SDP 2008 – 2  South Pantops Condominiums - Critical Slopes Waiver




Approval of waiver of to allow activity on critical slopes.




Messrs. Tucker, Foley, Davis, Kamptner, Fritz, Lawrence, Custer






April 1, 2009


ACTION:     X          INFORMATION:   



  ACTION:              INFORMATION:   









The applicant has proposed to develop a 13.12 acre parcel located on South Pantops Drive zoned R-15. The proposed development would establish 125 condominium residential units in 7 buildings and, in the process, would require that 13% of the critical slopes on the site be disturbed.  These disturbed critical slopes compose 0.89 acres, or 6.7%, of the total area of the 13.12 acre parcel.  On January 20, the Planning Commission approved the applicant’s request for a critical slopes waiver with the following condition: “Fifteen (15) percent of the units shall qualify as affordable housing as described in [Zoning Ordinance] Section 18.4.3.”  The applicant has appealed the imposition of this condition of approval and is requesting that the critical slopes waiver be granted without the condition.


After the staff report was prepared for the January 20, 2009 Planning Commission meeting, Zoning Ordinance § 4.2.5, which establishes the criteria and findings for considering and granting a critical slopes waiver, was amended.  The relevant substance of Section 4.2.5 did not change, though its subsections were reorganized.    




Goal 4:  Effectively manage growth and development.



A critical slopes waiver may be granted by the Planning Commission or the Board if any one of four findings can be made under Zoning Ordinance § 4.2.5(a)(3). (See Attachment D)  The Planning Commission’s decision was based on the finding now found in Zoning Ordinance § 4.2.5(a)(3)(d): “Granting the modification or waiver would serve a public purpose of greater import than would be served by strict application of the regulations sought to be modified or waived.”  The staff report’s analysis of this finding identified the proposed development’s inconsistency with various provisions of the Comprehensive Plan discussed below, and advised that staff could “identify no public purpose that can be served by the approval” of the waiver.  Staff also considered the other findings, but concluded that none of them were satisfied by the applicant’s request.


The Pantops Master Plan adopted on March 17, 2008 designates the parcel as Green Space to protect sensitive environmental features including stream buffers, flood plain and adjacent slopes.  The Master Plan recommends that no intensification of development should take place along the southern portion of South Pantops Drive past a trail connection shown on the Parks and Green Systems Map, including this entire parcel.  The Composite Map of the Open Space Plan, which is part of the Comprehensive Plan, shows major and locally important stream valleys and adjacent critical slopes on the site, and the accompanying inventory maps show areas recommended for open space protection.  Staff advised that the proposed development would impact important resources and encroach into the critical slopes system of the Rivanna River as shown on the Open Space Plan and would result in the loss of important aesthetic resources.


At the Planning Commission meeting, the applicant stated that the stream valley on the parcel was on the downstream side of the site closest to the State Farm Insurance Company property and that it would be undisturbed.  He added that the critical slopes that would be disturbed was to allow it to cut in the garages that would be underneath the buildings, and that by cutting the buildings into the slopes, the slopes would actually be a little more stabilized.  He further added that the stormwater management facility would be located at the lower point on the site.  Acknowledging an earlier discussion regarding affordable housing, the applicant stated based on the nature of the project, by definition there would be a proportion of affordable units and also units that were moderately priced that would be needed for employees of Martha Jefferson Hospital.


The parcel could be developed without a critical slopes waiver.  However, the critical slopes waiver allows a greater portion of the parcel, i.e., the portion that contains critical slopes, to be disturbed and, therefore, allows the parcel to be developed more intensively and at a greater density than would otherwise be allowed by right without a critical slopes waiver.


Based upon the foregoing, and in the absence of any public purpose served by the applicant’s request that would allow the Planning Commission to make the finding under Zoning Ordinance § 4.2.5(a)(3)(D), it would have been appropriate for the Planning Commission to deny the applicant’s request for a critical slopes waiver.  Thus, for the Planning Commission or the Board to approve the critical slopes waiver, either a “public purpose of greater import” must be found under Zoning Ordinance § 4.2.5(a)(3)(d), or evidence to support one of the other findings under Zoning Ordinance § 4.2.5(a)(3) must be provided.  In this case, the Planning Commission found that the condition allowed it to find that a critical slopes waiver would serve a public purpose of greater import than would be served by strict application of the regulations being waived.  In other words, the condition was imposed merely to assure that the finding could be made.


Conditions imposed on critical slopes waivers typically address the environmental impacts resulting from the disturbance of the critical slopes.  The County Attorney’s Office is concerned that this appears to be the first critical slopes waiver where a condition has been imposed without the concurrence of the applicant to assure that a “public purpose of greater import” finding can be made.  A public purpose of greater import was found for a prior critical slopes waiver granted in 2005 for this site.  The never-built project would have provided 95 low and moderate income housing units for elderly residents and the condition to that effect was imposed with the agreement of the applicant.  








Unless the applicant presents new evidence to allow the Board to make a finding under Zoning Ordinance § 4.2.5(a)(3) without the condition imposed by the Planning Commission, staff recommends that the Board affirm the decision of the Planning Commission.  If there is no new evidence and the Board determines that the affordable housing condition should not be required, staff recommends that the critical slopes waiver be denied. 




A – South Pantops Staff Report

B – South Pantops Planning Commission Action Letter

C – Applicant’s Appeal Letter

D – Zoning Ordinance § 4.2.5

View PC minutes of August 12, 2008 and January 20, 2009

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