Excerpt from Minutes of the Board of Supervisors April 14, 2004 Regular Night Meeting



Agenda Item No. 10.  SP-2003-084.  Dennis Enterprises - Rio Road (Sign # 55).  Public hearing on request to allow car dealership in accord w/ Secs & of the Zoning Ord.  TM 45, Ps 100, 101 & 101B, contains 2.54 acs.  Znd C-1 & EC.  Loc on Rt 631 (West Rio Rd) approx 250 feet E of intersec of Rio Rd & Berkmar Dr on N side of the street.  Rio Dist.  (Notice of this public hearing was advertised in the Daily Progress on March 29 and April 5, 2004.)


            Mr. Cilimberg summarized the staff’s report which is on file in the Clerk’s Office and made a part of the permanent records of the Board of Supervisors.  He said the Planning Commission initially reviewed staff’s request on March 2.  It came to the Commission with a recommendation of denial based on concerns expressed by the ARB regarding the use and how it would fit on that entrance corridor.  Staff also expressed concerns regarding the relationship of this type of use in that part of the regional service area.  It is not an inconsistent use with regional service, but staff felt the type of use was more appropriate in areas where auto dealerships are already located rather than introducing the use in a new area. 


            Mr. Cilimberg said the Commission, after its initial review, asked for more information about how the site would be laid out, and how the parking and building would relate to Rio Road as well as to adjacent properties.  At a second meeting on March 9, the Commission voted 6:1 to recommend approval of the petition subject to the 10 conditions set out in a letter to the applicant dated March 17, 2004.  He said Conditions No. 1 and 3 relate to elevations and sections dated March 9, 2004; a copy of the plan has been posted on the wall for the Board members to see. 


            Ms. Thomas said one of her concerns has not been addressed, that is the impact of this facility on the adjacent mobile trailer park given the Board’s recent vow to take seriously affordable housing.  Mobile homes in parks are the most affordable housing available.  Mr. Cilimberg said he will let the applicant speak to that question.


            Mr. Dorrier asked about a dotted line on the plan.  Mr. Cilimberg said it is a sight line indicating what you would see on the site. 


            Ms. Thomas asked if it is the theory that one could see everything above the line, but nothing on site below the line.  Mr. Cilimberg said that is the theory. 


            Mr. Rooker said he does not think the line of sight would carry below the building.  Mr. Cilimberg said there would be a view on either side of the building, but not much of the parking would be seen.  Mr. Rooker said the building appears to occupy almost the entire width of the site. 


            Mr. Wyant said he thought parking for display did not have to be striped.  Mr. Cilimberg said the Zoning Department requested that the areas for display be a certain measurement and also be striped. 


            With no further questions at this time, Mr. Dorrier asked the applicant to speak.


            Mr. Kelly Strickland, Rivanna Engineering, was present for the applicant.  He said they had a preliminary review with the ARB, then went through the Planning Commission hearings and got a recommendation for approval.  He said this area contains the largest retail service area in Albemarle County, and this property lies almost in the middle of that area.  They felt it was appropriate for an auto dealership to be in the area.  Other regional services in the area are:  Shoppers’ World, Sam’s Club, Rio Hills, Wal-Mart, the Daily Progress, Phillips’ Building Supply, etc.  He said Mr. Mintos owns the property and wants to set up a higher-end business with lower volume, selling higher quality cars.  The Commission was convinced that this is an appropriate use for the property.  However, there were questions about this road being an entrance corridor.  It does not have any auto dealerships in it right now.  The Commission was very concerned about the visual impact of this use versus some other type of regional service on the site.


            Mr. Strickland said he explained that the front portion of the site, which is 150 feet wide and 150 deep, is what will be seen from the Entrance Corridor.  He said the building takes up almost the entire road frontage, which has a 50-foot grade difference from Rio Road down to the bottom of the hill on the back of the property.  There is a joint access entranceway straddling the property line between PhotoWorks and this property.  VDOT determined that it to be the only entrance to this site.  The building will probably be three stories high to effectively screen the entire back portion of the lot.  Coming in at the upper level, it will be six to eight feet below the road elevation and the lot drops down to the service area, which is about 25 feet below the Rio Road elevation, and then there is one more drop of about 11 feet to the lower lot.  There are 2:1 slopes but the ARB wants 3:1 slopes around those lots.  They think the 2:1 slopes, if maintained correctly, can screen the display areas and make it less of a visual impact from Rio Road.


            Mr. Strickland said a retaining wall is shown on the front of the site.  It is not necessary, but is basically there to hide the front bumpers and grills on the vehicles.  Originally, they had two rows of display, and a row of parking.  The ARB said they did not want any display, and that will not work for the applicant.  He cannot sell cars without having display of the vehicles.  They bargained with the Commission and it agreed it was appropriate to have display.  The plan has been changed to show a single row, and on the last plan the building has been moved forward 18 feet.  He said the distance from the road to the building will ultimately be determined by the Engineering Department and VDOT based on how many cars can be queued up between there and Rio Road.  It is a safety issue.


            Mr. Strickland said there is an area in the back on the north side of the creek which has been removed from the plan.  They do not want to address that issue at this time.  They think there is room to put a storage area there without going into the 20-foot buffer of the residential area, or causing any detriment.  They do not have that designed now.  If they need to request a waiver later, they will be happy to do that. 


            Mr. Strickland said the property is entirely surrounded by commercial; it is in-fill regional service in a growth area.  They think that other regional service projects nearby provide substantially more impacts to this Entrance Corridor, such as Phillips Building Supply, and the Daily Progress Building.  Obviously, around the corner on Route 29 the regional service areas have a higher impact.  He said they are happy with all of the conditions the ARB put on this request, and are excited to go back and work with them.  The one thing they are concerned about is the Commission’s Condition No. 4 allowing for only one row of display parking, which they would like to have in the front of the property.


            Mr. Bowerman asked what they would do if the ARB does not want that display parking.  Mr. Strickland said he believes this Board has the ability to overrule the ARB on a condition.  Mr. Bowerman said that is true, but the Board is looking for the ARB to mitigate what could have a negative affect on the entrance corridor.  He said Mr. Strickland said earlier that the ARB was pretty adamant that there be no display upfront, but the Commission recommended approval with display upfront.  Mr. Strickland said if they work with every other recommended condition, and go from two rows of display to one row of display and come back with new architecture, new landscaping plans, and more screening, he got a feeling from the ARB that they would be willing to work with them.  As far as auto dealership sales are concerned, they need a display row out in front of the store.  At least three people on the ARB seem to feel the use could be appropriate if it were done the right way. 


            Mr. Dorrier asked how many cars would be displayed.  Mr. Strickland said he thinks there might be 18 cars across the front of the site. 


            Mr. Dorrier asked about a green area shown on the plan.  Mr. Strickland said there is 16 feet of vegetative screening between the property line and the cars.  In those 16 feet there is also a retaining wall of two-feet in height which would screen the front of the cars. 


            Mr. Wyant asked about the handling of stormwater.  Mr. Strickland said there is a regional basin in the area, but it was designed for a ten-year storm.  They will have to hold back a two-year storm because requirements have changed since the regional basin was constructed.  This will be addressed on the final site plan.


            Ms. Thomas asked if the building will be of the mass seen on the plans.  Mr. Strickland said Mr. Mintos wants this building to have the character and feel of a small retail use.  Ms. Thomas said she agrees and she thinks the mass that is shown on the plans takes away the sting of it being an auto dealership.  She asked staff if there is any assurance that it will be a substantial building such as that shown on the plan.  The Board must be aware that no matter the intentions of the present applicant, this is an action that goes with the property, and someone else could take the same permit and create something entirely different. 


            Mr. Strickland said after the Commission deferred this petition the first time, he actually drew a picture of a building, and the applicant likes it.  Mr. Mintos had told Mr. Strickland that he liked the Virginia National Bank Building on the corner of Arlington Blvd.  He wants it to look like an office type space on the second floor.  He would like for the building to be three stories tall, but it will be at least one and one-half stories. 


            Mr. Bowerman said the three stories would be on the back of the building.  Mr. Strickland said that is correct.  The lower level is a service bay.  It is better if the building is longer because it would screen everything in the back.  He thinks Mr. Mintos is committed because he has talked about spending $2.0 to $3.0 million on the building.

            Ms. Thomas said she does not doubt what has been said, but the Board has to be sure the conditions are written so no one else can build something of that scale if this request is approved.  Mr. Cilimberg said there is no condition that would require the building to be built in that way.  It would be taken up in the ARB’s review.


            Mr. Strickland said the applicant would be happy to stipulate that they will work with the ARB to make it resemble the scale of what is shown on the drawing. 


            Ms. Thomas asked if that would be an additional condition.  Mr. Davis said he is trying to understand Condition No. 1, “The site shall be developed in general accord as per the elevation and section dated March 9, 2004.”  He asked if the words “in general accord as per the elevation and section” are meant to include the building.  Mr. Cilimberg said it does not include the rendering of the building.  It includes just the block building that is on one of the drawings. 


            Mr. Strickland said they can definitely proffer the footprint of the building, and it would be a story and a half above grade in the front. 


            Ms. Thomas asked if that can be added to Condition No. 1.  This is not a situation which allows for proffers. 


            Mr. Davis asked if there is a plan which shows the footprint.  Mr. Cilimberg said the plan dated November 24, 2003, shows a footprint. 


            Mr. Wyant said it shows square footage.  Mr. Bowerman said it shows 6900 square feet.  Mr. Cilimberg said that will be part of the conditions, but it does not stipulate how that building should look, or how many floors there will be.  It only stipulates an overall amount of square footage.


            Mr. Wyant said it does not state the exposure on the front above ground level. 


            Mr. Strickland said they have not even started work on the architecture, so they need some flexibility built into the stipulation. 


            Mr. Davis said that on Condition No. 1, the Board could add the words:  “... with a minimum footprint of 6900 square feet to be built at least one and one-half story in height.” 


            Mr. Wyant asked if there should be a maximum included.  Mr. Davis said the ARB will deal with the maximums, while the Board should deal with the minimums. 


            With no further questions at this time, Mr. Dorrier opened the public hearing.  With no one from the public rising to speak, the public hearing was closed, and the matter placed before the Board.


            Mr. Cilimberg said the conditions make reference to the November 24, 2003, plan.  There is a copy of that plan in the staff’s report.  It is not the plan posted on the wall tonight.  It requires that the building move forward and some trees be retained or replaced.  He said the plan is referenced in the conditions, and that is not a problem because by those conditions staff knows the building will be moving forward.  One thing which should be addressed in the conditions tonight, if the Board chooses to accept what the applicant has offered, is to remove the 4800 square feet of display in the back, and say that would not be developed.


            Mr. Bowerman asked to what condition that wording would be attached.  Mr. Cilimberg said it could be an added as a condition saying:  “The back 4800 square foot display area and development, including retaining wall, would not be a part of the approved plan.”  They could develop to the stream, but not on the other side of the stream. 


            Mr. Rooker said he thinks the plan is very good.  He thinks the applicant has shown a spirit of cooperation in trying to get a plan that is acceptable, but he does not agree with the use in this location.  He said staff recommended denial of the application, and he then read from staff’s report.  He does not think it is a good idea to introduce to West Rio Road what is considered to be one of the highest intensity uses in Highway Commercial.  They have done a good job of presenting what is not a compatible use to this area.  He thinks it sets a precedent.  Looking at the other uses in that area, they are not high intensity highway commercial uses as proposed on this site.


            Mr. Bowerman said he agrees one hundred percent.  He said everything is being done to make this look like it is not an auto dealership.  The fact is it is.  He is concerned with approving a special permit for this use. 


            Mr. Dorrier said this is not just an ordinary auto dealership.  This building will be substantial, and it will have a presence on the site which will block the area behind it.  Plus, the grading of the site makes it appear that sight distance will be difficult in that area of Rio Road.  He thinks there will be a big building and some cars and it will be screened, so he does not think it will have the look of a used car dealership. 


            Mr. Rooker said the Board has worked hard to make both West Rio Road and Hydraulic Road good functioning roads which blend in with their neighborhoods. Those roads serve the densest residential population in Albemarle County.  There are many multi-family dwellings within a mile and a half of this area.  The County’s biggest school complex is served by that road.  He thinks the applicant did a good job with the visual aspects of the building.  However, the Board is making a use decision that the most intense Highway Commercial use in the ordinance is appropriate for that road.  This is a high intensity use creeping around the corner from Route 29 down what the County has tried to maintain as a lower intensity area.  He thinks that would be a mistake and the Board should not approve the petition.


            Mr. Boyd said Pantops is an area which is laden with car dealerships.  That area will probably be just as high in density once all the building taking place is completed.  He does not see a lot of difference in the two locations.


            Mr. Rooker said Route 250 East is a United States highway; a main artery serving the area.  So is Route 29. 


            Mr. Boyd asked if this is just a procedural thing the Board has followed in the past. 


            Mr. Rooker said that in the past auto dealerships along the main arterial highways have been approved.  Actually, up until this time, they have been approved in just those two locations.  Now, the use would be allowed to creep onto what he views as primarily an area of mixed use with a lot of residential, and the road also serves the County’s biggest school complex. 


            Mr. Bowerman said he agrees it is an area in transition and the uses proposed there are more in keeping with that designation.


            Mr. Wyant said it is an area in transition because as you go west there are businesses from Berkmar Drive all the way to Four Seasons. 


            Mr. Rooker said they are small scale business uses.  There is a plant nursery, small scale retail and some office uses.  Those uses would be defined as transitional uses to residential.  The petition is for a use which the County has designated as a use to take place along a major highway, not on a road such as Rio Road.  He thinks it sets a bad precedent. 


            Mr. Boyd said this is not an operation the size of Colonial Auto or Brady-Bushy Ford.  It will be well done and promote some commerce in the area.  His office is across the street from this property and he said there are numerous tractor-trailers delivering to the facilities in Berkmar Crossing.  The small businesses in that development generate a lot of traffic.  He thinks this petition is in keeping with what he sees going on in the area already.


            Mr. Bowerman said Dennis Enterprises might not own this property in the future. 


            Mr. Wyant asked if the Board has a say about that.  Mr. Bowerman said “no.”  The special use permit goes with the land, not the owner.  Ms. Thomas said that fact always makes it a difficult decision.  Mr. Wyant said he thought the use was by-right.  Mr. Bowerman said it is not a by-right use in the Highway Commercial district. 


            Ms. Thomas said she is torn about this request because the applicant has done a good job.  Mr. Bowerman said it is really a policy issue.  Ms. Thomas said it appears they are trying to make this use fit into the area. 


            At this point, Mr. Bowerman offered motion to deny SP-2003-084 for Dennis Enterprises.  The motion was seconded by Mr. Rooker.


            Mr. Dorrier said he cannot support the motion because he thinks the conditions placed on the building site will protect the public.  It also will be located only a few blocks from Route 29 North.  It is in an area with other auto dealerships.  He thinks the applicant has done a good job in trying to deal with the criticisms leveled at used-car dealers. 


            Mr. Wyant said he believes their only difficulty would be in finding the dealership on this road due to the screening recommended.  He guesses it will become a sign issue. 


            Mr. Rooker said he agrees that the applicant has done an excellent job.  One thing Mr. Dorrier pointed out is one of the problems Mr. Rooker has with the request, that being its closeness to Route 29.  It’s just around the corner so what happens to a request to put a dealership further along the road, maybe on the nursery property?


            Mr. Bowerman said there are two residences just to the west of this site that could also change in use.


            Mr. Rooker asked how the Board would be able to deny the next request for a dealership in the same area.  He said the County had drawn a line at Route 29 for this kind of use in this area.  If these uses are “elbowed” around the corner, where would the uses stop?  He believes that would be very detrimental to the people that live in that area.


            Mr. Boyd disagreed, saying he did not think the use is inappropriate in this location.  If someone is willing to spend $3.0 million on the property, he does not think they will be turning it over to someone else.  He thinks they did a good job of making this use blend in with this commercial neighborhood. 


            At this time, Mr. Dorrier asked for a roll call on the motion.  The motion for denial of the request was denied by the following recorded vote:

AYES:  Mr. Rooker, Ms. Thomas and Mr. Bowerman.

NAYS:  Mr. Wyant, Mr. Boyd and Mr. Dorrier.



            Mr. Boyd then offered motion to approve SP-2003-084 subject to the conditions recommended by the Planning Commission. 


            Mr. Davis asked if Mr. Boyd wanted to keep the conditions as proposed, or should he mention the conditions he thinks the Board discussed earlier.  Mr. Boyd said Mr. Davis should discuss the changes.  Mr. Davis said the discussion indicated an addition to Condition No. 1, reading:  “... with a building having a minimum footprint of 6900 square feet and a front elevation of at least one and one-half story.”  Mr. Davis said wording could be added to Condition No. 10 to have an additional sentence reading “No parking or display of vehicles shall be permitted in the area shown adjacent to Tax Map 45, Parcel 173.”


            At this point, Mr. Fran Lawrence came forward saying he represents the applicant.  He said he thinks some of the problems might be solved by deferring this petition.  It is clearly a tie vote.  He was struck by the Cash’s Corner analogy.  He thinks that to some extent they are doing Cash’s Corner on this property.  It looks like one thing, but it is really another thing.  He thinks some of the concerns Mr. Rooker expressed were addressed early by the ARB.  The ARB was thinking about an example with five rows of cars with the hoods up, and the sales signs, and balloons, cars raised off the ground, and highlighting.  He believes the applicant has given most of those things up in the conditions.  That would be permanent and run with the land.  He said it is a transition dealership which would be compatible with the neighborhood.  If that needs further work, he will ask for a deferral of the petition so they can make some changes to reflect the consensus of this body. 


            Mr. Bowerman said he does not think his position will change because it is a policy issue.  He would hate to have the applicant spend a lot of time and money and he then not is able to support the request because he is not going to change his opinion.


            Mr. Boyd asked to what policy Mr. Bowerman is referring.


            Mr. Bowerman said the Entrance Corridor overlay is one. 


            Mr. Boyd asked if there is something written which specifically says car dealerships are not allowed except on U.S. highways. 


            Mr. Bowerman said it is a planning issue.  He said that on Route 250 accesses were limited.  The ARB has made a significant difference along Route 29 in terms of the way things are screened and put into place, but this is an Entrance Corridor Overlay and the County has not done anything of this character in any entrance corridor.  Like it or not, Rio Road is an entrance corridor.


            Mr. Rooker said it is a discretionary decision with the Board about what is appropriate.  It is a land use decision.  He does not think it is an appropriate use for that area given the nature of Hydraulic Road to Rio Road West. 


            Mr. Boyd asked if that meant there is nothing the applicant can do which would gain their approval.


            Mr. Lawrence said they are willing to run the risk of having no change in the votes in the deferral.  They understand that. 


            Mr. Bowerman said he will vote for deferral.


            Mr. Rooker said if they still want a deferral, he will not oppose it. 


            Mr. Cilimberg said staff will need some guidance as to what the Board expects from the applicant.  If this is a use question, unless they change the use, there is not much that can be done.  If there are other things which address the use in a different way, then staff needs to have some directions.


            Ms. Thomas said the Board always looks at whether the character of the district will be changed.  In the staff’s report, they have addressed that issue, and they feel it will change the character of the area.  They based this being a use which is not in character with that area.  It is hard to see how that will be changed by the appearance of the use. 


            Mr. Wyant said on Page 1 of the staff’s report it is noted that “The character of the area may be summarized as serving as a transition between the high intensity uses along Route 29 and the residential neighborhoods west of Berkmar Drive.”  He said there are entrance corridors on both ends of this road; Route 29 and Hydraulic Road.


            Mr. Bowerman said those uses were already in place, and that is a fact the Board must deal with.


            Mr. Rooker said he does not object to a deferral if that is what the applicant wants.


            Mr. Boyd said he thinks Mr. Cilimberg’s point is well taken; what is staff to do? 


            Mr. Dorrier asked Mr. Strickland to summarize what the applicant wants to do.

            Mr. Strickland said they addressed all the staff comments at the Planning Commission level.  If a deferral will allow him to address the Board’s concerns about what staff wrote up in those comments, he welcomes that opportunity.


            Mr. Bowerman asked if staff would be able to come up with a positive recommendation on this request.  Mr. Cilimberg said staff’s recommendation was for denial based on the use in that particular location, in conjunction with the ARB’s recommendation regarding the entrance corridor.  They may choose to go back to the ARB, present more information, and see if the ARB would have a different opinion.  He said the basic use in that location was staff’s concern. 


            Mr. Bowerman said it is possible that if the Board approved this request, the applicant would go to the ARB and never get a decision from them. 


            Mr. Rooker said that generally the ARB does not make use decisions.  Mr. Cilimberg said they do make a recommendation.  They rarely recommend not approving a use, usually recommending conditions they feel will address the question.  He does not know whether the applicant could go back to them and present further information to change that recommendation. 


            Mr. Davis said the ARB does have a roll in the ordinance regarding the outside storage use.  That is the one area where they do have a prescribed duty to make a recommendation. 


            Mr. Rooker said he has no problem if they want a deferral, but to what date should this be deferred?


            Mr. Dorrier suggested deferring it without setting a date.  Mr. Davis said the process moves along better if there is a firm date.  The Board can defer it to a date certain, and if it is not ready, it can be further deferred.


            Mr. Rooker said he would move deferral.  Mr. Bowerman said there is motion on the floor.  Mr. Davis said the motion had not been seconded.  Mr. Boyd then withdrew the motion he had begun. 


            Mr. Rooker then offered motion to defer SP-2003-085 to July 14, 2004.  The motion was seconded by Mr. Bowerman.  Roll was called, and the motion carried by the following recorded vote:


AYES:  Mr. Rooker, Ms. Thomas, Mr. Wyant, Mr. Bowerman, Mr. Boyd and Mr. Dorrier. 

NAYS:  None.


Go to ATTACHMENT B – Concept Plan entitled, Application Plan for Dennis Enterprises – Rio Road, dated 7/24/04

Return to executive summary