Albemarle County Planning Commission

October 10, 2006


The Albemarle County Planning Commission held a meeting and a public hearing on Tuesday, October 10, 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, Duane Zobrist and Bill Edgerton. Absent was Marcia Joseph, Chairman. 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; Francis MacCall, Senior Planner; Amy Arnold, Planner, Claudette Grant, Senior Planner; Bill Fritz, Chief of Current Development and Greg Kamptner, Deputy County Attorney.


Call to Order and Establish Quorum:


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


ZMA 2006-09/5th Street-Avon Center (Signs #48, 67, 68)

PROPOSAL:  Rezone 86.895 acres from LI - Light Industrial zoning district which allows industrial, office, and limited commercial uses (no residential use) to PD-SC - Planned Development Shopping Center zoning district which allows shopping centers, retail sales and service uses; and residential by special use permit (15 units/acre) Approx. 398,300 sq. ft. of commercial uses.


EXISTING COMPREHENSIVE PLAN LAND USE/DENSITY:  Community Service/Mixed Use-community-scale retail wholesale, business and medical offices, mixed use core communities and/or employment services, and residential (6.01-34 units/acre) Neighborhoods 4 and 5.


LOCATION: Northeast intersection of Interstate 64 and Fifth Street Extended (Rt 631), bounded on the east by Avon Street Extended. Access is Bent Creek Road.

TAX MAP/PARCEL: 76/M1-2A, 76/M1-2B, 76/M1-4A, 77/11E.


STAFF:  Claudette Grant


Ms. Grant summarized the staff report.



1.    The road connection from 5th Street via Bent Creek Road to Avon Street Extended creates an additional east and west connection in this portion of the County and City.

2.    This development will add additional commercial/retail uses to a portion of the County that lacks a variety of retail shopping options; particularly as residential development in this portion of the County continues to be built.

·         Generally the staff comment letter dated August 3, 2006 to the applicant needs to be addressed.  Although the letter from the applicant dated September 27, 2006 attempts to answer some of staff’s questions, many of these items need to be shown on a plan.  Attachment F in the staff report is the adopted Comprehensive Plan Amendment with the applicant’s response as submitted per the plan dated May 30, 2006.  There are unanswered and unclear issues to several of these items, which helps to determine if this plan is consistent with the Comprehensive Plan.  In addition, the following items are also areas of concern.

1.       As described by Attachments F & D the lack of details on the plan makes it difficult to determine how consistent this plan is with the comprehensive plan.

2.       Environmental features including floodplain, critical slopes on the development plan and stream buffers are not shown on the plan.

3.       Traffic and transportation issues are still outstanding and the traffic study needs to be updated.

4.       Commitments to mitigate impacts of the development have not been made.

5.       This request is located within the I-64 and Avon Street entrance corridors, and requires comments from the ARB. The vast majority of the home improvement and major retail stores face the Interstate 64 entrance corridor.  These elevations will be required to have a finished appearance.  An unfinished back of building appearance will not be acceptable for the entrance corridor. This request has not been submitted to the ARB.

6.       Assessment of the landfill area is needed.


·         Staff is not able to recommend approval because these issues just mentioned have not been addressed and are not resolved. There are unanswered issues and concerns regarding this application that, depending on how they are addressed, would dictate the substance of a recommendation.


Mr. Morris asked if there were any questions for staff.


Mr. Kamptner requested to ask staff a question, regarding another unresolved issue.  In July, staff’s recommendation was that the rezoning be disapproved because of the question of the validity of the studies as to whether or not this area reached a saturation point for commercial uses.  He asked if that would be considered as well as this project moves along.  The fact that this is on the southern side of the City may put it in a different light.  His recollection was that the studies that were out there were looking at Albemarle County and the City as a whole.


Mr. Benish replied that is correct.  He felt that would be an ultimate consideration once they have the opportunity to look at some of the site related issues.  There is some distinction, but spatially providing these types of opportunities around town and balancing those impacts and traffic mitigation issues.  But, ultimately staff would look at the impact to the full County of the capacity of retail that this would have. 


Mr. Craddock asked when this project was going to the ARB.


Ms. Grant replied that it was not scheduled at this time.  The applicant has not made any application to the ARB. 


Mr. Edgerton asked if they were up the state mandated 90-day reject or approval at this point.


Ms. Grant replied that was correct.


Mr. Edgerton noted that was why this project was before the Commission.  So the only way to get answers to the questions that staff was talking about is if the applicant voluntarily requests a deferral.


Ms. Grant replied that was correct.


Mr. Edgerton said that he was surprised with the staff report on how much has been unresolved on the plan.  Therefore, he was curious why they were not having a work session as opposed to the public hearing.  He suggested that the applicant could address that.


Mr. Cannon questioned if it would be more of a regional use drawing people from a broader area than essentially adjacent neighborhoods.


Mr. Benish asked to start out with some history with the Comprehensive Plan Amendment.  He felt that the intent of that language when the Board adopted the Comprehensive Plan Amendment was that it recognized that it would have regional scale commercial within it.  That is the reason that there are a number of conditions that do allow for big box development.  The total square footage that is shown is not typical of what they would classically and under our Comp Plan consider Community Service.  The reason it is designated Community Service- Mixed Use was that was a way to in part to communicate that there was also a community function that was expected and a form that type of regional type of shopping area should strive for.  That is why the language other than Regional Service was used.


Mr. Morris said that staff had indicated that the traffic study had not been updated.  He asked when the last traffic study was done in this area.


Ms. Grant replied that the last traffic study was done in 2004.


Mr. Morris said that the maps provided showed that the connector goes all the way over to Avon Street.  He asked if that was correct.


Ms. Grant replied that was correct.


Mr. Morris asked if there have been any engineering studies done as to the portion of that road that goes over the previous landfill.  Do they have any data that shows that they can even put a road there?


Ms. Grant replied no, but that the applicant might be able to answer that question better.


Mr. Edgerton said that when the Commission saw this last in a work session he remembered a parkway proposal as proposed to the road as shown connecting Avon Street.  He asked if his recollection was correct.


Ms. Grant replied that it is a parkway.  It is a two lane road.


Mr. Morris opened the public hearing and invited the applicant to address the Commission. 


Steve Blaine, representative for the applicant, said that others present tonight includes colleagues Frank Cox and Mike Fenner from the Cox Company.  They were saying before the meeting that this group has been involved with this property for almost ten years.  They understand and appreciate the staff report and agree that there are a number of outstanding issues.  They believe that the information is in the public realm.  It is their task to point that information out to the Commission.  What they hope to do is address some of the critical first step questions to develop this plan to a plan that can be built.  They are concentrating on a zoning application to change the zoning designation.  What they hope to do is gain from this public hearing from the Commission and perhaps from others who will comment how they might improve the plan and move it forward. 


They have three objectives that they would like to try to achieve tonight.  First, is to confirm what the public benefits are related to this rezoning application.  What is the public getting from this rezoning?  They have heard about the big box retail.  They would submit that the parkway that is planned and what will be proffered will be a significant public benefit.  They think that they can confirm that the land use proposal is consistent with the Comprehensive Plan.  The Commission has the plan features to make that determination.  Thirdly, to receive aid and direction from the Commission on plan features that will enable them to go forward and develop proffers, which they intend to make for this project.  What public benefits are offered by the rezoning application?  As Ms. Grant mentioned, it is the road connector primarily and principally.  When they bought the Comprehensive Plan through to the Board of Supervisors that road connector was recognized as a critical component to the transportation improvements that will help in the southern end of the County. 


In a power point presentation, Mr. Blaine pointed out the important features on the area plan and made the following points.

·     The project will provide a vital connector, which cuts off traffic that would have to come into the City and use Elliott Avenue to come over to Avon Street.

·      The idea of the parkway is that it will have limited access.  When they got the Comprehensive Plan approved the engineers, the Cox Company and the experts in Richmond worked with DEQ to develop an engineered plan or a feasibility of connecting that road through an area that was the former City landfill.  That whole process will entail another ½ million dollars of engineering costs.  So one of the green lights that they are looking for is if this proposed land plan in keeping with the Comprehensive Plan to support a zoning so that the engineers and the environmental experts can process this road plan through.  It is estimated that the added construction costs for crossing this area of the former landfill, which requires a technique called dynamic compression, will add to about $2.00 to $7.00 a square foot for building costs.  They want to make sure that they have done the math and they have the engineering. 

·      The benefit of this road is estimated at 6 to 7 million in savings to the community by our client proffering to make that improvement. 

·      They understand that there are challenges beyond dealing with the environmental issues here.  They also have to deal with the bridge that connects Bent Creek Road over to this site.  They would proffer that they would have to make that bridge substantially significant to allow VDOT to accept it into the state system.  This would be a state maintained road.  They understand that this is a tight right-of-way here.  It may require acquiring additional right-of-way.  That would be the developer’s responsibility.  They want to make sure that the land plan will succeed in the approval process before they go into that lengthy process.

·      They know that they will be working with the City to improve the intersection here.  They have spoken with Jim Tolbert and the City engineers and they are supportive of this park way concept for the added benefits that it provides to City traffic convention.  So they are optimistic that these issues can be worked out.  But, naturally they are time consuming and will have to be dealt with in an engineering site plan process.

·      Some of the other benefits of the project are that they think they can provide an integrated trail system, which can link up with the Rivanna Trail system.  They can provide through the ownership that they control a trail system that would link and go underneath I-64 and actually provide a trail link to other projects south of I-64, including the proposed Biscuit Run project.

·      They would propose parks and open space in much of the green area that will show on the plan.  They would concede that the plan could be better labeled and identified.  Those can be incorporated into specific proffers.  What they want to get from the Commission is what is the nature of that park and open spaced area and should it all be retained as natural.  Or, should they provide active recreation such as ball fields in some of those areas that might support it? Or, should it be solely a nature area with nature trails?

·      In terms of other environmental benefits, what they can do through the engineers is actually enhance some of the stream valley that is currently in the state of degradation in Moore’s Creek.  This has been a drainage area for a lot of development that has been unplanned in both the City and the County.  They see it as an opportunity to actually enhance that stream valley through stream valley preservation techniques. 

·      They have labeled one area as a woodland or nature trail.  There can be a trail system that can link the highway network, including both bike and pedestrian, along this parkway.  What makes this a parkway is that it does not have multiple access points to other uses.  One of the things they would like to hear from the Commission, which is a suggestion in the staff report, is that this area might serve as high dense residential.  Their approach to this is to keep it natural and maintain it as open space.  But, if they hear that it is a strong desire to develop this, of course, it may change the character of this road because it would then require access points.

·      The theme here is a limited access parkway that would be below the grade of the main shopping center.  It would be separate and apart from the developed area in the shopping center.

·      He asked for some direction and aid from the Commission.  He asked for input partially because this plan insofar as the retail portion is not going to meet with the Neighborhood Model.  It was not intended to.  When they went through the Comprehensive Plan process it was recognized by the Board of Supervisors that this was a location because of the capacity of the road network and because of the infrastructure that they may need to do some further analysis in terms of the absorption.  But, this was the right area for the big box retail users.  In the minutes of the meeting they were very clear in expressing the terms of what the owner’s intent was.  So the Neighborhood Model is not going to fit neatly on an analysis of this.  They are not going to call it the Neighborhood Model.  That is not what they intend.

·      They acknowledge that the zoning requires information for the Commission to make their findings. They are set forth in Section 8.1.5 in the Zoning Ordinance.  They have identified from the ordinance and the staff reports some areas where they need to provide some additional information.  In the typical street cross section it would be nice to know that the Commission concurs with their approach of the parkway and that it would be a low speed designed road, probably 35 to 40 miles per hour without sidewalks, but with some more nature rural type curbing certainly with streetscape.  Some information and feedback on that would be helpful.  Then they would come back with a typical cross street section.  They need to develop standards of development, including building heights and proposed yards.  They will do that, but would like to take away from this some guidance to develop those.  They obviously can better label the open space plan for environmental features and areas for preservation.  They are in the plan.  But, the fact that staff cannot point them out tells them that they need to do a better job.  They will provide larger plans and formal proffers on the approved proffer form.  They have said that they will build the road and do these features as part of the plan.  If desired, they can do that on the proffer form.

·      They are familiar with the Architectural Review Board. At the time that a certificate of appropriateness is required, the ARB can provide preliminary advisory commit.  But, frankly they don’t think that is going to be very instructive because they are going to require this information to ultimately approve a site plan.  They are going to need to have specific tenants with architectural renderings down to the materials and the way the roof is going to look.  They know what that process is all about and the time it will take after they get the zoning.  They would welcome questions that would help them to improve their plan.


Mr. Morris asked if there were any questions for the applicant.


Mr. Edgerton asked if the applicant expects the Commission to make a decision tonight.


Mr. Blaine replied that his understanding is that there is no legal constraint to requiring an action.  Naturally, they would like for the Commission to recommend approval.  But, he did not think they should feel constrained by it because it is not a site plan.


Mr. Kamptner noted that with a rezoning the Commission had to make a recommendation within 90 days.


Mr. Blaine said that they would welcome a recommendation for approval.  But, if they get to a point where they have a list of things that they think are inadequate they would rather have a full recommendation than a recommendation for denial.


Mr. Morris asked staff where the application was in regards to the 90 days.  He invited other public comment.


Hugh Underwood asked to speak in favor of this proposal because the south side of Albemarle County and Charlottesville needs retail space. He would like to avoid having to drive to Route 29 for lumber supplies.  The traffic has increased a lot since 1969 when he moved to this area.  He has the traffic now and would like to have the convenience. 


Jean Savage, resident of Fox Trot, expressed concerns about the traffic problems on Avon Street and would hope that the Commission would think about this in a comprehensive way and not just in terms of this development, but also Biscuit Run and the other kinds of development in the growth area.  They all know that the growth is coming, but hoped they could think about it in a broader way.


Morgan Butler, an attorney with the Southern Environmental Law Center, said that he heads the Charlottesville/Albemarle Initiative that works to support sustainable land use and transportation patterns in this region.  As staff has pointed out in its report, this application plan leaves a number of important issues and concerns unresolved.  In deed, the lack of detail in the plan precludes an appropriate review of the proposal’s impacts and makes it difficult to access its compliance with the Comprehensive Plan.  However, based on the information that has been provided they have a number of concerns they would like to voice at this time.


Gary Leavell, resident of Old Lynchburg Road, pointed out that the same concerns that he had heard tonight were ones he heard ten years ago.  He was hoping that the Commission will allow this project to move forward and that all of their questions will be answered over a period of time.  But, the folks who live on that side of town need more commercial support.  The developer is going to give the road connection to Avon, which is something that they need for conveniences and emergency purposes.  The buses will be able to get to the schools in that area much faster.  He asked that the Commission allow this project to continue and to be able to work out the problems over a period of time.


Jeff Werner, representative for Piedmont Environmental Council, said that it is difficult to offer comment on a proposal which staff has identified as lacking information and has unresolved transportation issues.  Despite the applicant’s assurances that the answers are in the public realm the critical statement by staff is that there are unresolved issues and concerns regarding this application.  Lacking a complete application on which to offer informed comment, he would still like to put in the record some overall concerns about the scale and the timing of the retail component of this project.  Primarily the question that must be asked is how much more retail space does this community need?  There is no doubt that the residential development in the southern growth area will generate additional demand for new retail. For the record, they are very pleased to see the proposed connector road as the County’s population grows.  This road will allow the County’s suburban traffic to be diverted out of City neighborhoods.  As a City resident, that is important.  It is highly doubtful that this new big box center is intended to simply support new residents in southern Albemarle.  It is highly doubtful that this new big box center will somehow reduce City traffic and traffic on Route 29 North.  He wanted to cite documents provided in the previous application in 1998 by the Cox Company.  In a letter of February, 1999 it says that the close proximity of the interstate makes this an ideal location for a commercial use with a regional draw.  This will in turn reduce congestion on roads supplying access under current consumer patterns to regional traffic destinations on Route 29 North.  He wished that they could be so lucky.  They have attached a map that they have identified as their retail study area.  The map shows the draw from Orange County, northern Albemarle County, Fluvanna, Louisa and Nelson.  So let’s be honest about this being a shopping center for the people in Mill Creek.  Also, in a retail analysis by the Cox Company in June, 1998 they have looked at retail figures for the 7 counties within the Charlottesville Metropolitan Statistical area.  That is a big area.  They conclude that by the year 2010 that there will be additional retail demand that would support 1.8 to 2.2 million square feet of new retail space.  That is in the entire MSA.  They say that Charlottesville and Albemarle County absorb a significant portion of retail sales from residents living out side of the geographical boundaries.  In the last couple of years this county has approved 2.8 million square feet of new retail at North Pointe, Albemarle Place, Northtown, Gazebo Plaza and Hollymead Town Center.  There have been a number of smaller projects that have been approved, such as Luxor and Wickham Pond with another 180,000 square feet.  This proposal has another 1 million square feet.  The 2.8 million that has been approved and what is in the pipeline would total 4 million square feet of additional retail.  That is almost double of what Mr. Cox projected that the entire MSA could absorb by the year 2010.


There being no further public comment, Mr. Morris closed the public hearing to bring the matter back  before the Commission.  He asked Ms. Grant if she had the answer yet as to where they are in the 90 days.


Ms. Grant said that they are up against the 90 days.


Mr. Benish noted that there really was no time so that a deferral would have any substantive effect.


Mr. Craddock requested to ask Mr. Kamptner a question about the old city/county dump.  If they go in there and start putting in a road and pads would the county and city have any more responsibility because that was a previous dump.


Mr. Kamptner replied that he did not know the history of the dump.  Therefore, he would have to research that and get back to him.


Mr. Strucko said that he had heard from numerous people that live in that area south of town about what is almost border lining on their desperate need for commercial presence in this area.  They tell him when they go shopping that they either visit Pantops Mountain, Barracks Road or up to Lowe’s on Route 29.  He agreed with some of the speakers that certainly a commercial presence may be warranted here, but to what degree and to what scale.  He felt that kind of intelligent approach is what he would like to see done. He did not understand how it exists at this level and its incompleteness.  With all of these unfavorable factors, as per staff’s recommendation, there are too many detailed questions about the report to accept this report and take a favorable approach tonight.  He asked if the proposed parkway was on critical slopes.  He asked if it violates the buffer on Moore’s Creek.  If there is going to be active recreation ball fields will they share parking with the commercial space?  He can’t with this report answer any of those questions.  So without the details how can the Commission pass judgment on this rezoning.


Mr. Cannon asked if the parkway has been proffered.


Mr. Kamptner replied that it has not yet been proffered.  Normally, staff would have the proffers in hand and worked on revisions with the applicant by the time the rezoning request comes to the Commission.


Mr. Edgerton shared Mr. Strucko’s concerns.  He still wondered why they were not in a work session.  He felt that would be a positive experience for everyone.  Staff has brought up a lot of concerns that have not been addressed in what they have before them.  Mr. Blaine and Mr. Cox are very familiar with the process that is typically followed.  Frankly, what has been submitted here is a fraction of what they typically submit for a rezoning.  One could argue that they need some indication that this is the direction that the Commission would be comfortable going to before they spend the money to get the answers to the questions.  But, that has never been their process before.  They normally ask for a lot of specific information in a rezoning, which includes proffers.  The reason for doing that is it will hopefully expedite the process when the site plan comes up so there will be no big surprises.  This is a big box development and will provide some of the commercial needs for the southern part of the community.  But, it will provide a lot more traffic from out of the area.  He will not be able to support this tonight.  He hoped that the applicant might consider asking for a deferral and begin the process of answering the questions.  There are a lot of environmental issues on the site that have come up during previous reviews of this project dating back many years.  As Mr. Blaine noted a lot of this is in the public realm.  But, for some of the people who were not sitting at those previous meetings it might be helpful to have that information before they have to make a decision.  If the Commission has to take an action tonight, he would recommend denial of the rezoning.


Mr. Zobrist noted that Mr. Blaine asked a series of questions during his power point presentation.  He asked why they were not in a work session giving conceptual review of what they were doing.  He asked Mr. Blaine to reiterate his questions.


Mr. Blaine replied that one question had to do with the character of the parkway.  That would provide specificity for them to then write a proffer.  He would take issue with the view that they must have a proffer before an action such as this.  But, the Commission must be satisfied that the commitment is there to make the improvements.  So what they would like to know are they off base with their approach to this as a parkway with limited access, two lane and low speed design.  Then they would have something to prescribe in specifications in a proffer.  That is one area.  The other area is fundamental to the plan.  They could imagine over ten years how many different arrays of these uses they have put to the limited area trying to preserve these critical environmental features and try to achieve the critical mass that is needed that they believe can be shown is needed for the market demand.  This Commission is not competent to determine what the absorption of retail space is.  If that is going to be a basis of their decision, then they should probably go ahead and make a recommendation.  They have retailers that are prepared to make the investment.  They have an owner that is prepared to make the investment in all of this engineering design that they know that they have to do before they can put the first spade in the ground.  So if that is a determination let’s go ahead and make that now.  That is going to be fundamental.  They can support the shopping center with retail users.  There is a demand for it.  But, they have a lot of characteristics to this open space area.  They don’t really have any fixed plan on what this employment area could be.  They could take that off the plan. Or, they could provide some guidance to recommend to the Board to put more definition on what they think would be appropriate uses here.  Should this be active recreation?  Or, is it better suited for remaining a natural open space?  He would hope that they would recommend them to pursue the Rivanna Trail network.  Then they would put that in a proffer.  He felt that they could proffer that by having it on an application plan.  That would be a good thing to have front and center in the proffer.  He was inclined to recommend to his client that they not force this issue unless they were hung up on these points that he just mentioned regarding the absorption issue and the form of the development that is a big box retail development that is needed in this community.  That is what it is and they are not going to call it something else.


Mr. Zobrist asked if he was saying that he was willing to defer the decision if the Commission was willing to give him some guidance on those two issues.


Mr. Blaine replied yes, because they need to write some proffers.  They need to clean out where on the plan that the critical slopes are shown and where the floodplains are.  They believe that they are there.  But, perhaps the Commission having received the plan on Friday and this being Tuesday has not had an opportunity to dig for the information.  It is all there.  As the representative from Piedmont Environmental Council pointed out there are ten years of research that can be done on this project.  They have pulled together the germane issues that are necessary for the recommendation, but they don’t want to force the issue.  He would recommend a deferral.


Mr. Zobrist noted that the two questions he wanted Commission input on were:  Is the parkway appropriate and is something that they would like to see there?  Are they going to try to make economic decisions for the private people that want to build commercial in this area?


Mr. Kamptner asked to comment on that issue because one of the factors that the Commission and Board are charged to consider are the current and future requirements of the use of land for various purposes.  It includes retail, residential, industrial, office and all of those different things.  So this is a factor that they are supposed to consider so they don’t under zone or over zone for a particular use.


Mr. Blaine said that the statute says that they have to find that the existing zoning is unreasonable and it meets with the Comprehensive Plan.  That is what this plan supports.  The Board of Supervisors has determined that these uses are appropriate in their 2004 action. That would be their counter to that point.


Mr. Strucko noted that the extent of retail was something that they could reserve judgment on, but not necessarily the activity.


Mr. Blaine felt that the Board in their Comprehensive Plan language was quite express in deliberating the nature of the retail. In fact, they were to the point in defining what they meant by big box and setting out the limits on what is meant by big box.  They may end up with actual buildings that are less than this size.  But, these fit within the terms that were defined and deliberately adopted in the Comprehensive Plan in 2004.


Mr. Strucko asked if there were two big boxes there being the big box retail and a major home improvement center.


Mr. Blaine replied yes.  The Comp Plan language says that as long as that does not exceed 300,000 square feet the Comp Plan supports it.  The grocery store was exempted from the definition of big box.  In any event, that has remained and they proposed less than 100,000 square feet for that.


Mr. Zobrist suggested that the Commission try to answer Mr. Blaine’s questions.


Mr. Blaine recommended to his client that they defer action because he felt that there was information that was germane to their finding needed.  They are not going to be debating the Neighborhood Model application on this retail site because it does not fit.  They think they can find a number of Neighborhood Model features to it, but it is not going to fit square four.  They are not going to debate the absorption rate of retail because they have been doing that for ten years for this site.  There has been no evidence that they can pull out.  The actual people who do this for a living that build retail can provide their data.  But, it is not germane to their finding.  They disagree with that.  They don’t think that they have to find that. 


Mr. Cannon asked if he was recommending deferral of the request to his applicant.


Mr. Blaine replied yes, that he was prepared to do that.


Mr. Cannon noted that the Commission could have a discussion and not be compelled to decide.  They would not be prejudice in their future ability to decide under that.


Mr. Blaine replied of course not.


Mr. Kamptner agreed.


Mr. Cannon said that it was the Commission’s obligation to interpret and apply the Comprehensive Plan.  He did not yet fully understand what this category in the Comprehensive Plan means.  He asked to understand more about that before he was ready to commit on the issue that he had raised.


Mr. Blaine asked for a deferral if it was for a six week time frame, but not for an indefinite deferral. He asked that the Commission read the Comprehensive Plan language and apply it to this application.  He felt that six weeks was ample time for them to draft proffers and meet with them individually and answer specific questions.  He pointed out that there was a Comprehensive Plan Amendment made in 2004 by the Board of Supervisors that specifically referenced a grocery store, large discount department store and the home improvement store that went into much detail in what the size of the limitations are.  If the Commission needs to review that, then he felt that they should. 


Motion:  Mr. Zobrist moved that the Commission accept the applicant’s deferral request and move into a work session this evening.


Mr. Strucko suggested that they take the applicant’s offer for this six week deferral. Perhaps during that six week period of time this application can be presented in a more thorough comprehensive way and have a lot of the staff questions answered.  Perhaps the applicant should feel that he has an obligation to bring to the Commission a complete set of information.  He noted that he had read the Comprehensive Plan.  He takes that quite seriously because that is part of his responsibility in serving the community on this Commission.  Part of his responsibility is also to review a complete application, especially coming from applicants that have been through this process before.  This is not a complete application.  He asked that the work session be scheduled to another date and not be done this evening.  That would give them a period of time to go through this information thoroughly.


Mr. Kamptner suggested that staff check the calendar and set the deferral to a specific date.


Mr. Morris said that the date was dependent on the applicant and the staff working together to work everything out.


Mr. Blaine said that they accept the obligation that there is additional information that they have an obligation to provide.  They are prepared to do that.  He felt that this was the point where an application can get broke down.  They have the information.  They can better label and elaborate on it.


Mr. Morris said that he really likes the road network. He questioned how they were going to get across the old dump.  He acknowledged that he had heard many comments from residents about the need for retail in the southern part of the County.  As far as park areas, he suggested that they bring in Parks and Rec on that.


Mr. Craddock said that in some of the earlier discussions a couple of years ago, which was why he was surprised that a lot more information was not included in the application, the parkway was looked at a little more favorably. Those rock outcrops were looked at as being something environmentally important to keep out there.  It is true that there is not a whole lot of shopping down south. But also with this regional draw, the traffic is going to come from Buckingham and other places.  It is going to be a lot of traffic.  But, he did like the connector road.


Mr. Strucko noted that its location to I-64 is ideal.  That may do something.  There were some specimen trees issues on this site in the prior consideration.


Mr. Edgerton asked that the location of the specimen trees should be noted before they start.


Mr. Morris noted that his comments tied back in with his questions.


Mr. Edgerton said that he liked the connector road, but was unsure if it was in the right place.  But, he would have no way of knowing that.  It appears to be following the existing access to the old warehouse, at least the first part of it.  He was no fan of big boxes, but he would try to be open minded about large scale retail if there was any effort made to minimize the sea of asphalt.  He believed that those footprints can be reduced by multi-story facilities.  That is done elsewhere in the country quite routinely.  He felt that the parking should be configured to be hidden behind the buildings and the buildings brought up closer.  He said that the Commission cannot ignore the Neighborhood Model review, which was in the Comprehensive Plan.


Amended Motion:  Mr. Zobrist moved, Mr. Strucko seconded, to amend the motion and accept the applicant’s request for deferral of ZMA-2006-09, 5th Street-Avon Center, to December 5, 2006 for a work session.


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


Mr. Morris stated that ZMA-2006-09, 5th Street-Avon Center was deferred to a December 5, 2006 work session.


            Old Business:


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


            New Business:


Mr. Morris asked if there was any new business.




o        Mr. Edgerton pointed out that the Commission had a similar hostile application a couple years ago on the North Pointe project.  In that case the applicant basically told the Commission that he did not care what they thought and went forward to the Board.  The Commission felt compelled to recommend denial.  The Board sent the request back to be negotiated with subcommittees.  He felt that they have a similar situation here and he hoped that the Commission could stick to their responsibility to the community. He felt that the Commission has a huge responsibility and that he took great offense by what occurred this evening.  If the request comes back with incomplete information, he felt that it was time to say no thank you because the applicant understands the process. He opposed allowing an applicant to change the whole rezoning process.


o        Mr. Benish noted that the non-clarity of some of the information makes it difficult for staff to fully assess the Comp Plan and there are some issues on the 5th Street Avon Center site that staff wanted more information on. Without proffers and adequate information regarding the site staff was not able to completely evaluate the impact of the site.  There were certain areas in the Comp Plan where it would have been better to have had more information and dialogue with the applicant. From staff’s perspective, it would have been less frustrating to have had more information. Without the applicant’s commitment to provide specific proffers it was difficult for staff to recommend moving forward with the request. What they are proposing is not completely inconsistent with what the Board intended.  They did recognize that it was going to be a regional center.  They left enough language in there that sent the message to try to make it more than a regular shopping center.  That was really the gap.  Staff could not get any definite information on why they did not do certain things.


o        Mr. Strucko expressed similar sentiment.


o        Mr. Craddock noted that the previous request that the Commission heard in 2004 on this item was more complete.


o        Mr. Cannon said that he did not understand how the Commission can act on a rezoning request that is conditioned upon the offer of a proffer without having a proffer in some form before us.  When they adopt a rezoning it is a done deal.


o        Mr. Kamptner replied yes, but that the Planning Commission is only making a recommendation to the Board.  The requirement that the proffers be submitted in writing really only applies to the Board of Supervisors.  For the Commission to make an informed decision, it wants the proffers to at least have the concepts identified so that it can make a meaningful recommendation.


o        Mr. Cannon questioned how they would make a deal without the proffers.


o        Mr. Edgerton noted that on many occasions the Commission has asked applicants for additional proffers on a rezoning and gone ahead and granted the rezoning with an understanding that the proffers will be satisfactorily worked out with the County Attorney’s Office.  It becomes a condition of the Commission’s recommendation to the Board.  By the time it gets to the Board the proffers are in an enforceable form they trust.


o        Mr. Kamptner noted that this project was scheduled to go to the Board on November 8, which means that the proffers would have had to be final by tomorrow.  The proffers have to be final 3 weeks before advertising.  Therefore, the proffers would have had to be final by tomorrow or no later than next Wednesday.




There being no further new business, the meeting proceeded.


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