COUNTY OF ALBEMARLE

EXECUTIVE SUMMARY

 

Project Name:  SP 2007-063  5th Street Development Fill in the Floodplain

Staff:  Judith C. Wiegand

Planning Commission Public Hearing:

April 8, 2008

Board of Supervisors Public Hearing:

May 14, 2008

Owners:  Morris Creek Yacht Club, Inc.

Applicant:  64 and Fifth, LLC, represented by Katurah S. Roell

TMP:  76-55A and 76M1 -1

Location:  Approximately 1100 feet north of I-64 on the east side of 5th Street, north and east of the Holiday Inn. The property is bounded to the north by Moore’s Creek and to the east by Biscuit Run. (Attachment A)

Proposal:  The applicant proposes to place fill in the floodplain in order to construct a convenience store with gas pumps, a sit-down restaurant, and associated surface parking. (Attachment B)

 

Existing Zoning and By-right uses: 

HC - Highway Commercial - commercial and service uses; and residential use by special use permit (15 units/ acre); LI - Light Industrial - industrial, office, and limited commercial uses (no residential use); AIA -  Airport Impact Area - Overlay to minimize adverse impacts to both the airport and the surrounding land; EC - Entrance Corridor Overlay District – overlay to protect properties of historic, architectural or cultural significance from visual impacts of development along routes of tourist access; all uses permitted by right in the underlying districts; and FH - Flood Hazard Overlay District – agricultural, recreational, and utility location uses which will not pose a danger to life or property in the event of a flood.

Magisterial District:  Scottsville

Factors Favorable:

1.      There have been no significant changes in circumstance since SP 1999-059 was approved by the Board of Supervisors in 2002.

2.      The applicant has shown that fill in the floodplain is possible without raising the flood elevation or having an impact on neighboring properties.

Factors Unfavorable:

The following factor is unfavorable to this request:

1. The County Engineer does not support this request based on concerns regarding good practice and policy, proximity of floodwaters to occupants, integrity of fill slopes in the long term, and the precedent it sets.

Staff and the Planning Commission did not recommend approval of the original rezoning and special use permit for this project due, in part, to concerns regarding impacts to the floodplain.  However, the Board, after additional information, review, and consideration of these factors, approved both the rezoning with proffers, including a proffered plan that establishes use of the property, and the special use permit for fill in the floodplain.

RECOMMENDATION:  There have been no changes in the development proposal for this property since the original rezoning and special use permit were approved by the Board.  Although since that approval FEMA has issued new floodplain maps, they have not materially changed the floodplain boundary as it existed at that time. Therefore, staff finds no change in circumstance since the Board’s prior approval of this special use permit that would change the basis for that decision and, therefore, recommends approval of SP 2007-063 for Fill in the Floodplain with the following conditions of approval: 

 

  1. The fill in the floodplain shall be shown on a site development plan and shall be in general accord with the “Conceptual Site Plan,” dated January 8, 2002, and most recently revised on March 10, 2008, except as may be modified in order to meet the requirements of the County’s Water Protection Ordinance, as determined by the County Engineer.
  2. The County Engineer’s approval of an erosion and sediment control plan.
  3. The County Engineer’s receipt of proof of compliance with Federal and State agencies regulating activities affecting wetlands and watercourses. The applicant must obtain a map revision, a letter of map revision, or a letter of amendment as required from the Federal Emergency Management (FEMA) and copy the County Engineer on all correspondence.
  4. The County Engineer’s approval of a mitigation plan outlining mitigation measures for encroachments into the stream buffer.
  5. The County Engineer’s approval of computations and plans documenting changes to the floodplain. Computations must demonstrate compliance with Sections 30.3.2.2 [verification of limits of floodway and floodway fringe] and 30.3.3 [general requirements for flood hazard overlay districts] of the Zoning Ordinance. Plans must show the existing and proposed floodplain boundaries and elevations.

 


 

PETITION

PROJECT: SP 2007-063, 5th Street Development

PROPOSED: special use permit for fill in the floodplain, no residential units proposed.

ZONING CATEGORY/GENERAL USAGE: HC Highway Commercial - commercial and service uses; and residential use by special use permit (15 units/ acre); LI - Light Industrial - industrial, office, and limited commercial uses (no residential use); AIA Airport Impact Area - Overlay to minimize adverse impacts to both the airport and the surrounding land; and FH Flood Hazard - Overlay to provide safety and protection from flooding

SECTION: 30.3.05.2.2 (3), which allows filling of land in the floodway

COMPREHENSIVE PLAN LAND USE/DENSITY:  Regional Service - regional-scale retail, wholesale, business and/or employment centers, and residential (6.01-34 units/acre); Community Service - community-scale retail wholesale, business and medical offices, mixed use core communities and/or employment services, and residential (6.01-34 units/acre); Parks and Greenways - parks, greenways, playgrounds, pedestrian and bicycle paths in Development Area 5.

ENTRANCE CORRIDOR: Yes  X   No____

LOCATION: approximately 1100 feet north of I-64 on the east side of 5th Street, north and east of the Holiday Inn.

TAX MAP/PARCEL: 76-55A, 76M1-1

MAGISTERIAL DISTRICT: Scottsville

 

PLANNING AND ZONING HISTORY

May 22, 2001               The Planning Commission, by a vote of 3 – 1, recommended denial of ZMA 1999-013 and SP 1999-059 to the Board of Supervisors. A copy of the staff report, which gives the most in-depth analysis of SP 1999-059, the minutes of the meeting, and the Action Letter are included in Attachment C.

 

June 20, 2001             The Board of Supervisors unanimously voted to refer ZMA 1999-013 and SP 1999-059 back to the Planning Commission to address questions raised by the Board. A copy of the minutes of the Board’s meeting and the Action Letter are included in Attachment D.

 

May 7, 2002                 The Planning Commission by a vote of 4-1 recommended approval of ZMA 1999-013, subject to the attached proffers, and recommended approval of SP 1999-059, as presented. A copy of the Executive Summary, minutes, and Action Letter are included in Attachment E.

 

June 5, 2002               The Board of Supervisors held a public hearing on ZMA 1999-013 and SP 1999-059. At the time of the hearing, the proffers had not been signed by the appropriate person and a change was necessary in the language of one of the proffers, so action was deferred. A copy of the minutes and Action letter are included in Attachment F.

 

July 3, 2002                 The Board approved ZMA 1999-013, with a proffered plan and other proffers dated 5/7/2002, and approved SP 1999-059 to allow fill in the floodplain. A copy of the Executive Summary, minutes, and Action Letter, including the proffers, are included in Attachment G.

 

BACKGROUND

When ZMA 1999-013 and SP 1999-059 were presented to the Planning Commission in May 2001, the staff report contained a pertinent analysis of the Special Use Permit for Fill in the Floodplain. This staff report, as well as the minutes for both the Planning Commission meeting on May 7, 2002 and the Board of Supervisors meeting on June 20, 2002, are included here to provide a chronology of the discussion that ultimately led to approval of both the ZMA and the original SP. This ZMA requires a Special Use Permit for Fill in the Floodplain in order for the proffered plan to be implemented.

 

Since ZMA 1999-013 and SP 1999-059 were approved by the Board in July 2002, the applicant has not submitted a site plan for approval or done any work on the site. Section 31.2.4.4 of the Zoning Ordinance specifies that if the use, structure, or activity for which a special use permit is issued is not commenced within twenty-four (24) months after the permit is issued, the permit shall be deemed abandoned or expire. In July 2004 the Special Use Permit expired.

 

The applicant has almost completed the process of granting the greenway easement, in fulfillment of ZMA Proffer # 8. All of the other proffers “kick in” at the time of site plan approval.

 

When the first application for fill in the floodplain was made (SP 1999-059), the 1980 Flood Insurance Rate Maps (FIRMs) were in effect. The FIRM showed virtually the entire proposed site in the floodplain. The applicant obtained from FEMA a Letter of Map Revision (LOMR), dated July 5, 2000. Jack Kelsey, County Engineer at that time, signed off on the LOMR on March 31, 2000. A LOMR indicates that FEMA will revise floodplain boundaries to incorporate areas that will be filled. The effect of the letter is to remove a property and/or structure from the Special Flood Hazard Area (SFHA) shown on the FIRM.

 

Then, on February 5, 2005, FEMA issued new FIRMs, which automatically supersede any existing LOMRs. Recognizing that there were a number of LOMRs that were no longer in effect because of the new FIRMs, FEMA issued a letter revalidating a list of LOMRS. However, the LOMR for this project, 5th Street Development, was not included. Therefore, staff is recommending a condition be placed on the new SP that, prior to site plan approval, the owner obtain a new LOMR from FEMA.

 

DISCUSSION

 

The purpose of the 24-month provision for special use permit approvals in the ordinance is to allow any subsequent changes in circumstance to be considered and ordinance changes to be applied should an extension or reapproval of the special use permit be requested. The following analyzes the new special use permit according to the criteria in Section 31.2.4.1 of the Zoning Ordinance, as follows:

 

Analysis of the Special Use Permit as related to Section 31.2.4.1 of the Zoning Ordinance:

The Board of Supervisors hereby reserves unto itself the right to issue all special use permits permitted hereunder. Special use permits for uses as provided in this ordinance may be issued upon a finding by the Board of Supervisors that such use will not be of substantial detriment to adjacent property.

 

As a result of the Dewberry and Davis study prepared in support of the special use permit approved in 2002, the Engineering Department determined at that time that filling the portion of the floodplain as proposed in this project will not have an adverse impact on adjacent properties. The current County Engineer, Glenn Brooks, has expressed opposition to the fill in the floodplain as proposed for several reasons, including unforeseen impacts.  (Attachment I)  However the action of the Board to approve the rezoning in 2002 established uses and a proffered plan that cannot be achieved without approval of this special use permit.  Approval of the special use permit will allow uses and the proffered plan approved under the prior rezoning to be developed on this site that can complement the adjacent hotel and provide services to travelers on the nearby interstate highway.

 

that the character of the district will not be changed thereby,

 

Adding the amount of fill proposed by the applicant would greatly affect the appearance of this site and the character of the floodplain, but it is not expected to change the character of the commercial nature of this area since the proposed development is consistent with existing development of the area.

 

and that such use will be in harmony with the purpose and intent of this ordinance,

 

There are several zoning districts on this site: Highway Commercial, Light Industrial, Flood Hazard Overlay, Entrance Corridor, and Airport Impact Area. The relationship of the SP to each district is discussed below:

 

The intent of the Highway Commercial (HC) District is to permit development of commercial establishments primarily oriented to highway locations rather than central business concentrations. The SP will permit development of the site with commercial, highway-oriented establishments.

 

The Light Industrial District covers the portion of TMP 76M1-1 that is east of Biscuit Run and, therefore, is not subject to this SP.

 

The intent of the Flood Hazard Overlay District is “for the purpose of providing safety and protection from flooding. More specifically, these provisions are intended to restrict the unwise use, development and occupancy of lands subject to inundation which may result in: danger to life and property; public costs for flood control measures and/or rescue and relief efforts; soil erosion, sedimentation and siltation; pollution of water resources; and general degradation of the natural and man-made environment.” The district is also intended to help the County qualify for the National Flood Insurance Program. If approved, the SP will allow sufficent fill in the floodplain to remove this site from the floodplain. It will, therefore, be out of the Flood Hazard Overlay District.

 

The intent of the Airport Impact Area Overlay District is to recognize airport-related hazards which may endanger lives and property and/or create obstructions which might reduce the utility of the airport. The SP will have no impact on this district.

 

The intent of the Entrance Corridor Overlay District is to protect the county’s natural, scenic and historic, architectural and cultural resources. The applicant is expected to obtain the Architectural Review Board’s recommendations prior to site plan approval.

 

with the uses permitted by right in the district,

 

The applicant has proffered several uses in the Proffers, dated May 7, 2002, including the restaurant and convenience store shown on the Conceptual Site Plan. (Attachment G) The proposed uses enabled by the prior re-zoning are permitted within the property’s applicable zoning districts and will serve both travelers through and residents of the area.

 

with additional regulations provided in Section 5.0 of this ordinance,

 

There are no supplemental regulations governing restaurants and/or convenience stores in Section 5.0.

 

and with the public health, safety and general welfare.

 

The Engineering Department ultimately determined prior to approval of the ZMA and SP in 2002 that filling in the defined portion of the floodplain would not have an adverse impact on public health, safety and general welfare. The current County Engineer has expressed opposition to the fill in the floodplain as proposed for several reasons, including proximity of floodwaters to occupants and the integrity of fill slopes in the long term. (Attachment I)

 

SUMMARY

Staff has identified the following factors that are favorable to this request:

1.      There have been no significant changes in circumstance since SP 1999-059 was approved in 2002.

2.      The applicant has shown that fill in the floodplain is possible without raising the flood elevation or having an impact on neighboring properties.

 

The following factor is unfavorable to this request:

1.   The current County Engineer does not support this request based on concerns regarding good practice and policy, proximity of floodwaters to occupants, integrity of fill slopes in the long term and the precedent it sets.Staff and the Planning Commission did not recommend approval of the original rezoning and special use permit for this project due, in part, to concerns regarding impacts to the floodplain.  However, the Board, after additional information, review and consideration of these factors approved both the re-zoning with proffers, including a proffered plan, that establishes use of the property and the special use permit for fill in the floodplain.

 

RECOMMENDATION

There have been no changes in the development proposal for this property since the original rezoning and special use permit were approved by the Board. Although since that approval FEMA has issued new floodplain maps, they have not materially changed the floodplain boundary as it existed at that time. Therefore, staff finds no change in circumstance since the Board’s prior approval of this special use permit that would change the basis for that decision and, therefore, recommends approval of SP 2007-063 for Fill in the Floodplain with the following conditions of approval: 

  1. The fill in the floodplain shall be shown on a site development plan and shall be in general accord with the “Conceptual Site Plan,” dated January 8, 2002, and most recently revised on March 10, 2008, except as may be modified in order to meet the requirements of the County’s Water Protection Ordinance, as determined by the County Engineer.
  2. The County Engineer’s approval of an erosion and sediment control plan.
  3. The County Engineer’s receipt of proof of compliance with Federal and State agencies regulating activities affecting wetlands and watercourses. The applicant must obtain a map revision, a letter of map revision, or a letter of amendment as required from the Federal Emergency Management (FEMA) and copy the County Engineer on all correspondence.
  4. The County Engineer’s approval of a mitigation plan outlining mitigation measures for encroachments into the stream buffer.
  5. The County Engineer’s approval of computations and plans documenting changes to the floodplain. Computations must demonstrate compliance with Sections 30.3.2.2 [verification of limits of floodway and floodway fringe] and 30.3.3 [general requirements for flood hazard overlay districts] of the Zoning Ordinance. Plans must show the existing and proposed floodplain boundaries and elevations.

 

ADDITIONAL INFORMATION

Staff notes that a site plan will be required for this use and that issues in need of resolution for the site plan include:

1.      The precise amount of fill necessary to accommodate the actual uses to be constructed on the site and the necessary parking.

2.      Compliance with the Water Protection Ordinance

3.      Sufficient mitigation, as determined by the County Engineer and Water Resources Manager, for the encroachment of the fill into the 100-foot stream buffer along Moore’s Creek.

 

ATTACHMENTS:

A.      Location Map  

B.     Conceptual Site Plan, dated January 8, 2002, and most recently revised on March 10, 2008.

C.     A Copy of the Staff Report, minutes, and Action Letter from the Planning Commission meeting on May 22, 2001.

D.     A copy of the minutes and Action Letter from the Board of Supervisors meeting on June 20, 2001.

E.     A copy of the Executive Summary, minutes, and Action letter from the Planning Commission meeting on May 7, 2002.

F.      A copy of the minutes and Action Letter from the Board of Supervisors meeting on June 5, 2002.

G.    A copy of the Executive Summary, minutes, and Action Letter from the Board of Supervisors meeting on July 3, 2002.

H.     A copy of the final, signed proffers, dated May 7, 2002.

I.        A copy of the County Engineer’s comments, last revised March 31, 2008.

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