Albemarle County Planning Commission

September 5, 2006


The Albemarle County Planning Commission held a meeting and a public hearing on Tuesday, September 5, 2006, at 6:00 p.m., at the County Office Building, Room 241, Second Floor, 401 McIntire Road, Charlottesville, Virginia. Members attending were Eric Strucko, Calvin Morris, Vice-Chairman; Jon Cannon, Pete Craddock, Marcia Joseph, Chairman and Bill Edgerton. Absent was Jo Higgins. Julia Monteith, Senior Land Use Planner for the University of Virginia, representative for David J. Neuman, FAIA, Architect for University of Virginia was absent. 


Other officials present were Wayne Cilimberg, Planning Director; David Benish, Chief of Planning; Amy Arnold, Planner; Sean Dougherty, Senior Planner; Joan McDowell, Principal Planner; Tamara Ambler, Natural Resources Manager; Rebecca Ragsdale, Senior Planner; Dan Mahon, Greenway Planner with Parks and Recreation; Mark Graham, Director of Community Development and Greg Kamptner, Deputy County Attorney.


Call to Order and Establish Quorum:


Ms. Joseph called the regular meeting to order at 6:00 p.m. and established a quorum.


            Committee Reports:


Ms. Joseph asked for committee reports from the Commissioners.



Other Matters Not Listed on the Agenda from the Public:


Ms. Joseph invited comment from the public on other matters not listed on the agenda. 


Jeff Werner, representative for Piedmont Environmental Council, made the following statement to the Planning Commission:


“My name is Jeff Werner.  I am speaking on behalf of the Piedmont Environmental Council.  Next week, the Board of Supervisors will discuss a series of proposed regulations and incentives intended to protect the Rural Areas.  It is rumored that phasing will not survive those discussions.  Some have even suggested that the solution lies in clustering alone; without phasing.  This view ignores the Rural Areas Plan which states that addressing the rate of development is as important as addressing its form. Rearranging rural lots via clustering may achieve site-specific objectives, but the results off-site are the same.  More cars on unimproved roads; more wells; more suburbanites demanding public services; more complaints about the sights, sounds and smells of adjacent agricultural and forestal activities. 


At the hearings in August, some speakers said the County had not recognized their stewardship of the land.  However, it needs to be understood that the Rural Areas Plan is not slight on their stewardship, but a response to the fact that since 1980 over 95,000-acres of the Rural Areas have been subdivided.


It is argued that simply approving more growth in the Growth Area will reduce rural development.  However, the numbers don’t support this.  Between 2003 and the 2nd quarter of this year, 1,847 residential building permits were issued in the Growth Area, and over 6,000 Growth Area dwelling units were approved by CPAs and ZMAs.  Yet during this period, Rural Area subdivision and building permits did not waiver from their long-term trends. In the Rural Area, 2,763 residential building permits were issued and according to the Site Review Committee memos, well over 1,100 new rural lots were proposed and 23,000-acres lost to subdivision.


It can be argued that many County residents are simply not aware that Albemarle’s countryside is being slowly fragmented into suburban-scale lots.  I am here tonight to suggest that it should never be said that County officials did not have this information.


How many of you know that in the past decade almost 3,000 residential building permits were issued for the Rural Area?  In the past decade, did you know that over 51,000-acres of the Rural Areas were subdivided?  Do you know how many lots were created?  Do you know how many Growth Area and Rural Area building permits have been closed out and the homes occupied?  In the past decade, almost 6,000 Growth Area building permits were approved.  Many permits were approved during the drought in a rush to beat a feared moratorium on development.  Do you know how many of the homes for these rushed permits have been built and occupied?


In 2003, the County approved the CPA for Rivanna Village with the proposal for 1,268 new dwelling units.  The current ZMA has only 200 to 500 units.  Even after the next set of approvals, there is no guarantee of how many units will get built.  The evolution to a lower-density project is not unique to Rivanna Village.  To understand this, the Planning Commission should request regular updates.


In 2003, the County distributed its last comprehensive Development Activity Report.  In it were the annual totals on all subdivision and development.  While the County has never issued monthly reports, the PEC suggests that the provision of regular updates on subdivision and construction activity is critical to the decision-making process.  This information “renders visible” the scale of new development in the County.  Without up-to-date and complete information, both the Planning Commission and local residents are unable to realize - - and thus take action on - - what is happening to their community.

(See Attachment A – Statement to Albemarle County Planning Commission and Board of Supervisors dated 8-5-06 from Jeff Werner)


There being no further comments, the meeting moved on to the next item.


Consent Agenda:


Approval of Planning Commission Minutes – March 21, 2006.


Motion:  Mr. Morris moved, Mr. Edgerton seconded, that the consent agenda be approved.


The motion passed by a vote of 6:0.  (Ms. Higgins was absent.)


Ms. Joseph stated that the consent agenda has been approved.


Deferred Items:


AFD 2006-01 South Garden Agricultural/Forestal District Review

PROPOSED: Review, South Garden Agricultural/Forestal District; determine termination, modification, or continuation of the District; renewal cycle revised: 7-year to 10-year review period; created October 6, 1999, review prior to October 6, 2006.  Withdrawals proposed: TMP 109 - 70 (40.063 acres); TMP 110 - 8 (105.20 acres); TMP 110 - 18E (32.767 acres).  Addition proposed: TMP 110 - 7A (13.440 acres).  Current acreage 2,033.33; with additions/subtractions 1,868.74 acres; net loss 164.59 acres   

ZONING CATEGORY/GENERAL USAGE: RA -- Rural Areas: agricultural, forestall, and fishery uses; residential density (0.5 unit/acre)

SECTION: Chapter 3.3-204; Chapter 3.3-225.5

COMPREHENSIVE PLAN LAND USE/DENSITY: Rural Areas - preserve and protect agricultural, forestall, open space, and natural, historic and scenic resources/ density (.5 unit/ acre)


LOCATION: North Garden between Route 29 south and Routes 712 / 719 with northern boundaries adjacent to the South Fork of the Hardware River.

TAX MAP/PARCEL: Current composition: TMP 109 - 70; TMP 110 - 8; TMP 110 - 18; TMP 110 - 18E TMP 110 - 27 totaling 2,033.33 acres. 


STAFF:  Amy Arnold



Ms. Arnold summarized the staff report.


·         The South Garden Agricultural and Forestall District currently consists of 5 parcels totaling 2,033.33 acres.  This district created on October 6, 1999 with a 7-year renewal cycle is scheduled to be reviewed by the Board of Supervisors prior to October 6 of this year.  The South Garden District is generally located in North Garden between Route 29 South and Routes 712 and 719 with the northern boundaries adjacent to the South Fork of the Hardware River.


·         There have been no additions or withdrawals since the creation of the district.  Of the 2,033.33 acres that comprise the South Garden District 1,483 are enrolled in the forestry category of the land use taxation program while 520 are enrolled in the agricultural category.  Mixed deciduous and evergreen forest stands located in the district are a small portion of the near by expansive system of forests and ridge line.  In addition to the agricultural and forestall uses the South Garden District includes a few scattered residential uses.  Immediately surrounding the district are wooded mountainous parcels, open pasture, hedgerows and farms.  There are not any residential developments on nearby parcels and no development area land use designations exist nearby.


·         The open space plan identifies this area as part of a major open space system including important forests, agricultural land, major stream valleys, mountains and critical slopes greater than 25 percent.  Keeping these properties in the agricultural/forestall district will help protect farm land and mountain resources, which the Comprehensive Plan and Rural Areas ordinances seek to preserve.  Conservation of this area will help maintain the environmental integrity of the County and will aid in the protection of ground and surface water, agricultural soils, mountain resources, critical slopes and wildlife habitat. 


·         The parcels contained in the district are part of the South Fork of the Hardware River and Green Creek Watersheds.  With a high percentage of forest cover the South Garden District helps preserve the important water resources for the entire community.  The South Garden District is currently on a 7-year review cycle.  It has been County policy to establish a 10-year review schedule, which is the maximum for all districts.  The Agricultural and Forestall Advisory Committee has requested and staff recommends that the review cycle for the South Garden District be changed to a 10-year interval. 


·         Staff has received a request from a South Garden land owner to withdraw TMP 109 - 70 (40.063 acres); TMP 110 - 8 (105.20 acres); and TMP 110 - 18E (32.767 acres).  This request leaves TMP 110 – 18 totaling over 1,000 acres owned by the same land owner enrolled in the district.  This withdrawal represents a total of 178.03 acres.  The current acreage of the South Garden Agricultural District is 2,033.33 acres. With the proposed withdrawals the total acreage becomes 1,855.3.  The proposed withdrawals are illustrated in Attachment E and the proposed reconfiguration of the district is shown in Attachment F of the staff report.


·         The Agricultural and Forestall District Advisory Committee met on July 24, 2006 to review the proposed changes and configuration of the South Garden District and discussed its renewal.  The Advisory Committee in attendance voted unanimously to recommend renewal of the South Garden Agricultural Forestall District with the proposed withdrawals and one addition at the time and a revision of the renewal cycle from 7-year to a 10-year period.  At the time of the Advisory Committee’s review an adjacent land owner had requested that their 13.44 acres be added to the district.  Since the Advisory Committee’s meeting that land owner has withdrawn their request for addition. 


·         South Garden Agricultural Forestall District is one of the County’s twenty-four established Agricultural and Forestall Districts with acreage totaling over 64,000 enrolled in the program.


Ms. Joseph asked why the acreage was withdrawn.


Ms. Arnold replied that the property owners stated verbally that they may be interested in ultimately selling the property.  She assumed that it would be subdivided.  She noted that the owner left their largest parcel of over 1,000 acres in the district.


Ms. Joseph opened the public hearing and asked if there was anyone present that would like to speak to this item.  There being none, she closed the public hearing to bring the matter before the Commission.


Mr. Morris felt that the extension from 7-years to 10-years just makes sense to bring it in line with the other districts.  It is a shame to see that much acreage pulled, but it is their domain.


Motion:  Mr. Cannon moved, Mr. Morris seconded, to approve AFD-2006-01, South Garden Agricultural/Forestall District Review with staff’s two recommended conditions.


  1. The following shall be withdrawn from the South Garden Agricultural and Forestall District:

·         Tax Map 109, Parcel 70 (40.063 acres)

·         Tax Map 110, Parcel 8 (105.2 acres)

·         Tax Map 110, Parcel 18E (32.767 acres)


  1. The renewal cycle shall be revised from a 7-year to a 10-year interval.


The motion passed by a vote of 6:0.  (Commissioner Higgins was absent.)             


Ms. Joseph stated that AFD-2006-01, South Garden Agricultural/Forestall District Review would go to the Board of Supervisors on October 4 with a recommendation for approval.


SP-2006-016 Mountain View Full Gospel Church – Expansion (Sign #76)

PROPOSED: Amend SP 1981-13; church expansion

ZONING CATEGORY/GENERAL USAGE: RA -- Rural Areas: agricultural, forestall, and fishery uses; residential density (0.5 unit/acre)

SECTION:; 10.2.2 (35)

COMPREHENSIVE PLAN LAND USE/DENSITY:  Rural Areas - preserve and protect agricultural, forestall, open space, and natural, historic and scenic resources/ density (.5 unit/ acre)


LOCATION: 1005 Smith Road (Route 758), Afton; south of Route 637

TAX MAP/PARCEL: TM 69, Parcel 37


STAFF:  Amy Arnold



Ms. Arnold summarized the staff report.







Ms. Joseph asked if there were any questions for Ms. Arnold.


Mr. Edgerton noted that there were several drawings in Attachment A and he wondered which drawing showed the parking configuration.  He asked if it was the drawing on page 6.


Ms. Arnold replied that was correct and noted that the other drawings included the approved site plan from 1981 that showed the future additions.


Mr. Edgerton noted that it was confusing and he wanted to make sure that they referenced the right plan if the Commission approved the request.


Ms. Joseph opened the public hearing and invited the applicant to address the Commission.


Glenda Atkins, Associate Pastor of Mountain View Full Gospel Church, said that she was one of the founding members as well as a trustee.  Tonight she was present to represent the church.  Also present tonight was their pastor, William Myrtle; Co-founder/Trustee and Associate Pastor, Louise Puckett; Board member, Carl Dickerson as well as various other members of their congregation. The church will celebrate their 23rd anniversary this month.  The vision for Mountain View Full Gospel Church began in 1977 with a congregation of 15 and a building fund of $13.21.  In 1981, an architect was hired and plans drawn.  On the site plan areas for future expansion to the church and parking lot were indicated.  Here we are 25 years later seeking the Commission’s recommendation of approval for a special use permit.  As their attendance on Sunday indicates they are growing leaps and bounds.  They have a very diverse congregation consisting of different races, creeds, religions, backgrounds and walks of life.  They thank God for everyone that has decided to call Mountain View their home church.  The sanctuary was built to seat 96 people and the attendance has grown so that chairs have been placed on back walls for seating.  Their pulpit area is also crowded. The church members want to have enough room for everybody to sit and be comfortable and room for all their musicians to stand or sit on the pulpit area with their instruments and equipment. They need more room in their alter area to allow enough room for people to come and pray.  Their fellowship is in the basement.  It is one-half the size of their sanctuary because it has been divided into an office, nursery, Sunday school rooms as well as a kitchen. Special dinners and events are extremely crowded.  Weather permitting the overflow eats outside underneath their picnic pavilion.  The parking lot has 24 spaces and their front lawn now takes care of the overflow.  Our church is located on a dirt road in the rural areas.  Slightly over one-half of their church property is wooded.  They have carefully looked at the topography and the forested areas as they considered their expansion.  Very little area will have to be disturbed with the church expansion as the area is cleaned and landscaped.  Only the area needed to extend our parking lot by 40 spaces will be disturbed.  On our concept plan they indicated the overflow portion of our parking lot will be behind a stand of trees behind our pavilion.  This hides the flat asphalt look of a parking lot.  They love the appearance of their church in its country setting and want any expansions to retain that appearance.  Ten years after opening our doors our founder and pastor passed away.  In the interim, they have had four pastors with the fourth being their present pastor, William Myrtle.  It is under his pastor ship and the guidance of our associate pastor, Louise Puckett, that they have now reached the goal that was set 25 years ago for the expansion of the church and parking lot.  They ask for the Commission’s recommendation of approval so that this vision can be completed.


Pastor William Myrtle said that the church has grown wonderfully and the Lord has really blessed the church. They are an outreach church to the community and have been able to gain new members in their church.  They also have growth in their youth and they want to provide comfortable facilities to keep them off the streets and in church.  Their youth is their upcoming new church. He thanked the Commission for their time.


Ms. Joseph asked if there were other members of the public present that would like to speak to this request.


Louise Puckett, Associate Pastor and Co-Founder of Mountain View Full Gospel Church, said that they have a great outreach to the community.  Through the years they have supported missionaries and have raised four orphans to the age that they were able to take care of themselves.  They are still contributing towards the outreach in world missions.  As they gather here this evening they have a lot of young people who need space.  She felt that expansion is really needed.  By doing this they can not only expand the mission outside the church, but certainly make it more comfortable inside.  She thanked the Commission for their time.


Carl Dickerson, a member of Mountain View Full Gospel Church, said that he lives in Buckingham County and drives 1 hour and 15 minutes every Sunday to church.  He thanked God for the church.  The church is reaching out and helping other people.  If there were more churches like theirs there would be less people in prison and more in church. 


There being no further public comment, Ms. Joseph closed the public hearing and the matter was placed before the Commission.


Mr. Strucko asked if the applicant agreed with the nine conditions recommended by staff.


Ms. Joseph asked Ms. Atkins, since she was the representative for the applicant, if she had looked at the nine proposed conditions and was alright with them.


Ms. Atkins replied that she had reviewed the conditions and had no problems with them.


Ms. Joseph said that the church had done a really good job of putting the parking behind the building and keeping as many of the trees.  She was happy to see that there was some reverence for the Oak trees.  She appreciated the sensitivity to placing the parking behind the building.


Motion: Mr. Morris moved, Mr. Strucko seconded, to approve SP-2006-016, Mountain View Full Gospel Church, as depicted on the August 24, 2006 drawing with the recommended conditions, and also to approve the waiver from Section 18- to allow five years from the date of approval of this Special Use Permit to commence construction instead of two years.


  1. The  site plan amendment  shall be developed in general accord with the concept plan  received August 24, 2006, prepared by Glenda Atkins, and titled “Mountain View Full Gospel Church Concept Plan” (Attachment A.1 and 2) 
  2. The sanctuary area shall be limited to 192 fixed seats. 
  3. A tree conservation plan in accord with Section is required to be submitted, reviewed and approved prior to approval of a building permit for any structure shown on this concept plan.
  4. Tree removal shall be limited to 5’ beyond all parking areas. 
  5. A 20’ (minimum) width of existing woodland along the southern property boundary shall remain undisturbed. 
  6. Five large oak trees located off of the northwest corner of the existing church building shall be included on the tree conservation plan.    
  7. VDOT approval of the entrance including the sight distance requirements is required to be granted prior to building permit issuance.   
  8. This use shall commence within 5 years of the date of approval rather than the 24 months stated in section
  9. There shall be no day care center or private school on site without the approval of a separate Special Use Permit. 


Mr. Cilimberg noted that in sending this to the Board for action staff will make sure that there is a specific reference in condition #1 to the attachment that the Commission noted.


The motion passed by a vote of 6:0.  (Commissioner Higgins was absent.) 


Ms. Joseph stated that SP-2006-016, Mountain View Full Gospel Church, would go to the Board of Supervisors on October 4 with a recommendation for approval.


            Public Hearing Items:


SP-2006-023 Luck Stone Quarry Flood Control Berm (Sign #50)

PROPOSED: Request for fill in the floodway fringe to allow for a flood control berm on a 127.797 acre parcel.

ZONING CATEGORY/GENERAL USAGE: RA  Rural Areas: agricultural, forestal, and fishery uses; residential density (0.5 unit/acre); FH Flood Hazard - Overlay to provide safety and protection from flooding;  NR Natural Resource - overlay to allow natural resource extraction; EC Entrance Corridor - overlay to protect properties of historic, architectural or cultural significance from visual impacts of development along routes of tourist access


COMPREHENSIVE PLAN LAND USE/DENSITY:  Rural Areas - preserve and protect agricultural, forestall, open space, and natural, historic and scenic resources/ density (0.5 unit/ acre); Parks and Greenways - parks; greenways; playgrounds; pedestrian and bicycle paths


LOCATION: One (1) mile East of the US Route 250 / I-64 Interchange (Shadwell Exit 124) on Route 250 (2611 and 2905 Richmond Road, Charlottesville)



STAFF:  Tamara Ambler


Ms. Ambler summarized the staff report. 


·         This application is to construct an earthen flood control berm along Barn Branch, which is a stream that feeds into the Rivanna River.  The berm will be constructed at the existing Luck Stone Quarry that is located on Route 250.  The intent of the berm is to remove the quarry from the 100-year flood plain.  The new flood plain mapping that was effective in 2005 shows the quarry in the floodplain now.  The floodplain is marked on the display.

·         The applicant has shown, and the County Engineer confirmed, the fact that the quarry area is in the floodplain and is a consequence of back water from the Rivanna River and the years of excavation.  It is not needed for the carrying capacity for flood waters of the Rivanna. 

·         The construction of the berm along Barn Branch will not affect the 100-year flood plain or affect adjacent properties.  The berm is not readily visible from Route 250 due to a number of factors:

o        The distance of the berm to the road.  The berm will not begin until about 400’ from the road.     

o        The elevation difference between Route 250 and the property. Route 250 is about at the elevation of 320’ and the top of the berm is going to be 309’. 

o        There is a lot of tree cover along the stream in between where the berm will be and the road that obscures the views.

·         The Architectural Review Board did not want to fully review the request, but staff will have the Design staff review the mitigation plan.

·         The applicant plans to plant riparian vegetation along Barn Branch to mitigate the placement of the berm in the stream buffer.  In addition, the applicant is in the process of establishing an easement for a greenway trail along the Rivanna.  Dan Mahon has been coordinating with the applicant and can add a few more comments about that. 

·         Staff is recommending approval of this with the five conditions listed.  The conditions basically deal with approval of grading and erosion sediment control plans prior to the activity, approval of the planting plan for mitigation along the buffer area on the property and coordination with the Federal Emergency Management Agency that do the mapping. They will get a conditional letter of map revision and copy the County Engineer on all of that required administrative correspondence.


Ms. Joseph asked if there were any questions for Ms. Ambler.


Mr. Cannon said that Ms. Ambler had made a reference to back water in addition to the flood area that had increased as a result of not only the mining that took place on the property.


Ms. Ambler replied that it came from the water back up from the flood waters of the Rivanna backing up into Barn Branch.


Mr. Cannon asked if that was a situation that did not exist in past times.


Ms. Ambler replied that the new modeling done for 2005 now shows that.


Mr. Cannon asked if the water back up into the Barn Branch in the time of floods was to a greater extent than previously thought.


Ms. Ambler agreed as previously modeled.


Ms. Joseph asked if when the berm goes up if that blue area goes away or does that become less.  She asked if the floodplain area changes as a result of it.


Ms. Ambler replied yes, that once they keep the water from getting there, then it would not be considered to be in the floodplain anymore because of the elevation.


Ms. Joseph said that they were building a little band to move that floodplain back towards the creek.


Ms. Ambler replied that was correct.


Mr. Cilimberg noted that condition 3 was about that because it would be a map revision.


Ms. Ambler said that is correct.  Basically, what would happen is that the FEMA maps will be changed and they will have that letter of revision from FEMA.


Ms. Joseph opened the public hearing and invited the applicant to speak.


Ben Thompson, on behalf of Luck Stone Corporation, said that this issue was brought to their attention once the review was ongoing for the second permit, which the Commission will be hearing this evening.  Frankly, it was pretty much a surprise and was due to the fact that the FEMA maps were remodeled within this past year.  When FEMA remodeled those maps their extraction area entered the 100-year floodplain.  It is very important just for the sake of our operation that they remedy that in a responsible manner.  Staff proposed this berm to solve that problem.  The berm, which will tie in, is roughly 2’ to 9’ of an average build up and will tie into the existing grade on both ends.  As part of this project FEMA will be providing all necessary review documents and ascertain whether it correctly removes that pit from the 100-year floodplain without negatively impacting the water way system. Luck Stone is acceptable to all conditions that staff has proposed.  Others present tonight include Cory Otis, of the Timmons Group and Scott Cook, of Luck Stone. They would be happy to answer any questions the Commission might have.


Ms. Joseph asked if there were any questions.


Mr. Craddock asked who is responsible in years to come for the berm after the quarry is finished and the property is sold. Also, does the berm have to stay there forever?


Mr. Thompson replied that if anything would happen to that berm it would have to come back before this group.  It is earth work within that 100’ setback off of Barn Branch and any earth work within that area has to come before this group.  Personally, he could not see why anyone would want to disturb the berm because then they would be creating a larger floodplain for themselves. 


Ms. Joseph invited public comment.  She invited Dan Mahon to come forward and speak since he was the first person on the sign up sheet.


Dan Mahon, Greenway Planner with Parks and Recreation, said he has been working on getting a greenway system in that area with Luck Stone even prior to this application. It is important to acknowledge corporate partners or the folks who make willing dedications.  It is a real good example for the community to see.  That section through there has got some sections that have evidence of the old Toe Path where the boats were hauled up the river.  There is a portion down near the bridge that has remnants of the old canals. Part of the work that they will be doing in establishing the greenway is to clean it up and restore those things.  He wanted to make that comment and have it in the record that Luck Stone has proactively been working with him to make this dedication and he wanted to thank them for it.


Ms. Joseph asked Mr. Mahon if he might work with staff to find some time that they might have a slow meeting that he could come and tell the Commission about all the pathways that he has out there.  She would like to know where they are, what condition they are in, what is walkable, what is missing and what is connected.


Mr. Mahon agreed that he would work with staff on that.


There being no further public comment, Ms. Joseph closed the public hearing to place the matter before the Commission. 


Mr. Craddock felt that it was a good application because it is critical for this berm to be there in order for the next application to be able to see the light of day.


Mr. Kamptner asked staff if the FEMA condition will include the requirement that the berm be maintained in a particular condition.


Ms. Ambler replied yes, that the condition 5 would include that.


Mr. Kamptner acknowledged that condition 5 addressed Mr. Craddock’s question about the maintenance of the berm.


Mr. Morris noted that in working with a client near Scottsville that he recognized the value of a well planned berm during flooding.


Motion: Mr. Craddock moved, Mr. Morris seconded, to approve SP-2006-023, Luck Stone Quarry Flood Control Berm, with staff’s recommended conditions:


1.    County Engineer approval of a grading and an erosion and sediment control plan prior to the issuance of a grading permit for activity in the area of the flood control berm.

2.    Natural Resources Manager and Design Planner approval of a mitigation plan for the restoration/enhancement of the stream buffer prior to the issuance of a grading permit for activity in the area of the flood control berm.

3.    Applicant shall obtain a Conditional Letter of Map Revision (CLOMR) from the Federal Emergency Management Agency (FEMA) and copy the County Engineer on all correspondence.

4.    County Engineer approval of as-built drawings for the completed flood control berm, including geotechnical engineer certification of the adequate compaction of the fill.

5.    Upon completion of the flood control berm the applicant will comply with the conditions identified in the CLOMR issued by FEMA and will copy the County Engineer on all correspondence related to this matter.


The motion passed by a vote of 6:0.  (Commissioner Higgins was absent.) 


Ms. Joseph stated that SP-2006-029, Luck Stone Quarry Flood Control Berm, would go to the Board of Supervisors on October 4 with a recommendation for approval.


SP-2005-026 Luck Stone Asphalt Plant Relocation (Sign #50)

PROPOSED: Relocate existing asphalt mixing plant site on the 127 ac. Luck Stone quarry property to a 4.1 ac. area on the southwest corner of the property, north of the railroad

ZONING CATEGORY/GENERAL USAGE: RA -- Rural Areas: agricultural, forestall, and fishery uses; residential density (0.5 unit/acre); NR Natural Resource - Overlay to allow natural resource extraction; EC Entrance Corridor - Overlay to protect properties of historic, architectural or cultural significance from visual impacts of development along routes of tourist access; FH Flood Hazard - Overlay to provide safety and protection from flooding

SECTIONS: 18-30.4.02(2) asphalt mixing plants; 18-30.4 natural resource; 18-30.6 entrance corridor overlay; 18-30.3 flood hazard

COMPREHENSIVE PLAN LAND USE/DENSITY:  Rural Areas - preserve and protect agricultural, forestall, open space, and natural, historic and scenic resources/ density (0.5 unit/ acre); Parks and Greenways - parks; greenways; playgrounds; pedestrian and bicycle paths


LOCATION: 2528 Richmond Road (Rt. 250), appx. 1-mi. east of I64 intersection



STAFF: Joan McDowell


Ms. McDowell summarized the staff report. 






Ms. Joseph asked if there were any questions for Ms. McDowell.


Mr. Cannon asked if the line of sight documents show that the existing asphalt plant is visible from Monticello and the proposed asphalt plant with the height limitation of 83’ would not be visible from Monticello.  He wanted to make sure that is what the Monticello letter says.


Ms. McDowell said that the relocation of the asphalt plant would benefit the line of sight due to the topography and the closest tree line on the Shadwell property that is controlled by Monticello that is under easement.


Mr. Edgerton asked how tall the existing plant was.


Ms. McDowell replied she did not know, but that the applicant is here.


Mr. Edgerton noted that on page 5 of the staff report under factors that are favorable #2 it says that the buffer between the quarry and Route 250 between the proposed asphalt plant and the river will be maintained unless a portion of the southern portion along the river, the County greenway, is installed.  He said that he did not understand what that means.


Ms. McDowell said that this is the area that the greenway trail has been proposed, which is shown in the aerial.


Mr. Edgerton asked if the buffer would be violated by the greenway trail.


Ms. McDowell replied yes, but just on the southern part closest to the river. 


Mr. Edgerton asked when staff was referring to the buffer if she was talking about totally undisturbed and that once a trail was put in that it would disturb it a little bit.


Ms. McDowell replied yes.  The trails would be class B and would be fairly narrow.


Mr. Cilimberg noted that it was a by-right allowance.


Ms. Joseph asked Mr. Mahon if they would use discretion to preserve large trees and move the trail around them.


Mr. Mahon replied that was exactly true, which was why the plan shows that the width of the greenway varies.  It is so they can work with the contours and topography of the land to have something that fits without having to construct it.  It is a class b trail, which is a responsive trail to the existing land conditions.


Ms. Joseph said that their expectations are that they are not going to see a huge swath of trees removed.


Mr. Mahon replied no.  As a matter of fact, with Luck’s Stone permission, they have sketched the route in and had the inmate crew out to clear the route that the trail will follow so that they could go down and see what it is that they are asking for.  What they see on the plan right now, except for some small caliper trees that they took out, are merely what is now on the ground and the way it would be established with very little impact.


There being no further questions, Ms. Joseph opened the public hearing and invited the applicant to address the Commission.


Ben Thompson, representative for Luck Stone, presented a drawing of the site for the Commission to review.  Ms. Ambler and Ms. McDowell did such a thorough presentation that it left he very little to add.  He reiterated that Luck Stone has proudly been a part of Albemarle’s business community since the 1930’s.  They have worked in conjunction with S.L. Williamson since 1961.  They began this application process last October to relocate Blair Williamson’s and her father’s existing asphalt plant.  It is important to note that this application is solely to relocate an existing use on site.  Because the plant predates the zoning ordinance it currently operates at a grandfathered status.  The need for the special use permit is based on changing the plant’s physical location.  They are not expanding the operation and actually limiting the hours.  The current asphalt plant is at a greater elevation than what they are proposing.  The line of sight issue is really a big issue for Monticello.  It moves further away from Stone Robinson Elementary School and the move away from them will impact the school to a lesser extent.  That is why they both Monticello and Stone Robinson Elementary School have graciously written a letter in support.  They started this application even before it came to the County. They set down with Monticello and Stone Robinson School.  Through the process they have also been speaking to their various neighbors.  It has really become a project that has brought them into the fold and they have given their input with.  As mentioned they have been operating in Albemarle since 1960.  While it has various components that have been interchanged since then, this plant is going to go away.  In addition to moving, it is going to be an entirely new plant.  With that it will become within the mechanical standards and increased controls of today.  The new plant is equipped with modern dust suppression, sound dampening equipment, recycling capacity and emission controls.  In his terms, it is light years ahead of what is existing today.  With this application the County has provided a list of conditions to address among other things hours of operation, noise, internal traffic flow, dust suppression, maintaining of existing buffers, lighting and height limitations.  All of these conditions are acceptable to them.  He appreciated the Commission’s time this evening and respectfully requests their positive recommendations to the Supervisors.  He pointed out that several individuals present this evening are Kevin Black, Vice-President for this location, Blair Williamson, President and operator of S.L. Williamson, Phil Tippet, with the manufacturers of the plant and Scott Cook, of Luck Stone’s engineering department.


Mr. Edgerton said that Mr. Thompson mentioned that the recommendation was to reduce the operating hours.  He asked what the current operating hours are.


Mr. Thompson replied that it was 365 days a year 24 hours a day.  They don’t operate at that, but that is the current allowance.


Blair Williamson noted that she could count on one hand the number of Saturdays they have operated and zero nights. 


Mr. Cannon asked if they started operations in 1961, and Mr. Thompson agreed.


Mr. Cannon said that there would be water limitations.  Also, they would be subject to the clean air act limitations that the plant was not subject to when they came on line in 1961.


Ms. Williamson asked to answer that question.  Currently, they have various permits through DEQ.  They have an air quality permit that they received in 1961.  However, they report annually.  Because they are not considered a major producer to DEQ on any kind of air quality issues they just submit their data on their tonnages and outputs.  They just monitor all of the asphalt plants across the state. There is some visual sampling, but no actual sampling.  They check for opacity.  This plant was built in 1961 or the shell was built in 1961, but it has been upgraded quite a bit.  But, the new plant is going to be a Cadillac compared to a Model T.  It is just light years ahead of what is there now.  They have an oil discharge contingency plan that is also called a VPES plan that they renew every five years.  Our current plan expires in 2011.  They have a SPCC plan, which is a spill prevention plan.  It talks about any kind of control over anything that would spill.  They don’t use any water. It is all just rock, asphalt and sand as basic ingredients.


Mr. Cannon asked if they don’t have any discharge of the surface water.


Ms. Williamson replied no, except what falls on them from the sky.  Currently all of their water falls into the pit, which it is going to do at their new location.  The new plant is about the same height as the old plant.  But, in elevation they are 50’ higher than they would be in the new location.  So they will be virtually unseen. 


Ms. Joseph invited comment from other members of the public.


Steve Peters said that they are the one residential entity in the area being impacted on Auburn Hill Farm.  They had faxed a letter to staff today, which staff did not have time to include in the packet.  They received a letter from the applicant covering a couple of other issues.  The letter covered technical things like an odor and that it is a better plant. They get very technical.  The letter basically assured us that it is not going to negatively impact us in any fashion from moving it over to the other location.  If something comes up, they will rectify it for us. Ms. McDowell and the applicant met with them several times and addressed all of their concerns. They have been a good neighbor. In the past they have done what they have said that they were going to do.  He was sure that would continue.  They had a lot of concerns because they have a little historic farm.  They were in the middle of remodeling the farm and plan on being buried on it.  The County and the applicant have been very good and spent all the time necessary to cover the basics of it with them.  He submitted his letter to the Commission for their review.  (Attachment – Letter from Steve Peters to ensure that they would not be negatively impacted.)


There being no further public comment, Ms. Joseph closed the public hearing to bring the matter before the Commission.


Mr. Morris commended the applicant for having talked with their neighbors about the request previously.


Mr. Cannon felt that this is an improvement for the environment as well as for the economic operation of the facility.  Therefore, he was in favor of it.


Ms. Joseph echoed Mr. Morris’ comment because it is a good policy to go and talk to your neighbors before you come before the Commission because it is so much easier.  The neighbors find out things and nobody is blind sided.  She really appreciated that.


Motion:  Mr. Craddock moved, Mr. Morris seconded, to approve SP-2005-026, Luck Stone Asphalt Plant Relocation with the recommended conditions, as amended changing the dates to the records just received, as stated.


1.             Special Use Permit 2005-26 shall be developed in general accord with the concept plan, titled "Luck Stone Corporation Special Use Permit Asphalt Plant Relocation Conceptual Plan", dated August 1, 2006, and Cross Sections (Line of Sight) Plans for Auburn Hill dated 10/27/05 and for Monticello dated 11/22/05 (Attachment A).  However, the Zoning Administrator may approve revisions to the concept plan to allow compliance with the Zoning Ordinance. 

2.             The existing asphalt plant shall be demolished and removed from the property no later than two months following the start of operation of the new plant.  

3.             Approval of this Special Use Permit shall expire when the adjacent quarry is no longer in operation. Hours and days of operation shall not exceed 7:00 AM to 10:00 PM Monday through Saturday and 7:00 AM to 12:00 AM Monday through Saturday for no more than 60 days per year.

4.             Sound/noise barriers and attenuation measures, as described in the ASTEC, Inc. Certified Engineers Report (Attachment C), will be provided as necessary to comply with the County “noise” requirements (Code 18-4.18).  The applicant shall identify these measures on the site development plan and the asphalt plant building permit plans.

5.             Plant site lighting will comply with County “outdoor lighting” requirements (Code 18-4.17).

6.             A copy of the Virginia Department of Environmental Quality “construction permit” shall be submitted to the county engineer prior to approval of a final site plan for the asphalt plant.

7.             A special use permit for fill within the flood hazard overlay district shall be obtained, to allow the raising of the ground elevation adjacent to Barn Branch and creation of a levee to protect the quarry and its operations from the 100-year flood, prior to approval of a site plan for the asphalt plant.

8.             A Conditional Letter of Map Revision (CLOMR) is required to be obtained by the applicant from the Federal Emergency Management Agency (FEMA) and a copy provided to the county engineer prior to the issuance of a building permit for the asphalt plant.

9.             Prior to County issuance of a zoning clearance and certificate of occupancy for the plant, the applicant shall: 

·         Submit and obtain county engineer approval of as-built drawings for the completed and stabilized levee (including geotechnical engineer certification of the adequate compaction of the fill).

·         Provide the county engineer with documentation demonstrating that the information necessary to address the conditions of the CLOMR has been submitted to FEMA. 

11.         The buffer area along Route 250 shall be maintained to provide a visual barrier between the operations on the site and Route 250. 

12.         The asphalt plant shall be designed in a manner to provide forward circulation for trucks as they enter, load, and exit the area, as depicted on the plan titled "Luck Stone Corporation, Charlottesville Plant Site Map Asphalt Plant Relocation" and dated August 8, 2006 (Attachment B).

13.         No direct conveyance of storm water from the asphalt plant area to Barn Branch shall be permitted.

14.         The natural landscape area between the CSX Railroad south of the proposed site and the Rivanna River on TMP 79-7B shall be maintained in its current natural state, as shown on Attachment D, with the exception of allowing for a greenway trail, should a greenway trail be installed in the future.

15.         The maximum height of any portion of the asphalt plant shall not exceed 83 feet, as measured from the finished site grade.


The motion passed by a vote of 6:0.  (Commissioner Higgins was absent.) 


Ms. Joseph stated that SP-2005-026, Luck Stone Asphalt Plant Relocation, would go to the Board of Supervisors on October 4 with a recommendation for approval.


ZMA-2006-007 Hollymead Town Center Area B Proffer Amendment (Sign #80)

PROPOSAL:  To amend approved proffers on land that is zoned PDMC: Planned Development Mixed Commercial - large-scale commercial uses; and residential by special use permit (15 units/ acre). No dwelling units are proposed.


EXISTING COMPREHENSIVE PLAN LAND USE/DENSITY:  Town Center -- Compact, higher density area containing a mixture of businesses, services, public facilities, residential areas and public spaces, attracting activities of all kinds. (6.01-34 dwelling units per acre).


LOCATION: West of Route 29 between Town Center Drive and Timberwood Boulevard.

TAX MAP/PARCEL: Tax Map 32, Parcel 43; Tax Map 32, Parcel 43B, Tax Map 32, Parcel 43C; and Tax Map 32, Parcel 43D


STAFF:  Sean Dougherty


Mr. Dougherty summarized the staff report.


·         The owners are Hollymead Town Center, LLC and Target Corporation.  The street, which is the subject of the proffer lies approximately 75 yards to the west of Area B, is the area of the town center that contain Target and Harris Teeter.  It is a request to amend an approved proffer and extend the deadline to construct a half section of Meeting Street by two (2) years.  The street lies within Area A, which is not yet been rezoned, but it is an Area B proffer.

·         In order to get a certificate of occupancy for the Target Store at the Hollymead Town Center the proffers required the applicant to bond Meeting Street.  In conjunction with being a certificate of occupancy being issued for Target per the applicant had proffered to construct to have a section of Meeting Street one year after Target was opened.  Target opened on June 15, 2005.  One year later was June 15, 2006, which means that the road should have been built by that point. Since then the proffer has been in violation.  The applicant would like to extend the original deadline by two (2) years.  On August 18, 2006 the Chief of Zoning directed staff to withhold all permits in the area.




·         Factors Unfavorable

o        The requested two year extension for construction of the road may lag behind significant development in areas C and D.

o        No circumstances have changed to allow staff to consider the original commitment to be inappropriate.


·         RECOMMENDATIONS:  Staff does not recommend extending the proffer. However, if the Commission feels extending the proffer is appropriate; it should only be extended until August 15, 2007. This would allow roads required to support the town center to be in place before additional developments in Areas C and D are occupied, provide sufficient time to build the road and have it accepted by VDOT, and to reduce impacts on existing roads prior to the fall season when the area’s population and vehicle volumes increase due to returning students and the end of summer.


·         Staff clarified the diagram by noting that the section shown in red is what the applicant had committed to build a half section of.  Essentially what they would get is from the end of Area C in Area A to the intersection of Town Center Drive and Meeting Street.  The applicant is not required by the proffer to construct this section.  This section was built for Area B.  With this proffer being constructed they would not have a connection between these two areas.  It was just with the applicant’s commitment alone.  What is shown as blue is a small segment of the street that was bonded when Meeting Street was bonded engineering inquired this area so they could have a full connection.  He just wanted to make that distinction.  He was sure the Commission would have questions, but each different area is highlighted.  Area A has not yet been rezoned, but has been reviewed by the Commission once in a work session and once in a public hearing.  But, part of the commitment of the Area A applicant would be that once this land is rezoned that they could build half of the section or all of the section.  It all depends on when each player builds their part of the section.  Right now the Area B player is in limbo. 


Ms. Joseph asked how many of the buildings are in there already and if Area B was fully built out at this time.


Mr. Dougherty replied that he believed that with the existing zoning that everything is built.


Mr. Edgerton asked which Certificate of Occupancies were currently being denied under the direction of staff.


Mr. Dougherty replied that specifically he did not know.  It is not a majority of the Town Center.  The applicant might be able to answer that question.


Mr. Cannon asked what would be the purpose of extending the road.  What access would it provide that is not now provided and what would be the benefits of that access.


Mr. Dougherty said that one benefit in general is that the sooner the road is built the sooner it can be accepted by VDOT and the sooner impacts in Areas C, D, B and maybe even A will be able to be mitigated through the road. 


Mr. Cannon asked what are the impacts in Areas A, C and B that the road would help mitigate at this half road.


Mr. Dougherty replied that there are about 150 townhouse lots that have been subdivided.  There are 42 townhouses that are part of a site plan that is about to be approved in Area C.  On page 5 of the staff report it states that Area D has been subdivided in to 94 townhouse lots with another 60 anticipated in the near future.  A total of 4 final site plans for Area C are under review.  These include 55,000 square feet of office/retail, a 1,700 square foot restaurant, a 6,700 square foot assisted living facility and 42 townhouses.  So basically the fourth full paragraph on page 5 at the top sort of outlines what those things are.  Now, of course, they are not built, but are under review.  Generally when approval is issued for a final site plan they could anticipate construction. He had no reason to think that these other developers won’t want to basically develop these projects that they have under review with the County currently.


Mr. Strucko asked if Meeting Street is an access road to Area D potentially.


Mr. Dougherty replied not directly, but it does not go straight into Area D, but when it was built Town Center Drive or Timberwood Boulevard could be used to get up to Area D.  But, as shown red it runs parallel and Area D is shown in green.  It is not directly touching. Without Town Center Drive connecting into Meeting Street the only way to get to Area D would be to go from Charlottesville up to Timberwood Boulevard and going all the way through Area C to get to Area D.  What was anticipated is that there would be many connections allowing you to get to Area D without going north and doubling back.  Those roads will be in place.  The Area C roads that were proffered have not yet been accepted by VDOT, but they have been constructed. 


Mr. Cannon asked if he came from below Area B and came up Town Center Drive, when he got to Harris Teeter does he stop now.


Mr. Dougherty replied that currently the road ends at the back of the parking lot that is to the side of the Harris Teeter, which is associated with the Star Bucks.


Mr. Cannon said that he stops there and there is no connection then to the rest of Town Center Drive.  He asked if the upper part of Town Center Drive exists now.


Mr. Dougherty replied no, that it ends basically where the blue dots are located on the drawing.


Mr. Cannon asked what Meeting Street ties into now.


Mr. Dougherty replied that right now it would not tie into anything.  When Area A is rezoned that road would tie in.  The bond that is established for Meeting Street does tie in.  The blue dots are a segment that is included with Meeting Street.  That would have a full connection.  But as of right now with what the applicant is committed to it would take the Area A owner coming along and constructing Town Center Drive to connect it.  The larger question is do they want to take this process, which obviously as the report outlines may be a four or six month process to build and another seventh month process for VDOT to be accepted, and do they want that to lag another two years. 


Mr. Cannon asked what would be the time frame. 


Mr. Dougherty replied that the Area A applicant had a work session last year in the fall.  They were scheduled for a work session a week from today.  They had deferred because they were not prepared.  At this point the applicant for Area A has said that he would like to have a rezoning approved by December.  That is about the best he had to offer as to what will actually occur.


Mr. Cannon asked where after that rezoning they would expect as part of that rezoning to have commitments to build the rest of Town Center Drive and the rest of Meeting Street.


Mr. Dougherty replied yes, if and when Area A was rezoned.  The staff report says that further the road proffers described in paragraph 3, which talks about the Meeting Street, shall be satisfied when any portion of Area A is rezoned and the owner of Area A makes a proffer binding Area A or any portion thereof, the obligation stands in this proffer.  Staff has no reason to believe that the applicant for Area A won’t do that. They don’t know how long it will take the Area A applicant to get to that point.  It might be two months or it might be two years.  The question is that a comfortable time frame for the Commission.  The way this was set up was with contingencies in place.  The contingency here is that if Area A did not come in for a rezoning at least they would get half of the section of road and that some of the roads designed with the traffic study would get built regardless of who took action on what portion. 


Mr. Cannon said that there is a proffer made and accepted and he thinks that is a serious question that the Commission needs to look at.  But, he still did not quite understand what the purpose of half of Meeting Street not connecting to anything else apparently was.  Therefore, he was missing something.


Mr. Strucko noted that he understands that Meeting Street proffer was shared among different owners for the entire length of Meeting Street.


Mark Graham said that there are two sections that were responsible for Meeting Street. Area C was responsible for the part that is within Area C.  They have actually fulfilled their proffer requirement and have constructed that part of the roadway.  Then Meeting Street within Area A up to Town Center Drive was part of this proffer for Area B.  He would also add that an extension of Town Center Drive from the Area B boundary at the Harris Teeter all the way to Dickerson Road was required within three years of approval of the rezoning, which would have been July of this year.  Staff anticipated that Town Center Drive would be completed all the way through to Dickerson Road and Meeting Street would match into that.  That built the street grid that the travel model had assumed. 


Mr. Cannon asked if that was associated with the rezoning of Area B.


Mr. Graham replied that was correct.  That was proffered as well, but has not been carried out. 


Mr. Strucko asked if Timberwood Boulevard currently ran through to Airport Road.


Mr. Graham replied that it was not currently opened.  It is constructed with a base material on it, but they are still blocking it off.  They don’t have to open it until they have built buildings that are ready for Certificates of Occupancy.  At this point they don’t have any buildings and they are under no obligation.  Obviously, for Area D they will need it because they use it for their point of access.


Mr. Strucko asked if currently the only access point into any of these areas is Route 29.


Mr. Graham replied that is correct.  Town Center Drive is built up to the Harris Teeter to a full section there.  Then Timberwood Drive is built to what is shown as that first roundabout within.


Mr. Strucko asked if to get to from Town Center Drive to Timberwood Boulevard or vice-versa you go through the parking area of Target and Harris Teeter.


Mr. Graham replied that is correct through the middle of the shopping center.  The traffic mode that they were working with when they were considering proffers for Area B had assumed Ridge Road.  He added that when they were discussing those proffers with Area B they had no idea when Area C and Area D would be fully built out.  Therefore, in asking for this proffer for Ridge Road and Town Center Drive and the timing it was based on the possibility that Area C and D could build much more quickly than Area B. 


Mr. Edgerton asked why this promise that has not been fulfilled so significant.  If the Commission went along with the applicant’s request wouldn’t the lack of fulfillment of the connection of Town Center Drive up have the exact same effect?


Mr. Graham replied yes, but that they have in the proffer the ability to bond that and have that constructed.  The bond amount has been given, but he was not sure if the bond has been posted as of today.  But, they were trying to post the bond, which was one more promise that has to be fulfilled.


Mr. Edgerton asked if that would trigger the same issue to the Zoning Department.  He questioned what the value was to do anything until the promises are met.


Mr. Cannon asked what the proffer on Town Center Drive as distinct from Ridge Road or Meeting Street was.


Mr. Graham referred to proffer 3, which starts at the bottom of page 9.  It refers to the plans for such road improvements have been submitted and such improvements are not accepted for VDOT for public use within the three years, sufficient bond has been supplied to satisfy all costs of such improvements.  That is where they are at right now. They either have posted the bond or they are within day or so of getting the bond posted.


Mr. Kamptner noted that the signatures were needed on the bond.


Mr. Graham noted that there is still a problem under proffer 3 as well.


There being no further questions for staff, Ms. Joseph opened the public hearing and invited the applicant to address the Commission.


Steve Blaine, representative for the applicant Target Corporation and Hollymead Town Center LLC., said that Jeff Dierman who is a partner in the Hollymead Town Center is here as well.  There are some facts that they need to make sure that they have clear.  They are clearing up the matter of proffer 3.  But, just to be completely clear the applicant has never owned the land on which Meeting Street has been always designed.  It has always been what they call an off site proffer.  The County is aware of that.  In view of that, they have a private agreement with the owners of Area A to construct that.  Our clients have already contributed $400,000 for the construction of that improvement.  The County was aware of the ownership when they accepted the bond for Meeting Street.  In fact, there has been a bond submitted for Town Center Drive to link it all the way to Dickerson Road to 29 that would provide that link that was contemplated in the proffer.  That has been submitted for over a week. It may still be in review at the County Attorney’s Office, but it is our belief that proffer has been satisfied.  The delay in meeting that proffer has been in arriving at the plans for Town Center Drive.  What has happened in the process of the rezoning of Area A is all beyond our client’s control is that designs have been more fully developed for Town Center Drive to be the type of road that the County desires and frankly that they all desire for the center.  But, that has been two years in the process.  The applicant, who is obligated for this proffer, does not know whether road plans for Meeting Street have been accepted.  They have never seen road plans for Meeting Street that would be the half section that Mr. Dougherty has referred to.  They proffered a two-lane section.  If by that the County means that what they desire is a four-lane section, then what they have is that they have had the circumstances evolve since the proffer was made. That is really the basis for our request is that when they made the proffer, yes, there were a group of owners who were coming together to try to put together a road network.  But, it was recognized that they had different ownership. It was expected with the rezoning of Area A that this proffer for Town Center Drive including providing this key link from the back of our property to the intersection with Meeting Street would be met.  But, as the process has been prolonged again beyond our client’s control the road plans have only recently been approved.  Therefore, the bond amount being agreed to and set they maintain that the bond has been placed.  It is important to point out that since they don’t control this property they have to gain access and cause the owner of that property to make the improvements.  They don’t have the ability to go in and compel the owner of this property to make the vital link that would make Meeting Street a practical through connection to Route 29.  So they take issue with the staff’s characterization that this is going to ameliorate any traffic that may develop as a result of the development within Area A and Area C within the relevant time frame.  Putting aside the fact that they are just in the approval process even if these could be constructed these improvements that were described earlier in the most rapid manner imaginable they still could not get access to 29 through this link without this key component, which the County has the remedy and power now with the bond in place to make it happen. But, our client ironically does not.  So the basis for their claim is that they have an obligation, which they can’t as a practical matter bring about.  The tenants and the finishing out of the center are being jeopardized by the violation of this proffer.  Putting aside the fact that they don’t want to be in violation of anything in the zoning, they are being penalized for a remedy that as a practical matter cannot bring about.  The two year time frame they suggest would be the maximum amount of time that the rezoning of Area A would be relevant and the obligation imposed on Area A or the County calling the bond and having all of the road improvements installed.  Our client has offered when they met back in February seeing these clouds on the horizon to find out what they could do to expedite the process. They offered to complete the road if the County would call the bond.  They talked about a number of other options.  They met again in April about what to do.  They were directed by the staff to apply for a proffer amendment.  Then in May they learned, but did not receive any of these notices directly, that the owner of Area A was issued a stop work order.  Even if the willingness and the ability on our part had been there to complete that road segment they could not have done so anyway because the County was stopping the work.  He felt they have made a case that the proffer should be relieved altogether.  But, they understand if the County wants to have another party in interest to exert pressure on the owner of Area A that they would need two years.  That is probably what it would take in a court action to get this road built.  But, they don’t think the County needs that because the County has the cards.  The County has the leverage on Area A through the rezoning and through the bonding mechanism.  If the owner of Area A fails to complete any of these critical roads links the County has the money in the form of a letter of credit or a bond to call and complete that road network.  They don’t have the ability to do that.  They can only give them a half of a road that leads to nowhere.  Therefore, they would ask that there be relief.


Mr. Edgerton said that he believed that the applicant bought Area B from the owner of Area A.  He asked if that was correct.


Mr. Blaine replied that was correct.


Mr. Edgerton asked why they would agree to this proffer if they were not willing to following through. 


Mr. Blaine replied that was a good question.  He asked why they ever agree to pay $400,000 for a road that they have not seen built.  The answer is that they had a comprehensive plan that they were working together on and it was important to have not only land uses that coordinated, but a road network that coordinated for the various land uses.  So at the time when the closing occurred there was great cooperation.  Nevertheless, they tailored an agreement that gives them remedies against Area A if and when and they maintain defaults.  But, the problem is that those remedies won’t get the road built to what they want to work as a circulation.  The remedies would likely not even allow us to go on to the owner’s property.  It is possible that the court would say you can’t have what is called specific performance, but you can have a remedy at law.  In other words, whatever results from this default they could recover the lost rent or whatever, but have to proof it?  The court is not going to allow them to go on to an owner’s property and build a road.  That is an extraordinary remedy unless there is no other remedy available.


Mr. Edgerton asked even though the proffer specifically states that his client has the right to go on and build that road and charge Mr. Wood for it.


Mr. Blaine said that it might take two years to convince the court that our only available remedy is to build the road.  But, the court might say that is too bad that they could still recover from Mr. Wood or the owner of A for money damages or the damages that he has caused by not fulfilling the private obligation.  He was trying to involve the County in a private agreement.  They are just maintaining that the County still has remedies that are more complete than what they have against them. 


Mr. Cannon asked what would be involved in the option if the County called the bond and proceeded directly or through them to have the road constructed.  He asked how that would work.  What are the mechanisms involved in that and how long it would take.


Mr. Blaine said that he did not have any experience in that, but he could introduce his client to answer.  He thought that their role would be construction management and it will be the contractor for the County because the County would have the funds to pay for the road construction.


Ms. Joseph suggested that they have Mr. Graham involved in this conversation.


Jeff Dierman said that the bond itself was posted by Mr. Wood.  The County has the money available by proceeding against the bond.  How it then builds a road is the way any municipality or governmental authority would do if they called a bond.  They can go obtain a contractor.  They could obtain Faulconer to build the road and pay them from the funds of the proceeds of the bond. 


Mr. Cannon asked whether the County would then be in the position of managing the construction as a County project.


Mr. Dierman replied that he would assume, but was not sure what the County would.  They have suggested that they would be happy to assist in any way possible.  Obviously, they have to be very careful because they would end up in litigation if the bond is called by the County and all of sudden they are involved in that.  He felt that it was a risk that they would probably be willing to take to get the proffer met.


Mr. Graham said that this is obviously a process that the County tries to avoid going through for the calling of a bond.  This is not a cash bond.  In this case it would be a letter. Therefore, the County has to go to the institution that has provided the bond and say that they are calling the bond in default.  They may at that point contest our finding that the bond is in default. If so, then the County gets into litigation that can be fairly lengthy to get the money.  Once the County gets the money they have to following state procurement law, which means they can’t simply go out and pick a particular contractor and say the County wants them to build this for us.  They have to put a proposal out on the street and solicit bids for that.  Then they have to go with the low bid for the qualified bidder.


Mr. Edgerton asked how often the County calls a bond.


Mr. Graham replied that they have done two for storm water management since he has been here.


Mr. Cannon asked who would make the decision to call the bond.


Mr. Graham replied that it was the County Engineer.  They base it on the conditions in the bond agreement, which includes a schedule for completion of the work.  That is most likely what they would base the default on in that they did not construct the improvements in the time frame in the schedule that is laid out in the bond agreement.


Ms. Joseph said that in essence they would be spending County money on staff to prepare and call this bond.  They have to send it out to bids and do some managing of the job itself.  So somebody decides to do a rezoning and proffers something and then the County gets involved in spending public funds on making sure that this proffer is done.


Mr. Graham replied that was correct.  But, they did have administrative overhead built in to the bond amount.  So they can potentially recover those costs as part of their costs for managing the project.


Mr. Kamptner noted they could not recover the lost hours.


Mr. Strucko said that the bond only covers that portion represented by the blue dots.


Mr. Dougherty replied that it includes the blue dots and the red center.


Mr. Morris asked if the Commission denies this request for two years and says that they agreed to something and now they have to live up to it.  But what he was hearing is that is wonderful, but they can’t live up to it because the land belongs to somebody else and it was part of an agreement.  He asked if he was hearing that correctly.


Mr. Graham replied that was correct.  To put it in an historical perspective, what happens at the time of the rezoning staff is saying based on their traffic study that the applicant supplied us this road is required to assure an adequate transportation network for this project.  How are they going to address that?  The applicant proffers to provide those improvements.  Staff understands that they have some sort of private agreement between the various entities, but that is a private agreement and does not involve the County.  There was a mention of a stop work order.   That stop work order resulted because of repeated erosion and sediment control violations out there over a very long period of time and a great difficulty in getting the applicant to comply with that and because the Board of Supervisors had already indicated they wanted us to hold the owners of that property to a high standard because of downstream problems that have already occurred. 


Ms. Joseph said that area has been massively graded.  So the area where the road is has been graded.


Mr. Graham said that it is all covered under the same erosion and sediment control plan. 


Ms. Joseph asked if there were any other members of the public present that would like to speak on this request.  There being none, she closed the public hearing to bring the matter before the Commission.


Mr. Edgerton said that this was an example of exactly what they don’t want to happen in Albemarle County.  They don’t want just the commercial portion finished and sold.  The commercial portion is a money maker and a quick one and can be built and then everything else goes on hold until the market catches up.  The County has been had.  The proffers are the only leverage that they have.  As far as he was concerned he felt that they ought to be enforced.  He saw no benefit to the County.  There is a loophole here because what is a half road. He did not see any benefit or value to the County in letting them off of this requirement.


Mr. Strucko said that the Commission and County have been faced with a lot of complaints from residents that infrastructure is not in place as the development is occurring.  They create a problem with development first and then they follow with the infrastructure.  This is certainly an area where they want concurrency to occur to have the road network in place as the development is occurring.  The County worked hard to get proffers and now they want the proffers exercised.  He asked how they arranged to exercise the proffers are met. Was it through a private arrangement?  If so, that is fine because however they want to do it just do it. The risk associated with that business deal is that this proffer would fall through and there would be a delay.  That is the circumstance that they are facing now.  But, that is business risks and not County government risks, which is his concern.


Mr. Cannon said that he would like to see a way to get this fixed sooner rather than later. It is important that when people make proffers that they be offered seriously and enforced. 


Mr. Edgerton said that otherwise, the proffers become meaningless.


Mr. Strucko said that this is complex arrangement.  There are multiple owners and adjacent parcels that have to share the infrastructure costs.  He could certainly sympathize and understand with the complexity of the arrangement, but choosing business partners is part of the deal.  Again, the County’s concerns should be that the infrastructure be built by the applicant where ever the applicant made arrangements to do that.  He questioned if they were missing something.


Mr. Cannon noted that he had no doubt that the remedies available to the owner here against the owner of Area A are complicated.  He did not know what the Judge would do.  But, he could certainly understand if the Judge decided not to grant the specific performance and directed the case towards some damage remedy, which would leave the owner hanging out there to some extent with some possible complication in the future.  But, that is not going to get the road built.  That is the issue about what the owner can do or what anybody else can do to get done what they want to have done.  But, he thought that it was a separate issue and it is really what people are focusing on as to how they encourage the community of developers to understand proffers when they are made and understand our willingness and commitment to stand behind them.  That is an institutional issue of some significance here.


Mr. Strucko said that he was still a little vague and confused about calling the bond.  What would the sequence of events be if the Commission was to deny this?


Mr. Kamptner said that they would first determine whether or not the terms of the bond have been violated and send a notice to the parties and the surety.  The surety would have the opportunity to step in and perform the work.  If not, then the County could step in and receive the cash and let the contract out to do the work as Mr. Graham explained.


Mr. Strucko asked what the timing of that was.


Mr. Graham replied that based on past experience it is a minimum of six months and more likely a year to start construction.  The RFP process is probably going from advertising for a contract to actually turning dirt is about four months.  The rest is how long they have to go through and what legal hurdles are they going to have to get through the process to actually get the cash in hand.


Mr. Strucko noted that could be that the docket is full.


Mr. Graham replied that it could be that way.  The calling of the bond is a determination based on the facts based on the bond agreement.  They look at the bond agreement.


Mr. Cannon asked if staff looked at the bond agreement and agreed that it was in default, then the County is obligated to proceed and correct that default through calling the bond.  He asked if staff was going to have to do what they don’t want to do if the Commission denies this.


Mr. Graham replied that was correct.  He noted that nobody wants to have a bond called against them.  That step alone will prompt all of the parties to come to some sort of solution on this thing. 


Mr. Craddock asked Mr. Blaine to respond.


Mr. Blaine noted that they were looking for a practical solution.  Mr. Graham was alluding to it.  He would expect that in the end that financial incentives will lead to the road being completed sooner than all of these other mechanisms that they have discussed.  He believed that they have a road plan that links this termination of Town Center Drive to Meeting Street. They have been told that the owner of Area A chose or preferred to complete all of that in one job.  The thread of the calling of the bond and the penalty and financial disincentive to that owner would cause that person who is in the best position, who does not need permission to go on his own property, with an approved plan to expedite construction.  Again, not knowing that they have a road plan that would just allow our applicant to do the half section of Meeting Street, again they are in violation but they don’t have a means to bring it about.  He felt that they were being held to a standard that was not just.


Mr. Strucko said that he was wrestling between practicality and principle here.  There are no guarantees that would happen.


Mr. Morris noted that has bothered him all along.  If they had extended this proffer for five years it seems that the owner is still faced with the horns of the dilemma that he is on right now in getting somebody else to say yes you can come on to my property and do it.


Ms. Joseph said that they were thinking that maybe area A would come in and that will solve all of the problems.  But, that is not necessarily going to happen.


Mr. Edgerton said that Mr. Blaine has made it very clear that the current owner of the property does not have as much leverage as they may need to have to have made the promise that they made.  He took issue when he said that it was unjust.  His client signed that agreement and made that promise.  Therefore, there is nothing unjust about that.  To offer a new promise that they can get it done in two years would make him question why they should believe them now.  What creditability have they given us?  The Commission has participated on one work session on Area A and it is far from a rezoning.  He questioned whether they would have the property rezoned by the end of the year.  He agreed with Mr. Graham that if they go ahead and push the calling of the bond that will at least bring the person who has the most ability to solve this problem into the room.


Mr. Cannon noted that if the Commission grants this extension, then the bond would not be called.


Mr. Edgerton noted that the staff report on page 21 is pretty clear that the applicant has the ability and responsibility to build this road and charge Mr. Wood for it if, in fact, Mr. Wood has not fulfilled his obligation.  He was sure nobody wants to do that.


Mr. Craddock said that with the whole situation being such he would like to see the Area A owner put to the fire and build the road because a lot of the requests that he voted for was predicated on certain things happening.  It is unfortunate that the Area B owner is being held to it, but they also made the agreement.  If calling the bond will get the road built and get things moving, then that may be the way to do it.  He hated to see the County going through a lot of action during the next two years with no guarantee about what is going to happen.


Ms. Joseph felt that when the owner bought the property that they knew what was happening and yet they still kept building.  They made the decision to build and contacted the local businesses and now they are in trouble and it is not the County’s fault.  Therefore, she could not support it.


Motion:  Mr. Morris moved, Mr. Strucko seconded, to deny ZMA-2006-007, Hollymead Town Center Area B Proffer Amendment, for the reasons stipulated in the staff report.


The motion passed by a vote of 6:0.  (Commissioner Higgins was absent.) 


Ms. Joseph stated that ZMA-2006-007, Hollymead Town Center Area B Proffer Amendment, would go to the Board of Supervisors on October 11 with a recommendation for denial.


Return to executive summary


The Planning Commission took a ten minute break at 8:11 p.m. and the meeting reconvened at 8:19 p.m.


            Work Session:


CPA-2004-002 Pantops Master Plan - This work session was focused on transportation and neighborhood connections, including roads, transit, and pedestrian and bike goals and recommendations of the Pantops Master Plan, as well as an update on transportation studies that are underway outside of this master plan. Also, this work session was intended to include a review of previous work sessions on the Pantops Master Plan draft elements and include a discussion of the next steps in the master plan process. (David Benish/Rebecca Ragsdale)


In summary, the Planning Commission held the third work session on CPA-2004-002, Pantops Master Plan, with a focus on transportation issues and how connections between places in Pantops will be improved.  Staff reviewed the staff report and went through the public concerns regarding transportation to provide a brief overview of what staff has heard. Transportation has emerged as the highest priority issue to be addressed in Pantops and a great deal of public response during the master plan process has been focused on transportation issues. 


Staff focused on the following issues:

·         Public Concerns on Transportation – Roads, Transit, Pedestrian and Bikes

·         Studies – Summary of relevant studies that have been completed or are underway regarding transportation in Pantops

·         Planned Road Improvements in Pantops

·         Pantops Master Plan Preliminary Recommendations for Transportation

·         Public Input on the Preliminary Recommendations for Transportation


·         Richard Spurzem provided input regarding new information on a recent land purchase that he had made in reference to the relocation of Hansen Mountain Road through the Gazebo Plaza site to Glenorchy Drive.  He noted that they have been working with VDOT regarding this problem along the Route 250 Corridor as part of the final site plan he has under review with the County for the project. Mr. Spurzem provided the Commission a copy of the road relocation plans.


The Planning Commission discussed staff’s recommendations regarding transportation and provided comments and suggestions.


·         Infrastructure is needed for pedestrian access. An emphasis should be placed on the consideration of pedestrian overpasses or cross walks in the Pantops area. Language should be included to suggest the County make a commitment through the development process to figure out how to get pedestrians safely to their destination

·         The Commission expressed concerns regarding possible additional widening of Route 250.

·         There was support of Route 250 having a boulevard character to provide sidewalks and street trees to slow down traffic.

·         Bus stops need to be shown along Route 250, particularly in the park and ride areas.

·         The Commission directed staff to provide more specific recommendations with regard to interconnections proposed to existing residential areas with rural roads and lack of pedestrian facilities. (Such as Fontana and Glenorchy) The Commission would like to see stronger language and priority placed on improving the rural sections and upgrading.

·         In follow up on the Commercial Mixed Use Corridor shown on the Framework Plan (red area on map) from last week, the Commission voiced concerns about the wide range of uses allowed from residential to commercial to industrial uses. 


o        Staff noted that the Commercial Mixed Use designation (red area on map) calls for mixed use development and would encourage re-development that was not necessarily highway oriented.  This category allows for a broad range of commercial uses such as car dealerships that currently exist in that area.  It does not discourage those types of uses and encourages redevelopment.     


o        A suggestion was made to add design control, possibly corridor specific, to foster change in the Commercial Mixed Use Corridor and ways to encourage people to look for more creative ways in form to accommodate the social need for these types of services, such as car dealerships.  An example was to make better use of the topography.  It was suggested that staff borrow language from the Neighborhood Model.


o        Monticello’s view shed, or lack of visibility of this Commercial Corridor from Monticello, was considered by staff in designating the Corridor Commercial Mixed Use. The Commission had questions as to what maps or studies were available on Monticello’s view shed. Staff noted that there is a study and that is available should the Commission want to review it, but was not recently prepared and is not in the County’s GIS system.


o        The Planning Commission directed staff to provide a report summarizing all three work sessions prior to moving forward with the Master Plan process



Mr. Benish said that next staff will come back to the Commission in a short work session or under a new business item where they would summarize all of the recommendations and clean them up based on what staff heard from the Commission so that they could have an understanding of what they are writing from.  At that time staff will provide some preliminary build out capacity numbers.  The 20 year growth projections will be provided at a later date.


            Old Business:


Ms. Joseph asked if there was any old business.  There being none, the meeting moved on to the next item.


            New Business:


Ms. Joseph asked if there was any new business.




o        The Commission expressed concerns about not having enough information to make an informed decision without the full staff report from staff, but asked staff to provide an example to review so they could make the decision.  The question was raised whether a selective determination could be made to provide full staff reports for the more complicated requests.  The Commission asked staff to invite Mark Graham to come with a mark up or model of the trimmed down staff report and discuss this issue with the Commission. 


There being no further new business, the meeting proceeded.




With no further items, the meeting adjourned at 9:54 p.m. to the Tuesday, September 12, 2006 meeting at 6:00 p.m. at the County Office Building, 401 McIntire Road.


Return to consent agenda
Return to regular agenda