Albemarle County Planning Commission

June 19, 2007


The Albemarle County Planning Commission held a meeting and public hearing on Tuesday, June 19, 2007, at 6:00 p.m., at the County Office Building, Auditorium, Second Floor, 401 McIntire Road, Charlottesville, Virginia. Members attending were Bill Edgerton, Eric Strucko, Pete Craddock, Calvin Morris, Vice-Chairman; Duane Zobrist and Marcia Joseph, Chairman. Absent was Jon Cannon.  Julia Monteith, AICP, Senior Land Use Planner for the University of Virginia was absent.  Mr. Strucko arrived at 6:07 p.m.  Mr. Craddock arrived at 6:09 p.m.


Other officials present were Elaine Echols, Principal Planner, Mark Graham, Director of Community Development, John Shepherd, Chief of Current Development; David Pennock, Principal Planner; Sean Dougherty, Senior Planner; Joan McDowell, Principal Planner and Greg Kamptner, Deputy County Attorney.


Call to Order and Establish Quorum:


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



Public Hearing Item:


ZTA-2007-0002 New enabling authority for accepting proffers:  Amend the Zoning Ordinance to accept proffers under the enabling authority of Virginia Code § 15.2-2303 rather than under the currently utilized authority of Virginia Code § 15.2-2298.

Proffers - Amend Sections 2.3, Conflicting Ordinances; 3.1, Definitions; and 33.3, Proffer of Conditions, of Chapter 18, Zoning, of the Albemarle County Code.  This ordinance would amend the references to the state enabling authority for conditional zoning, amend the definition of “proffer,” and would change the state enabling authority under which the County accepts proffers from Virginia Code § 15.2-2298 to Virginia Code § 15.2-2303. (Wayne Cilimberg)


Mark Graham, Director of Community Development, presented the staff report for ZTA-2007-0002 in Mr. Cilimberg’s absence.  This is a fairly straight forward request.  In the last General Assembly there was legislation passed under 15-2-2303 to allow Albemarle County and other high growth counties to take advantage of the conditional zoning legislation for accepting proffers.  As soon as staff became aware of this they brought it to the attention of the Board who was very anxious to see this go forward.  Staff has put together an Attachment B that shows some of the advantages of switching to this form.  A couple of things have been noted where it has been hard for staff to show a direct impact under the old authority where they could ask for proffers for things such as affordable housing, green buildings and other types of issues.  With that he would leave this to the Commission with a note that staff is recommending approval.  If there are any questions, he would be happy to do so.


Ms. Joseph asked if there were any questions for Mr. Graham.


Mr. Morris said that it was great to read this and have a guideline.


Mr. Craddock asked what the benchmark was for a high growth locality.


Mr. Kamptner replied that it depends on the legislation.  For proffers it is 5 percent between the next to the last and the last centennial census.  It used to be 10 percent.


Mr. Craddock asked if they go under 5 percent does it revert back or will it always be like this until it is changed again or get State legislation.


Mr. Kamptner replied that he did not know because it would be hard to imagine going back to that point.  They have not looked at that.


Mr. Graham noted that if it dropped below 5 percent that means that the annual growth rate is going to drop to below ½ percent per year.  That is hard to imagine that happening.


Mr. Kamptner added that in the table in Attachment B under item 1, proffers under 15.2-2298 that statute expressly requires that proffers be voluntary.  Section 15.2-2203 does not have the same language.  But, about thirty years ago the Virginia Supreme Court said that proffers are voluntary.  Although the language is not in the statute the practice will continue to be as it has been.  They will be perceived as voluntary.  It is up to the applicant to continue to decide whether or not it wants to address the impacts from a rezoning.


Ms. Joseph asked if there always has to be some sort of connection between the proffer and the rezoning application request.


Mr. Kamptner replied yes, because the proffers do have to be reasonable.  Even though Section 15-2-2303 does not expressly require that the conditions have a reasonable connection to the rezoning that for a condition to be reasonable there has to be some kind of connection.  The strongest reason to shift to Section 15.2-2303 is that it gives us the express authority to accept proffers for matters that are not necessarily generated by the rezoning.  The two areas that they have struggled with include LEED and the affordable housing.  State law requires that the Comp Plan address affordable housing.  But, if they take a market approach to housing and approve a rezoning that has residential development they are increasing the supply, which in turn should reduce having a negative impact on individual house values.  So this legislation gives them a better authority to tackle more social related issues like affordable housing and LEED.  There are a number of other issues also.


Mr. Zobrist said that in reality he thought that it exempts them from litigation if they don’t give a rezoning if they don’t like the proffer.


Mr. Kamptner replied that it probably gives us a better position, but the two cases that are noted in the table being the Chesterfield case and the Powhatan case are the two key proffer cases.  The distinction between the two was that Powhatan said that they are not going to approve the rezoning because they did not proffer $4,000 per dwelling unit.  The approach that Chesterfield took was that their Board decided that they would not approve the rezoning because they did not proffer X number of dollars and they failed to mitigate the impacts resulting from the rezoning.  Staff had identified all of those impacts that go unaddressed.  That will continue to be the practice here as well.


Mr. Zobrist noted that they have lots of tools to get their proffer policies to where it needs to be as he understands it.


Mr. Kamptner said that the voluntary aspect of proffers is not that the County is simply sitting back and waiting for the developer to proffer something.  They have a cash proffer policy and identify the impacts.  The voluntary aspect is that the applicant in the rezoning does not have to proffer that cash amount.  It does not have to address affordable housing.  The result may be that the Board may not approve the rezoning because impacts are not addressed. 


Mr. Zobrist asked if the developer has the right to offer something different than that to mitigate.


Mr. Kamptner noted that the Board will be considering the cash proffer policy tomorrow.  The Board will be taking a first look at what other types of things should be counted as a credit towards the cash proffer.  The applicant may try to provide other benefits to the community that will off set it in a different way.


Mr. Zobrist said that it remains voluntary to the extent that the developer can use the developer’s own creativity as to how it wants to satisfy what the impacts are.


Mr. Kamptner said that they could choice whether or not to address all of the impacts that have been identified or take their chances with the Board and convince the Board and the Commission that this project has other merits that justify it being approved for other reasons.


Ms. Joseph opened the public hearing and invited public comment.  There being none, the public hearing was closed and the matter before the Commission.


Motion:  Mr. Morris moved, Mr. Strucko seconded, to approve ZTA-2007-0002 New enabling authority for accepting proffers to amend the Zoning Ordinance to accept proffers under the enabling authority of Virginia Code §15.2-2303 rather than under the currently used authority of Virginia Code §15.2-2298.


The motion passed by a vote of 6:0.  (Mr. Cannon was absent.)  


Ms. Joseph stated that ZTA-2007-0002, new enabling authority for accepting proffers will go to the Board of Supervisors on July 11 with a recommendation for approval.


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