ZMA-2005-00017 Biscuit Run 



The applicant proposes to rezone approximately 828 acres from R1, and R2 residential to NMD Neighborhood Model District. Approximately 3,100 residential units and a neighborhood center, which would include commercial, office and community uses are proposed.



Cilimberg, Echols, Grant






August 8, 2007



ACTION:              INFORMATION:   X



  ACTION:             INFORMATION: 






Forest Lodge L. L. C., with LeClair Ryan as the contact, Torti Gallas & Partners, Inc. as the land planners with Collins Engineering as the consulting engineer is the applicant; Forest Lodge L. L. C., Elizabeth Breeden, and Biscuit Run, L. L. C. are the property owners.



The Board of Supervisors held a work session on the Biscuit Run project on July 11, 2007. The following were the outstanding substantive matters discussed during the work session and the direction the Board provided (in bold), additional staff comments (in italics) and the applicant’s response to date (in bold italics):


·         The location of the Mill Creek connection, as previously mentioned, is still a work in progress. The applicant has provided additional information. This is currently under review with the County Engineer. Finding a location for the connection that is appropriate and feasible remains an open issue.

Board Direction: The Board recommended that the connection be a T- intersection in the Mill Creek South subdivision as long as the interconnection could be engineered appropriately. The interconnection would initially be for a pedestrian and bicycle connection with the possibility for a full vehicular connection in the future.


Additional Staff Comment: The connection needs to be in a location that provides acceptable design for vehicular access and proper intersection with Stoney Creek Drive.  


Applicant’s response: The applicant has not submitted any new information.


Board Direction: The Board confirmed that $19,100 should be provided in lieu of each affordable unit.


Additional Staff Comment: There is no additional staff comment.


Applicant’s response: The applicant has not submitted any new information, but has indicated acceptance of the Board’s conclusion.


·         Staff supports proffer 6 G: Improvements to Old Lynchburg Road (City Section), but recommends that if the funds are not utilized with ten years that these funds be available to the City for a project identified in the southern City neighborhoods.

Board Direction: The Board questioned making proffers available to the City when there is a revenue sharing agreement between the City and County, where the City receives 10% of County tax revenue.


Additional Staff Comment: The following general example details what the City might earn based on the revenue sharing agreement:

Old Lynchburg Road Proffer: $1,550,000/3100 units=$500/unit

County property taxes=$00.68/$100 of assessment


Example 1: House assessed at $300,000= $2,040/year in property taxes

                        10% to the City=$204/year

Example 2: House assessed at $400,000=$2,720/year in property taxes

                        10% to the City =$306/year


Applicant’s response: The applicant has provided a proffer in the amount of $1,550,000 for improvements to Old Lynchburg Road. The applicant seeks guidance from the Board regarding the direction of these funds.


·         The applicant has submitted three special use permits for stream crossings, which are currently under review by staff.

Board Direction: There was no direction regarding this matter.


Additional Staff Comment: Staff is working on the review and comments for the special use permit requests.


Applicant’s response:  No additional information necessary at this time.


·         The applicant has proffered an annual adjustment in cash proffers based on the Consumer Price Index for All Urban Consumers, United States Average, and the Board has indicated its preference for the Marshall and Swift Building Cost Index.

Board Direction: No additional direction was provided.


Additional Staff Comment: No additional comment provided.


Applicant’s response: The applicant has agreed to provide a proffer based on the Marshall and Swift Building Cost Index.


·         Since the Commission’s public hearing on Biscuit Run, the Board of Supervisors has further clarified its intent for a Cash Proffer Policy and passed a Resolution of Intent to amend the Comprehensive Plan.  In doing so, the Board has accepted the Fiscal Impact Committee’s methodology to determine the cash impact of residential development by dwelling unit type.  Rounded off, the resulting calculated impacts that the Board has also accepted are $17,500 per single family detached unit, $12,400 per apartment unit and $11,900 per townhouse/condominium unit.  It was the consensus of the Board that, with the exception of affordable dwelling units, all new re-zonings will pay for the equivalent of their full impact as determined by the cash proffer calculations applied to the accepted per unit rates.  The Board also indicated that the only credits against the cash proffer expectations that will be accepted are for land or improvements related  to schools, parks, libraries, public safety and transportation projects identified in the Capital Improvements Program, the Comprehensive Plan and/or a Master Plan and that other proffers are to be considered outside the cash proffer expectations. The Board further agreed that when the number of unit types is not specified in a re-zoning, the single family detached rate should be used per total number of dwelling units. 


The following information describes the status of proffers for this project based on the current Board proffer policy intent:


Cash Proffer Policy Expectation   =           $35, 546,500 (3,100 units of various types less 465 (15%) on-site affordable units X cash proffer by unit type) to $48,825,000 (3,100 units less 310 (10%) on-units X $17,500)

Value of Current Proffers =                        $18,144,691

Additional Cash Expectation =                   $17,401,809 to $30,680,309 

Among the credits the applicant has claimed that are outside the cash proffer policy expectations indicated by the Board to date are:

$5,145,600 for a district park

$200,000 for district park master plan

$2,500,000 for stream crossing to district park

$1,000,000 for Habitat for Humanity 

$2,293,050 for 15% of the East/West. Southwood Connector

$375,000 for 15% of the stream crossing for the East/West. Southwood Connector

$1,000,000 for Transit  _________

$12,513,650 not counted as credits

Generally speaking, the applicant’s cash, land and improvement proffers that are consistent with the Board expectations are not initiated until the 500th Certificate of Occupancy for the project.  The Board’s indications have been that per unit cash proffers should begin with the first residential building permit. 

As noted above, there is a difference of approximately $17.4 to $30.7 million between the applicant’s proffers meeting the Board’s expectations and the project’s cash impact.  The applicant has made other quantitative and qualitative commitments to the project and the County, including the district park, the road connecting Rt. 20 and Old Lynchburg Rd. (Rt. 631), cash for Habitat for Humanity, transit, LEED certified buildings and Neighborhood Model design that should be considered outside the cash proffer expectations.


Staff and the applicant need the Board’s guidance as to the adequacy of the applicant’s proffers as discussed above.

Board Direction: The Board agreed to accept all the values that the applicant indicated as offsets. Based on the applicant’s proffer cost summary, the total value of proffers provided is $30,858,341.  However, this still leaves the applicant short of the Board’s expectations by between $4,688,159 to $17,966,659. The Board did indicate that they may be willing to give the applicant some credit for providing proffers relating to LEED units and transit design. The Board did say there is an expectation that the applicant will follow the Neighborhood Model and no credit should be given for that. No direction was given regarding how much credit should be given for LEED units and transit design.


Additional Staff Comment: Staff researched and talked with local experts in the fields of LEED and transit design. Staff did not find any definitive information regarding how to determine credits for LEED units and transit design. Staff does note that prior consideration of incorporating LEED design in County projects indicated a potential increase in initial consideration costs of approximately 2%.   


Applicant’s response: The applicant has provided additional information regarding potential credit for other proffers. (See Exhibit A)


During the work session the Board also agreed that they had many unanswered questions that still needed to be addressed. The Board agreed to send a list of questions to staff that needed to be addressed prior to their work session in August.



The following items are the questions and concerns that the Board of Supervisors gave to staff following the last work session. The first sixteen items were provided by Sally Thomas. Items 17 - 21 were provided by Dennis Rooker. Items 22 – 26 were provided by Lindsay Dorrier. Item 27 was provided by Mark Graham and Sally Thomas expressed similar concerns. Item 28 was provided by David Slutzky. Staff’s response follows the question/concerns in bold italics; the staff providing the response is also identified.


  1. The design of the spine road will be crucial to transit, pedestrian safety, walkable school building, and value as a Southern Connector. I and Chuck Proctor of VDOT have discussed this and believe that it should be a boulevard – potential for 4 lanes of traffic with a planted median.  The planted median acts as a pedestrian-safe-zone as well as cutting the appearance of 4 lanes of highway. As Charles Proctor wrote in memo to me on July 10, Proffer6D - It is recommended that the County consider the typical section for the connector road.  The proffers and sheet 4 of the General Development Plan (GDP) show a 2-lane undivided section with parking on one or both sides of the road and bike lanes.  The county should consider if they want a boulevard typical and whether the typical can accommodate a 4- lane section is necessary in the future with bike lanes. 

Juandiego Wade and Claudette Grant: Staff agrees with the neighborhood model street design for a boulevard. Staff believes a 2 lane divided road with parking and bike lanes that will be able to accommodate an ultimate 4-lane section if necessary or warranted by VDOT in the future is appropriate.

  1. To make the development transit-using, the densest development needs to be near the boulevard.  The proposed design with 2 bus stops in the neighborhood may be useful for intra-development shuttle, but not ideal for commuter bus, which should be as close to an express bus as we can get.

Claudette Grant and Juandiego Wade: The majority of the development is within a five minute walk or less to a transit stop.  Page 25 of the Code of Development (COD) shows 4 transit stops located in Biscuit Run and one transit stop located in the adjacent Southwood Mobile Home Park. There is also a Kiss and Ride stop in Biscuit Run.

  1. Mill Creek connector, its design and the design of streets within Biscuit Run (BR) that lead to that connector is crucial.  I’m open to having it be a road blocked with stanchions for a number of years, but we need to discuss the design (so it’s not a slip ramp out of BR through Mill Creek) and the timing or policy for its opening.

Board direction: As previously mentioned in this report, at the last work session the Board recommended that the connection be a T- intersection in the Mill Creek South subdivision as long as the interconnection could be engineered appropriately. The interconnection would initially be a pedestrian and bicycle connection.

  1. The location of the road through Southwood may be able to wait for further planning within that community, but VDOT is eager for the road to align with the Sunset/Fontaine connector – which puts it in a location that Habitat does not find attractive at this time.  We should give guidance before planning gets too far along.

Juandiego Wade: Staff supports VDOT’s recommendation for this road to align with Sunset Avenue (future alignment of the Sunset/Fontaine connector). Staff has informed Habitat for Humanity and the applicant of this concern. However, staff believes it is appropriate to leave the ultimate location flexible at this time to allow further consideration during the development process when Habitat’s plans may be better understood.

  1. VDOT’s issues should be explicitly addressed.

July 10 memo from Charles Proctor: re: proffer 6H (frontage improvements) – The terms “spot improvements” and “as reasonably necessary to provide safe and convenient access to Biscuit Run” should be removed.  Frontage improvements along State Route 631 need to be designed and constructed to VDOT’s Geometric Design Standard for a Rural Collector road (GS-3) and improvements along the frontage of State Route 20 need to be designed and constructed to VDOT’s Geometric Design Standard for a Rural Minor Arterial road (GS-2).  Also, the right of way that is necessary to accommodate the improvements that is owned by the developer should not be considered an expense to the owner and this statement should be clear in this section.

Juandiego Wade: Staff supports VDOT ‘s recommendation and the new language should be included in the proffers.

  1. VDOT’s cost estimates should be explicitly addressed even if we are going to stipulate cash proffers based on our proffer policy rather than based on VDOT cost estimates.  We should make it clear what the gap is as, unless we reject the projects that VDOT regards as addressing Biscuit Run’s impacts, the cost differential will be picked up by taxpayers, local and/or state.

Juandiego Wade: VDOT has given the County a memo with an explanation of the cost estimates for Route 20 and Route 631. This memo is attached as Exhibit B. As described in the memo there are varying factors that relate to the total cost for improvements to Routes 20 and 631 as well as the applicant’s pro rata share.

Claudette Grant: The applicant has provided cash proffers for transportation as they believe address impacts identified in the Traffic Impact Analysis (TIA) for this project. However, Exhibit B shows that the actual cost to complete important infrastructure improvements relating to this project (as well as other growth factors) are more than the cash being proffered. It is un-known if the projects being identified by VDOT will ultimately be desired by the County, but if the applicant were to cover the shortage in cash  proffers as relates to total impacts noted earlier in this report, there would be additional funds to devote to transportation improvements. Staff does recommend that all of the transportation improvement funds be committed to one account for the County to choose the best improvements relating to this project located in Neighborhoods 4 and/or 5.   

  1. The Park’s cost to the County is what? This goes under the category of looking a gift horse in the mouth.  While we are all delighted at getting the acreage, we should be forthright in our acknowledging that there will be considerable costs to the County when utilizing this gift.

Pat Mullaney: The developer has also proffered $200,000 for the master plan for the park.  The cost of development of the property and the annual operating expenses will be contingent upon the final agreed upon master plan.  The phasing of that development and hence the County’s capital spending will be under the County’s control.  The need for park facilities to serve the southern urban area is already anticipated in the County’s CIP with $3.75 million scheduled in FY13 though FY15.  Pat Mullaney, Director of Parks and Recreation, anticipates that the majority of the park acres will remain in a natural state with trails.  Natural areas and trails will have the lowest impact as far as development and operating costs.  Without any better information available staff assumes 50 developed park acres and 350 undeveloped.  How many of those developed park acres are in high level maintenance fields would be determined by the master plan and therefore would also impact the development and operating costs.  For instance, in County parks like Chris Greene or Mint Springs the annual cost to maintain a developed park acre is about $2,500.  An acre of high level maintenance ball field jumps to about $5,500 in annual operating cost.  When you combine all of the County’s developed and undeveloped park acres together the cost to the County is about $500/acre. 


Given the information we have, staff guesses/estimates in today's dollars, the ultimate development of the park to be in the $5 - $7 million dollar range (but the "how much" and "when" remains in the County’s control) and the annual operating budget to be about $200,000.  The acceptance of the gift doesn't force the County to spend this money.  Trying to meet the area's recreation needs does.  Without the gift of land the County would have to seek (purchase) land elsewhere if the County wants to meet these needs.  


Assuming, the property is currently in land use, the tax dollar loss is probably insignificant.

  1. We need to discuss the widening of the 5th Street bridge.
    Biscuitruntia5thstThe Biscuit Run transportation study called for the widening of the 5th Street bridge over Interstate 64 to allow for two full-length parallel turn lanes, a need not yet addressed by VDOT, County staff, the applicant’s proffers, or the Board of Supervisors (see diagram prepared by Charlottesville Tomorrow above). 

Juandiego Wade: The widening of the 5th Street bridge is a project that VDOT had been evaluating prior to the Biscuit Run (BR) project. The BR project will likely expedite the need to widen the bridge, but is not the sole reason for widening. The widening of 5th Street over I-64 will be a major project.  VDOT has included a minor improvement to widen the westbound exit approach lanes to 5th Street in the recently adopted Primary Plan 2008-2013. According to VDOT, this particular improvement is based on current deficiencies, not the BR project.  The applicant has included cash proffers for off-site transportation improvements, one of which is a lane addition and bridge expansion on 5th Street at the intersection of I-64 and 5th Street. Staff realizes this will not pay for the entire cost of widening 5th Street over I-64. A cost estimate for this improvement has not been provided.  

  1. Grading plans need clarification, especially for the phasing of the amount of land that will be graded at any given time.  The proffer’s wording is interpreted by some to open up most of the land for being laid bare, contrary to what I believe was intended by county staff.  This needs clarification and, possibly, changes. (p. 47 of COD) This is listed in our staff report on the proffers.

Claudette Grant: The phasing section (page 47) in the Code of Development (COD) is a bit confusing. This is one of the outstanding items staff has requested be re-written more clearly. The intent of the phasing section is that initially development of phases A and D will begin with construction of the Connector Road and access to the proposed District Park. After this no more than two phases may be developed at the same time. A third phase can only begin after 80% of the developable area within any one of the two initial phases is platted (as evidenced by the recording of a final subdivision plat approved by Albemarle County). The applicant can choose any other phase to do next after phases A and D are complete. In other words, there is no specific order to the rest of the phases. 

  1. Commercial area’s design.  Everyone seems to agree that this area should not be designed as anything like a strip mall on Route 20, but that’s not clear in the design as presented.  It should be clustered around the spine road, or running east-west.  (pp 10-11 COD)

Claudette Grant: Page 11 of the COD describes the Neighborhood Center. Some of the description in the COD includes the following: “Buildings and parking areas will be oriented internally to Biscuit Run and away from Route 20. The Neighborhood Center District is centrally located on the largest developable tract within the site and is therefore well connected to the rest of the entire village of Biscuit Run through the continuity of the street network, pedestrian trails and sidewalks. Its location on the east/west connector also makes it convenient to future transit service.” Staff’s understanding of the neighborhood/commercial center is that it is primarily for the Biscuit Run residents; however, the applicant does anticipate that the uses will capture some residents who live in the vicinity or traffic passing by. Page 10 of the COD shows the spine road going through the middle of the Neighborhood Center. Staff suggests the COD include additional language/examples that show more clearly that the neighborhood center will not become a strip mall, but will be clustered around the east-west spine road giving less focus towards Route 20.        

  1. We need to clarify the developer and the County’s response to VDOT’s issues:

‘The Pro-Rata share information that was previously sent to the county was for informational purposes only and did not necessarily reflect improvements that are needed entirely due to the impacts associated with the proposed Biscuit Run re-zoning. Of the examples provided, only the Route 20 scenario was analyzed in the traffic study, and recommended for major improvement (i.e. widening) to address future capacity concerns (projected at 22,940 vpd in 2021). For the Route 20 corridor, the development at build out will increase the traffic on the corridor by 45% (40% residential, 5% commercial) and should be responsible for 45% of any improvement cost to the corridor beyond the development frontage. Based on the recommended 4-lane divided typical section, an estimate was developed using a 2014 construction year with a projected cost of $28.561 million and a pro-rata share of $12.974 million. This estimate includes the site frontage improvements in addition to the off-site improvements. The frontage improvement costs are estimated at $5.545 million leaving $23.016 million for the off site improvements. Of this cost, the developer ’ s pro-rata share is $10.454 million. The southern 2 - lane section of Route 631 (Old Lynchburg Road) though not directly addressed in the traffic study beyond the individual site entrances has some sub-standard vertical and horizontal geometry, limited sight distances and a narrow typical section and will require improvements. Based on the plans recently received, it appears that a majority of this section fronts property controlled by the development (approximately 0.9 miles) and the developer will be required to improve this section as the entrances are developed. The other two example corridors, Avon St. and the northern section of Old Lynchburg Road, will provide acceptable levels of service in the future based on the traffic study analysis aside from some additional turn lane and signal needs related to the background growth.’  This is a memo from Joel DeNunzio to Juan Wade on May 15, 2007.

Juandiego Wade: The applicant did revise their proffers to address VDOT’s concern. Staff did not give the applicant direction on what improvements should take place on Route 20. As a result, the proffer was written to give the County flexibility on how to use the funds based on guidance for the PC and BOS. The public has spoken both in support of and against the widening of Route 20. The widening of Route 20 from Route 53 to Mill Creek Drive has been a high primary priority of the BOS for many years. Also refer to staff’s discussion in question 6.


Further, in the July memo:

General Development Plan:

All typical sections that are to be accepted to state maintenance must include a gutter pan adjacent to the curb.

The main connection road typical sections need to be addressed for their adequacy as stated above.

Is there an issue with the type of curb-and-gutters that are required, and if so is it something that should be discussed at this level?

Mark Graham: Curb and gutter standards are specified by VDOT for public roads.


Code of Development:

     Street Specifications – All design speeds need to be determined according to the volume of traffic on a section.  Design speeds should be determined after projected traffic is placed on the streets.

      Claudette Grant: Staff agrees.

12.  Preservation areas.  Areas that are intended for complete preservation seem to me to be exactly the type of area that our Natural Heritage Committee can be helpful with.  Someone, whether or not it is that committee, needs to inventory the assets that are intended to be “preserved” in those areas.  Just keeping construction out of them is not the equivalent of preserving their natural assets.

Scott Clark: Regarding the need for an inventory of assets, staff agrees this can be valuable. Perhaps the applicant can hire a consultant to do this. Staff and/or the Natural Heritage Committee could advise on the standards to be met and could review the results. Staff agrees that just keeping construction out of the preservation areas is not the equivalent of preserving their natural assets. Site work well outside these “preservation areas” could also impact or destroy their resources.

13.  Straightening Avon Street as it approaches BR – this involves several properties not owned by the applicant.  The County should get a clear plan of action to guide decisions that will be made in the future, so that the ultimate location of that road reflects the improvements desired by VDOT and by the design team working on BR.

Juandiego Wade: Staff agrees. This is an issue that needs to be addressed during the master planning for this area.

14.  Items listed as not yet satisfactory to our staff all need to be addressed.  Absolutely crucial ones are erosion control plan, protection of archeological and cultural resources, and timing of the proffers.

Claudette Grant: Staff agrees. The applicant intends to make the requested revisions after the August 8th work session with the Board.

15.  This is probably only my own confusion, but please, staff, make sure that the $1 million to Habitat is not being given credit twice (ROW purchase?).

Juandiego Wade: Staff is aware and the applicant has not been credited twice.

16.  Last, clarify the responsibilities of the “successors and assigns” to the water and sewer infrastructure of the future.  Although ACSA is satisfied with their agreements with the developer, we owe it to future homeowners in this development to clarify what the future responsibilities are going to be. Furthermore, it appears that the County will have some responsibility for building additional capacity in the interceptor once the County becomes a landowner in the development (i.e. owns the park).

Gary Fern: The Agreement with Forest Lodge, LLC affords the ACSA the decision to undertake the design and/or construction of the Biscuit Run Trunk Sewer or require the developer, under the supervision of the ACSA, to design and construct the Trunk Sewer.  The decision as to who will perform the design and construction will be made at the appropriate time.  With that being stated, there may not be a need to collect any monies depending upon the decision. 


If it is decided that the ACSA would undertake the design and construction of the Biscuit Run Trunk Sewer, ACSA could determine the appropriate charges at that time and assess the charges accordingly.  The ACSA Board could assess the charges to the developer, their successors and assigns.  One scenario is to only charge those who own the remaining lots which require the need for the upgraded Trunk Sewer.  Since they will need the upgraded Trunk Sewer, they will be more likely to pay for the Trunk Sewer improvements. 


It may be some time before these decisions need to be made.


If the County owns the 400 acres of park land, is the County a successor and assign?

Yes, the County, by receiving the land from the developer, is a “successor and assign”.  The County, as landowner, could decide to “develop” the land.  Development could take the form of restrooms for ballfields or housing. ACSA hopes that the County would make that decision before 80% of the Projected Peak Flow Prior to Rezoning is reached.

What about individual home owners that are already living there?

Yes, since the individual homeowner purchased the property from a builder, who purchased the property from Forest Lodge, LLC, they are a “successor and assign”.


If so how can we be assured that they will be clearly notified of these responsibilities when they purchase their home?

If the ACSA believes that clearly notifying the individual homeowners is its responsibility, ACSA could attach a notice to the site plan submitted for review by the builder, provide the homeowner with notification when they start their account, and put a notice on their water/sewer bills.


If we were just to require  those who own the remaining undeveloped lots to pony up, would they be likely to go to court claiming a lack of fairness.....they are getting penalized for ending up with the hot potato?

It is not the existing homeowners who need the wastewater capacity; it is the undeveloped lot owners, after 80% of the Projected Peak Flow Prior to Rezoning, who need the wastewater capacity.  I think that it is unlikely that a developer/builder, who owns undeveloped lots after 80% of the Projected Peak Flow Prior to Rezoning, would claim a “lack of fairness”.  Doing so, would be admitting that they did not perform due diligence in the purchasing of the property.  The developers/builders of undeveloped lots after 80% of the Projected Peak Flow Prior to Rezoning, provided they perform proper due diligence, will understand the need to lower their purchase price to Forest Lodge, LLC, because they will be required to pay for the Biscuit Run Truck Sewer Upgrade.  These developers/builders will be wearing gloves when playing “hot potato.” 


Developers/builders who do not perform proper due diligence (and also do not wear gloves while playing “hot potato”) don’t stay developers/builders very long (and get their hands burnt).  In this scenario, the land remains undeveloped (until the developer/builder sells it) because the Biscuit Run Trunk Sewer Upgrades are not constructed and the ACSA will not issue any water meters.


Beights Development (Old Trail Developer) is working with RWSA on upgrading/replacing sections of the Crozet Interceptor as required in the Agreement between the ACSA and Beights Development.  It appears that this Agreement is working.

17.  Does phasing control grading or not?  Tying the ability to move on to new areas for grading to platting would theoretically allow the entire site to be graded at the same time.  It would seem to me that there must be a requirement that an area needs to be restabilized before moving on to grade the next area.  We need to keep in mind that some of the “phases” may be larger than Hollymead Town Center.

Claudette Grant: As previously described in this report, the phasing section (page 47) in the Code of Development is a bit confusing. This is one of the outstanding items staff has requested be re-written more clearly. The intent of the phasing section is that initially development of phases A and D will begin with construction of the Connector Road and access to the proposed District Park. After this no more than two phases may be developed at the same time. A third phase can only begin after 80% of the developable area within any one of the two initial phases is platted (as evidenced by the recording of a final subdivision plat approved by Albemarle County). The applicant can choose any other phase to do next after phases A and D are complete. In other words, there is no specific order to the rest of the phases.  

18.  Dennis Rooker agrees with Sally Thomas that there is a need to make certain that the commercial center doesn’t end up looking like a strip center along Rt. 20.  One way to perhaps assure an interior focus would be to require that at least (75%?) of the commercial buildings be on the east-west street.

Claudette Grant: Refer to number 10 above.

19.  We need a good discussion of the affordable housing proffers and how they work.  Several of us have commented that we don’t support affordable rental units with a 5 year limit on affordability, but that’s in the proffers.  The $16,500 needs to be changed to $19,100.  There needs to be an assurance that affordable units will be phased into the development and that the geographic location will be reasonably dispersed.  I don’t see that in the proffers.  As I read the proffers, about 2,000 units could be built before an affordable unit is built and the affordable units could all be clustered together.  Under the proffers, all of the cash in lieu of affordable units could end up going to design fees for the Southwood Development; is that what we want?

Ron White: Staff attempted to address the affordability issues (term and others) in a work session on June 13.  However, due to a late start this part of the discussion was limited and referred back to the Housing Committee.  At this time there is little guidance other than a question of the applicability of a five-year term of affordability for rental units. Staff has not heard a consensus from the Board or Planning Commission on what this term should be.  In fact, one Board member stated on June 13 that he would like to see 30 years and another said he did not favor any rent controls.  That leaves staff in a very awkward position.  The main reason that staff has accepted a five-year term on previous proffers is that, based on other guidance, the five-year term seemed reasonable.  This other guidance includes:


   1.  The term currently in the Zoning Ordinance applicable to density bonuses for affordable housing is five years.  NOTE:  Staff has recommended revising those sections of the ordinance to ten years.  The Planning Commission will have a public hearing on September 4 on the proposed ZTA. 

2. The Code of Virginia requires that when a locality provides financial resources to a development as an incentive for affordable housing, then the term of affordability shall be a minimum of ten years. 

3.  The Internal Revenue Service requires that projects receiving low-income housing tax credits be affordable for a minimum of fifteen years.  LIHTC provides a significant portion (often as much as 50%) of development costs in the form of equity.   


The Housing Committee and staff would welcome further direction from the Board on what they deem as reasonable.


With regard to phasing of affordable units, we have usually done that as part of the site plan review.  The Housing Director believes the intent of Item D under Affordable Housing in the proffer statement last revised June 12, 2007 is that the applicant would have to maintain a "running total" of at least 15% of units being affordable (or for which cash has been proffered) prior to the approval of any site plan.  In other words, the first site plan would have to have at least 15% but could have up to 30% with the extra units "carried over".  This does not address when the units will be built.  Zoning has indicated on previous proffers that setting up quotas for issuing building permits for affordable units is not a reasonable or enforceable approach since developed lots will be sold to multiple builders and some lots will not be designated as affordable.  Putting language in the proffers to assure that affordable units have to be built in a certain percentage of all units could result in refusing to issue building permits to Builder B who has not designated affordable lots if Builder A (with affordable lots) has not built his units.  The dispersion of affordable units can be handled at site plan approval.


The only amount designated for design fees in Southwood is $500,000 which is the equivalent of 26 units of affordable housing.  The cash equivalent for the other 129 units, if not provided in Biscuit Run, would come to the County and initially be restricted for use in Southwood to support the development of affordable housing.  The County would have complete control over how that funding is used in Southwood.  If Southwood has not submitted site plans by the time Biscuit Run has provided 310 affordable units or the equivalent of 310 units in a combination of units and cash, the County would be authorized to redirect any cash proffers designated for Southwood to other affordable housing projects in the County. 


The cash proffer is not a set amount by an amount derived by a formula.  The current calculation equates to $19,100.  The formula is that "a comparable contribution should equal 10% of the affordable sales price at the time the contribution is made".  The affordable sales price is sixty-five percent (65%) of the VHDA maximum sales price/loan limits for their first-time homebuyers programs.  This was discussed at the June 13 work session and staff was instructed to use it as operating policy until the Affordable Housing Policy is amended.

20.  We didn’t finish the discussion on what, if any, credit should be given for LEED certifications and neighborhood model design.

Claudette Grant: The applicant is requesting $13,933/unit in proffers for 10% of on-site units for LEED units. It is unclear how the applicant received this figure. The Board agreed that the applicant should not receive credit for neighborhood model design, which is an expectation from the Board.

21.  We need to continue to keep in mind that we have a cash proffer policy which expects a certain level of cash proffer by this development as an offset to costs to the community.  When the developer allocates $1 million here or there, he is taking credit for that allocation against the total cash proffers, so we need to be clear in our own minds that those allocations are how we want the cash proffer money to be spent.

Claudette Grant: See page 3 and 4 of this report for additional information regarding this. Also see staff’s suggestion in question 6 regarding possible additional funds that would be lumped together with previous proffered cash and put in one account. These funds would be used at the discretion of the County for needed improvements in Neighborhoods 4 and 5.

22.  What recommendations are being made to address the additional traffic on Avon St. Ext and Route 20? This is already a problematic area and what infrastructure improvements need to be made? Timetable? Location and design of entrance/exits on Route 20 and Avon Street? Four lane of Rt. 20 to Rt. 64? It has been mentioned but will change character of area. How much pressure will be put on Route 20 to C'ville and how can we address safety concerns?

Juandiego Wade: The specific recommendations for improvements to Avon Street have not been identified at this point. The applicant has proffered funds to undertake any improvements determined by the County.  The applicant will improve Route 20 along its frontage.  Improvements to the remaining section of Route 20 have not been identified. Staff did not give the applicant direction on what improvements should take place on Route 20. As a result, the proffer was written to give the County flexibility on how to use the funds based on guidance from the PC and BOS. The public has spoken both in support of and against the widening of Route 20. The widening of Route 20 from Route 53 to Mill Creek Drive has been a high primary priority of the BOS for many years.


If the proffers are adopted by the BOS, staff will work closely with VDOT and the residents to determine specific improvements as well as timing.


The site plan identifies the location of the access points.


Again, it has not been determined if Route 20 will be widened to four lanes to I-64. The BOS can provide staff direction on this project. The applicant has proffered funding for this improvement. 


This project will increase the traffic to the City of Charlottesville. Staff has worked closely with City staff to address any safety concerns. The applicant has proffered funds to address some of these safety concerns on OLR.


23.  What are plans for storm drainage along border of Biscuit Run and Mill Creek South? Runoff concerns for Mill Creek residents.

Claudette Grant: The following request was made by the Planning Commission at their public hearing: “Language provided by the County Engineer shall be used to include an erosion control plan for each phase and the accommodation of drainage out fall on adjacent properties through easements.” Although Proffer 5 - Critical Slopes, Erosion and Sediment Control and Stormwater Management was revised, it does not address the accommodation of drainage outfall on adjacent properties through easements. This is an outstanding issue that will need to be addressed.


24.   What are plans for buffer between Biscuit Run and Mill Creek South?

Claudette Grant: The applicant refers to the area on the Biscuit Run property between Biscuit Run and Mill Creek South as Passive Recreation Area. The Code of Development (page 39) describes this area as remaining in a natural state. These may include areas of critical slope and stormwater management facilities where natural terrain and vegetation will remain undisturbed or will be planted with native trees and plants after disturbance.

25.  Will commercial area on Route 20 draw vehicles commuting to C'ville each day or will it be primarily for Biscuit Run residents?

Juandiego Wade: The TIA anticipates that the commercial area along Rt. 20 will draw some traffic  commuting north to Chville, but the majority of the traffic will be from the Biscuit Run Development.  

26.  What are recommendations for infrastructure and roads for increased traffic on Old Lynchburg Road?

Juandiego Wade and Wayne Cilimberg: The applicant will improve Old Lynchburg Road along its frontage. Proffer funds can be used for Old Lynchburg Road in the City.

27.  There is general concern regarding the spine road and timing. As currently proposed, there is no commitment to completing the spine road within a fixed time period.  Instead, it is tied to the 500th Certificate of Occupancy.   In other words, if they averaged 100 units/year, it would be approximately 7 years from now until the road is required to be open to traffic (5 years @ 100 units/year + 2 years from now until 1st completed house). If they developed at 50 units/year, it would be 12 years from now until the road is required to be open to traffic. If the road is considered an important linkage for transit, emergency vehicles (until a Southern Parkway can be built), and connectedness, staff would recommend the following:

Mark Graham: Staff recommends the proffer include language similar to what was done with North Pointe to assure timely completion of road improvements.  In this case, staff would recommend within 5 years or the 200th building permit, whichever comes first.


Similarly, there is no commitment to provide access to the proposed park site within a fixed time period.  

Mark Graham: Staff encourages similar language for that situation.        


Mark Graham: Bigger picture:  With proffers that are tied to levels of development, the County  needs the proffers to be tied to approval of Building Permits or approval of site plans and subdivision plats. We should avoid tying proffers to Certificates of Occupancy whenever possible. 

28.  Proffer number 7 – Transit relates to funding a bus route between Biscuit Run and the transit center. David Slutzky has discussed significant changes in this proffer with the applicant, and expects that the applicant will agree to fund the operating costs of such a route for so long as the route provides service to the development...there are other details relating to this proffer, which David can discuss at another time. 

Claudette Grant: Staff has no comment on this.


Other Staff Comments:

Cash Proffer Policy Credits

Mark Graham:  In evaluating credits against the proposed cash proffer policy, staff has recognized the cash proffer policy is designed to address project impacts against five specific infrastructure improvements in the CIP, approved Master Plans, or the County’s Strategic Plan.  Those improvements are limited to Schools, Transportation, Libraries, Parks, and Public Safety facilities.  All other impacts associated with a development fall outside of what the proposed cash proffer policy would address.  While other benefits of a development can be considered for credits against the proposed cash proffer policy, staff believes it is important to recognize the development’s impact on the community, as defined by the cash proffer policy, is not being addressed when credits are given for benefits outside of those five categories.  Credits for project benefits outside of those areas means more of the development’s impact is being shifted to the community at large to fund, which dilutes the intent of the cash proffer policy.   Thus, I continue to caution against credits that do not address the specific impacts the cash proffer policy is being designed to address.  This approach is consistent with how other localities are using a cash proffer policy.  


Finally, with respect the Development Review Task Force’s recommendation for a cash proffer policy, I anticipate allowing credits outside of these five specific areas will have the opposite result from what was intended. The Task Force anticipated a cash proffer policy would reduce uncertainty and simplify the process, but I anticipate these credits will have an opposite effect.  Applicants have a strong financial incentive to seek these credits and I anticipate they will continue to “stretch” those considerations over the next several years until a policy for allowed credits evolves.  For that period, I anticipate the complexity and uncertainty associated with rezoning applications will increase, meaning staff will need to spend more time evaluating proffers and additional Board worksessions will be needed to better define allowed credits.   


Transportation Cash Proffer

Mark Graham:   Recognizing the intent of the proposed cash proffer policy, I’ve encouraged the applicant to provide one proffer for the cash being provided and that proffer be set on a “per unit” basis, with the only restriction that the money be spent on transportation improvements in Neighborhoods 4 and 5.  This would leave the allocation of the proffer funds to the County Board’s discretion. That flexibility would allow the County to maximize the effective use of the cash proffers, recognizing this money may be used to leverage other funding sources.    

In establishing the appropriate per unit cash for such a proffer, I believe it is important to consider what the applicant has previously proposed to fund, VDOT’s position on the appropriate level of funding for this development, and the Board’s expectation for cash proffers.  A copy of VDOT’s recommendation is attached to the report and the Board’s expectation not yet addressed is anticipated between $4,688,159 and $17,966,659 as described in the background of this report.  If the County used the middle of the range as the expectation, an additional $11 Million would be anticipated.  I recommend this amount be used as the anticipated additional cash proffer. 


Erosion and Sediment Control

Mark Graham:  I believe the two concerns to address with this proffer are 1) how long will the area remain disturbed and 2) how effective the sediment control measures will be.  The applicant is proffering the latter to my satisfaction.  In my opinion, the current phasing proffer does not accomplish anything.  Instead of worrying about how many phases are developed at one time, I would prefer a proffer which says that any phase developed will be stabilized in no more than 6 months, with a possible 3 month extension where weather has prevented the developer from completing that phase on time.  This would also exclude activities covered by a building permit.   I believe this would be the most effective way to minimize damage to the downstream areas from the construction.  


Staff has not reviewed Exhibit C. It is being included as an exhibit with this report at the request of the applicant.


The following items will need to be completed prior to the public hearing:


1)      Language in the proffers will need to be clarified. 

2)      Revised information will need to be submitted. The applicant has indicated that instead of making revisions now, he will resubmit revised information after the second Board of Supervisors work session.

3)      There remain outstanding issues from the Planning Commission public hearing that need resolution.



Staff recommends the Board of Supervisors provide direction regarding the issues in this report, so the applicant has the opportunity to respond with appropriate language and revisions to the proffers, code of development, and application plan before the public hearing.



EXHIBITA: Potential Credits for Proffers Not Counted by Cash Proffer Policy

EXHIBIT B: Memo from Joel Denunzio dated May 15, 2007

EXHIBIT C: Letter from Tara Rowan Boyd dated August 1, 2007     

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