Date: December 5, 2007
ZMA#: 2007-00004 Oakleigh Farm
Tax Map and Parcel Number: Tax Map 45, Parcel 26A
8.822 acres to be rezoned from R6 Residential to Neighborhood Model District (NMD)
in accord with the General Development Plan entitled “Rezoning Request for Oakleigh Farm,” prepared by Terra Concepts, PC, revised through November 16, 2007
(the “General Development Plan”)
Oakleigh Albemarle, LLC, a Virginia limited liability company, is the fee simple owner (the “Owner”) of Tax Map 45, Parcel 26A (the “Property”) which is the subject of the zoning map amendment application #ZMA 2007-00004 known as “Oakleigh Farm.” The Applicant for Oakleigh Farm is also Oakleigh Albemarle, LLC. The Oakleigh Farm community is herein referred to as the “Project.”
Pursuant to Section 33.3 of the Albemarle County Zoning Ordinance, Owner hereby voluntary proffers the conditions listed in this Proffer Statement, which shall be applied to the Property if the rezoning is approved by Albemarle County. These conditions are proffered as part of the rezoning and it is acknowledged that the conditions are reasonable.
1. Affordable Housing.
A. 15% Affordable Requirement. The Owner shall provide a mixture of affordable housing units and cash in lieu of affordable housing units equivalent to fifteen percent (15%) of the total residential dwelling units within the Project (the “15% Affordable Requirement”). The affordable housing mixture shall be comprised as follows:
(i). The Owner shall provide affordable housing dwelling units equal to at least seven and one-half percent (7.5%) of the total residential dwelling units within the Project in the form of for-sale or for-lease affordable dwelling units as described in this paragraph 1 (the “Affordable Dwelling Units” or “Affordable Units”). The Affordable Dwelling Units shall be comprised of one or more of the following unit types: single-family attached housing (townhouses or duplexes), condominiums or single family detached units. The Owner or its successor in interest reserves the right to provide the Affordable Dwelling Units in a variety of ways, utilizing the above mentioned unit types alone or any combination.
(ii) In lieu of each additional affordable dwelling unit that would otherwise be required to meet the remainder of the 15% Affordable Requirement for affordable housing within the Project after the Owner has provided the Affordable Dwelling Units referenced in Paragraph 1(A)(i), the Owner shall make a cash contribution to Albemarle County for the affordable housing program in the amount of Nineteen Thousand One Hundred Dollars ($19,100) for each such unit (the “Affordable Housing Cash Proffer”) as described herein. For example, if the total number of residential dwelling units within the Project is one hundred nine (109), 16 Affordable Units would be required to meet the 15% requirement. The Owner shall provide eight (8) Affordable Dwelling Units to satisfy the 7.5% requirement of paragraph 1A(i), and One Hundred Fifty-Two Thousand, Eight Hundred Dollars ($152,800.00) ($19,100 x 8) to satisfy the requirements of paragraph 1A(ii). Any unit for which the Affordable Housing Cash Proffer is contributed as provided herein shall count as an Affordable Dwelling Unit for purposes of this Paragraph 1, but as a market rate unit for purposes of Paragraph 2.
(iii). If the 15% Affordable Requirement has not already been satisfied as determined by the County pursuant to these proffers prior to the issuance of the building permits for each of buildings C, D, and H shown on the General Development Plan, the Owner shall either demonstrate to the County’s satisfaction that at least 15% of the residential dwelling units in such building will be Affordable Dwelling Units, or the Owner shall pay the Affordable Housing Cash Proffer to the County in lieu of each Affordable Dwelling Unit that would otherwise be required to be paid to achieve the 15% Affordable Requirement for the building being permitted. Notwithstanding the foregoing, however, the Owner may “carry-over” or “bank” credits for affordable units in the event previously built buildings within the Project provided more than 15% Affordable Units, or in the event the Owner has paid the Affordable Housing Cash Proffer for an equivalent number of units (“Affordable Credits”). Any such additional Affordable Credits shall be allocated toward the fifteen percent (15%) minimum for the buildings that remain to be constructed of buildings C, D and H as shown on the General Development Plan.
B. For-Sale Affordable Units. The for-sale Affordable Dwelling Units shall be affordable to households with incomes up to eighty percent (80%) of the area median family income (the “Affordable Unit Qualifying Income”), such that the housing costs consisting of principal, interest, real estate taxes, and homeowner's insurance (PITI) do not exceed thirty percent (30%) of the Affordable Unit Qualifying Income, provided, however, that in no event shall the selling price of such affordable units be required to be less than the greater of One Hundred Ninety Thousand Four Hundred Dollars ($190,400) or sixty-five percent (65%) of the applicable Virginia Housing Development Authority (VHDA) maximum mortgage for first-time home buyers at the beginning of the 90-day identification and qualification period referenced below. The Owner or his successor in interest may at its option facilitate the provision of down payment assistance loans to reduce the out-of-pocket cash requirement costs to the homebuyer, such as, but not limited to a “silent” second lien Deed of Trust, so that the resultant first mortgage and housing costs remain at or below the parameters described herein. All financial programs or instruments described herein must be acceptable to the primary mortgage lender. Any “silent” second lien Deed of Trust executed as part of this paragraph shall be donated to the County of Albemarle or its designee to be used to address affordable housing. For purposes of calculating the price of the Affordable Dwelling Units, the value of Seller-paid closing costs shall be excluded from the selling price of such Affordable Dwelling Units.
C. For-Lease Affordable Dwelling Units.
(i) The initial net rent for each for-lease Affordable Unit shall not exceed the then-current and applicable maximum net rent as published by the County Housing Office. In each subsequent calendar year, the monthly net rent for each for-rent Affordable Unit may be increased up to three percent (3%). For purposes of this proffer statement, the term “net rent” means that the rent does not include tenant-paid utilities. The requirement that the rents for such for-lease Affordable Units may not exceed the maximum rents established in this paragraph 1C shall apply for a period of ten (10) years following the date the certificate of occupancy is issued by the County for each for-lease Affordable Unit, or until the units are sold as affordable units as defined by the County’s Affordable Housing Policy, whichever comes first (the “Affordable Term”).
(ii). Conveyance of Interest - All instruments conveying any interest in the for-lease Affordable Dwelling Units during the Affordable Term shall contain language reciting that such unit is subject to the terms of this Paragraph 1(C). In addition, all contracts pertaining to a conveyance of any for-lease Affordable Dwelling Unit, or any part thereof, during the Affordable Term, shall contain a complete and full disclosure of the restrictions and controls established by this Paragraph 1(C). Prior to the conveyance of any interest in any for-lease Affordable Dwelling Unit during the Affordable Term, the then-current owner shall notify the County in writing of the conveyance and provide the name, address and telephone number of the potential grantee, and state that the requirements of this Paragraph 1(C)(ii) have been satisfied.
(iii). Reporting Rental Rates. During the Affordable Term, within thirty (30) days of each rental or lease term for each for-rent Affordable Unit, the then-current owner shall provide to the Albemarle County Housing Office a copy of the rental or lease agreement for each such unit rented that shows the rental rate for such unit and the term of the rental or lease agreement. In addition, during the Affordable Term, the then-current owner shall provide to the County, if requested, any reports, copies of rental or lease agreements, or other data pertaining to rental rates as the County may reasonably require.
D. Notification Period; County Cash Option.
(i). Notification Period. All purchasers of the Affordable Dwelling Units shall be approved by the Albemarle County Office of Housing or its designee. The then-current owner/builder shall provide the County or its designee a period of ninety (90) days to identify and pre-qualify an eligible purchaser for the Affordable Unit(s). The ninety (90) day period shall commence upon written notice from the then-current owner/builder that the Unit(s) is within one hundred twenty (120) days of completion and, that on or before the end of such one hundred twenty (120) day period shall be ready for occupancy. If the County or its designee does not provide a qualified purchaser who executes a contract of purchase during this ninety (90) day period, the then-current owner/builder shall have the right to sell or lease the Unit(s) without any restriction on sales or lease price or income of the purchaser(s), provided, however, that any Unit(s) sold or leased without such restriction shall nevertheless be counted toward the number of Affordable Units required to be provided pursuant to the terms of this proffer. The requirements of this proffer shall apply only to the first sale of each of the Affordable Dwelling Units that are purchased. Nothing herein shall preclude the then-current owner/builder from working with the County Housing Department prior to the start of the notification periods described herein in an effort to identify qualifying purchasers for the Affordable Units.
(ii). County Option for Cash In Lieu of Affordable Units. If at any time prior to the County’s approval of any preliminary site plan or subdivision plat for the Property which includes one or more for-sale Affordable Dwelling Units, the Housing Office informs the then-current owner/builder in writing that it may not have a qualified purchaser for one or more of the for-sale Affordable Dwelling Units at the time that the then-current owner/builder expects the units to be completed and that the Housing Office will instead accept a cash contribution to the Housing Office to support affordable housing programs in the amount of Nineteen Thousand One Hundred Dollars ($19,100) in lieu of each affordable unit(s), then the then-current owner/builder shall pay such cash contribution to the County prior to obtaining a certificate of occupancy for the unit(s) that were originally planned to be Affordable Dwelling Units, and the then-current owner/builder shall have the right to sell the Unit(s) without any restriction on sales price or income of the purchaser(s). For the purposes of this proffer, such Affordable Dwelling Units shall be deemed to have been provided when the subsequent owner/builder provides written notice to the Albemarle County Office of Housing or its designee that the Affordable Unit(s) will be available for sale.
E. Inspections. The County shall have the right, upon reasonable notice and subject to all applicable privacy laws, to periodically inspect the records of the Owner or any successors in interest for the purposes of assuring compliance with this Paragraph 1.
2. Cash for Capital Improvements Program. The Owner shall contribute cash to the County in the following amounts for each dwelling unit constructed within the Property that is not an Affordable Dwelling Unit. The cash contributions shall be used to address the fiscal impacts of development on the County’s public facilities and infrastructure (i.e., schools, public safety, libraries, parks and transportation) identified in the County’s Capital Improvements Program. The cash contribution shall be paid prior to issuance of a building permit for each unit in the following amounts:
(i) Seventeen Thousand Five Hundred Dollars ($17,500) for each single family detached dwelling unit that is not an Affordable Dwelling Unit.
(ii). Eleven Thousand Nine Hundred Dollars ($11,900) for each single family attached dwelling unit that is not an Affordable Dwelling Unit.
(iii). Zero Dollars ($0.00) for each Affordable Dwelling Unit.
3. Annual Adjustment of Cash Proffers. Beginning January 1, 2008, the amount of each cash contribution required herein shall be adjusted annually until paid, to reflect any increase or decrease for the preceding calendar year in the Comparative Cost Multiplier, Regional City Average, Southeast Average, Category C: Masonry Bearing Walls issued by Marshall Valuation Service (a/k/a Marshall & Swift) (the “Index”) or the most applicable Marshall & Swift index determined by the County if Marshall & Swift ceases publication of the Index identified herein. In no event shall any cash contribution amount be adjusted to a sum less than the amount initially established by these proffers. The annual adjustment shall be made by multiplying the proffered cash contribution amount for the preceding year by a fraction, the numerator of which shall be the Index as of December 1 in the year preceding the calendar year most recently ended, and the denominator of which shall be the Index as of December 1 in the preceding calendar year. For each cash contribution that is being paid in increments, the unpaid incremental payments shall be correspondingly adjusted each year.
4. Tree Preservation. The Owner has submitted as part of the Code of Development for Oakleigh Farm a tree protection plan (the “Tree Plan”) for thirty-nine (39) trees within the Project, as shown on the Tree Plan, which specifies tree protection methods and procedures, including fertilizing, tree protection fencing and mulching which shall be complied with during and after development of the Project. Prior to the final site plan approval, the Owner shall submit a bond or other form of surety in the total amount of Twenty-Nine Thousand Dollars ($29,000). The bond or surety shall be submitted to guaranty the replacement of those trees which are numbered 1, 1A, 2, 3, 4, 4A, 5, 6, 7, 8, 9, 10, 14, 16, 17, 19, 20, 21, 22, 24, 25, 27A, 30, 31, 32, 35, 38, 38A, and 44D on the Tree Plan (the “Bonded Trees”) in the event that any of the Bonded Trees die within a period of five (5) years after issuance of the last Certificate of Occupancy within the Project. The bond or other surety shall be in a form acceptable to the County Engineer and the County Attorney.
5. Pedestrian Easement. The Homeowners’ Declaration of Covenants and Restrictions for the Project shall contain a provision which grants, or directs the Homeowners’ Association to grant, a pedestrian easement over all sidewalks within the Project. Such easement shall be subject to review and approval by the County and shall be granted and recorded in the Circuit Court Clerk’s Office within six (6) months after County approval of the first site plan or subdivision plat within the Project.
WITNESS the following duly authorized signatures:
OAKLEIGH ALBEMARLE, LLC,
a Virginia Limited Liability Company
Printed Name: __________________________
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