Albemarle County Planning Commission

July 24, 2007


The Albemarle County Planning Commission held a meeting and a public hearing on Tuesday, July 24, 2007, at 6:00 p.m., at the County Office Building, Lane Auditorium, Second Floor, 401 McIntire Road, Charlottesville, Virginia.


Members attending were Jon Cannon, Calvin Morris, Vice-Chairman; Bill Edgerton; Marcia Joseph, Chairman; Eric Strucko; Duane Zobrist and Pete Craddock.  Julia Monteith, AICP, Senior Land Use Planner for the University of Virginia was absent. 


Other officials present were Wayne Cilimberg, Planning Director; Mark Graham, Director of Community Development; John Shepherd, Chief of Current Development; Glenn Brooks, County Engineer; Amy Arnold, Planner; Elaine Echols, Principal Planner; Claudette Grant, Senior Planner and Greg Kamptner, Deputy County Attorney. 


Call to Order and Establish Quorum:


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


ZMA-2006-00009 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) with proffers and RA - Rural Areas zoning district which allows agricultural, forestal, and fishery uses; residential density (0.5 unit/acre) 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. 468,623 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 & 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


(Claudette Grant)



SP-2007-00004 5th Street Avon Center – Parking Structure (Signs # 78 & 81 & 91)

PROPOSED: Parking Structure

ZONING CATEGORY/GENERAL USAGE: LI - Light Industrial - industrial, office, and limited commercial uses (no residential use)

SECTION: 5.1.41 Parking Lots and Parking Structures

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 & 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


(Claudette Grant)

Ms. Grant gave a power point presentation and summarized the staff report. 

·         The applicant proposed to rezone 86.9 acres from Light Industrial zoning to Planned Development-Shopping Center.  The purpose of hearing is for Commission to act on the applicant’s request for the rezoning to accomplish the goals of the Comprehensive Plan Amendment for a retail development with future development pads and a special use permit for a parking structure in the development areas.

·         The Comprehensive Plan Amendment was approved in September, 2004 changing the land use designation from Industrial Service to Community Service – Mixed Use.  As mentioned in the staff report this rezoning came to the Commission last October as a public hearing item, which was deferred and presented for a work session in December.  A follow up work session occurred in March.

·         The applicant proposes 476,355 square feet of commercial uses in 2 pad sites for future development.  An area for passive open space, a trail head park and a trail are also located on a portion of the site.  The proposed access would include the Bent Creek Road access as well as access from Avon Street Extended.  The proposed project includes an 84,500 square foot grocery store, a home improvement store with 150,000 square feet, a major retail store with 150,000 square feet, 19,000 square feet of small retail and an 11,000 square foot restaurant.  A 48,134 square foot parking structure with 65’ in height is also proposed to be located between the home improvement store and the major retail store.  A special use permit for the parking structure is also being requested. 

·         There remain outstanding technical and substantive issues.  An update on these outstanding issues will follow as staff anticipates changes with some of them as a result of a recent meeting with the applicant.

o        Proffer 2 – Staff was told recently that this proffer cannot be done.  As it is worded this proffer goes against the Zoning Ordinance. 

·         Staff has found the following substantive matters for this rezoning that are still outstanding:

1.       This request is located within the I-64 and Avon Street Entrance Corridors. Several of the ARB comments remain unaddressed. As previously described in this report, some of the ARB’s concerns may be able to be addressed during the site plan process and these would require technical fixes, but staff has also recommended ARB issues/concerns in this report that need to be addressed with the rezoning and are substantive matters.   (This item remains outstanding.)

2.       Similar to number 1 above, the Comprehensive Plan Amendment features regarding architecture, urban design, and landscape treatment still need to be addressed.  (From discussion with the applicant staff feels the applicant is willing to make some changes to that concern.)

3.       A completed work plan approved by DEQ regarding environmental concerns relating to the old landfill remains outstanding. A proffer has been provided that will ensure that the work plan is completed and approved by DEQ prior to approval of the first final site plan.  (The Commission has received a letter from one of the attorneys working on the project that gives the status.  It shows that the work plan is in process and they are working with DEQ. They hope to get that to DEQ in several weeks for their approval.)

4.       Cultural resources remain to be addressed.  (That issue, while it is outstanding, the applicant has indicated an interest in making some changes to that proffer that would most likely satisfy staff.)

5.       In order to avoid the old landfill, the Greenway trail crosses a stream in a manner that is unknown and goes off site on property not owned by the applicant. Completion of the work plan approved by DEQ is needed in order to provide feasible guidance regarding the location of the trail.   (The applicant has indicated a possible change to the trail location, which they will show in the slide show presentation.)

6.       Language for the Road Improvements Proffer needs to be revised so that such improvements are satisfied by construction.  (That issue remains the same, although the applicant may be interested in making some changes there.)

7.       Pedestrian access from Avon Street needs to be addressed.  (The applicant has indicated an interest and will also show a possible location for pedestrian access to Avon Street.)

8.       The potential for a proposed pedestrian interconnection to the adjacent Willoughby development needs to be provided.   (That is an issue that remains outstanding and will warrant further discussion.)

a.      The following lists technical issues, some of which regard the proffers, are still outstanding:

1.       Critical Slopes Waiver request. With additional revised proffer language staff feels that this issue can be recommended for approval.  (Basically what the engineer is saying is that with some additional language to the proffers that he believes that the critical slopes waiver could be resolved now rather than later.  A critical slopes waiver has not been requested at this time. It is completely up to the Commission whether to do that now or later or ask for the proffer language.)

2.       Location of all stream crossings needs to be identified on plan, including the crossing for the greenway trail.  (As mentioned the greenway crossing will probably no longer be an issue with a possible relocation.  That leaves 2 stream crossings with one that has been shown and one that the applicant will show on the slides presented this evening.)

3.       Language regarding tree conservation areas and the forest stewardship plan need to be provided.  (That issue remains outstanding.)

4.       Additional details regarding the passive open space/trailhead park area are needed, such as size, and types of amenities being proposed.  (The applicant has indicated that they would be interested in adding or enhancing a proffer that would give a little more detail to this issue.)


·         In order to get an idea of the areas that are on the site that are around the landfill, staff presented several slides.  The slides include some of the area that shows some of the erosion and the leakage around the old landfill.  Taylor Ambler is available to discuss this further.


·         Factors Favorable:

1.       The road connection from 5th Street via Bent Creek Road to Avon Street Extended creates an additional east/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 (Southern Urban area) where there are currently not many of these uses for the residents.


·         Factors Unfavorable:

Staff has found the following substantive matters, as well as all of the items previously mentioned, unfavorable:

1.       This request is located within the I-64 and Avon Street entrance corridors. Several of the ARB comments remain unaddressed.

2.       The Comprehensive Plan Amendment features regarding architecture, urban design, and landscape treatment still need to be addressed.

3.       A completed work plan approved by DEQ regarding environmental concerns relating to the old landfill remains outstanding. A proffer has been provided that will ensure that the work plan is completed and approved by DEQ prior to approval of the first final site plan.

4.       Cultural resources remain to be addressed.

5.       In order to avoid the old landfill, the Greenway trail crosses a stream in a manner that is unknown and goes off site on property not owned by the applicant.

6.       Language for Road Improvements Proffer needs to be revised so that such improvements are satisfied by construction.  

7.       Pedestrian access from Avon Street needs to be addressed.

8.       The potential for a proposed pedestrian interconnection to the adjacent Willoughby development needs to be provided.


·         Recommendation:  Without resolution of the aforementioned outstanding issues, staff cannot recommend approval. Should the PC wish to recommend approval of this proposal to the Board inclusive of proffers and the application plan, staff recommends that this recommendation be based on resolution of the outstanding issues before the Board acts on this rezoning.  


Ms. Joseph asked if there were any questions for staff.


Mr. Edgerton said that he was surprised that staff did not note the commitment to LEED Standard Core Shell as a favorable factor of the project. 


Ms. Grant agreed that it was a good point.


There being no further questions for staff, Ms. Joseph opened the public hearing and invited the applicant to address the Commission.


Frank Cox, representative for New Era Properties and Avon Holdings, said that they received the staff report Thursday evening and have been working on it diligently since.  There are a few things that he feels are either inaccuracies or misrepresentations provided in the staff report.  Steve Blaine is present tonight since there were many comments that were raised that relate to proffer adequacy or inadequacy.  Mr. Blaine should certainly bare on those issues.  In a power point presentation he noted the following:


·         One of staff’s comments was that the stream crossings were not delineated. The slide showed the stream crossings existing and proposed.   To the east is the new parkway crossing for the major collector road that will link 5th Street and Avon Street.  On the western side of the site is the existing Bent Creek Bridge, which will be upgraded and the second crossing.  Tied in with that is a parallel pedestrian bridge crossing.


·         The greenway and trail system has drawn some comments. There are some substantial proffers related to that.  The proffers include specific language regarding landscape replacement and the types of improvements that are going to be incurred in the greenway park area, which is roughly 14 to 15 acres primarily oriented towards the pedestrian way system.  They are also looking for the possibility in the area that is designated as the trailhead park and activity area as such uses that are permissible by right such as a farmer’s market and things of that sort that could on occasion be used in a festival sort of atmosphere.  Those are uses that the County has more than adequate control of.  But, the primary purpose of the greenway park is to provide a passive area that is complimentary to a greenways trail system. 


·         A concern about the trail system was mentioned in the staff report, which he thought that they had adequately addressed in June.  After the DEQ meeting there was a concern related to the portion of the property known as the landfill property.  At that location after both staff and the applicant spent extensive time in a meeting with DEQ it was obvious that DEQ would prefer to see the stream valley trail on the opposite side of the creek.  In keeping with what they understand as the Comprehensive Plan’s objectives to have a trail system that runs along the stream they have shown a possible rerouting of that on the eastern side of the property to the north side of the creek on the Willoughby tract as an option to that. 

·         An option that they should have brought forward sooner is a pedestrian connection that they now show on the plan up to Avon Street.  They noticed this and overlooked it from the first staff report, but now they were depicting a trail system that would be complimentary with the right-of-way in a private dedicated easement that would provide the staff requested connection to Avon. 

·         A concern in one of the inquiries was the level of specificity that they were intending to give to the greenway park system.  The Type A Trail is kind of an off the shelf documented piece of geometry that most everyone embraces these days.  They intend to meet or exceed the Type A Trail.  The trail would be made to accommodate bicycle movement.

·         Another concern is the entrance feature.  There was an existing rock outcropping that was brought to their attention as part of the Comprehensive Plan Amendment.  They have spoken of it on a regular basis.  It is their expressed desire to preserve that in its existing form and also to incorporate it into the entry or gateway feature for the parkway. 

·         Regarding the transit plan, they have met with Bill Waterson and Eric Smith of CTS to talk about the potential for internal routing and internal stops within the project. In the conversation the CTS folks were enthused to have a connection between Avon Street and Fifth Street.  They reviewed the riding and circulation plan, which certainly acknowledged that there would be a substantial increase in ridership and economic return as a result of being able to make this interconnectivity.  Park and ride was a concern.  They have a proffer related to that.  The park and ride spaces will be tied into the location of the on site transit stop that will actually be interior to the proposed center.

·         In February they went through the ARB process.  There was a 4:1 recommendation in an advisory review.  The ARB had 7 key points.  In the most recent staff report there were 8 points related to urban design features.  All of the ARB requirements as far as their Design Guidelines are concerned, in fact, would cause them come back to the ARB with designs for the fronts as well as the backs and sides of the buildings that would be potentially visible from I-64 for whatever reason they would not be able to grow vegetation between their property and I-64.  They have already worked through a series of sections from the critical view points where a vehicular moving down the road at the design speed of the road would be looking into the center. 

·         The buffer encroachment, the 100-year floodplain update as well as the slopes and the stream crossings are all integrally tied to final engineering.  It will be more appropriate to seek those permits at a time when they have the engineering particulars and the geometry related to the final design.


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


Steve Blaine, attorney, asked to preclude their presentation and allow the rest of the public to speak.  He would like an opportunity during the dialogue to address the specifics about the proffers.  They did have a meeting with staff today and talked about not just an interest in changing proffers.  They actually had some concrete suggestions. The lists of outstanding issues are of the type that if the Commission is willing to hear our concrete proposals he believed that would be more productive. 


Ms. Joseph invited public comment.


Mr. Morris said that they would hear from the public first.  He invited hear form public fir


Morgan Butler, attorney representing the Southern Environmental Law Center, said that tonight’s rezoning request is a significant one.  This project will serve as a precedent setting the standard for future commercial projects that will no doubt be proposed in this area of the County as it continues to grow in the coming years and decades.  Rather that mimic the pattern of shopping centers on Route 29 North this project should chart a different course for this part of the County by incorporating a more innovative design in making stronger commitments to reduce its environmental footprint.  While the applicant deserves credit for proposing features like the parking structure and the LEED certification this project still needs more work.  For example, much could be done to create more of a “compact density high density area” that the Comprehensive Plan calls for at this site.  Currently the plan shows 3 massive retail stores facing each other across the vast parking lot.  Two of the stores are big boxes that scrape the ceiling of what the Comprehensive Plan allows on the site both in terms of the size for individual big box stores as well as for aggregate big box square footage.  The layout could be made more compact if the giant big boxes were proposed as multi story or by reducing the overall size of the largest stores.  Further the capacity of the parking structure should be increased to help reduce the size of the huge parking lot.  More could be done to relegate the parking by rearranging the buildings on the site and orienting them towards the internal road rather than the parking lot.  In addition to improving the layout they should expect a strong commitment to control erosion and manage storm water.  A number of recent rezoning proposals in the County have proffered to go beyond the minimum of what the County Ordinance requires for storm water and erosion control.  A similar commitment seems especially appropriate in the context of a major new big box shopping center.  Regarding transit, while the plan shows a bus stop on the site there includes a proffer towards a lot in the parking lot.  A cash proffer could be used towards transit.  Other appropriate proffers he has seen in other recent rezoning proposals should be used here.  In closing, this project still needs improvement.  The idea that some retail may be appropriate in this area in the County should not cause them to recommend a flawed project that would bring giant parking lots and spawning shopping center to a new area of the County.  He encouraged them to help set a better example by seeking improvements to this project.


There being no further public comment, Ms. Joseph closed the public hearing to bring the matter before the Commission.  She invited Mr. Blaine to address the Commission.


Steve Blaine, attorney for the applicant, addressed the issues identified in the staff report.

·         Regarding the question about the ARB oversight for this project and the Comprehensive Plan reference to guidelines for various architectural treatments it was the first that they were aware it was an outstanding issue until Thursday.  They could address that in a number of different ways.  The project will be subject to ARB review as part of an Entrance Corridor. That purview or jurisdiction they could expand voluntarily in a proffer that would give the ARB oversight of the entire first phase of the shopping center.  The other thing they could do if that mechanism proves problematic is to craft guidelines.  He recommended that the guidelines would be from the ARB guidelines since they are going to be subject to ARB guidelines for that which can seen from the Entrance Corridor.  He would feel comfortable recommending to his client adopting those guidelines throughout the project.  Otherwise, they may find themselves with two conflicting sets of guidelines.  It is really an item they can discuss.  It is something that really should be their preference.  It would be a concrete way to address it.

·         He was very surprised that they met as recently as midday and was first to learn tonight that proffer 2, which is their entire road proffer, is not appropriate.  He felt that must be an overstatement.   As being confronted in other projects, the deliverable for the road proffer should it be sufficient for bonding to satisfy the proffer was something they were not seeking. What they can do with the County Attorney and the Engineering Department is to craft a proffer that requires substantial completion of all the road improvements that are warranted upon the completion of the shopping center or the improvements under the site plan.  It is in the interest of the client to have the Bent Creek Parkway to have that completed when the shopping center is opened for business.  They have the same interests as the County.  What they need to do to protect their client is build in what is commonly known as what are those things which they cannot control and why they cannot agree to a proffer that requires acceptance of the road by VDOT as a condition for opening the center.  There are about 6 different ways they can write it, but conceptually they are not trying to merely satisfy the road proffers by posting a bond.  They understand that is problematic from an enforcement standpoint, but it can be addressed.  He questioned what other that the road proffers have because he was not aware of any other than the deliverable as he described.

·         In terms of the trail link, Mr. Cox pointed out the alternative.  They can craft a proffer that will characterize the nature of that trail link and refer to it as being coterminous or running with the Bent Creek Parkway.

·         In terms of transit they do provide for a park and ride and a transit stop.  In terms of additional contributions it is important to point out that the bus routes do approach at the front of this property on Fifth Street. They would maintain that their 10 million dollar cost of the Bent Creek Parkway is a considerable contribution to improving transit by providing that route, which the CTS folks are enthusiastic.

·         They have a proffer on tree preservation enforcement management plan.  He was not aware of any other projects where in land disturbance the applicant has agreed to replace 2 trees for 1 tree that has been displaced.  If they can point to any examples because they would like to have more specificity about the materials or the replacement plants they are open to that.  They would be willing to craft that tonight.  He pointed to the existing ARB guidelines on the size of trees for planting and landscaping.  It is a minimum of 2.5” in diameter.

·         They heard about the work plan.  They got a status report from Channy Martin. The work plan will have to be completed to the satisfaction of DEQ.  DEQ has jurisdiction over landfills such as this. They are the agency that will dictate the treatment of that area.  This has implications for the road as well as the future development area.  In terms of the future development areas, which are shown as pad sites, they are open if there is a desire for more specificity about the uses there or precluding certain uses they can proffer uses out.  They need to get some direction from the Commission tonight.


Ms. Joseph asked Mr. Kamptner about the ARB review.  She asked if the ARB could look at something that was outside of what they normally look at. 


Mr. Kamptner replied that they have always been reluctant to expand the ARB’s jurisdiction through a proffer.  But, there are other ways they can address the concern.  Mr. Blaine mentioned one way - that the ARB design guidelines could be incorporated.  Part of that proffer could be that the County’s Design Planner could review the portion that is beyond the ARB jurisdiction to determine that it is consistent with those guidelines and what the ARB has approved.  So the could approach it that way.

Mr. Blaine noted that they would be comfortable with the latter as proposed.


Mr. Cannon asked if that is to address #2 and #1 among the factors outstanding the Comprehensive Plan Amendments regarding architecture, urban design and landscape treatment.


Mr. Blaine replied yes.


Mr. Cannon said that if the design guidelines were applied outside of the areas of the ARB’s jurisdiction would allow the County to make determinations or come to conclusions that might require design changes or different landscape treatment.


Mr. Blaine replied that is correct.  There was particular interest about the scale and massing in design because it was recognized in approving these size of uses for this particular location that treatment was important.  That is why it is in the Comp Plan.  But, if they have a guide post with existing guidelines that the ARB Planner could interpret based on the Comp Plan they would be comfortable with that.  He felt that was the board’s directive.


Ms. Joseph noted that the ARB was very specific in the list of items that they would like to see.  One item has to do with buffering and screening in areas impacted by critical sight lines. 


Mr. Blaine said that is correct.  The presentations of the cross sections are going to be critical to achieving that approval.


Ms. Joseph said that one of the cross sections he did not show sliced through I-64 and went right up to the building where there is about 20’ from the property line to where the pavement starts and then probably a 35’ retaining wall.  So they do have vegetation between the pavement on I-64 and the property line, but it is all in the VDOT right-of-way.  In that area they discuss that it will be an enhancement area. She asked if he had anything in writing from VDOT that says they can come back and replant in this area. 


Mr. Blaine replied no, that they don’t have anything currently.  It is something that VDOT would have to see some fairly specific proposals.  They have some precedent on this throughout the County.  The Route 29 tree planting in the median was a similar arrangement.  They would pledge to reach that agreement.  It is important to point out in that area that they may not be able to make the buildings invisible, which is why the ARB is very concerned about the treatment of the backs of buildings.  One of the things they are prepared to commit to is architectural treatments that make the functional rear of the building as attractive to the Entrance Corridor as though it was the front of the building.  They are prepared to do that.  They would attack the guidelines in terms of architectural treatment as well as existing landscaping and do whatever they can with VDOT.


Mr. Strucko noted that the road connection to Fifth Street proffer statement says this road will be a 2 lane with a right-of-way sufficient for future expansion of 4 lanes and the parkway may be a rural section in design without curb or gutter. He asked if staff has any concerns about that.


Ms. Grant said that staff has had some concerns about it, but the Comprehensive Plan Amendment is fairly specific in saying that a rural section with no curbs and gutter is okay. Therefore, staff had to go with that.


Mr. Strucko asked if this was a parking lot road or a road for through traffic from Fifth Street to Avon Street.


Ms. Joseph noted that the speed limit is in the Comp Plan. It is 35 miles per hour.


Mr. Blaine noted that VDOT would say that they would determine the design speed on the road plans.  But, the character of it was designed in the Comp Plan to minimize the disturbance.  It recognized that it really has to be located approximate to the stream buffer area to reduce the impervious surfaces that they have with the curb and gutter to give it more of a natural treatment.  That was the basis for the Comp Plan depiction. 


Ms. Joseph questioned if they refer to industrial uses what could they use that for.  Does it have to be designated now or have to be referenced back to the Comp Plan?


Mr. Kamptner replied that he would review it.


Mr. Morris noted that there were some beautiful trees on the property.  From the plan it looks like there is not much possibility for saving some of those beautiful trees. 


Mr. Blaine replied that they have a limited footprint with which to address the development.  But, that was the thinking of the design between having a conservation area designated and to recognize that they would replace trees on a 2 to 1 basis in those conservation areas.  He has seen the huge Poplars.  Through landscape enhancement they would do and they anticipate as part of the ARB guidelines they would do significant parking lot treatment such as trees in the parking lots.  They are going to look for as many environment benefits in addressing the site.  They had agreed that it shall be certified by LEED.  There are some trade offs.  


Mr. Edgerton noted that seems to be a significant difference in what staff said in the staff report and what the applicant has presented.  There was concern about some of the areas that have been identified as conservation areas and whether in fact it would be possible for them to actually be conservation areas because of some of the grading that would have to occur that would be adjacent to it.  He was speaking specifically to some of the vegetative areas to the

south of stream wrapping between Bent Creek Parkway and the stream.  There was concern whether any of that could be treated as a true conservation area because of some of the grading that would have to occur.  Staff represented that the conservation areas have disappeared on the plan since that time.  He asked if that was accurate.


Mr. Blaine said that they have defined terms in the ordinance.  They have preservation areas, which the ordinance says must not be disturbed except for trail systems.  They have used that in the gold standard in Biscuit Run.  Then conservation areas recognize that there may be disturbances whether by utilities, etc.  Preservation areas, if they exist, will be fairly nominal because of the narrow footprint with which they have to deal they can’t commit to absolutely no disturbance.  They will commit to if there is a disturbance to replacing it consistent with the definition of conservation area. 


Mr. Cox pointed out that the grading plan shows based on the preliminary studies required by ordinance the general extent of grading in and around the areas that bleed into the conservation area.  The intent given their analysis of the character and age of some of the trees that there are many that shall be and will be conserved.  There is a lot of aging and half dead vegetation.  Their intent with stream valley corridor trail system is to weave that trail system through there in such a way that the major vegetation remains. They have expressed a willingness with the staff to work in determining a good and bad tree.  They were reluctant to use the word preservation because it put a little too much onus on us making a commitment at the zoning when they did not know precisely the final grades on the parkway.  The parkway road is in generally consistent with the same section as the Meadow Creek Parkway.


Mr. Edgerton said that the Comprehensive Map Amendment actually specifies that it should be located pretty much in the areas as shown.  He agreed with Mr. Morgan’s commit that he would like to see a more compact development and 2 story buildings, but he was feeling that was not going to happen any time soon.  On the first proffer on the application plan says development shall be in general accord with the application plan entitled Fifth Street Conceptual Master Plan sheet 6 or 14, which is basically what is shown on the screen.   There are lots of other beautiful drawings.  He asked if the rezoning was tied to any of the other drawings.


Mr. Blaine said what constitutes the application plan is however many sheets are in the application plan.


Mr. Edgerton asked if the applicant would be prepared to linking any rezoning to what has been presented.


Mr. Blaine replied absolutely.  It would include all of the sheets that they have shown the Commission tonight.  That is pretty standard language in the proffers.


Mr. Cannon said that the application plan then becomes defined if they take action.


Mr. Blaine agreed.


Mr. Edgerton asked that the Commission link any action to what they have seen tonight.  He liked the newer ones shown by Mr. Cox, which answered a lot of concerns expressed by staff.


Ms. Joseph suggested that the 2” replacement tree in the conservation might be a little big. It might go 1 ˝” to 1 3/4”.  If they are looking at species it should be something that is indigenous.


Mr. Edgerton noted that most big box businesses will not consider 2 story buildings except in urban areas where land is more precious.


Mr. Blaine said that if they recognize trees as a renewable resource they could pledge to harvest those if they are merchandisable commercial timber so that it is at least not waste.  He did not know if they would receive any credit for that for LEED, but they could make that commitment.  Chris Pine from the Bond Company has been helping them with some of the retail on this.  He has quite a bit of experience with Whole Foods and other companies on the LEED Certification.  They think some credit could be given for that.


Mr. Morris said that previously some concern was expressed about the situation that exists in the former landfill as far as getting a road across it.    He asked if there was any new information on that.


Mr. Blaine replied that they have the status of the work plan.  From day one it was no surprise that there is an existing landfill there.  But, from day one they knew that the agency that oversights landfills in this situation is DEQ and that there would be a permitting and review process.  They have begun that process.  The process is progressing.  They have not received any indication from DEQ that type of use, like a brown field use, should be prohibited.  It will be expensive and will have to be addressed in a special way, but they are not concerned whether it can be done.


Ms. Joseph asked about the cultural resource and what they have agreed to do.


Mr. Blaine replied that in an effort to define the scope he was not clear.  The simple remedy to that, which is what they did in the Biscuit Run, is to attach a map to the proffer that describes it.  They don’t want the archeologist to go into the landfill area. They want to be clear that when they proffer to do a Phase 1 they are doing the area that at least engages the former Willoughby Mansion property.  That is a simple easy way to do it.  There is not a lot of mystery to it.


Ms. Joseph said that it continues as a Phase 1 with a map attached.  So Phase 1 will happen before the grading happens.


Mr. Blaine replied yes.


Ms. Joseph asked if any one have any problems about the mass grading of this site.  She asked if they have thought about how this will be phased.


Mr. Blaine said that a preliminary grading plan was in the packet.  They are building the center at one time and the appropriate grading will be done at one time.


Ms. Joseph said that phase 1 is everything.


Mr. Blaine agreed.  It will be to build a grocery store, home improvement store and a retail store at one time.


Ms. Joseph asked Mr. Brooks to come forward and address the E and S plans. She asked whether there are some other proffers approved in the past that are a little more restrictive than the State guideline that they could impose upon this or they could offer to impose upon themselves.


Glenn Brooks, County Engineer, replied that there are a few examples.  There is one example with North Pointe.  There is one currently under review with Biscuit Run that is simpler than the one for North Pointe, but along the same lines.  They are talking about one for Hollymead Town Center that was proposed with A1 for A2.  Only the one for North Pointe has been approved.  It had 2 components.  One to have erosion control above and beyond what the ordinance requires.  It also had a component for overlot grading plans, which would not apply in this case.  He has not seen the proffer for A1 of Hollymead Town Center.  Jack Kelsey worked on that one.  The one for Biscuit Run is simpler.  It just says that their goal would be 80 percent removal rates for the site.  That was both for permanent storm water management and for temporary erosion control.


Ms. Joseph asked is something like this would be appropriate in its proximity of Moore’s Creek.


Mr. Brooks replied certainly especially if they are going to open the entire site at once.  One of the things they have learned with Pantops, Hollymead Town Center and large sites like this is that there are 2 things that can make a big difference on a site.  One is how much area that is opened or denuded at once.  The other is how long it sits there.  If a project goes very quickly, like the University’s North Fork Research park, then the exposure to a major rain fall event was not as great.  Hollymead Town Center is going on years.  These are 3 that could be used to craft a new proffer.  The things that would have the greatest impact are both the area that is disturbed at one time and the amount of time it is left disturbed.


Mr. Cilimberg reiterated that the Biscuit Run proffers in part were designed to address that.


Mr. Brooks agreed.  He noted that he would have to review it to see which of those models would work for this site.


Mr. Zobrist asked what they can ask the applicant to do to minimize the E & S impact other than what the basic guidelines would be on a smaller property.  He asked if Mr. Blaine had any suggestions.


Mr. Blaine said that he was quite familiar with the Biscuit Run proffers and this client could be comfortable adopting the erosion and sediment control proffer and storm water management that sets a higher standard than what is currently under the ordinance.  He pointed out that Biscuit Run is unique because that is a 20 to 25 year project.  This project to be viable has to be completed immediately.  This project is not going to be graded 3 to 5 years in advance of the zoning, which is another distinction with the Hollymead Town Center.  They will get the permits before they grade the site.  They would be willing to work with engineering and design to that higher specification


Mr. Zobrist asked if he would be willing to condition any grading on having all the permits in hand and no grading without the permits


Mr. Blaine said that in response to the concern that the longer you leave the site open is not going to happen in this situation as in the Hollymead Town Center A2.  As heard tonight it is still in the entitlement phase.  But, yet it was graded under a loophole that existed 6 to 8 years ago.  This site will be entitled and likely tenants will be signed up and construction financing before the site is opened up.  Then it will be developed and built upon, landscaped and completed.  He said that no grading will occur until all grading permits are issued.  There is a process in place.  They would not get a grading permit until preliminary site plan.


Ms. Joseph asked Mr. Brooks to respond.


Mr. Brooks said that there are a couple of ways to do that.  This would be a Planned Development Section 8 of the Zoning Ordinance.  It is eligible for a grading permit with a mass grading plan as soon as the zoning is approved.  One does not necessarily have to do a preliminary site plan and could go directly to a final site plan.  It would not be reasonable to condition it upon that.


Mr. Zobrist said that he heard Mr. Blaine saying that he was willing to waive that.    He asked how he would fill in the blank that there would be no grading plan until when or until site plan approval.


Mr. Blaine said that there is about a 25 million dollar site packet, which will be implemented in due course.  They may want to get grading started on the road portion prior to the site plan, but he was not sure if that would be approved.  He note that is not typical.  They could lose some important timing in the time of year they were doing their construction. 


Chris Pine, of the Bond Company, felt they would be willing to commit to not grading prior to getting zoning.  The scale of the site work for this project is pretty immense.  They would be sensitive to the time table as discussed for many reasons.  By starting after the zoning with this would actually expedite capping and being able to put the buildings on the exposed pads.  An appropriate trigger is after zoning, which is what is outlined in the ordinances.


Mr. Cilimberg said that is normal process.   The zoning has to be in place before anything else would happen anyway.


Mr. Bond said that they would be willing to comply with that.


Ms. Joseph said that one of the problems with Hollymead is that the grass just won’t grow.  Is there something they could do to ensure that there is some kind of ground cover that is established?  What could have been done with Hollymead so there would not have been all of that run off?


Mr. Brooks said that they could apply permanent seeding.  Most of what has been done on Hollymead is temporary seeding, which has not been fertilized or tilled.  It is not meant to be a good stand of grass for very long.  That type of rough seeding over a bare compacted surface is good if there is a lot of rainfall for one summer season and then it dies out.  It is difficult to require someone to apply final seeding particularly when they know they are not at final grade.  They don’t want to spend that kind of money when they just have to tear it up.  The regulation allows them to apply it within a certain amount of time of the last grading activity.  So when the inspectors say that it is time they do a little more grading to extend the timeline out.  It does not work that well.


Mr. Blaine said what they are seeing is a loophole.  If there is a perceived loophole he recommended that they proffer to plug that so after a period of time they would have to permanently seed.  They have a lot of confidence that once they start this project and finance it that they can’t delay.   As they did with the erosion and control in increasing the standard there is a perceived loophole, our clients are not seeking a loophole.


Mr. Brooks noted that the proffer crafted for A1 in Hollymead does address that Issue.  They could model it after that.


Mr. Edgerton said that there are a couple of different grading issues.  This is not a parallel to Hollymead because it is one developer and is all going to be done at one time.  There is no incentive for them to sit around and wait on any of it.   He was concerned about the significant erosion that could occur and clog up Moore’s Creek.  He asked if there was some extra care that they could take.  Are there more stringent methods to protect Moore’s Creek?


Mr. Brooks noted that was where they got the 80 percent for Biscuit Run as a goal. 


Mr. Edgerton asked that at a minimum they should try to do that.


Mr. Cilimberg said it seems to be the matter of stabilizing what is graded and whether it will sit for any period of time.  It is also dealing with the impacts of the grading on the runoff.  The Commission wants those 2 things addressed.  Between Hollymead A1 and Biscuit Run there is probably language to do that.  They won’t be able to craft that tonight, but if it is an expectation that is what they need to say as part of any action.


Ms. Joseph asked Mr. Blaine if he has had any contact with the City about some of the improvements that they have proposed in the proffers.


Mr. Blaine replied that they have met with the City Traffic Engineer, Jeannie Anderson.  They have been giving them updates on the project.  They have met with Mr. Tolbert.  They understand that they are reviewing the latest version of the proffers.  They understand that they don’t control the zoning, but they do control the street frontage.  They have somewhat significant leverage that they have to satisfy their requirements for the frontage improvements on Fifth Street in particular.  They have been in communication with them for years,


Ms. Joseph pointed out that they have not received any correspondence from Mr. Tolbert.  She called Mr. Tolbert today and he said that he had not seen what the latest was and did not want to make a public statement.


Mr. Blaine pointed out the proffers contemplate that they still must review the detailed road plans.  They have to meet their requirements.


Ms. Joseph asked if there were other questions.


Mr. Kamptner noted that a question was asked about the employment based uses.  In the PD-SC zoning district it is going to be offices. The Comp Plan appears to indicate a desire to have light industry use opportunities.  There are some that would be allowed in the PD-SC zoning district, which incorporates the by right uses in the CO, C-1 and the HC.  There are not many light industry uses.  


Ms. Joseph asked what would happen if the applicant came back and asked for a rezoning to light industrial.  The Comp Plan contemplates that sort of use.  Would the County have to say okay at that point?


Mr. Kamptner said yes, but they would not have to because the Comp Plan is advisory.  Or it could be a zoning text amendment to change the PD-SC regulations to incorporate some benign light industry uses in addition to the limited number that are there now.


Ms. Joseph noted that when they reviewed the comp plan amendment it was important to keep some sort of industrial use on the Avon side.  She wanted to make sure that would stay intact if they ever decided to come and use it.


Mr. Cilimberg noted that would be if they were to seek rezoning. Right now it is a PD-SC rezoning and they could have the uses that are allowed under PD-SC.  They would be limited to those uses until they requested a rezoning.  Light Industrial zoning could be consistent based upon uses that were being asked for in relation to what the Comp Plan says.


Mr. Zobrist complimented Mr. Blaine, Mr. Cox and the applicant on responding to the staff issues.  They made a nice presentation that was very helpful.  He felt that things were written in such a way that they can condition an approval on the things which were presented tonight. 


ACTION ON ZMA-2006-09, 5th Street Avon Center:


MOTION: Mr. Zobrist moved, Mr. Strucko seconded for approval of ZMA-2006-09, 5th Street Avon Center subject to the following:


  1. All proffers to be submitted in writing acceptable to County counsel as stated in the discussions between staff and the applicant.  


2.       The proffers shall include, but not be limited to, urban design.  The applicant agrees to build the entirety of the project in accordance with ARB urban design and landscape standards.  The portion of the property that is outside of ARB jurisdiction will be overseen by other staff members.


3.       With respect to roads, there shall be substantial completion of all road improvements before the center is occupied.


4.       With respect to the trail link issues, the commitment regarding the pedestrian link on Bent Creek Parkway, as shown in the power point presentation graphics presented tonight, will be complied with.


5.       With respect to transit, the park and ride and transit stops as proposed are adequate.  The Bent Creek Parkway satisfies any cash proffer with respect to transit. 


6.       The proffer with respect to tree preservation shall be two trees for every tree removed in the conservation area. 


7.       A licensed arborist will be engaged and assist throughout the construction project for the maximum preservation of trees on the project. 


8.       The DEQ work plan will be completed and in place prior to the first site plan.


9.       The stormwater proffers are to be drafted consistent with the Biscuit Run standard of 80 percent erosion control.


10.   The reseeding necessary and timing of reseeding will be crafted to meet the stormwater commitment in the Hollymead A1 rezoning.


11.   The applicant shall satisfy the City with respect to frontage and street improvements.


12.   The cultural resources will be designated satisfactorily to staff by a map attached to the proffer.  A Phase I Study will be done prior to any grading.


13.   The applicant will use its best efforts to work with VDOT with respect to enhancement of the VDOT easement area along I-64.


There was no vote at this point.


Mr. Cilimberg asked to clarify what Mr. Zobrist has outlined.  Based on the recommendation, staff will not be addressing the specific ARB issues or comments that they raised at the rezoning level. Therefore, it will basically be handled by the ARB at the site plan stage. 


Mr. Edgerton noted that the applicant offered to meet all of the ARB Guidelines.


Mr. Cilimberg said that is going to be a requirement of the site plan anyway.  The ARB Guidelines are what all of these comments originate from. 


In response to a comment by Ms. Joseph, Mr. Cilimberg noted that he was talking about the external, not the internal items. The Commission asked that the Design Planner or staff deal with it based on ARB Guidelines. 


Mr. Cilimberg said because of the landfill, the greenway trail shown as crossing over onto an adjacent area is okay with the Commission if that is what has to happen.


In response to a comment by Mr. Edgerton, Mr. Cilimberg clarified that is okay based on the commitment to connect the trail to the pedestrian facility on Bent Creek parkway.


Ms. Joseph agreed, but suggested that staff have a discussion with Dan Mahon to make sure this is working with whatever bigger scheme he has for greenway trails.


Mr. Cilimberg said that the bottom line is if they are not able to continue the path through the landfill area they will show a place where it could cross.  That will be someone else’s responsibility, but they will have the pedestrian path coming down from Avon Street that will connect at that point.  He said that the Commission mentioned that all of the plans and illustrations shown tonight would be incorporated as part of the application plan. 


The Commission did not indicate an expectation that the applicant show a proposed location for an interconnection to Willoughby.


In response to a comment from Ms. Joseph, Mr. Cilimberg replied that while a connection might be made from the greenway trail crossing, there is nothing that clearly defines where a connection can be made.


The Commission does not think that the critical slopes waiver is necessary at this point and is willing to wait on that.  The applicant has indicated that they will show stream crossings.  They have already talked about tree conservation areas.  The applicant showed the trail head park area in their illustrations. 


Regarding the trail head park area shown in the applicant’s illustrations additional details regarding the passive open space/trailhead park area are needed, such as size, and types of amenities being proposed.  The applicant indicated that the proffers would include specific language regarding landscape replacement and the types of improvements that are going to be incurred in the greenway park that would give a little more detail to that particular issue.  The applicant is also looking for the possibility in the area that is designated as the trailhead park and activity area as such uses that are permissible by right such as a farmer’s market and things of that sort that could on occasion used in a festival sort of atmosphere.  But, the primary purpose of the greenway park is to provide a passive area that is complimentary to a greenways trail system.  The Commission asked that the proffers be clear.


Mr. Kamptner requested that the applicant provide a copy of the DEQ work plan to staff and the County Attorney’s Office as soon as possible because Bent Creek Parkway is one of the key components of this project.  It will be dedicated to public use.  They need to figure out whether there will be any potential liability with that land being transferred to the County. 


In response to a question from Ms. Joseph, Mr. Kamptner replied the County owns the fee simple interest in the right-of-way for public roads.  A public road in the secondary system only means that VDOT is obligated to maintain the road itself.


MOTION: Mr. Zobrist moved, Mr. Strucko seconded to amend the motion for approval of ZMA-2006-09, 5th Street Avon Center to add the following expectations:


14.   The ARB’s Guidelines and comments from their report shall be adhered to. If the view shed from the EC cannot be mitigated the applicant shall make the back of the buildings look like the front of the building. 


15.   The application plan referred to in the proffers will constitute all of the graphics. All of the plans and illustrations as presented on 7-24-07 would be incorporated as part of the application plan.


16.   The applicant shall provide a copy of the DEQ work plan to staff and the County Attorney’s Office as soon as possible. Bent Creek Parkway is one of the key components of this project and it will be dedicated to public use.  The County Attorney’s Office needs to figure out whether there will be any potential liability with that land being transferred to the County. 


The motion passed by a vote of 6:1.  (Mr. Edgerton voted nay.)


Ms. Joseph said that this item will go before the Board of Supervisors on September 12, 2007 with a recommendation for approval.


Motion on special use permit:


Motion:  Mr. Morris moved, Mr. Zobrist seconded, for approval of SP-2007-0004, 5th Street Avon Center – Parking Structure, with no conditions.

The motion passed by a vote of 6:1.  (Mr. Edgerton voted nay.)


Ms. Joseph stated that this item will go before the Board of Supervisors on September 12, 2007 with a recommendation for approval. 



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