PROFFER STATEMENT

NORTH POINTE CHARLOTTESVILLE, LLC

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

 

October ___, 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 the date of this Proffer Statement (“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, as revised through July 30, 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: 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.  Although similar language has appeared in previously accepted proffers, this is not a proffer and should be deleted.   

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 specific 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-1       Internal Road 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 is mislabled “Internal Road Plan”; it is labeled “Internal Road Cross-Section” on the Application Plan.  Exhibit D-2 is mislabled “Internal Road Cross-Sections”; it is labeled “Ingress Egress Roadway Details” on the Application Plan.  Only those exhibits that are not part of the Application Plan should be included here, and those are Exhibits D-2, E, and F.   

 

II.        THIS SECTION INTENTIONALLY DELETED

 

III.       DENSITIES

 

            3.1       Total Buildout.  The total number of dwelling units shall not exceed 893. 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 shall 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 Elements of the Application Plan.  The Owner reserves the right to adjust the residential mix shown on the Application Plan such that Single-Family Detached dwelling units shall reflect a range of 23% to 43% of the total dwelling units, Single-Family Attached dwelling units shall reflect a range of 8% to 43% of the total dwelling units and Multi-Family dwelling units (which shall include condominium units) shall reflect a range of 23% to 63% 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.  Staff recommends that the relative proportions of each of the three housing types range from 23% to 43% of the 893 total permitted dwelling units, a range that was previously agreed to by the Owner on December 23, 2003.  This proffer deviates from that recommendation by reducing the possible number of single-family detached dwelling units to 8% and increasing the possible number of multi-family dwelling units to 63%.  Staff’s recommendation is that the range for each housing type be revised to 23% to 43%, and that this range be stated in an absolute number rather than a percentage.   

 

Because this proffer pertains to the phasing of residential areas, it must be deleted and will be replaced with a special use condition that will state in part:

 

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 205 to 384 of the 893 total permitted dwelling units.

 

             3.3      Limited Adjustments to the Commercial Elements of the Application Plan.  The commercial and office building areas shall be devoted to the uses 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 that the maximum square footage for all such uses shown in the Table is not exceeded, and further provided that Buildings 6, 14 and 37 may have a footprint no larger than 88,500 square feet and that Building 7 shall 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 shall be restricted to a single story.  Commercial uses shall include those uses permitted under the Ordinance’s PD-MC zoning classification as of the date of this Proffer Statement.

 

Comment: The last sentence should either be deleted or it should be revised to state: “Commercial uses shall be only those uses permitted by right or by special use permit under the Ordinance’s PD-MC zoning district regulations in effect on the date of approval of the ZMA.”   

 

                                     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 have been issued by the County for at least 224 dwelling units and construction shall have begun on at least 68 dwelling units.

 

Comment: The Owner needs to explain the 331,696 square foot threshold, which was increased from the 290,000 square foot threshold in the proffers prior to the May 19, 2004 proffers.  The 290,000 square foot threshold was based on a VDOT recommendation.  Proffer 5.3.1(b) has been revised in this draft to reduce the square footage from 331,696 back to 290,000.  Note also that the threshold refers to the gross floor area of “commercial and office structures”, whereas the threshold in Proffer 5.3.1(b) refers to “nonresidential structures.”  Assuming both proffers are relying on the same threshold, the same terminology should be used.  In addition, the proposed proffer’s reliance on the issuance of building permits for dwelling units is unacceptable because neither the issuance of permits nor the requirement that construction “shall have begun” assures that the units will be constructed.  The Owner needs to explain to staff what the “68” units is based on.

 

Because this proffer pertains to the phasing of residential areas, it must be deleted and will be replaced with a special use condition that will state in part:

 

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 290,000 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.

 

Note that 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.

 

 

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.  Note that any flood plain not shown on the Application Plan would still be subject to the Flood Hazard Overlay District regulations.  This proffer does not guarantee that areas identified as flood plain on the new FEMA maps will remain undisturbed.  If the Owner intends to leave these areas undisturbed, the phrase “and shown on the Application Plan” should be deleted from the first sentence.

 

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, in each case, based on the existing uses of those developments as of the date of this Proffer Statement.  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 pre-existing condition of the off-site drainage area and the stormwater quality and quantity impacts that the proffer is intended to address.  The language added to the next to last sentence —“ in each case, based on the existing uses of those developments as of the date of this Proffer Statement” directly contradicts staff’s recommendation and has no substantive meaning because there are no stormwater management requirements for existing conditions   

 

            4.3       Stream Buffers.  On Flat Branch, Owner shall establish and maintain an undisturbed fifty foot (50’) buffer on each side of the stream that is not designated as a perennial stream under the Water Protection Ordinance.  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, storm water management facilities, 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.  Upon the request of the County, 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.  The last sentence of the proffer is not a proffer and it should be deleted or replaced with the following: “The Owner shall incorporate into its application for a stream mitigation permit to the Virginia Department of Environmental Quality a formal request to have the monies applied to fund qualified mitigation projects within the boundaries of Albemarle County.”  Note that even this language does not guarantee that any monies will actually be applied in Albemarle County.   

 

            4.4       Preservation Areas.  The Preservation Areas shown on Exhibit C to the Application Plan shall remain undisturbed and shall be protected from development impacts to the reasonable satisfaction of the County’s Program Authority except that:    (i) sanitary sewers, including pump stations, and storm drainage outfalls may be placed in the Preservation Areas if said Program Authority reasonably finds that the location, design, construction and maintenance of these improvements will have the minimum environmental impact on the Preservation Areas 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 Areas; and (ii) pedestrian pathways may be established and maintained in the Preservation Areas if the Program Authority reasonably finds that the construction, maintenance and use of the pathways will have a minimum environmental impact on the Preservation Areas.

 

Comment: This proffer has been revised to more closely match the language recommended by staff for a special use permit condition.  However, it does not completely match staff’s recommended language (e.g., in (ii), the term “reasonably” finds would not be included in a special use permit condition). 

 

Because this proffer pertains to the residential areas, it must be deleted and will be replaced with a special use condition that will state in part:

 

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 Program Authority; provided, that:

 

      A.         Sanitary sewers, including pump stations, and storm drainage outfalls  may  be placed in the preservation area if the Program Authority 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 Program Authority 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 Program Authority 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 Areas 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: This proffer has been revised to match the language recommended by staff for a special use permit condition.  Because this proffer pertains to the residential areas, it must be deleted and will be replaced with a special use condition that will state in part:

 

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 Program Authority may authorize a land disturbance within the conservation area if it finds:

 

            A.         The disturbance is necessary in order for a use shown on the Application Plan to be established;

 

            B.         The purpose for the disturbance is to establish and maintain streets, sanitary  sewers, storm drainage outfalls, pedestrian pathways, and/or stream restoration;   and

 

            C.        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       Internal 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 within the rights-of-way (“ROW”) shown and in accordance with other detailed road plans, including dimensions, submitted subsequently 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 maintained by the 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 second sentence must be deleted because it attempts to limit what VDOT may require, excludes the County from its street approval authority, and establishes potential confusion between the Planning Director and the Zoning Administrator because the Planning Director may allow minor variations to street design under Zoning Ordinance § 8.5.5.3.  The third sentence is not a proffer unless there is a possibility for public roads to be other than VDOT maintained roads.  The last sentence is the only actual proffer, but it needs to be revised so that it includes sidewalks and provides that the Owner will install the trees, landscaping and sidewalks, and maintain them at County or VDOT standards.     

 

 

            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 stone 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: Although similar language has appeared in previously accepted proffers, it 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.  If the proffer remains, the second sentence must be revised to state: “Before issuance of certificates of occupancy, however, the 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 stone base and all but the final layer of plant-mix asphalt.”   

 

            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 referenced in this Section 5.3 and shown on the External Road Improvement Plan as 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.  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 making available or 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 the 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, which proffer hereby is deemed to include the obligation of Owner to make a good faith effort to acquire such right-of-way and the Owner has made such good faith effort 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: Generally, this proffer is unacceptable because it contains too many contingencies that will excuse the Owner from constructing the external street improvements if any necessary right-of-way is unavailable.  The County has no assurances from VDOT or anyone else that the necessary right-of-way exists. Nearly all of these improvements are required and essential to mitigate transportation impacts directly resulting from this project.  Even if preliminary assurances were provided, the burden should fall on the Owner, rather than the County, to assure that the necessary right-of-way will be obtained.

 

Although the objectionable language “or as otherwise acceptable to VDOT” has been removed from sentence 2, it is still unacceptable because the 50 mile per hour design speed is different from VDOT’s plans for this portion of Route 29.  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.” OR  “The improvements to U.S. Route 29 North shall be based on a design speed of at least 50 miles per hour, or greater as determined by VDOT,  and a maximum  cross-slope acceptable to VDOT.”

 

All of the contingencies in sentences 3 through 7 must be removed.  As noted above, nearly all of the external street improvements are unconditionally required.  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.  Hollymead Town Center Area B proffered that it would construct the required road improvements without any contingencies. 

 

 

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:

 

Comment: Because these proffers assume that CDA financing will fund these required improvements, the phasing provisions in sections 5.3.1(a), 5.3.1(b), and 5.3.1(c) should be deleted and replaced with a proffer that:“The road improvements listed below in this section shall be constructed in accordance with road plans submitted by the Owner and approved by VDOTy.  All of the road improvements shall be constructed to VDOT design standards pursuant to detailed plans agreed to between the Owner and VDOT, and be accepted by VDOT for public use or bonded for VDOT’s acceptance as a condition for issuance of any certificate of occupancy within the Project.  The width, length, location, type of section, and geometrics of all lane improvements shall be as required by VDOT design standards and detailed plans submitted by the Owner and approved by VDOT. ”  The owners of Hollymead Town Center Area B proffered similar language.

 

                        5.3.1    Phasing of Public Improvements and unless previously constructed or bonded by others:

 

(a)        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, such construction to be completed within five (5) years from the plat or site plan approval, of the following improvements:

 

Comment: As noted in the comments below section 5, section 5.3.1(a) (regarding the timing of improvements only, but not its list of improvements) should be deleted.

 

 

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

 

                                                (i)         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.

 

                        (ii)        U.S. Route 29 Southbound - construction of dual left turn lanes with taper.

 

(iii)       U.S. Route 29 Southbound – construction of a right turn lane with taper.

 

(iv)       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.

 

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

 

(vi)       U.S. Route 29 Northbound – construction of left turn lane with taper.

 

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

 

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

 

(ix)              Existing crossover at Cypress Drive – construction to close

the crossover.

 

            (x)        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. 

 

(2)               Northside Drive, North Pointe Boulevard, and Leake Road:

 

             (i)        Leake Road and North Pointe Boulevard, in accordance with the design shown on Exhibit D-2, from Proffit Road to Northside Drive.   Leake Road shall 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 shown on Exhibit D-1 (not D-2) are conditioned upon right-of-way being available with no proffer that the right-of-way will be obtained.  This proffer needs to be revised to state that the Owner will provide the 50 foot public right-of-way and construct a two-lane public street to be accepted by VDOT and as much of the other improvements shown on the cross-section as possible.

 

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

 

Comment: The details of these improvements need to be shown on Exhibit E and the proffer needs to be revised to refer to that exhibit, rather than the Application Plan.

 

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

 

Comment: Proffer 5.3.4(a), as revised, should be relocated here as subsection “(iv).” The proffer should state that the Owner will construct the third westbound through lane between Leake Road and Route 29, and show the details on Exhibit E. 

 

            (b)        Prior to approval of a site plan that would result in more than 290,000 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, such construction to be completed within five (5) years from the site plan approval, of the following improvements:

 

Comment: As noted in the comments below section 5.3, section 5.3.1(b) (regarding the timing of improvements only, but not its list of improvements) should be deleted.

 

                     (1)        Southernmost Entrance on Route 29, the following items are required:

 

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

 

            (ii)     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.

 

Comment: Note that the Owner is not proffering a third southbound through lane for the entire length of Route 29 between Lewis and Clark Drive and Airport Road, but only within 1,000 feet of cross-overs as required by VDOT.  Exhibit E shows that between Airport Acres Road and Airport Road, Route 29 southbound will be two lanes.   

 

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

                                               

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

 

                        (v)        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.

 

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

 

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

 

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

 

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

 

                        (ix)       Close existing crossover at U.S. Route 29 and southernmost entrance to SR 1515.

 

                        (x)        Proposed Entrance Road between North Pointe Boulevard and U.S. Route 29.

 

                        (xi)       Construction of a continuous through lane from VA Route 649, north across property not owned by Owner to the southern property line to connect with the continuous through lane referenced in Proffer 5.3.1(b)(1)(v)

 

Note:  Owner shall have the right to reverse the order of Sections 5.3.1 (a) and (b) above and elect to construct the improvements set forth in (b) prior to those in (a), provided that if such election is made, the improvements set forth in 5.3.1(a)(2) shall be included with those in (b).

 

Comment: This note should be deleted.

 

(c)        Prior to approval of a site plan or subdivision plat that would result in more than 533 total residential units for the Project, or, if earlier, approval of a 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), Owner shall have obtained all associated permits and posted all associated bonds required for the construction, such construction to be completed within five (5) years from the plat or site plan approval, of the following improvements:

 

Comment: As noted in the comments below section 5.3, section 5.3.1(c) (regarding the timing of improvements only, but not its list of improvements) should be deleted.

 

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

 

                        (i)         U.S. Route 29 Southbound – construction of left turn lane with taper.

 

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

 

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

 

                        (iv)       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: Staff believes that a third southbound through lane on Route 29 from Lewis and Clark Drive to Cypress Drive should be constructed concurrently with the other Route 29 improvements.  However, UREF previously proffered to construct this third through lane when that project reaches a certain threshold.  Subsection (iv) (Entrance road Westbound) is not a proffer and it should be deleted.  Regardless of whether consultations are held, the road will have to be built as VDOT requires anyway. 

           

(2)        If not already completed, 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 referenced in Section IX hereinafter.

                       

                        5.3.2    Upon request by the County, Owner shall make a cash contribution to VDOT for the cost of a 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.  

 

Comment: This proffer was significantly revised and appears to address staff comments.

 

                        5.3.3    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.  

 

                        5.3.4    Contributions of Money:

 

(a)        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: This proffer should be deleted because there is no assurance that the cash contributions would be sufficient to enable these necessary improvements to be constructed.  The County does not want the cash; it will need the road improvements to address the transportation impacts from the Project.  Thus, the Owner needs to proffer that it will construct the third westbound through lane between Leake Road and Route 29, and show the details on Exhibit E.  As reformulated, this proffer should be relocated as subsection 5.3.1(a)(2)(iv) (or however the proffers will be renumbered based on these comments).     

 

Owner Comment: VDOT and Wilbur Smith have agreed on the scope of work and Wilbur Smith has provided a quote of $54,200 to complete the design.  Construction of the anticipated roundabout @ the intersection of Leake Road and Proffit Road is included under Section 5.3.1(a)2(ii).

 

Comment: As noted above, the County does not want the cash; it will need the road improvements to address the transportation impacts from the Project.

 

                        (b)        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: Based on proffered cash contributions from other owners for recent large rezonings along Route 29, the pro-rata share for this Project is $100,000. 

 

 

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 thirty-five percent (35 %) 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 the open spaces in residential areas will be addressed by special use permit conditions (e.g., what are now in Proffers 4.4 and 4.5), and the open space areas outside of the residential areas appear to be addressed by other proffers (e.g., Proffer 6.2).  Suggested language: “6.1    Open Space.  In addition to any special use permit conditions or proffers related to preservation and conservation areas, the 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 twenty--five (25) percent of the total land within the Project..  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.”  Although there is language in the UREF proffers similar to the last sentence in this proffer, it is ineffective because a proffer may not excuse compliance with a requirement of the Zoning Ordinance. 

 

            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.  Exhibit G should be revised to delete the pathways in the greenway because the County will own the greenways upon dedication.  Exhibit G needs to clearly show and identify the public access easements across private property to the greenway; in particular, the public path from Northwest Passage through the parking lot and the public path in the northeastern part of the Project from the cul de sac and between lots K-22 and K-23. 

 

            6.3       Pedestrian Pathways.  All pedestrian pathways shall be classified as shown on the Application Plan and platted at the same time as the subdivision adjacent to the proposed pathways is platted.  The pathways shall be constructed by Owner 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. Such construction shall be in conjunction with the improvements for the subdivision or site plan, as the case may be, and bonded with the streets. 

 

Comment: Pedestrian pathways in the residential areas will be addressed in a special use permit condition. The proffer should be revised to clarify that it applies only to pathways in nonresidential areas.  This proffer and Exhibit G also should distinguish the pathways to which this proffer pertains from those to be constructed by the County that will be located in sensitive areas within the greenway to be dedicated to the County.

   

            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                   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’) 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 and the buffer design shall be subject to the approval of the Director of Community Development.  Maintenance of the buffer shall be the responsibility of the Owner. 

 

Comment: The substance of the proffer is satisfactory.  However, because this proffer pertains to the residential areas, it must be deleted and will be replaced by a special use permit condition that will state in part:

 

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” 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 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 shad  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.

 

     

            7.2       Pritchett Lane Emergency Access.  Two emergency accesses 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 accesses 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 accesses to the County for public use.

 

Comment: Because this proffer pertains to the residential areas, it must be deleted and will be replaced by a special use permit condition that will state in part:

 

  1. Pritchett Lane access.  Upon request by the County, Owner shall dedicate to the County for public use two travelways of fifty (50) feet in width, together will all additional right of way for the travelways to be geometrically connected to adjoining rights of way, as approved by the County Engineer.  These two travelways shall be located 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.  Until the travelways are so dedicated, they shall serve as emergency accesses.    

 

Note that the proposed condition revises the proffer language to clearly state that the Owner will dedicate the identified travelways upon the request of the County, but that until so dedicated, they will serve as emergency accesses.         

 

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.  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 proffer must be deleted.

 

            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: Sentences 1 through 3 are generally satisfactory.  The portion of the proffer that is contingent on the formation of a CDA should be deleted.  If the County wants to construct a library at a later date, it may deal directly with the CDA.  The proffer also needs to be revised to provide a construction staging area.  In addition, the proffer needs to clarify whether the Owner will address and provide stormwater management for this site, whether the County or the Owner will be obligated to provide taps for water and sewer, whether parking will be provided for the library at no cost to the County (the plan is that the library will be served by shared parking), and whether the County will be obligated to participate in an owners’ association.  Lastly, staff believes that the library park should be public, not private.    

 

 

8.3              This Section Intentionally Deleted.

 

            8.4       Affordable Housing.  Owner proffers to offer a minimum of 4% of the for sale 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)         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.   The selling prices 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 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)        The Owner or any successors in interest that have purchased individual dwelling unit lots or the right to construct condominium dwelling units (“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 prices set forth in 8.4(a) above 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 proffer has been revised since it was included in the May 19, 2004 proffers.  In response to a suggestion by staff, it now pertains only to units for sale.  However, other prior comments were not addressed. 

 

Staff recommends: (i) that an absolute number of units, rather than a percentage of the units, be proffered; (ii) the formula for determining affordability should not be based on fixed prices or VDHA price limits, and the prices should not be adjusted according to the Consumer Price Index; the VDHA reference be deleted since its current cap is $218,000, regardless of the number of bedrooms of the unit; thus, a one bedroom townhouse selling for $218,000 would be deemed affordable under this proffer; provide a different price index for annual adjustments because the consumer price index is not an accurate indicator for house prices; a proposed formula, included in pending proffers for another project, is stated below in subsection (a);  (iii) the qualifying income should be 80% percent of the County median household income, rather than 90%; specific populations should not be targeted; (iv) the number of units made available each year should be between a range of 3 and 8 houses to prevent the market from being flooded if all of the units were made available in a single year; (iv) the County Housing Office should be the only entity qualifying potential buyers; staff does not believe that it is appropriate for the County to monitor third party compliance as a zoning enforcement matter; and (v) the annual cash contribution described above should 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.

 

Proposed language:

 

8.4    Affordable Housing.  Owner proffers to offer a minimum of 36 of the residential dwelling units for sale, 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)        The Owner or successors in interest shall create units affordable to households with incomes less than 80% of the area median income such that housing costs consisting of principal, interest, real estate taxes and homeowner’s insurance (PITI) do not exceed 30% of the gross household income (e.g., for 2003, the price of the maximum affordable home for purchase was $172,000).

 

                        (b)        All dwelling units under this Section 8.4 shall be sold to individuals or families having less than 80% of the median household income for Albemarle County. 

 

                        (c)        Until the total number of dwelling units proffered hereunder shall have been fulfilled, such dwelling units shall be provided at a rate between three (3) and eight (8) per year. 

 

                        (d)        The Owner or any successors in interest that have purchased individual dwelling unit lots or the right to construct condominium dwelling units (“successors in interest”) shall provide the Albemarle County Office of Housing a period of 90 days to identify and pre-qualify an eligible purchaser for the affordable units.  The 90-day period shall commence upon written notice from the owner that the units will be available for sale.  This notice shall not be given more than 60 days prior to anticipated receipt of the certificate of occupancy.  If the Albemarle County Office of Housing does not provide a qualified purchaser who executes an unconditional contract for sale during this period, the Owner shall have the right to sell the unit(s) without any restriction on sales price or income of purchaser. 

 

                        (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 the Owner or any successors in interest for the purposes of assuring compliance with this proffer.

 

                        (f)         The Owner shall make a cash contribution to the County of $250,000, not less than ratably over the five (5) years following issuance of the first residential building permit in the Project.  The cash contribution shall be 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. 

   

            8.5       Additional 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 5.3.4(a) (over and above those proffered to be completed in Section 5.3.1(a)(2)(ii) 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 5.3.1(a)(2)(ii) 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.

 

Comment: This proffer should be deleted because it is merely an agreement to agree to do something in the future.  Staff does not know what kind of public-private partnership is envisioned.  The Owner needs to construct the third westbound through lane from Leake Road to Route 29, as previously stated.  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.  The County’s bond counsel advises that future participation by a CDA in this type of public-private partnership is problematic.  

 

 

 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 storm water 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:  The proffer states that the construction costs for the joint stormwater management basin 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.  The School Division has stated that it does not want to cost share the stormwater management facilities, because it could be years before a school is built at this site.  The stormwater management facilities need to be shown on the plans.  The Owner deleted a commitment appearing in draft proffers prior to the May 19, 2004 proffers to provide irrigation for the recreational fields.  Now the Owner is proffering that it will install only the mains for the irrigation system.  Staff requests a certification from an engineer that the fill areas outside of the recreation fields will be compacted to 95% standard proctor, or as otherwise approved by the County Engineer.  The proffer needs to be revised to state that the pedestrian pathways shown on the perimeter of the school site will be shown on the subdivision plat creating the elementary school lot and that the pathways will be installed when the site is graded for the recreation fields.    The proffer includes a statement that the Owner shall have the right to submit naming requests for either the school or a park.  As staff has stated multiple times previously, 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 stop Turnoffs and bus stop improvements.  Owner shall construct ten (10) public bus stop turnoffs 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 stop turnoffs  shall be approved with street construction plans for the Project and bonded and constructed with the streets.  Upon the request by the County, Owner will contribute the total sum of $25,000 towards the design and construction of the above ground bus stop improvements such as benches and shelters meeting standards established by the County at each bus stop.  If the County does not request these funds by December 31, 2009, the Owner shall be under no further obligation to provide such funds.

 

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.  The Owner needs to explain to staff what “above ground improvements” are or specify that it will install “benches, shelters, and other similar improvements”.  Note that the new last sentence’s 2009 deadline may mean that the County will request the cash contribution before the site plan or subdivision plat containing the road improvements is approved or before the roads are under construction.  

  

 

X.        ACCESS TO ADJACENT PROPERTIES

 

10.1          Dedication of Right-of-Way

 

                        (a)        Extension to Parcel 22E.       Upon request by the County, Owner shall dedicate a fifty (50) foot wide right-of-way located within the area shown on Exhibit B and identified as a “50’ R.O.W. Reserved for Future Dedication” 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.

 

Comment: The first sentence should be revised to state that the Owner shall reserve the 50 foot right-of-way and dedicate it to the County upon request by the County after the adjoining  parcel is upzoned.  In the second sentence, the phrase "In conjunction with the construction of right-of-way,” must be changed to the “construction of the street” and the proffer should be revised to state that the street will be constructed when other streets with the associated subdivision plat or site plan are constructed.  The third sentence needs to be revised to state that the constructed street will extend as close to the boundary line of the referenced parcel as determined by the County Engineer to be feasible without obtaining offsite construction easements.  The Owner also needs to proffer that it will grant all necessary construction easements for completion of the extension onto the adjoining parcel.  The Owner cannot proffer what Parcel 22E will be responsible for.

 

                        (b)        Extension to Parcels 22G and 22P.   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. Reserved for Future Dedication” connecting a right-of-way from Northwest Passage to Tax Map 32, Parcels 22G and 22P.  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. In the event that the County has not requested dedication of the elementary school site as provided in Section IX, 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 first sentence should be revised to state that the Owner shall reserve the 50 foot right of way and dedicate it to the County upon request by the County after the adjoining parcels are upzoned.  In the third sentence, the phrase "In conjunction with the construction of right-of-way,” must be changed to the “construction of the street” and the proffer should be revised to state that the street will be constructed when other streets with the associated subdivision plat or site plan are constructed.  The proffer also needs to be revised to state that the constructed street will extend as close to the boundary line of the referenced parcels as determined by the County Engineer to be feasible without obtaining offsite construction easements.  The Owner also needs to proffer that it will grant all necessary construction easements for completion of the extension onto the adjoining parcels.  The Owner 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 “R.O.W. Reserved for Future Dedication” (adjacent to the church property that fronts on Pritchett Lane and in the southernmost residential area) on Exhibit B for access to the adjacent properties.  Upon request by the County, Owner shall dedicate a 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 rights-of-way. 

Comment: The first two sentences should be revised to state that the Owner shall reserve the 50 foot rights-of-way for future dedication and, when the adjoining church parcel is further developed and when the external parcel adjoining the southernmost residential area is upzoned, as applicable, either dedicate them to the County for public use or establish them as permanent private accessways, upon request by the County.  In the third sentence, the phrase "In conjunction with the construction of right-of-way,” must be changed to the “construction of the street” and the proffer should be revised to state that the street will be constructed when other streets with the associated subdivision plat or site plan are constructed.  The third sentence needs to be revised to state that the constructed street will extend as close to the boundary line of the referenced parcel as determined by the County Engineer to be feasible without obtaining offsite construction easements.  The Owner cannot proffer that it will have authority over the use and architectural design of offsite properties.  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          Access to Northwoods Mobile Home Park Property.          Owner agrees to reserve an area in the location labeled “R.O.W. Reserved for Future Dedication” at the eastern end of the main commercial access road from Route 29 on Exhibit B for access to the adjacent Northwoods Mobile Home property.  Upon the request of the County, the Owner shall dedicate a fifty (50) foot right-of-way located within the such 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-way. 

Comment: The Owner cannot proffer that it will have authority over the use and architectural design of offsite properties.

 

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:

 

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

 

                  (b)        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.

 

(c)        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.

 

(d)        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.

 

(e)        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.

 

(f)         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.  

 

(g)        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 reference in subsection (a) to “2.5” needs to be changed to “2.”  The last paragraph – “The foregoing notwithstanding. . .” – must be deleted.

 

 

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.

 

 

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