Albemarle County Planning Commission

February 20, 2007


The Albemarle County Planning Commission held a meeting, work session and a public hearing on Tuesday, February 20 2007, at 6:00 p.m., at the County Office Building Auditorium, Second Floor, 401 McIntire Road, Charlottesville, Virginia. Members attending were Eric Strucko, Calvin Morris, Vice-Chairman; Jon Cannon, Marcia Joseph, Chairman; Bill Edgerton and Duane Zobrist.  Absent was Pete Craddock. Julia Monteith, Senior Land Use Planner for the University of Virginia, representative for David J. Neuman, FAIA, Architect for University of Virginia was present. 


Other officials present were Wayne Cilimberg, Planning Director; Amelia McCulley, Director of Zoning & Current Development/Zoning Administrator; Brenda Neitz, Budget Analyst and Melvin Breeden, Director, of the Office of Management and Budget; Patrick Lawrence, Planner; Rebecca Ragsdale, Senior Planner; Summer Frederick, Senior Planner; Sean Dougherty, Senior Planner; David E. Pennock, Senior Planner; Scott Clark, Senior Planner; Judy Wiegand, Senior Planner 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.


ZMA 2006-00011 Whittington PRD Amendment (Sign #70)

PROPOSAL:  Rezone 182.58 acres from Planned Residential Development (PRD) to PRD with an application plan (see Zoning Ordinance §  The PRD district allows residential uses at a density range not to exceed 35 units per acre.  The proposed application plan would allow 96 residential units and a residential density of approximately 0.53 residential units per acre.


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


LOCATION: Old Lynchburg Road [Route # 631] approximately 500 feet north of the intersection with Forest Lodge Drive.

TAX MAP/PARCEL: 89-95, 90-3, 90-45, 90-46, 90-47, 90-48


STAFF:  Scott Clark


Mr. Clark summarized the staff report and gave a power point presentation.


§         This rezoning request is an amendment of an existing planned residential development located in the rural areas.  It is 182 acres located on Old Lynchburg Road south of the City of Charlottesville in the southern neighborhood of the development areas.

§         The property was rezoned to PRD in 1977.  One of the conditions of that rezoning was changed in 1980.  That remained in that zoning, but undeveloped up until 2004 at which point 14 acres from the southwest side of the property were removed from the PRD zoning and returned to the Rural Areas zoning district. 

§         Recently the applicants came to the County with their plans to subdivide the property in accord with the PRD zoning on the remainder of the property or 180 acres.  The Zoning Department issued a determination that in order to proceed they would need to have their application plan brought current with the requirements of the zoning ordinance Section 8.  This request is not in fact to change from Rural Areas zoning to PRD zoning, but to simply update the application plan for the remaining 180 acres in the existing PRD. 

§         There were 104 lots in this development, but 8 lots were lost from the removal of 14 acres.  It is now 96 lots in the remaining area of the PRD.

§         He distributed a copy of the 1980 plan received from the applicant.

§         The new plan shows public roads, whereas the old plan showed a mix of public and private roads. 

§         The development is in the Albemarle County Service Authority area for water service, but not for sewer.  The applicant did request that the Board consider granting sewer service, but the Board declined to consider that option.  At this point the development will be served entirely by public water, but dependent on septic fields.

§         As an update from the staff report, of the 96 lots on this plan there is one lot that is not quite large enough for the 4,000 square foot requirement for any lot that is on one service either water or sewer.  In this case, lot 78 is about 5,000 square feet too small.  That would just have to be fixed before this goes on to the Board.  That could be a part of the Commission’s action on this to change that lot size so that it meets that requirement.

§         The original zoning on this had an original set of conditions as noted in the staff report.  Those conditions have been replaced in this case by a set of proffers that are in Attachment D.  Staff will answer any questions that the Commission might have.

§         The property also has 65.8 acres of open space with wooded areas, trails, pocket parks and an observation tower at the southwest corner near the highest elevation.  Beyond the request for the amendment to the zoning the applicants are also asking that the Commission make a finding, as mentioned in the staff report, that this open space area be found acceptable under Section 4.7 of the zoning ordinance.


Staff has identified the following factors, which are favorable to this rezoning request:

·        The proposal has been made to meet current zoning requirements, and does not propose increased development in the Rural Areas over that already permitted.

·        The number of proposed lots has been reduced from 104 to 96, thus slightly reducing the amount of residential development occurring in the Rural Areas.


Staff has identified the following factors, which are unfavorable to this rezoning request:

·        This proposal is not consistent with Rural Areas policy. However, as noted previously, it slightly reduces the number of lots from that allowed under current zoning.




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


Mr. Strucko asked by right how many units can be developed on this parcel now.


Mr. Clark replied that essentially until this application plan is approved none.  The applicant needs to have that action.


Mr. Strucko said that it was 104 acres and then 14 acres were put in the rural area.  Therefore, now there is 96 acres.


Mr. Edgerton asked Mr. Kamptner asked how the 1980 ordinance applies in this.  He asked if this case was similar to the Gazebo issue.


Mr. Kamptner replied that this case was similar to that and what is now the shopping center on Pantops where the Giant Center is located.  The way the ordinance works is that there was some lands that were rezoned to a planned development district in 1980 as part of the comprehensive rezoning that did not have application plans accompanying that rezoning.  It was just part of the legislative action.  So Section 8 of the zoning ordinance requires that before those lands could be subdivided or planned through a site plan the owner has to come through the process to have the application plan approved.  But, the zoning is already in place.  So this land already has PRD zoning.  So the uses are already established.  The maximum density is already established.  Really all the applicant has to do to proceed to the next step is to get approval of the application plan.  So the Commission’s review is really determining whether or not the application plan meets the requirements of Section 8 of the zoning ordinance. 


Mr. Edgerton asked if it was the old zoning ordinance.  What they are looking at here would meet the 1980 ordinance.


Mr. Kamptner said that the applicant in this case has elected to proceed under the 1980 ordinance.


Mr. Edgerton asked if it was the choice of the applicants even though they have done nothing to vest this over the last 25 years.


Mr. Kamptner replied that is correct because there is no vesting requirement and the PRD designation remains as long as it remains on the property the owner has the right to choose whether to proceed under the old or the current regulations.


Mr. Edgerton asked if under that same circumstance if the zoning of a piece of rural land in the County was established before 1980 but nothing has been done, but a lot has changed in the ordinance since that time we have no authority to require the new ordinance on that.


Mr. Kamptner replied no, that the Section 8 regulations at least as far as that particular provision is concerned that it is consistent throughout.  It is rural areas at the Comprehensive Plan level.  The land itself has been zoned for the Planned Residential Development for 27 years.


Mr. Edgerton said that Mr. Clark’s answer to the initial question was what the allowed density now with the 14 acres is.  The answer to his question is whatever the maximum density.


Mr. Kamptner replied that the allowed density in the PRD District, as Mr. Clark noted in the staff report, is 35 dwelling units per acre. This is coming in around one half of a dwelling unit per acre. 


Mr. Cilimberg noted that to distinguish with his example of the rural areas, the Rural Area District is not a Planned Development District.  What is kicking in the opportunity to use the 1980 provisions is the fact that this is planned development that existed at the time of that ordinance change.  It is a little different and kind of an apples and oranges thing there.


Mr. Edgerton said that the question asked was if he had taken a piece of rural area and established the zoning before 1980 and changed to density that stayed with it.  It really surprises him that they have no obligation to move on this for a quarter of a century and somehow have the same rules applied.  That does not make a whole lot of sense when they are trying to figure out how to improve the situation in the County. 


Ms. Joseph asked how the critical slopes application works on this.  Is that something because they were showing in the past these lots with critical slopes that is okay at this point.  Do they go back to whatever application plan was approved, and yet this is a modification of that?


Mr. Kamptner replied that the critical slopes regulations were whatever existed in 1980.  Whatever existed in 1980 is what would apply. 


Mr. Joseph said that whatever regulations in 1989 concerning critical slopes would apply to this.


Mr. Kamptner agreed.


Mr. Strucko said that he was trying to understand fully the factors that are favorable with this to rezoning request.  It says that the number of proposed lots has been reduced from 104 to 96.  Is that a favorable factor?  Wasn’t that the result of the 2004 rezoning?


Mr. Clark replied yes.  He noted that would be more neutral than favorable.  The applicant is using the area that they have remaining.


Ms. Joseph clarified that when the Board of Supervisors declines to hear the request to be placed in the jurisdictional area that means no.


Mr. Cilimberg replied that at this point yes.  Without a hearing of the Board there is not a jurisdictional area change that can take place.  They always act initially to set a hearing.  If they decline to set a hearing, it is essentially declining to change the jurisdictional area.  That does not mean that they could not revisit that at any point in time.


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


Chris Schooly, Director of Land Development with Stonehaus Development, said that he appreciated the Commission’s confusion in this situation.  There are very few pieces of property in the County that have this type of zoning.  They are trying to stand in front of the Commission today and sort this out.  At the point when staff ruled that their application plan with their original rezoning was no longer valid they lost the rights to their property and are here today to present an application plan and to regain those rights.  They have met the standards set forth in Section 8 as outlined by the 1980 zoning ordinance.  With the staff’s assistance they feel like they have met what Section 8 has asked them to do.  They have made some improvements to the plan to make it a better place to live.   They think that there area number of people in this community who are still looking for an opportunity to live on 1 acre lots.  There are a number of quarter- acre lots that is far less through the County.  They think this is an opportunity to try a marketable product that people want to live on in an interesting way.  It is an opportunity for them to provide 1 acre lots where people might go out and buy 2 or 5 acre lots in the rural area.  They feel that they have met Section 8 and welcome any questions.


Ms. Joseph asked if there were any questions.  There being none, she asked for public comment.


Craig DeBoise, an adjoining property owner, voiced several concerns that he was sure are probably shared by a number of folks who live along Old Lynchburg Road.  This first is Old Lynchburg Road itself.  He presented some photographs showing the condition of the road.   He questioned the wisdom of going ahead and approving this before anything is done to improve the situation with the road.  The photographs were taken at 790 Old Lynchburg Road, which is ½ mile north of the main entrance to this proposed development.  The curve is a blind curve where it goes from 4 lanes to 2 lanes on a downhill slope.  He has seen cars out in the field many times to the left that did not make the curve.  He knows of at least one person that has been killed in that curve in the last five years.  This situation with the flooding occurs anytime that there is heavy rain or snow fall.  What happens is that the people that are Inbound towards town just pull out in left lane, which is completely blind to the oncoming traffic.  That is one concern.  There are a number of blind curves and blind hills along this 1 mile section of the road.  There are no shoulders on Old Lynchburg Road in that area.  It is a very popular route for bicycle riders.  It is common for traffic to pull out and pass the bike riders by going over into the other lane.  It just seems unconscious able to put 200 more cars on that section of road unless something is done to improve the road itself.  Somebody is going to get killed and already have.  There are a number of people who live along Old Lynchburg Road that would also share my concern.


Doug Arrington said that he lived off the 1100 block of Old Lynchburg Road.  He noticed in reading through the staff report that there is a 55’ right-of-way from the center of Route 631.  It said that it would be a right-of-way if needed to the County.  Then the buffer for the road would be beyond that.  He was curious if this all ties into the other development along Old Lynchburg Road, such as Biscuit Run.  In the TIA report it shows that as the fourth entrance into Biscuit Run.  He asked if in the whole scheme of things if that section of Old Lynchburg Road could be straightened out as far as Old Lodge Road with bike lanes at least that far so that in future years there would be something to plug into.  They would also be correcting a very serious defect from the 600 to the 1000 block of Old Lynchburg Road.  He also addressed the Board last Wednesday concerning this section of road.  Mr. Boyd posed a question.  Staff indicated that something was going to happen there.  He knew they were going to put turn lanes in.  But, in his speaking with transportation staff there was no plan to do anything with that road.  The TIA claims that 10,000 cars a day can go through there and with those criteria in mind there is no need to make any improvements.  He disagreed with that.  It would be very nice if in the planning of all of this they could get a right-of-way in the Biscuit Run corridor and go ahead and at least straighten it as far as Forest Lodge.


Allison Grower, a homeowner adjacent to the property, agreed that they need to do something with Old Lynchburg Road, particularly about the water problem shown in the photographs. There is traffic that turns out of Mosby Mountain that makes it even harder in that area.  They have cyclists all the time up and down the road.  But, she also has a personal question to the developer in the fact that it looks like there is an easement across her driveway.  She wanted to make sure that she can egress into her house and that the easement would stay. 


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


Mr. Edgerton said that he was really having a lot of trouble with this because of the legal issues.  What right do they have to recommend denial if any.


Mr. Kamptner said that the Commission was not considering the use.  That has already been established.  The scope of the Commission’s review tonight is only to consider whether or not the application plan meets the requirements of Section 8.5.1.  Staff has determined that the application plan meets the current requirements for the application plan. 


Mr. Edgerton noted that was a 30 year old ordinance.  That was what he was having trouble with.


Mr. Kamptner said that when the site is developed through a subdivision plat it will be reviewed under the 1980 Subdivision Ordinance.  That is what our regulations say and what the Board of Supervisors decided.  This request goes to the Board of Supervisors with a recommendation from the Planning Commission on the application plan.


Mr. Edgerton asked if the Commission was making a recommendation for a rezoning.


Mr. Kamptner replied that it was really the second step of the rezoning.  It is the essential step that is needed because of this quirk in our regulations and in the quirk that this property was rezoned to a planned development district without an application plan back in 1980.  So the Commission is really only looking at the application plan.  Once the application plan is approved by the Board of Supervisors the development is by right.  It is really just the application plan that is the step between that and by right development.


Mr. Strucko noted that the Commission’s is severely limited.  The concern here is broader than this project.  That is 1,000 more daily vehicle trips on Old Lynchburg Road as they consider the general area at large and what is going to happen there.  He would take the information from this and carry it forward into other considerations for this area.  They are going to have to amend a lot of the data they have been looking at now.


Mr. Cannon noted that in the Comprehensive Plan it was still rural areas, but it was zoned for the density of development as indicated here. 


Mr. Kamptner replied that was correct.


Mr. Cannon said that they fight hard to keep the rural areas rural areas, but it might be that they lost that fight a long time ago on this piece of property.  He was not sure what the Commission’s options are.


Mr. Zobrist asked Mr. Kamptner if the Board of Supervisors decided to take jurisdiction and change the zoning on this they still could be because there is no by right to this zoning.  He asked if they have done any thing to affect that right.


Mr. Kamptner replied that is what they are doing right now.


Mr. Zobrist noted that if the Board of Supervisors came in and did away with all of the grandfathered rezonings and rezoned them all, then they might have a little bit of litigation and might be able to do it.


Mr. Kamptner replied that it would have to be comprehensive in nature.


Mr. Cannon asked how that would affect what they do tonight.


Mr. Kamptner noted that the Commission needs to act on the application plan that is in front of them tonight and make the recommendation to Board for their April 11 meeting.


Ms. Joseph asked the applicant to come forward. One question she asked staff had to do with sidewalks, bike paths and street trees.  Maybe it is in our Comprehensive Plan as rural areas, but that is not how this is developing. They see other things happening in the area.  One of the things the Commission has been discussing it how to get people out and about using other means of transportation other than cars.  In the email from staff it said that you’ve indicated that if the Commission feels that these are necessary, bike paths, sidewalks and street trees, that they would include them before this goes to the Board.   She asked the applicant’s opinion on that.


Chris Schooly replied that they would commit to street trees. 


Ms. Joseph asked how about sidewalks.


Mr. Schooly replied that in a lot of ways on a site on a side of a hill like this that he was not sure if that it makes a lot of difference.


Ms. Joseph noted that in that area there was a lot of dense development that wants to happen.  If Old Lynchburg Road were improved the improvements will include pedestrian pathways and bike paths.  She felt that they need to connect themselves into that system. 


Mr. Schooly pointed out that they have provided a system of paths.  They feel that there is a place for suburban development since a lot of people would like to live on an acre and the privacy that comes with that.  He did not think that the sidewalks would take away from it, but they were providing a trail system that connects every lot throughout and allows them to get outside and into trees and into nature.  It is a different system. 


Ms. Joseph noted that it was essentially an internal system, which sort of turns it back to the neighborhood. 


Mr. Schooly replied that it attaches to the two adjacent neighborhoods, Mosby Mountain and Mountain Valley with destinations.


Ms. Joseph asked it provided easements that allow public access.


Mr. Schooly replied that would be up to the homeowner’s association.


Ms. Joseph noted that sidewalks on a public street would allow anybody to walk on them.


Mr. Schooly replied that was true.


Ms. Joseph noted that was something that he would not be interested in doing.


Mr. Edgerton noted that the applicant was being very direct with the Commission in saying that he was not willing to cooperate.


Ms. Joseph asked if this subdivision only complies with the 1980 ordinance then the idea of sidewalks and any kind of interconnectivity is gone.  The current ordinance requests interconnectivity with adjoining property.


Mr. Kamptner replied that he did not recall that the 1980 ordinance requires that.


Mr. Cilimberg noted that there were provisions about Interconnectivity in the old ordinance, but he can’t tell the Commission all of the particulars.  They were not going to be dealing with the application of the most recent subdivision ordinance amendment language.


Mr. Strucko made a motion that ZMA-2006-00011, Whittington PRD Amendment, complies with Zoning Ordinance Section


Mr. Kamptner asked that he include that the application plan meets the requirements of Section 8.5.1.d.


Mr. Strucko said that he would include that in the motion.


Mr. Morris seconded the motion.


Mr. Zobrist asked that the motion be restated.


Mr. Strucko moved that this application complies with those sections of the Zoning Ordinance.


Mr. Zobrist asked if that was all that they were doing.


Mr. Strucko asked if that was what staff was recommending to be done tonight.


Mr. Kamptner replied yes.


Ms. Joseph supported the motion, but not the plan.


Mr. Kamptner asked that the motion be amended to include recommending acceptance of the proffers.


Mr. Zobrist asked which lot had to be reconfigured to meet the requirements.


Mr. Kamptner replied that it was lot 78.


Mr. Strucko amended his motion as Mr. Kamptner stated.


Mr. Morris seconded the motion.


Ms. Joseph felt that it was a shame that the applicant did not feel enough for the community that they could make this connect in other ways.


The role was called.


The motion carried (5:1) (Mr. Edgerton voted nay.)  (Mr. Craddock was absent.)


Note:  Mr. Zobrist, Mr. Strucko and Mr. Cannon voted aye with the reservations that Ms. Joseph expressed in supporting the motion.


Motion on ZMA-2006-00011, Whittington PRD Amendment:


Motion: Mr. Strucko moved, Mr. Morris seconded, that ZMA-2006-00011, Whittington PRD Amendment comply, inclusive of the application plan dated 11/22/2006 and the proffer form dated February 8, 2007, with Zoning Ordinance Sections 8.5.1.d.


The motion passed by a vote of 5:1.  (Mr. Edgerton voted nay.) (Mr. Craddock was absent.)  Note:  Mr. Zobrist, Mr. Strucko and Mr. Cannon voted aye with the reservations that Ms. Joseph expressed in supporting the motion.


Motion: Mr. Strucko moved, Mr. Morris seconded, that the uses proposed within the open space are appropriate under the standards set by section 4.7 of the Zoning Ordinance for ZMA-2006-00011, Whittington PRD Amendment,


Ms. Joseph noted that if the applicant took out the observation tower that she might be able to support the motion. But, she could not support it with the observation tower.  She did not know what it would look like or what it was supposed to do.  She would rather see a sidewalk than an observation tower. 


Mr. Strucko withdrew his motion.  He asked Ms. Joseph to explain her concern.


Ms. Joseph replied that she did not know what an observation tower is or whether it was appropriate in an open space because she did not know what it is doing.  She questioned what it looks like.  Its purpose is to observe, but she did not know if it was necessarily appropriate. 


Mr. Strucko asked what the Commission’s discretion is here.


Mr. Cannon asked if the observation tower part of the open space proposal. 


Ms. Joseph replied that the applicant has it under open space.  On page 4 it has passive recreation and it talks about the proposed open space includes trails, pocket parks and an observation tower. 


Mr. Cilimberg suggested that the finding could be the consistency without the observation tower if that is what the Commission should chose. 


Amended Motion Regarding Open Space Meets the Requirements of Section 4.7:


Amended Motion: Mr. Strucko moved, Mr. Morris seconded, that the uses proposed within the open space are appropriate, excluding the observation tower, under the standards set by Section 4.7 of the Zoning Ordinance for ZMA-2006-00011, Whittington PRD Amendment.


The motion passed by a vote of (5:2).  (Ms. Joseph and Mr. Edgerton voted nay.)  (Mr. Craddock was absent.)


Ms. Joseph stated that ZMA-2006-011, Whittington PRD Amendment, would go before the Board of Supervisors on April 11, 2007.


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