Regular Item:


SP 2005-015 Virginia National Bank at Pantops (Sign #57)- Request for special use permit to allow for a drive-in window for a bank in accordance with Section 24.2.2 of the Zoning Ordinance which allows for drive-in windows serving or associated with permitted uses within HC (Highway Commercial) zoning. HC zoning allows for commercial and service uses; and residential use by special use permit (15 units / acre). The special use permit request is in conjunction with a request to rezone the property from HC to NMD (Neighborhood Model District). NMD allows for residential mixed with commercial, service and industrial uses (3-34 units / acre). The property, described as Tax Map 78 Parcel 16 contains 4.87 acres, and is zoned HC, Highway Commercial and EC, Entrance Corridor. The proposal is located at 1241 Richmond Road (US Route 250E), approximately 200 feet from the intersection of Richmond Road and Stony Point Road (US Route 20N), in the Rivanna Magisterial District.  The Comprehensive Plan designates this property as Regional Service and Community Service in Neighborhood 3. (Sean Dougherty)


ZMA 2005-008 Pantops Park (Sign #14) - Request to rezone 4.87 acres (Tax Map 78, Parcel 16) from HC (Highway Commercial) to NMD (Neighborhood Model District) to allow a 42,000 square foot bank and office building and two 22,500 square foot mixed office and retail buildings with proffers. Highway Commercial zoning allows for commercial and service uses; and residential use by special use permit (15 units/ acre). Neighborhood Model District zoning is intended to provide for compact, mixed-use developments with an urban scale, massing, density, and an infrastructure configuration that integrates diversified uses within close proximity to each other. The Comprehensive Plan designates this property as Regional Service and Community Service in Neighborhood Three. Regional Service designates areas for regional-scale retail, wholesale, business and/or employment centers, and residential (6.01-34 units/acre). Community Service designates areas for community-scale retail wholesale, business and medical offices, mixed use core communities and/or employment services, and residential (6.01-34 units/acre). The property, described as Tax Map 78, Parcel 16 is located in the EC Entrance Corridor Overlay District and the Rivanna Magisterial District on the south side of Route 250. This property is the former Moore's Lumber site. (Sean Dougherty)


Mr. Dougherty stated that there was no staff report for this evening, but he did have some handouts. 


·         Staff has the signed proffers this evening.  Staff has an agreement that they discussed last week that was not signed.  There is a memo from the zoning administrator regarding the parking calculations. Also, there is his memo just discussing the information that he has received from VDOT regarding the cost of the various pedestrian improvements.

·         This is a very complicated rezoning and hopefully they could get through some of the issues this evening.

·         The proffers at this point are signed and are generally in order.  There are a couple of issues with them. One is a cut off for the process to work towards the dedication of the entire connection of Spotnap Road.  That is to be cut off on January 31, 2006.  The applicant expects to have all signatories sign the agreement that is associated with the proffers, but the signatory that cannot sign the proffers until January 19 is the Albemarle County Service Authority.  But, the applicant, the Service Authority and the others signatories have been in contact and he expects Bill Brent will speak to where the Service Authority stands at this point.  But, the January 31 cutoff does only for the dedication and not the improvements.  The applicant is still proffering to improve the entire connection to public standards just after the 31.  At this point they have said that they might be able to extend that.  They would still improve the road to public standards. 

·         Proffer #4 has been amended to essentially not designate a location for the pedestrian improvements, but to basically designate a range. That range would be from Richmond Road along Riverbend Drive to South Pantops Drive.  If you look at the exhibit it is basically between points A and B.  That proffer would apply to any pedestrian improvements that would be determined at a later date to be the best location.  Point A has no pedestrian improvements whatsoever.  Point B has a pedestrian signal, which means you can press the button and get a designated time for you to cross the street.  Point B though contains no cross walks.  This proffer allows enough flexibility for the location to be determined with perhaps a little more study.  But, the other thing that was clarified in his memo was the cost for pedestrian improvements and essentially a pedestrian signal is $20,000.  The total cost to provide a pedestrian signal and striping for points A and B, which would cross on one corner to the other, would be $21,100 or $21.700 depending on the standard for the cross walk.  VDOT has two different standards. One would just be your conventional bars at least 6” and then pavement every 6”.  The other would be 24” wide diagonal stripes, which are a little more drawing to the eye that would be probably be more respected by motorist a little better.

·         In terms of the agreement, the applicant does not have two of the signatories this evening. One is the Service Authority and the other is Dr. Hurt.  They do have an email from one of Dr. Hurt’s representatives saying that this is anticipated to be signed in the next few days and they will try to provide that as soon as possible.  But, they don’t have that right now.

·         In terms of the Code, it is generally in fine shape. But, there were a few revisions that were sent to the applicant, which have not been made but have been anticipated prior to Board action on this.  But, this was prior to his knowledge of any requirements from the Board.  So it is sort of difficult to hold them to that. But, he shared with them several suggestions made by the Commission and by Mr. Kamptner after the first hearing.  They anticipate making those, but they have not made them yet. 


Ms. Joseph asked what those changes were.


Mr. Dougherty stated that some of the changes were those the Commission had forwarded to them, but they are very minor editing things.  Most of them are consistency things and are not substantive issues whatsoever.  He offered to forward a copy of the email to her that he sent the applicant last week. 


Ms. Joseph noted that was not necessary because if they were acting on it tonight she wanted to be aware of any substantive changes.


Mr. Dougherty stated that the changes were very small things.  Apparently the plan does not reflect a public section, which was also requested of the applicant.  This has gone through an evolution from a private connection to now a full dedication.  The applicant was asked if they could reflect those changes today for this evening and they were not able to do that.  But, essentially they realize that they need to do that and will do that before the Board hearing.  There are two things that need to be resolved.  One is the time frame and the sort of constraint that the January 31 cutoff for dedication exhibits for the whole process.  The other is that attachment A that goes along with the agreement is really more of a schematic diagram showing the connection and the Service Authority would be more comfortable seeing this taken to a further engineering. However, the site plan for this proposal will require that whether the road become public or private that the connection would be engineered to VDOT standards.  But, what the Service Authority is desiring is a diagram or a plan that they can take to the Board of the Service Authority to illustrate exactly what they are talking about with some preliminary engineering considerations done to make sure that everything is in order for that connection.  So with those two things the proffer not being constrained to January 31 and the exhibit A being updated, staff recommends approval of ZMA-2005-008.  With respect to the drive through, staff has no objection to that and recommends approval of the drive through as well.


Mr. Edgerton voiced concern about the sidewalk being constructed only on the western side of Spotnap Road.  He noted that the extension over the property is not owned by Virginia National Bank, which is not part of the rezoning, and part of that is providing access to the parking lot behind the Service Authority, but the sidewalks are on the other side of the road.


Ms. Higgins asked what relationship the agreement to dedicate has to the proffers.  She felt that if it was signed tonight that they would be looking at this differently.


Mr. Dougherty stated that it paves the way so to speak for all of the conditions of the proffers to sort of fall in line for the public dedication. 


Ms. Higgins noted that the proffers have been modified to say that if it was not done by January 31 the whole thing is null and void. 


Mr. Dougherty that was true for the dedication portion.


Ms. Higgins stated that she could support the application, but if it was not going to be dedicated to public use and there is a sunset clause on the goal to get it there, then what do they have to cause the applicant to make it happen. 


Mr. Dougherty stated that the applicant’s representative have indicated some willingness to extend this.  They are just concerned about time and were aware of the Service Authority’s Board date and thought that it would work. But, of course, for us it raises a red flag because some sort of issue could come up and the Board could look at the plan and say they have an issue with something that was unforeseen and January 31 rolls around.  Staff has let the applicant’s representative know that this is a very constrained time frame.  The applicant has identified some need to stay on schedule with their ideas of where this project is going.  He added that they are still proffering to build the entire connection as to a public standard.  What they were looking at on November 22 was a private connection.  So what they would get is a public standard connection, but not the dedication.


Ms. Higgins asked how they could upgrade and build the entire connection to a public standard, which means upgrading part of Spotnap Road, without the permission of those property owners.  She stated that they can’t.


Mr. Dougherty felt that it would require Dr. Hurt’s permission.


Ms. Higgins pointed out that even a private road is built to a VDOT standard, but maybe not a public standard because it was built some time ago.  They will be required on their section to do it.  But, it can’t be dedicated to anyone.  They cannot perform to do the other section unless Virginia Land and the Service Authority agreed.  They can’t even make the connection in the configuration shown without the Service Authority’s approval. 


Mr. Cilimberg pointed out that they can make the connection because they have the easement.


Mr. Dougherty stated that Dr. Hurt has demonstrated willingness for them to use his property to the west if they can’t go through the Service Authority’s parking lot.


Ms. Higgins asked if he could not get around to signing an agreement before tonight, and Mr. Dougherty replied unfortunately no and that the applicant might be able to respond to this.


Mr. Edgerton noted that he had sent an email around to the Commissioners in which the applicant had sent an email through Frank Cox that they are not interested in any further deferral and they want action tonight.  There being no further questions for staff, he opened the public hearing and invited the applicant to address the Commission.


Frank Cox, representative for Virginia National Bank and Bill Dittmar, the owners of the property, asked to add a couple of things that might go directly to Ms. Higgins’ concerns about the dedication issue and the time frame dedicated to it.  They certainly appreciate Mr. Dougherty’s concerns about the time frame, but they have their own concern.  They want this thing done.  They are going to build the same road in the same alignment within an existing easement regardless of whether someone that they have not control over signs the agreement.  The agreement is one that has been carefully vetted with all of the parties over the last ever how long they have been doing this.  They have been going back and forth this week.  He pointed out that he had a note from Dr. Hurt, which he would read in a few minutes. But, the bottom line is that he believed that they have satisfied at least in principle all of the concerns posed by the Service Authority’s engineers relative to how they might tie into the area where there existing entrance actually sits right in the middle of this easement.  So there are some engineering things to deal with that they have not been able to address because they have to get all of the engineers together to do that.  They did not have any intention of doing that as part of the zoning.  They have shown them an exhibit and he thought that the Service Authority might want to speak to that tonight.  Relative to the time frame, they put the time frame in there because they want to get the deal done.  But, the proffer voiding does not at all relate to anything to do with their commitment to construct the road exactly to the standard that they would otherwise construct it to if in fact everybody signed the agreements today. 


Mr. Edgerton asked if he understood Ms. Higgins’ concern that the County is vulnerable to the deadline not being met.  Once you put that in there what value does this document have?


Mr. Cox asked if they would like to pick another date.


Ms. Higgins stated that her concern was not about the standards because those are givens. She was concerned that they would actually be providing an interconnection for public traffic on a private road.  It did not matter who the people are that own that road.  The Service Authority is one of those persons who might say tonight that they support it if it is dedicated to public use.  But, then what will the County do five years from now when the road deteriorates because the County supported the interconnection and you have done your part.


Mr. Cox stated that was a principle that had already been taken care of because all of the pre-existing easement agreements have directly placed responsibility for the maintenance on that on the affected property owners.  If, for example, the Service Authority for whatever reason does not want to sign the agreement, then the Service Authority and the various property owners, including us, would be responsible for maintaining that road in perpetuity.  That is a part of the existing easement agreement.  Dr. Hurt was very careful to make sure that the property owners were responsible.  The other thing that he wanted to emphasize was that in proffer #2 the Commission had a concern last week about making sure that what you were fishing for was a complete redo of the existing Spotnap Road if it was deemed necessary to do more than just put another topping of asphalt on it and leave it.  They have written that proffer in such a way as it covers all of those issues including the concern about drainage easements and assuring that those structures were up to snuff.  Then the pedestrian cross walk proffer was changed in accord with some suggestions that were made by staff today.  He felt that they have addressed those to his satisfaction.  They received Dr. Hurt’s note today at 5:30 p.m., which says, “We are in receipt of the dedication agreements for Spotnap Road and have signed the dedication to VDOT for the right-of-way within the next two to three days as soon as all of the signatories can be acquired.”  In one of the earlier agreements there was a deceased person that was mentioned as a signatory.  They will deliver the executed documents to David Pettit as soon as they are signed.


Mr. Edgerton asked if there were any questions for Mr. Cox.


Mr. Rieley asked why if all of the pedestrian improvements exceed $20,000 or in excess is the number still $15,000 in the proffer.


Mr. Dougherty stated that VDOT got back with him with the striping costs yesterday and the pedestrian signal costs today.  He had not conveyed this information to the applicant’s representative until just before the meeting what the cost was.  Therefore, he felt that they would have to defer back to the applicant.  Staff feels with the whole dedication and the improvements in place if that all happens with the connection that the $15,000 seems to be sufficient.  But, he felt that they could ask the applicant if they were willing to match what the cost for those improvements would be with the proffer.


Mr. Rieley stated that it was not a whole lot of money, but the last time they looked at this they did not have those figures.  But, now they have something solid to refer to.


Mr. Cox stated that when they initially talking about talking about pedestrian improvements they were not talking about bringing the existing Spotnap Road up to total VDOT standards, which in fact is a fairly appreciable cost.  Just the cost of running that through the County and VDOT system is going to be a large amount of money.  He pointed out that Mr. Pettit wanted to address the time frame issue.


David Pettit, an attorney representing the applicant, stated that he was the author of the agreement to dedicate.  As you can probably tell from that document they have attempted to accommodate the interest of a lot of different parties in that agreement and to satisfy ourselves and our commitment to proffer the dedication they would have the agreement of the other parties, whose consent is necessary, because they did not want to proffer something that they could not deliver.  They do think that they have the right to improve the roadway because they are parties to the easement.  That applicant benefits the applicant’s property all the way from Route 250 up to South Pantops Drive. They certainly can improve the part that is on our property to public road standards and they think that they have the right to improve it all the way to South Pantops Drive.  That is why they are comfortable proffering that.  They cannot without the consent of the other parties do the dedication.  They don’t see any way around having some contingency for that.  They have attempted to draft language that made everybody comfortable, but they might have made the Commissioners uncomfortable in the process.  They are not wedded to a particular time frame. They certainly want to move forward with this process, but the last thing they want is to not have this road be dedicated and accepted by the state because that means that they participate in the maintenance in perpetuity.  They are going to pay to build it and they want it to be dedicated. If some different time frame would make the Commission more comfortable, they could certainly consider that. But, their main interest is in being able to move ahead with the project, including getting the consent by all of these parties, who have been cooperative with us.  He felt that they were on the same page as the Service Authority and Dr. Hurt.  Their other interest is in not having a legal obligation under the proffer to do something that they are not in the position to deliver on our own.  That is why they need this contingency.


Mr. Edgerton stated that it appears that he had this kick out clause on several of the proffers.  It says on proffers 1 that if written consent is not obtained from the County Service Authority owner by January 31 that nothing is going to happen.  Proffer 2 is the exact same thing that nothing is going to happen.  Therefore, he was worried that there is really no incentive for the applicant to pursue this.  They are making a promise and saying if they can’t get all of the agreements by the end of next month, then they don’t have to honor the promises that they made.  He stated that he might be reading it wrong.


Mr. Pettit asked to explain the language because that was absolutely not what it says.  They have proffered under these proffers to construct the extension of Spotnap Road to VDOT standards and to upgrade existing Spotnap Road to VDOT standards.  Those proffers are unconditional.  There is no kick out on those.  The only portion of the proffer that is subject to getting consent by January 31 is the dedication to public use because that is the part that they don’t feel they can accomplish without the participation by the parties.  They think that they can build, but they know they can’t dedicate it unless the other parties agree.  That is why they almost have to have that extension.  But, he would assure the Commission that since they are committed to spending money to improve up to VDOT standards regardless, which was an unconditional commitment.  It does not benefit us to not dedicate it to public use.  They want it to be dedicated to public use.  If they had the signatures of these parties to that agreement they would happily take that provision out today.  They are willing to adopt a time frame that might be more comfortable to the Commission because they were not looking to get out.  This was drafted with that date because they want all parties who need to consent to this to be focused on a tight time frame so that they don’t proceed not knowing whether they are going to consent or not.  They know that it is in their best interest for the dedication to take place because that relieves them of the obligation to maintain the road and turns over the regulation of the road to governmental authorities and they don’t have to deal with regulation growth.  The goal is to get everybody together at the right time and that is sooner rather than later.  But, if that creates a real problem for the Commission they can modify that deadline.


Mr. Rieley asked if February 28 would be sufficiently short of a time frame to feel that you are moving your project along.


Mr. Pettit stated that the applicant would be comfortable with February 28 and that would be satisfactory.


Ms. Higgins pointed out that all sections of a road done on a site plan are done to VDOT standards.


Mr. Rieley asked Mr. Kamptner what is opinion was.  But from my perspective, with the exception of changing “which” to “that”, he thought that these seem to say exactly what Mr. Pettit said that they said. 


Mr. Kamptner stated that he interpreted the exceptions in 1 and 2 as Mr. Pettit that they are only stating that if they can’t get the consent by a certain date the only obligation that they are excused from is the obligation to dedicate to public use of the obligation to construct to the extension and upgrade Spotnap Road to public road standards is firm.  It does raise one issue. Because of the tight time frame they started looking at this a little bit differently.  There is a question if the dedication falls through but three years from now it becomes possible they need to assure that the road is maintained or upgraded to the standards so that VDOT will accept it if it is three years or five years down the road.  That may be one thing that needs to be closed.


Ms. Higgins pointed out that since this says that it is null and void after that date then that goes off the table.


Mr. Kamptner stated that was only the proffers.  It may be that three years from now there is a public need that this becomes a public road or the parties are no longer interested in maintaining it.  They could reach agreement now.  But, two or three years down the road if they reach that agreement, the applicant or the owner here is not compelled by the proffer and it was built to VDOT standards and it was being maintained as a private road.


Ms. Higgins stated that it could not say null and void then or it would relieve that responsibility.


Mr. Kamptner stated that it could say null and void.  The road being dedicated and accepted into the VDOT system is no longer within the scope of these proffers.


Mr. Edgerton asked if the deadline was not met, then the applicant would not be bound by proffers to dedicate.  But, if three or four years down the road they wanted to dedicated the null and void part of this statement would not preclude if they wanted to go back and get a dedication.


Mr. Kamptner stated yes, they could dedicate it down the road.  The concern that the County or public might have is that it would be better to reach the agreement now.  They want to be certain that the road that is ready to be dedicated three years from now is up to the standards to be accepted.


Ms. Higgins stated that there is a significant soft cost to getting this done.  There are “as builts” that have to be done.  There are engineering calculations and “as builts” that were probably were not done because of the age of the road.  There is the coring of the road that has to be done and other things like that.  Those items do not fall within this description and that point is that if it were three years down the road.  It is almost like she would have felt better if it said if you can’t get the cooperation of the property owners, then you don’t have to do it rather than putting the date on it.  In essence, they have done the same thing.  She wanted to support the request, but this concern makes it a Catch 22 because they almost have to treat it as if the proffer does not exist.


Mr. Pettit stated that the applicant is willing to remove the date so that sentence would then read, “If the written consent to the dedication to public use the proffer herein is not obtained in proffer 1 from the Albemarle County Service Authority, owner of TMP 78-15C, delete by January 31, 2006 the portion of this proffer relating to the dedication of public use shall be null and void as to portions located on 78-15C.”


Mr. Rieley stated that he was confused if he removed the date because it could make it null and void tomorrow.


Ms. Joseph suggested that they get rid of the entire sentence.


Mr. Morris suggested that they move it on with February 28, which sounds very reasonable.


Mr. Rieley asked if they would feel better if their proffer reflected the entire amount of $20,000 for the pedestrian improvements.


Mr. Dittmar agreed to change the proffer as requested by Mr. Rieley to $20,000 to cover the cost of the pedestrian improvements.


Mr. Thomas asked Mr. Pettit if they would agree to delete the null and void language from the proffer.


Mr. Pettit stated that they would not agree to take out the null and void language because they cannot agree to something that is out of their control.


Mr. Rieley pointed out that Mr. Dougherty raised the issue of the revisions to Attachment A. He asked if they had any problem with agreeing to do that before this moves to the Board.


Mr. Pettit stated that they would agree to do that because it is their expectation that can be done very quickly.


There being no further questions for Mr. Pettit, Mr. Edgerton asked if there were any other members of the public that wanted to address the Commission on this application.


Bill Brent, Executive Director of the Albemarle County Service Authority, stated that the Board of Directors of the Authority took up this issue on December 15.  They requested certain changes to the proffers and to the proposed agreement from the applicant.  The applicant has accommodated all of those requests without any exception.  The only remaining concern with the Board is having an exhibit, which is being referred to as exhibit A to this agreement, which more precisely shows the land that the Authority would be expected to dedicate.  He has been told that plan is in the process of being prepared now.  He did not expect what they would see in a more precise drawing to vary in much detail from what they have seen already, but the Board before it is willing to really say that they will dedicate property would like to see a plan profile indicating somewhat more closely what it is exactly expected to be dedicated.  With that in hand, he would expect that this agreement would be agreed to on January 19, which is the next regularly scheduled meeting of the Board of Directors.  He did expect approval at that time. 


Mr. Edgerton asked if there were other members of the public who wanted to speak.  There being none, he closed the public hearing to bring the matter back before the Commission.


Motion:  Mr. Rieley moved, Mr. Craddock seconded, to approve ZMA-2005-008, Pantops Park, with the changes that Mr. Pettit has suggested for the proffers including the following:


Ms. Joseph stated that she could not support the request with the null and void language still in there.  She felt that there were so many things that could happen between now and February 28 that might prevent the Service Authority from signing the agreement.  It is extremely important for this to be a public road, which was what they have been trying to do in many areas to provide these public road connections.  She felt that it was a good plan, but it was also a rezoning request to approve and elevate this property.  Financially, this property will be worth a whole lot more once this rezoning occurs.  She felt that they were asking the County to do something that makes her feel extremely uncomfortable with the deadline and their date.


Mr. Edgerton stated that Mr. Rieley had been right on target that it behooves all of the parties unless they want the burden forever to be theirs and be a private burden, it behooves them to go ahead and do what they can to dedicate.  From our perspective, whether it is a private road or a public road, as long as it is built to certain standards really it is probably irrelevant.


Ms. Joseph disagreed because you can put up a sign on a private road that says no trespassing.  Therefore, she felt that it was really important for it to be a public road.  The road that connects in Carriage Hill says that this is a private road and don’t come through here unless you have business here. 


Ms. Higgins stated that she wanted to support this application, but the reality is if the applicant feels as comfortable as they do that the Service Authority and other parties will sign the agreement that they would remove the null and void statement.  They are being asked to be the party that has the confident and it is totally beyond our control to make them pursue this at this time.


Mr. Kamptner stated that Ms. Joseph’s concerns could be somewhat mitigated if it is made clear that the extension if the agreement to dedicate fall through, even though it may be privately maintained, if they commit that it will be open to the public. In discussing private versus public they are talking about who is going to be responsible for maintaining it recognizing that some public roads, such as the roads to Glenmore, have restricted access.


Ms. Joseph stated that one of the things that she was responding to was that when she spoke to Mr. Brent one of his concerns was all of that parking along that road and how difficult for those trucks to maneuver to in and out with the parking.  If it were a public road there would be some means of getting those people off of the roadway parking there.  The police could come in and enforce the parking along the road. If it is a private road she asked who will be out there telling the people to move their cars.  Those are the type of things she was responding to. 


Ms. Higgins felt that by approving this in this manner, they were creating a problem for in the future.  If it could be solved before the Board meeting, then may be the concern goes away and they can take action. 


Mr. Morris stated that he understood their concerns, but would ask to move the question.


The motion passed by a vote of 5:2.  (Commissioners Joseph and Higgins voted nay.) 


Mr. Edgerton stated that ZMA-2005-008, Pantops Park, will go to the Board with a recommendation for approval on January 11.


Motion: Mr. Morris moved, Mr. Rieley seconded, to approve SP-2005-015, Virginia National Bank at Pantops, with the conditions as recommended by staff.                        


1.       Drive-up windows will be limited to three (3); including one to be used for an ATM.

2.       Architectural Review Board issuance of a Certificate of Appropriateness.

3.       Applicant is responsible for installation and maintenance of control devices such as signage, and pavement markings as indicated on the site plan. The crosswalk just beyond the drive-up window bays for the bank shall be identified with crosswalk signage on either side of the drive aisle.


The motion passed by a vote of 7:0. 


Mr. Edgerton stated that SP-2005-015, Virginia National Bank at Pantops, will go to the Board with a recommendation for approval on January 11.


Ms. Joseph pointed out that they did not discuss the parking issue as outlined in Ms. Sprinkle’s memorandum.  She suggested that at some point the Commission should discuss it. Staff is asking somebody to come up with parking calculations and then come up with them again and again.  The parking calculations come in with the rezoning, when the site plan comes in and then again if any new use comes in.  It is looked at over and over again.  She felt that it was very important for the Commission to discuss this issue at some point in the future.


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