuous through lane from the entrance south to connect with the continuous through lane constructed in connection with the middle entrance improvements as referenced in Section 5.3 (a) 1, such construction to be completed no later that with the proffer phasing in Section 5.3 (a) 1.

 

                         (c)       Proffit Road Improvements. Upon the request of the County, advance fund and construct, utilizing a public-private partnership and CDA bond proceeds, all additional improvements designed under Section 5.3 (b) 2 (over and above those proffered to be completed in such Section by Owner), both eastbound and westbound, from Route 29 to a point 300’ east of Leake Road, subject to reimbursement by VDOT (or the County as a conduit) when VDOT funds for this work (currently in the County’s six year plan) become available, anticipated in 2009+. Owner agrees to expand to this proffer to include the entire Proffit Road improvement project extending to Baker-Butler Elementary School by using a portion of the amount proffered for construction in Section 5.3 (b) 2 and applying it to fund the cost to expand the design work to include the entire project (the balance of the amount proffered for construction would remain available to apply against the construction costs for the Proffit Road project). In either case, the construction of the Proffit Road improvements would be part of Phase I Commercial or would begin as soon thereafter as the design work is complete.

 

                        (d)        Northwest Passage.  If not already completed as provided in Section 5.3(a)(4), Owner will complete Northwest Passage from North Pointe Blvd. To U.S. Route 29 and the improvements set forth in said section prior to issuance of a certificate of occupancy for the elementary school shown on the Application Plan and further reference in Section IX below

 

Comment: Proffers 8.5(a), (b), (c) and (d) are not proper proffers because they are contingent on the approval of a CDA and/or future unspecified third party agreements.  They should be deleted or if they are appropriate to the road impacts caused by the Project, the proffers should be made unconditionally.  It is staff’s opinion that these road improvements are necessary to address traffic impacts caused by the Project, and they should be completed by the Owner.  In addition, the timing of the construction of Northwest Passage must be addressed (see comment to proffer 5.3(a)(4)).

 

IX.    EDUCATIONAL AND OTHER PUBLIC FACILITIES

 

            9.1       Elementary School SiteUpon request by the County, Owner shall dedicate to the County the land shown on the Application Plan as “Neighborhood Elementary School Site”, consisting of approximately 12.85 acres.  Prior to dedication, the site shall be graded by Owner to establish a fully graded pad site to accommodate an elementary school, the recreational fields shown on the Application Plan shall be fine graded and have top soil and soil amendments added, and the mains for an underground irrigation system serving the recreational fields installed.  Such improvements shall be reasonably equivalent to those existing at the recreational fields at Baker-Butler Elementary School, exclusive of any above ground improvements.  The dedication shall include an easement across Owner’s land for access to Storm Water Basin 10 shown on the Application Plan.  The cost of constructing such Basin shall be shared ratably by Owner and the County based on each respective party’s percentage contribution of stormwater to the whole as determined by an engineer acceptable to Owner and the County.  The dedicated land shall be used as an elementary school site, but if the County determines that the land will not be used as an elementary school site, it shall be used by the County for park or recreational purposes serving both the North Pointe community and the region.  If the County does not request that the land be dedicated by December 31, 2009, the Owner shall be under no further obligation to dedicate the land for the purpose described herein, but shall, by January 30, 2010, contribute $500,000 to the County to be used by the County for projects identified in the County’s CIP reasonably related to the needs of the North Pointe community.  Subject to the final approval of the County, Owner shall have the right to submit naming requests for either the school or a park. After dedication and before the County uses the site for a school or park and recreational purposes, Owner shall, at the request of the County, maintain the site until requested by the County to no longer do so, provided Owner is granted the right to exclusive use of the land for park and recreational purposes, as may be approved with the final site plan or plat for the area that includes the school site. Upon being requested by the County to no longer maintain the school site, Owner shall cease all use of the land and remove all improvements established by Owner that the County requests be removed.  The County shall not be obligated to pay Owner for any improvements established by Owner that the County retains.  If the County accepts title to the land and then does not construct either a park or a school within twenty (20) years following the date of this rezoning, upon Owner’s request the land shall be transferred to Owner at no expense to Owner.

 

Comment: This is revised proffer language that was submitted by the Owner on May 19.  The Owner has added a sentence providing that the construction costs for the joint stormwater management basing serving the school site will be shared ratably between the Owner and the County based on each party’s contribution of stormwater to the whole.  The Owner cannot proffer that the County will obligate itself to expend funds for these improvements.  Staff has not estimated what the County’s pro rata share of the costs would be.  The stormwater management facilities need to be shown on the plans.  The Owner has deleted a commitment to provide irrigation for the recreational fields; instead, the Owner is proffering that it will install only the mains for the irrigation system.  Also, the Owner has reinserted a statement that it shall have the right to submit naming requests for either the school or a park.  This statement is not a proffer and it should be deleted.  The proffers need to assure that necessary access and stormwater improvements related to the school site will be completed within a fixed timeframe to assure that the school site will be available when it is needed (see comments to proffer 5.3(a)(4))..    

 

            9.2       Bus stops and bus stop improvements.  Owner shall construct ten (10) public bus stops as shown on the Application Plan, or otherwise two (2) in the southernmost residential area, four (4) in the commercial areas and four (4) in the residential areas, each in a location mutually acceptable to Owner and the County.  The bus stops shall be approved with street construction plans for the Project and constructed with the streets.  Owner will contribute the total sum of $25,000 towards the design and construction of bus stop improvements such as benches and shelters meeting standards established by the County at each bus stop.  The construction of each bus stop shall be completed prior to the establishment of bus service for each stop.  

 

Comment: The Owner should either construct the bus stop improvements or make a cash contribution to the County to construct the bus stop improvements.  The bus stop improvements should be constructed in conjunction with the bus stops.  If a cash contribution is made, the proffer should provide how the funds would be disbursed if not used for the intended purpose within a specified period of time. 

 

 

 

 

X.        ACCESS TO ADJACENT PROPERTIES

 

            10.1     Dedication of Right-of-Way; Extension to Parcel 22E.  Upon request by the County, Owner shall dedicate a fifty (50) foot wide rights-of-way located within the area shown on Exhibit B and identified as a “50’ R.O.W. Access Easement” connecting a right-of-way from the proposed middle entrance road into North Pointe to the southern property line of Tax Map 32, Parcel 22E (“Parcel 22E”).  In conjunction with the construction of the right-of-way, Owner shall grant temporary construction easements as determined necessary by the County Engineer.  Owner shall extend the street for a sufficient distance beyond the entrance to the Project to allow for turnaround movement. Any and all costs of any kind incurred by Owner for the extension of a road within such right-of-way, beyond the point where the road provides access to Owner’s parcel as shown on Exhibit B, shall be the responsibility of Parcel 22E.

 

            Upon request by the County, Owner shall dedicate a fifty (50) foot wide right-of-way located in the approximate area as shown on Exhibit B and identified by the notation “R.O.W. Access Easement” connecting a right-of-way from Northwest Passage to Tax Map 32, Parcel 22G.  The exact location of this right-of-way shall be fixed at the time of dedication in a location acceptable to the County.  In conjunction with the construction of the right-of-way, Owner shall grant temporary construction easements as determined necessary by the County Engineer. Owner retains the right to approve the use(s) and architectural design for any improvements to be served by this right-of-way.

Comment: The Owner cannot proffer what Parcel 22E will be responsible for, and cannot proffer that it will have authority over the use and architectural design of offsite properties.

10.2          Reservation of Rights-of-Way.  Owner shall reserve the areas in the locations labeled “Right-of-Way Reserved for Future Dedication” (adjacent to the church property that fronts on Pritchett Lane) and “Temporary Reservation” (in the southernmost residential area) on Exhibit B for access to the adjacent properties.  Upon request by the County, Owner shall dedicate such fifty (50) foot wide right-of-way located within any such reserved area.  In conjunction with the construction of the right-of-way, Owner shall grant temporary construction easements as determined necessary by the County Engineer.  Owner retains the right to approve the use(s) and architectural design for any improvements to be served by such right-of-ways. 

Comment: The Owner cannot proffer that it will have authority over the use and architectural design of offsite properties.  Proffers 10.2 and 10.3 use various terms describing similar interests – “Right-of-Way Reserved for Future Dedication”, “Temporary Reservation” and “Potential Access Easement.”  The terminology should be standardized.  Because this proffer pertains to the residential areas, it should be deleted and replaced by a special use permit condition incorporating these suggested changes.

10.3          Potential Access Easement.       Owner agrees to reserve an area in the location labeled “Potential Access Easement” at the eastern end of the main commercial access road from Route 29 on Exhibit B for access to the adjacent property.  Upon the request of the County, the Owner shall dedicate a fifty (50) foot right-of-way located within the Potential Access Easement area.  In conjunction with the construction of the right-of-way, Owner shall grant temporary construction easements as determined necessary by the County Engineer.  Owner retains the right to approve the use(s) and architectural design for any improvements to be served by such right-of-ways. 

Comment: The Owner cannot proffer that it will have authority over the use and architectural design of offsite properties.  Proffers 10.2 and 10.3 use various terms describing similar interests – “Right-of-Way Reserved for Future Dedication”, “Temporary Reservation” and” Potential Access Easement.”  The terminology should be standardized.  

 

XI.   OVERLOT GRADING PLAN

 

            11.1     Subdivision Plans.  Owner shall submit, with the application for each subdivision of the single family residential property, a grading plan at a scale no greater than 1"=50' that clearly shows all grading of streets, lots and open space.  The grading plan shall be approved by the County Engineer prior to final approval of the subdivision plat and the subdivision shall be graded as shown on the approved plan.  No certificate of occupancy shall be granted for any dwelling on a lot where the County Engineer has determined the lot is not graded consistent with the approved grading plan. The grading plan may be amended at any time by Owner, provided that amendment is approved by the County Engineer.  For the purpose of satisfying this proffer, the grading plan shall be considered acceptable if the following criteria are addressed to the satisfaction of the County Engineer, but the County Engineer may, at his discretion, allow any of the criteria to be relaxed provided his opinion of safety is not compromised by doing so:

 

1.      All proposed grading shall be shown with contour intervals not greater than 2.5 feet (interpolated) and all drainage swales shall be clearly indicated.

 

2.      Graded slopes of more than 5 feet elevation change on lots shall not be steeper than 3:1 (horizontal distance: vertical distance). These criteria shall not apply to existing slopes that are undisturbed.

 

3.      Surface drainage shall not flow across more than 3 lots before being collected in a storm sewer and no more than 1 acre shall drain to any drainage swale carrying runoff across a lot.

 

4.      All drainage from streets shall be carried across lots in storm sewer; provided, however, that such drainage may be daylighted to an open swale for a maximum of 50 feet at the rear of lots.

 

5.      Driveways shall be no steeper than 20 percent with 20 foot landings no steeper than 8 percent at each end.  The landing shall be measured from the back of sidewalk on the street end and from the front of the garage on the house end.

6.      An area not less than 10 feet in width and grades no steeper than 10 percent shall be provided adjacent to the front and sides of each house.  In cases where the house is less than 10 feet from a lot line, the 10 foot width shall be reduced to the distance between the house and lot line.  

 

7.      Retaining walls on lots shall be no taller than 5 feet as measured from top of wall to ground on the downhill side and shall be located along lot boundaries wherever possible.  Walls of houses shall not be considered retaining walls for the purpose of these criteria.  Safety railing or fencing consistent with that required for elevated decks shall be included on all retaining walls higher than 48 inches.       

 

The foregoing notwithstanding, however, this Proffer shall in no way preclude Owner’s ability to obtain a mass grading plan and installation of utilities in accordance with Exhibits I and K, which would include the grading of the streets within the Project as will be necessary to balance the cuts and fills of the site.

 

Comment: The language is satisfactory.  Because this proffer pertains to the residential areas, it should be deleted and replaced by a special use permit condition incorporating the proffer language.

XII. SIGNATORY

 

12.1        Certificate. The undersigned certify that they are the only owners of the Property which is the subject of ZMA-2000-09 and SP.2002-72.

 

12.2        The Owner. These proffers shall run with the Property and each reference to Owner within these proffers shall include within its meaning, and shall be binding upon, Owner’s successor(s) in interest and/or the developer(s) of the Property or any portion of the Property.

 

This Proffer Statement may be signed in counterparts and/or via facsimile with the same full force and effect as if all signatures were original and on one document.

 

Return to staff report