PROFFER FORM

 

Date:  December 3, 2007

ZMA # 2006-09

Tax Map and Parcel Number(s): 76-M1-2A; 76-M1-2B; 76-M1-4A; and 77-M1-11E

 

81.94 Acres to be rezoned from LI and Rural Area to PD-SC

 

Pursuant to Section 33.3 of the Albemarle County Zoning Ordinance, the owners, or their duly authorized agent, hereby voluntarily proffer the conditions listed below which shall be applied to the property, if rezoned.  These conditions are proffered as a part of the requested rezoning and it is acknowledged that the conditions are reasonable.

 

1.  Road Improvements.  The Owner shall cause completion of the following road improvements:

 

                  A.  Bent Creek Road and 5th Street Intersection.  Pursuant to road plans approved by the Virginia Department of Transportation (“VDOT”), the City of Charlottesville, and the County of Albemarle (the “County”), the Owner shall construct signal and lane improvements for the westbound lanes of Bent Creek Road and the southbound lanes of 5th Street at the Bent Creek Road and 5th Street intersection as a condition of approval of the initial site plan for the Project.  If required by the City of Charlottesville, such improvements shall include: (i) dual left turn lanes southbound on 5th Street; (ii) dual right turn lanes northbound on 5th Street; and (iii) an extended single left turn lane northbound on 5th Street.  An example of the improvements that the City may require of the Owner is attached as Schedule I.

 

      B.  Bent Creek Road Bridge.  Pursuant to road and bridge plans approved by VDOT, the Owner shall widen, or replace the existing bridge spanning Moore’s Creek supporting Bent Creek Road as a condition of approval of the initial site plan for the Project.  The bridge expansion shall be sufficient to accommodate at least two (2) through lanes for Bent Creek Road.

 

                  C.  Bent Creek Parkway.  The Owner shall cause to be constructed and dedicated a two lane (with right-of-way sufficient for future expansion to four lanes) limited access road from the bridge at Bent Creek Road through to Avon Street (“Bent Creek Parkway,” also referred to herein as the “Parkway”) in the general location shown on the Application Plan entitled “5th Street –Avon Center, ZMA Application Plan, Conceptual Master Plan”, (Sheets 1- __), prepared by The Cox Company, last revised November  , 2007(the “Application Plan”). If approved by VDOT, the Parkway may be a ‘rural section’ in design, without curb and gutter.     The Parkway shall be constructed, bonded and ready to be recommended by the Albemarle County Board of Supervisors for acceptance into the public system, and the County Engineer shall have determined that the roadway is safe and convenient for traffic (hereinafter, “completed”) as a condition of the issuance of a certificate of occupancy for the first building within the Project. At the County’s option, that portion of the Parkway that transects the former City of Charlottesville Landfill (the “Landfill Segment”) shall be maintained as a private road by the Owner until the conditions of this proffer 1.D. have been met to the reasonable satisfaction of the County.  The precise length of the Landfill Segment shall be determined by the parameters submitted as part of the Landfill Work Plan described in proffer 8 below. The Owner may request that the County accept for dedication the completed Landfill Segment: i) (a) upon Virginia Department of Environmental Quality ("DEQ") determination that the work described in the Landfill Work Plan (or at least that portion as relates to the construction of the Landfill Segment) has been completed, or, (b) in the alternative, the County or a qualified environmental consultant approved by the County makes the determination that the work described in the Landfill Work Plan (or at least that portion as relates to the construction of the Landfill Segment) has been completed, ii) there are no hazardous materials within the Landfill Segment exposed at or about the Parkway, and iii)  (a) VDOT has indicated that it will accept the Landfill Segment for state maintenance without indemnity from the County, or (b) if indemnity is required by VDOT for such state maintenance, the Owner supplies to the County a surety or bond that is satisfactory to the County to address reasonably foreseeable environmental remediation costs to the County resulting from the Landfill.    The County’s acceptance of this proffer shall not confer any approval of special use permits for any construction of the Parkway or other improvements within the floodplain, if necessary; the approval of such permits shall be reserved by the Board of Supervisors.  

 

                         D.       Avon Street Improvements. The Owner shall dedicate public right-of-way, if necessary, and construct a right turn lane on Avon Street southbound from the northern boundary of the Property to the intersection of Avon Street and the Parkway.  If warranted, the Owner shall construct a left turn lane and signal improvements at the intersection of Avon Street and the Bent Creek Parkway.  If the public right-of-way is not dedicated by subdivision plat, the Owner shall be responsible for the cost of a survey and preparing the deed to convey the public right-of-way to the County.  Unless sooner required by VDOT as a condition of site plan approval, the Avon Street Improvements shall be constructed, bonded and ready to be recommended by the Albemarle County Board of Supervisors for acceptance into the public system, and the County Engineer shall have determined that the roadway is safe and convenient for traffic as a condition of issuance of the first certificate of occupancy within the Project.

  

       E. Transportation Proffers Compliance. 

 

1.  The road improvements listed in 1B, 1C, and 1D above shall be constructed in accordance with road plans submitted by the Owner and approved by VDOT.  All of the foregoing improvements listed in 1B, 1C, and 1D shall be (i) constructed to VDOT design standards pursuant to detailed plans agreed to between the Applicant and VDOT, and (ii) except as provided in proffer 1.C., be offered to be accepted by VDOT for public use or bonded for VDOT’s acceptance. The width, (except as specified in 1C above) length, location, (inside median or outside existing pavement), type of section (e.g., urban vs. rural), and geometrics of all lane improvements shall be as required by VDOT design standards and detailed plans submitted by the Owner and approved by VDOT.

 

2.  Any signal improvements proffered herein shall be coordinated among the City of Charlottesville and VDOT to address signal timing.

 

3.  The Owner shall submit to the City of Charlottesville engineering drawings, plans, and construction documents (“City Transportation Plans”) for all road, signal and other transportation improvements contemplated in these Proffers or shown on the Application Plan that are located within the limits of the City of Charlottesville.  The City Transportation Plans shall be submitted within sixty (60) days after the first site plan for the Property is submitted to the County.  The Owner shall diligently pursue approval of the City Transportation Plans with the City.  If the City does not approve all the City Transportation Plans within six (6) months after the first final site plan for the Property is approved by the County, the Owner shall not be required by these Proffers to construct any improvements for which approvals have not been obtained.  The Owner also shall not be required by these Proffers to acquire right-of-way or otherwise pay for right-of-way in the City for such improvements.   

 

F. Transit Stop; Park and Ride Lot.  The Owner shall provide a paved parking area on the Property consisting of no less than twelve (12) spaces either: i) within the area labeled “Future Development” (as shown on Sheet 10 of the Application Plan) or ii) in conjunction with the construction of a parking area for another use, (e.g. a grocery store), for temporary use by commuters accessing transit, trails or carpools (the “Park and Ride Lot”).  The Park and Ride shall include a transit stop. Construction of the Park and Ride Lot shall occur in conjunction with the construction and dedication of the adjacent Bent Creek Parkway section or, if the Park and Ride Lot is constructed within a parking area for another use (e.g., a grocery store), then the Park and Ride Lot shall be constructed in conjunction with such use.  The transit stop and Park and Ride Lot shall be designed and constructed in coordination with Charlottesville Transit Service and shall incorporate standards for pedestrian access and signage consistent with other similar CTS facilities. 

 

            2.  Greenway Dedication. The Owner shall dedicate in fee simple to the County, or at the County’s option, an easement to the County, and construct a link to the section of trail through the Property in the location shown on the Application Plan. The Greenway shall be dedicated and the section of trail shall be installed within six (6) months after the issuance of the first certificate of occupancy within the Project. This section of trail shall be constructed to meet the Class A trail definition as contained in the County’s Greenway Plan.  The existing, dilapidated bridge over Moore’s Creek shall be restored or replaced (for pedestrian or bicycle use only) as part of the trail section at the time of the completion of the trail, and to sufficient design to support a Class A trail. In the event that sufficient right-of-way exists or can be obtained by others, the Owner shall construct within nine (9) months after the availability of such right-of-way, an extension of the link for the County Greenway System beyond the Property line to Interstate 64, along Biscuit Run, in the area shown on the Application Plan. If the Greenway is not dedicated by subdivision plat, the Owner shall be responsible for the cost of a survey and preparing the deed to convey the Greenway to the County.

 

            3. Greenway Park and Pedestrian Trails Master Plan.  Within the area depicted on the Application Plan as Park/Open Space, the Owner shall dedicate in fee simple to the County, or at the County’s option, an easement to the County, a Greenway Park, to include the stream valley areas along Moore’s Creek, for use by the public for hiking, bicycling, picnicking and other passive recreational use.  At least five (5) parking spaces in the adjacent parking lot on the Application Plan shall be reserved for a trail head use. 

 

            The Owner shall submit a master plan for, and construct a Greenway Park and Pedestrian Trail system as a condition of approval for the first site plan for the Project.   Subject to County approval as part of the first site plan for the Project, the Greenway Park and Pedestrian Trails master plan shall incorporate the following elements:

 

                                       i.      Greenway Park and Trailhead Park routing plan, including trail standards;

                                     ii.      5th Street/Avon Connector Road preliminary engineering plan;

                                    iii.      Preliminary landscape plan for impact area;

                                   iv.      Critical slope impact evaluation and option assessment; and

                                     v.      Tree survey within the Stream Buffer area;

 

The Greenway Park and Pedestrian Trails master plan shall be coordinated with the Director of Community Development and the County Department of Parks and Recreation.  The Greenway Park and Pedestrian Trails master plan shall be submitted with the first final site plan for the Property and shall identify, design and incorporate the items cited in i-xii above.  This Proffer 3 shall be satisfied upon (a) approval of all relevant elements of the Greenway Park and Pedestrian Trails master plan by the requisite federal, state, and local approval agencies; (b) posting of a bond satisfactory to the County for construction of any improvements as depicted on the approved Greenway Park and Pedestrian Trails master plan; and (c) the County’s acceptance of the deed of dedication of the fee simple (or easement) interest.  This Proffer 3 shall be satisfied prior to or at the time of the County’s approval of the first final site plan for the Project.  If the Greenway Park is not dedicated by subdivision plat, the Owner shall be responsible for the cost of a survey and preparing the deed to convey the Greenway Park to the County.

 

            4.    Pedestrian Link to Willoughby Subdivision.  In the event that sufficient right-of-way exists or can be obtained by others, the Owner shall construct within nine (9) months after the availability of such right-of-way, a pedestrian path or trail connecting the Project to the Willoughby Subdivision (the “Willoughby Link”).  The Willoughby Link shall include a pedestrian bridge over Moore’s Creek, and reasonable access to at least one neighborhood street within Willoughby.  If sufficient right-of-way is not obtained, or access to at least one street is not approved by the Willoughby neighborhood within five (5) years of the issuance of the first occupancy permit within the Project, then Owner shall contribute the sum of $25,000.00 to the Rivanna Trails organization for trails maintenance and benefit and the Owner shall be relieved of all obligation to construct a Willoughby Link.

 

            5.   Tree Conservation Areas.   Within the areas depicted on the Application Plan as Conservation Areas, no land disturbing activities shall occur except in accordance with Best Management Practices, as defined by the Virginia Department of Forestry.  Management of Conservation Areas on the Property for any other purpose not involving land disturbing activities, including wildlife habitat improvement, shall be in accord with a forest stewardship plan approved by the County’s Director of Planning. Best Management Practices, as defined by the Virginia Department of Forestry, shall be used to control erosion and protect water quality during any forest activity. The primary objectives of the forest stewardship plan shall be to (a) maintain the health of the Conservation Areas, (b) maintain a scenic, urban forest and (c) conserve soil and water.

 

            In addition to providing a forest stewardship plan, the Owner shall replace trees that must be removed in the areas denoted as “Conservation Areas” on the Application Plan that lie within the Greenway Park.  Replacement shall be two (2) trees of similar species or quality for each removed, or destroyed tree.  All tree replacement shall be in accord with the final landscape plan for the first final site plan for the Property.  The Owner’s obligation to replace trees within the Conservation Areas shall apply only to existing trees within the final, approved Greenway Park pursuant to the Greenway Park and Pedestrian Master Plan, described above.  Trees to be replaced within the following planting season, must be in excess of 12” dbh and shall be replaced with trees of the same or a similar species or quality of not less than 2.5” dbh, as determined by the County’s Director of Community Development. The County’s Director of Community Development may authorize minor variations in the specific location and extent of the “Conservation Areas” as depicted by the Application Plan provided that such variations (a) are supported by final engineering, geotechnical, and environmental analysis; (b) have been mitigated to the satisfaction of the Director of Community Development; and (c) meet any other requirements for a minor variation under County Code § 18-8.5.5.3(a)(2).

 

            The Owner shall employ a licensed arborist until all land disturbance within the Conservation Areas is complete in order to assure compliance with the standards contained in this proffer 5.

 

6.  LEED Standards for Core & Shell Development.   The Owner shall cause commercial buildings within the shopping center portion of the Project to be rated a minimum of “Certified” under the LEED Green Building Rating System for Core & Shell Development, as set forth in the U. S. Green Building Rating System, Version 2.0, July 2006 (collectively, the “LEED Compliant Commercial Space”).  For each commercial building containing LEED Compliant Commercial Space, the Owner shall provide copies of the LEED certifications to the County confirming that such building is constructed to the minimum standard provided in this Proffer 6.  Prior to issuance of the building permit for any proposed LEED Compliant Commercial Space, the Owner shall provide to the County Director of Community Development the opinion of a licensed architect that such space, if constructed in accordance with the building plans, is designed to achieve the minimum “Certified” rating provided in this Proffer 6.  Before the Owner requests a certificate of occupancy for any building for which a licensed architect rendered such an opinion, the Owner shall submit to the County’s Director of Community Development a written statement from the architect that the building was built to the plans on which the opinion was based.

 

 

            7.   Moore’s Creek Erosion and Buffer Projects.  The Owner shall complete the erosion and buffer projects for Moore’s Creek, above Biscuit Run in the areas depicted on the map attached (“Erosion and Buffer Projects”).  The Erosion and Buffer Projects will improve those stretches of Moore’s Creek above Biscuit Run identified on the  attached Exhibit A from the County’s Stormwater Action Lists Report for Stormwater Master Plan, prepared by CH2MHill, dated January, 2004. The Erosion and Buffer Projects will include but not be limited to streambank restoration and stream channel stabilization in general conformity with The Virginia Stream Restoration and Stabilization Best Management Practices Guide published by the Virginia Department of Conservation and Recreation in 2004 or any subsequent updates or revisions.   The Erosion and Buffer Projects also will include but not be limited to the installation of new riparian plantings in general conformity with the Riparian Buffers Modification and Mitigation Guidance Manual prepared by the Virginia Chesapeake Bay Local Assistance Department in September 2003 or any subsequent updates or revisions. The Erosion and Buffer Projects scope will be subject to all applicable federal and state and local approvals, including the requirements set forth in the final DEQ Landfill Work Plan, defined below. The schedule and scope of the Erosion and Buffer Projects shall be submitted and approved with the first final site plan within the Project and shall be completed within three (3) years from the date of the approval of the first final site plan within the Project.    

     

8.  Former Landfill Site; Work Plan; Department of Environmental Quality.    Prior to preliminary site plan approval the Owner shall have obtained DEQ approval of a work plan ("Landfill Work Plan") addressing the implications of Owner's constructing any portion of the Bent Creek Parkway, and any proposed project improvements on the Project implicating the former City of Charlottesville Landfill site.   The Landfill Work Plan shall be prepared by an environmental consulting firm and shall contain the following:

A.      A discussion of the geology, site history, and generalized subsurface stratigraphy of the landfill site, based upon a systematic study to include field observations, and if necessary, electromagnetic induction (EM) survey to determine the lateral extent of waste deposits on the Property.

B.      A plan to stabilize, cover or otherwise address to DEQ's satisfaction any areas of exposed waste on the Property discovered during the systematic study referenced in A. above.

C.      A plan that addresses the construction techniques to be employed to allow construction of Bent Creek Parkway and any related improvements over the waste deposits within the landfill site.  For example, to the extent dynamic compaction of the waste deposits will be required to construct the roadway, the plan will describe where and how dynamic compaction will be performed.

The Owner shall diligently pursue DEQ’s approval of the Landfill Work Plan. Unless DEQ requires otherwise, the components of the Landfill Work Plan referenced above may be submitted to DEQ separately or within the same document. The County shall be provided with a copy of the Landfill Work Plan, together with all back-up data submitted in DEQ’s approval of the Landfill Work Plan as a condition of acceptance of dedication of the Parkway.  If all aspects of the Landfill Work Plan have not been completed, but in the County’s sole discretion, any aspect of the Project, including the Parkway may proceed to opening without any risk to the health and safety of the general public, the conditions contained herein with respect to the Landfill Work Plan may be suspended or excused by the County’s Director of Community Development.

9. Cultural Resources.  Prior to commencing land disturbance of any of the area included in the former Willoughby Mansion Site, as depicted on the attached Exhibit B, prepared by Dutton Associates, (the “Phase I Scope Area”), the Owner shall cause to be completed and supplied to the County, a Phase I Historic Resources Survey (“Phase I Survey”) for any areas within the Phase I Scope Area to be disturbed.  The Phase I Survey shall be conducted pursuant to the National Historic Preservation Act of 1966, as amended, the Archaeological and Historic Preservation Act of 1974, and Executive Order 11593.  The consultant conducting the Phase I Survey shall meet the professional qualification standards of the Department of the Interior (48 Fed. Reg. 44,738 - 44,739).  The archaeological fieldwork component of the Phase I Survey shall conform to the qualifications specified by the  Secretary of the Interior’s Standards and Guidelines for Archeology and Historic Preservation (48 Fed. Reg. 44,716 - 44,742 (1983)), and by the Virginia Department of Historic Resources in its publication entitled Guidelines For Conducting Cultural Resource Survey In Virginia: Additional Guidance for the Implementation of the Federal Standards Entitled Archaeology and Historic Preservation: Secretary of the Interior's Standards and Guidelines (48 FR 44742, September 29, 1983), 1999, rev. 2000.  In the event that any human remains are encountered in the course of conducting any Phase I Survey, no land disturbance shall proceed prior to delivery of evidence to the County that all applicable regulations regarding the disturbance or removal of such remains have been complied with, or that avoidance can be achieved.  The Phase I Survey consultant shall follow federal and state guidelines and legislation in conducting the Phase I Survey in making recommendations regarding any Potential Resource Site's eligibility for nomination to the National Register of Historic Places (NRHP).   All artifacts generated in the course of survey and associated records will be curated according to the requirements specified in Curation of Federally Owned and Administered Archaeological Collections (36 C.F.R. § 79) and Virginia Department of Historic Resources State Curation Standards

10.  Erosion and Sediment Control and Stormwater Management

 

A.        Erosion and Sediment Control.  The Owner shall, to the maximum extent practicable as determined by the County’s Program Authority, provide additional erosion and sediment controls to achieve a sediment removal rate of eighty percent (80%) for the Property.  (As a reference, current regulatory structural measures achieve a 60% optimal removal rate.)   

 

B.         Best Management Practices; Stormwater Management.  The Owner shall, to the maximum extent practicable as determined by the County’s Program Authority, provide Best Management Practices and other measures for water quality to achieve a pollutant removal rate 20% better than would otherwise be required by the Water Protection Ordinance (Albemarle County Code § 17-100 et seq.), up to a maximum of eighty percent (80%) removal rate for each Phase.

 

C.        Revegetation.  Within nine (9) months after the start of grading under any erosion and sediment control permit, permanent vegetation shall be installed on all denuded areas, except for areas the County’s Program Authority determines are otherwise permanently stabilized or are under construction with an approved building permit.  A three (3) month extension for installation of permanent vegetation may be granted by the Program Authority due to special circumstances including but not limited to weather conditions.

 

11. Architectural Guidelines.  To the extent this Project, or any portion thereof, is not subject to review by the County’s Architectural Review Board: (i) the Project shall be designed and constructed in conformance with the Albemarle County Architectural Review Board Guidelines, a copy of which is attached as Exhibit C, as determined by the County’s Director of Community Development; (ii) traditional “back of building” materials shall not be used for the home improvement and or major retail spaces contemplated within the Project; (iii) translucent roofing materials shall not be visible from the Entrance Corridor (visibility shall be determined by the County’s Director of Community Development); (iv) roofs or parapet walls shall be used to eliminate visibility of rooftop equipment from the Entrance Corridor; (v) trees shall be provided along both sides of Bent Creek Parkway at forty feet (40’) on center, a minimum 2.5” dbh at planting, and (vi) the architectural elements are consistent with the goals of the Comprehensive Plan for this area.

 

12.  Transit Funding. The Owner shall contribute cash to the County or to its designee (which may include a regional transit authority) to be used for capital and/or operating expenses related to the extension of public transit service to the Property.  Such cash contribution may also be used towards the formation, capitalization and operation of a regional transit authority whose service area includes the Property.  The cash contribution shall be made to the County or its designee within six (6) months after the provision of public transit service the Property.  Funding for the transit service described in this Proffer 12 shall be provided through assessments administered by the Owner and shall be Twenty Cents ($0.20) per square foot of net rentable commercial space (excluding however rentable space attributed to retail warehouse or garden area space) per year (the “Transit Assessment”).  At any time, at the County’s option, all Transit Assessments, along with any unused Transit Assessment funds accumulated by the Owner, shall be directed to a regional transit authority or other governmental authority operating public transit service with service to the Property.  In such event, and for so long as public transit service is provided to the Property, the Owner shall semi-annually pay over the aggregate amount of the Transit Assessment assessed to the operator of such public transit service for use toward capital and/or operating expenses of such transit system, but not for maintenance expenses except as permitted by Va. Code § 15.2-2303A, as amended.  Within sixty (60) days after the close of the second and fourth quarters of each calendar year throughout the period the Owner collects the Transit Assessment, the Owner shall provide to the County Director of Community Development a written report listing the current Transit Assessment amount, amount of commercial square footage assessed, and the amount of the Transit Assessment actually collected.  The terms of this Proffer 12 shall be incorporated into the governing documents or leases of the Property, which documents shall further authorize the County Director of Community Development to file, perfect and enforce the lien provided in Va. Code § 55-516 against the owner of any lot or parcel within the Property who fails to pay the Transit Assessment.  The remedy provided in this Proffer 12 shall be in addition to, and not in lieu of, the County’s rights and remedies at law or in equity for noncompliance with the terms of these Proffers.

 

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