Albemarle County Planning Commission

February 17, 2009



ZTA-2008-00002 Planned Developments and Neighborhood Model District

Amend the following sections of Chapter 18, Zoning, of the Albemarle County Code: 3.1, Definitions, to amend and delete several definitions; 8.2, Relation of planned development regulations to other zoning regulations, to change section heading, to clarify the regulations applicable to planned developments ("PD"), to require that waivers and modifications be expressly granted, and to reorganize the section; 8.3, Planned development defined, to revise the definition of "planned development"; 8.5.1, Applications and documents to be submitted, to revise the standards and information accompanying an application to establish a PD district; 8.5.2, Pre-application conferences, to revise the parties in a preapplication conference; 8.5.3, Review and recommendation by the planning commission,, to revise the matters considered by the planning commission in acting on an application for a PD district; 8.5.4, Review and action by the board of supervisors, to change section heading and to clarify the documents applicable to a PD upon approval of the PD rezoning; 8.5.5, Final site plans and subdivision plats, to change section heading;, Contents of site plans and subdivision plats, to revise a cross-reference;, Review of site plans and subdivision plats, to provide that when subdivision plats and site plans are reviewed, they shall be reviewed for compliance as follows: (a) if the PD district was established on or before December 10, 1980, the zoning and subdivision regulations currently in effect apply unless vested rights are established; (b) if the PD district was established after December 10, 1980, at the option of the developer, the zoning and subdivision regulations in effect when the PD district was established or those currently in effect apply, provided that if the developer elects the former, six delineated subjects of regulation are not so grandfathered and the developer must comply with current regulations pertaining to those 6 subjects unless vested rights are established; to revise the zoning administrator's and director of planning's review for compliance, to define "applicable regulations," and to declare that vested rights are not impaired;, Variations from approved plans, codes, and standards of development, to revise the provisions of a plan, code or standard the director of planning may vary, and to authorize the director to require that specified information be provided ;, Building permits and erosion and sediment control permits, to revise references to county officers and bodies and to clarify other clauses;, Site plan and subdivision plat requirements for planned development zoning districts established without an application or application plan, to change section heading and to clarify the procedure and requirements for reviewing a site plan or subdivision plat where there was no application plan when the PD district was established; 8.6, Amendments to planned development districts, to revise and expand the procedure to amend a PD district by establishing requirements for who is an eligible applicant, submitting a map if the rezoning affects less than the entire district, notice, and factors considered during review; 20A.3, Application requirements; required documents and information, to change reference from "general development plan" to "application plan"; 20A.4, General development plans, to change section heading and the required elements of an application plan in a neighborhood model district (hereinafter, NMD"); 20A.5, Codes of development, to clarify that any substantive or procedural requirement of the Zoning Ordinance applies in an NMD unless the subject matter is expressly addressed in the code of development (hereinafter, the "code"), to expressly require that the code be in a form required or approved by the director of planning, to change the required elements of a code, and to limit the applicable architectural standards in pre-existing codes to only the new required elements unless determined to be key features; 20A.6, Permitted uses, to change a reference from "general development plan" to "application plan" and to allow a code to provide that any use allowed by right or by special use permit in any other zoning district be a use allowed by special use permit in an NMD; 20A.7, Residential density, to correctly state the formula for calculating residential density in an NMD; 20A.9, Green spaces, amenities, conservation areas and preservation areas, to change references from "site area" to the "area proposed to be rezoned" when calculating the areas of green spaces and amenities; and 20A.10, Streets, to change a reference from "department of engineering and public works" to the "department of community development."  A copy of the full text of the ordinance is on file in the office of the Clerk of the Board of Supervisors and in the Department of Community Development, County Office Building, 401 McIntire Road, Charlottesville, Virginia. (Elaine Echols)


Mrs. Echols provided a PowerPoint presentation on the ZTA.  She said that on April 22, 2008, the Planning Commission passed a resolution of intent to consider minor changes to the PD regulations as well as a major change that would require that certain site plans and subdivision plats permitted under old planned development zoning comply with current rather than “old” regulations that existed at the time of rezoning approval.   The resolution of intent and proposed text is provided in the staff report. In July the Commission held a work session.  In September a Round Table was held with the development community.  The final work session was held in December where the Commission made the recommendations to be included in the ordinance.  At the time Mr. Kamptner drafted an ordinance that reflected those changes.  It has four important areas of change.


Mrs. Echols noted that in a Hollymead Town Center proposed zoning amendment, there was a question as to whether or not everyone who owned property in Hollymead Town Center Area C had to sign the application for a change.  The issue came before the Board of Supervisors and there was a lot of discussion on it at the time.  Because of the amount of time and discussion about this type of issue, staff decided to make it a little clearer in the ordinance as to who has to sign an application to amend a Planned District.  That wording was put in the ordinance.  Mr. Kamptner can speak to that one if there are any questions.


Mrs. Echols said that, with regards to vesting, the Commission wanted to require that the current regulations be applied to Planned Districts approved prior to or with the 1980 zoning map change unless the owner can establish a vesting.


The Commission also wanted the current regulations relating to the Entrance Corridor Flood Hazard Overlay District, outdoor lighting, signs, parking and landscaping to be applied to Planned Districts approved after the 1980 zoning map change unless the owner can establish a vesting.


In terms of the architectural requirements the ordinance amendment removes the requirements for styles, materials, colors and textures unless an infill project necessitates them or for some other reason.  At the last meeting, the Commission said it believed that it is important that the other architectural features be retained.  Staff also noted the removal of the requirement for ornamentation and an added requirement that the developments have their own architectural review and give us that certification so they have that when starting the county building permit processing.


In terms of parking studies staff asked to allow for parking studies to be submitted with a rezoning or at the site plan or plat review.  The Commission agreed with that.


Staff said they had received a few comments to date. One had to do with topography and maps regarding the resolution of topographical maps and whether a 5’, 2’ or 4’ contour was appropriate.  The Commission read Frank Cox’s comment in the staff report.  The existing ordinance requires topography shown with a maximum of 5’ intervals.  Staff recommended that the topography use the county’s geographic information system or better, which is in 3’ to 4’ intervals.  Frank Cox, one of our development professionals, has suggested that the topography be provided with a maximum of 2’ contour intervals along with the source of the topographical information.  Mrs. Echols said that this really is the best idea when working on a tight site.  But the applicants are the ones who need to be aware that they need to be doing this kind of work themselves so that the surprises don’t come out at the end.  In talking to the County Engineer and Director of Community Development they both believe that staff’s recommendation right now for using the county’s GIS information should be good enough for a rezoning.  If there is a tight site staff will always recommend that an applicant do their own topo so that they are not caught off guard.


Staff had one other comment from Southern Environmental Law Center who had a question relative to determinations about Planned Districts.  Staff feels like their concerns have been satisfied.  They also told us about some mis-numbering that they need to take care.


Mrs. Echols said that since the staff report went out, the County Attorney’s Office has been rereading the ordinance and would like to add some clarifying revisions which are on the screen as noted below.  At this point she asked Mr. Kamptner to work his way through the proposed ordinance language as noted below.


1.                   Section  Add a reference to Virginia Code 15.2-2997 right before the reference to Virginia Code 15.2-2307.  Reason: For a pre-1980 PD ZTA, it is possible that an owner could argue vested rights accrued under what is now Virginia Code 15.2-2297, which was the proffer enabling legislation applicable to Albemarle County from July 1, 1978 until Virginia Code 15.2-2298 was adopted in the 1980’s.

2.                   Section Clarify by adding to the first part of the new text that the site plan or subdivision plat was valid “at the time the zoning map amendment was approved. . .”  Reason: We don’t want to allow an owner to rely on a plan or plat that was no longer valid by the time the ZTA was approved; and we don’t want to prevent an owner from relying on a plan or plat as the application if it was valid when the ZTA was approved, but later expired.

3.                   Section 8.6(a): In the next to last line after the clause pertaining to a change to a proffer or regulation in a code of development, we should add a clause adding an additional circumstance when other owners would need to be an applicant – when the amendment might change an owner’s obligations under a proffer or regulation in a code of development (without changing the proffer regulation itself).  Lump sum cash proffers come to mind as an example, but there are likely a number of less obvious, subtle effects that may arise that we should provide for.  Call me if you have any questions.


Mr. Kamptner noted that it was his habit to review and revise until the Board takes final action.  He was reviewing the ordinance this morning in preparation of tonight’s public hearing and there were three substantive changes he was suggesting to be made. The first one is to expand the source of possible vested rights.  The draft ordinance now refers only to Virginia Code Section 15.2-2307. But it is possible that there are some properties out there who could claim that they have a vested right under their proffered rezoning which relies on 15.2-2297 as the source.  That is an old source of zoning that proffered rezonings that there are only a few localities around the state that still use.  That was our enabling authority from 1978 until the new enabling authority was adopted in 1980’s.  There may be no land owners out there that could claim, but just in case they don’t want their vested rights claimed by not including that section in the ordinance.  It is a very technical change, but one they recommend be made.


Ms. Joseph said that the Code of Virginia tells us how to vest.


Mr. Kamptner replied yes, that in Section 15.2.2307 that is the general vesting right statute.  About ten years ago vested rights were codified in the statute.  Before then vested rights analysis was done on a case by case basis.  There were about a half dozen Virginia Supreme Court decisions, but it was developing under the case law or common law.  It was codified then.  But also in the proffer enabling statutes there is now vesting related rights that are granted under proffered rezonings.  For example, if an owner has agreed to donate a substantial piece of land or a cash proffer of substantial value they can have vested rights arise because of what they have done through their proffered rezoning.


Ms. Porterfield asked if that means that proffer should have already been paid or it is just written down on paper.


Mr. Kamptner replied that it depends.  The proffer may be triggered by a certain event that simply has not occurred yet such as the payment of cash at the time of final subdivision plat approval or something like that. 


Ms. Porterfield asked what if they could not fulfill the proffer.


Mr. Kamptner replied that then there would be no approvals.  If they can’t fulfill the proffers the localities have the ability to not approve any further permits or approvals.  The second amendment in Section was to clarify that the site plan or subdivision plat that may serve as the application plan had to be valid at the time that the map amendment was approved so they would not have a plat or a plan that had already expired at the time of the rezoning serving as the application plan.  Section 8.6(a) is the section that deals with amendments to Planned Districts where they are trying to put into the regulations the standards for when the owners within the districts must sign the application or if there is a single parcel.  What they tried to do was look at the impacts resulting from the application and the impacts it might have on other owners within the Planned Development District.  The regulation lists a number of things, events or consequences that would require the owner of other parcels to co-sign the application essentially when their interest may be affected.  In reading that regulation this morning there was another possible event that may happen. That is when an applicant is proposing to amend a proffer to rezone their property that may have the effect of increasing the obligations of the other properties within the Planned District. It is unlikely that this type of amendment would be approved but the best example is that you have a $100,000 lump sum cash contribution that has been proffered for this Planned Development and there are ten parcels.  The owner of one applies to rezone his property, but would still be in the Planned Development, but that applicant does not want that lump sum cash proffer apply to his property. The result of that would increase the obligation of the remaining land owners assuming that the rezoning was approved.  But this provision is just to address that unlikely situation.


Ms. Echols completed her presentation saying that staff recommends approval of the ordinance with the clarifying amendments that Mr. Kamptner has provided tonight and pass it on to the Board of Supervisors.  She offered to answer any questions.


Mr. Edgerton said that he liked Frank Cox’s suggestion, but questioned if staff would decide application by application if it was a tight enough site or they going to make a strong recommendation.  He asked if that is the way staff plans to handle it.


Ms. Echols replied that it depends on what the proposed development would be.  If the Commission feels strongly to recommend that to be the requirement for the 2’ contours that certainly can be done.


Mr. Cilimberg pointed out that staff felt that in a lot of applications the available topo from the county will be sufficient for the application.   But there could be cases where a better topo would be called for based on the particular situation.  Nothing prevents Frank Cox to act in his capacity as their consultant to direct his applicant to provide 2’ contours.  . 


Mr. Edgerton said that on the first page of the staff report staff refers to the four important areas of change.  The one he could not find in the actual language of the ordinance was the change dealing with the timing of the parking study.

Mr. Strucko pointed out that it was on page 4 of the staff report.


Mr. Edgerton said that would just be in the Comprehensive Plan and would not be part of the ordinance.


Mr. Cilimberg replied that it should be in the Neighborhood Model District section of the ordinance as am amendment.


Ms. Echols noted that it starts on page 18 in paragraph B.


Mr. Edgerton said that in the top of the paragraph on page 5 it states the standards related to architectural styles, textures, colors and materials would be required only if architectural compatibility was important for the rezoning.  He asked who was going to determine that.


Ms. Echols replied that part of that would be the Commission’s determination since staff would be making a recommendation.  Certainly the Commission has to determine whether or not that is essential to the rezoning.  On the older ones or the ones already approved that would be the Planning Director’s call.


Mr. Joseph asked what façade treatment means.


Mr. Edgerton replied that a façade treatment is basically like a stage front.  It would be like if Barracks Road Shopping Center decides to double the rent, leave all the buildings the same and take down the façade and put up new facades that have fake roofs and new columns. 


Ms. Joseph asked what it means within a Code of Development.  If they are asking for a façade treatment what are they asking for?


Mr. Edgerton replied what he thought was intended was that they are not really concerned about what is happening inside the building but what is on the outside or the façade of the building and the impact it would have on the surrounding neighborhood.


Ms. Joseph questioned how that is different from architectural styles because they have taken out architectural styles and kept in façade treatments.


Mr. Edgerton said that he was more comfortable with dealing with the façade treatment.  They could have a very contemporary building next to a very traditional building and have it work with the traditional building if there was some respect for the rhythm that was established in the traditional building.  Perhaps it could be in the height of the windows and the coursing of the levels to the building.  This is done quite often and done very successfully.  He thought that the way this was written it would instead of saying that it all has to look like Williamsburg that there has to be some respect for that. That becomes very subjective and some people will not like that.


Mr. Cilimberg pointed out that in the Downtown Crozet zoning they had façade treatments as the part of the language in the ordinance about at what distance you break and that type of thing.


Mr. Edgerton said that instead of picking a particular style and saying this is what it has to be, attention should be paid to getting the rhythm right and getting respect for the elements of the building so that they don’t end up having a high rise next to a two-story house.


Mr. Morris said that he liked the comment that he was really concerned about the outside appearance of the building rather than what the building is being used for in side.


Mr. Edgerton noted that the Commission has been addressing that on several projects in recent months.  He thought that the project on Berkmar Extended for the old amusement park was a good example.


Ms. Echols noted that Berkmar Business Park was where they had a one-story building that they wanted to look like two-stories.  She said that façade treatments are actually the features that help break up the massing.   The façade treatments are on the exterior of a building that will show us that there are floors, rhythm and spacing of those things that make it less like a box and more like a building.  There is one thing that was pointed out that was missing, which was missing words on page 18 under B parking and loading needs study.   The wording did not make it back into this version. 


Mr. Kamptner agreed to put the words back in on page 18 under B for parking and loading needs study.


Mr. Cilimberg asked if the Commission decides to have the parking as an either/or at the time of rezoning or at site plan staff will make sure that the wording is added.  


Ms. Porterfield said that on page 3 regarding mapping interval it says the modification to the fee schedule will include a fee for variations sometime in the future. She asked if they know when that is.


Mr. Cilimberg replied that they have to get subdivision ordinance fees done first which are being advertised for the March 10 meeting.  After that Mr. Graham plans this year to bring forward the zoning ordinance fees. 


Ms. Porterfield asked if it would be better to go the lesser distance now so they would not have to worry about the variations.  She assumed that variations would have to be mapped in a more exact form.


Ms. Echols noted that they do have a few examples where that has happened.  But she thought that they were going to get variation requests regardless.  They will have variations that are requested for Planned Districts.


Mr. Cilimberg said that variations referred to here are not about changes in contours.  That is what he thought Mr. Porterfield was asking about. Those variations are actually about how a layout might be changed over what was in the original zoning action.  It could be as a result of market changes or more fine tuning in the design because they are not going to get down to level of a site plan at the rezoning stage and they are getting into their site and realizing that they have to make some changes because of that.  That will be coming to the Commission as a package.


Ms. Porterfield said that on page 5 under individual notice on the bottom they are talking about written notice of the proposed amendment shall be provided to the owner of each parcel within the Planned Development District.  She asked if they know who is going to provide that.  She asked if that would be staff.


Mr. Cilimberg replied that it would be under the current procedures unless those get changed by a different decision down the road.


Ms. Porterfield asked if he meant a different financing decision on it.


Mr. Cilimberg replied yes because it could be a responsibility decision or a fee decision.


Ms. Porterfield asked if staff wants to keep it open ended the way it is.


Mr. Cilimberg replied yes that this would not be the time to do that.


Ms. Porterfield questioned why the Board of Supervisors and Planning Commission titles are not capitalized in the proposed amendment but are capitalized in reports.  She suggested that the titles be consistently done one way or the other.


Mr. Kamptner replied that the style of not having the titles capitalized is one that has been in the ordinance for 28 years is that most of the entities including the Board and Commission are not capped.  They are in the early stages of looking at doing a recodification of the zoning ordinance.  One of the things that will be developing is a consistent style in not only capitalization but also terminology.  That is something that they will be looking at.


Ms. Porterfield suggested that they pull out the capitalizations because there are some in here already.  On page 32 under zoning administrator they talk about the fact that they shall determine whether the proposed permitted uses comply with the applicable regulations and in doing so may permit as a use by right a commercial use that is not expressly classified in this chapter if the zoning administrator further determines that the use is similar to general character to a commercial use permitted by right. . .  She asked if this a little bit about what they just had with the issue they just determined. The reason she asked that is there was a lot of discussion as to whether that was inappropriate comparison.  If they had not had that they would not have had this issue. 


Mr. Cilimberg said that this is about trying to make sure that they are able to get the commercial uses one might not think about in a commercial setting within a Neighborhood Model District permitted even if they were not expressly identified.  They are dealing right now with a zoning text amendment that is coming to the Commission for a beauty shop in a commercial district where some like uses are allowed but beauty shops are not.  So they have to do a zoning text amendment.  These kinds of circumstances under Planned Development where there is suppose to be a little bit of flexibility to accommodate with good plans some of the ideas and uses that could evolve over a few years.  The idea is to give the zoning administrator the opportunity to say well this use, this beauty shop, is like a barber shop which is something allowed.  So it could be permitted as well. 


Ms. Porterfield said that it would be a much more similar situation than what they just had.  That situation was so different.


Mr. Cilimberg said that was a conventional zoning district whereas this is for Planned Development Districts.  That was for a different use type altogether.


Mr. Kamptner said that particular paragraph actually is mirroring the provision in the C-1 conventional district regulations that allow the zoning administrator to make a similar kind of determination.   What happened with the application before that was simply a classical zoning administrator’s or zoning official’s determination as to whether or not a particular proposed use fits in with one of the use classifications within the RA zoning district.  He thought that the research found that as the speaker kept referring to it as a saw mill but he thought that particular classification also included wood yards.  So zoning staff did research to determine whether or not what is proposed could fall within that classification.


Ms. Porterfield said that it sounds like in this case it is narrower.


Mr. Kamptner said that it was narrower recognizing that the regulation does not capture every single type of use or the terminology that might be used.


Ms. Porterfield noted that on page 35 they have Section twice. 


Ms. Echols replied that would be corrected.


Ms. Porterfield questioned on page 40 under g #4 the architectural style, materials and textures if deemed to be necessary.  She understood in Rivanna Village that it definitely was going to be done in the Williamsburg style.  She thought that the neighborhood bought into that and the developer as she understood thought it was fine.  She wondered about adding something to this “and/or has been agreed to by the developer as a condition of their rezoning.”  In other words in the case if a particular style has been agreed to.


Ms. Echols asked if she was talking about ones that have previously been approved.


Ms. Porterfield replied yes if the applicant has agreed to a general style that most people know.


Ms. Echols said that in Rivanna Village at Glenmore, the styles indicated in the Code of Development would be retained because they were important features of that rezoning.   In new rezonings, the importance of style would be determined on a case-by-case basis.


Ms. Porterfield said that Rivanna Village is fine, and past things are fine.  If an architectural style is specifically put in the Code, then they would have a feel for what it is supposed to look like.


Ms. Echols replied yes.


Mr. Kamptner said that the reference to it being agreed to that would be memorialized either in a proffer or in the Code of Development.


Mr. Strucko opened the public hearing and invited public comment.


Neil Williamson, of Free Enterprise Quorum, said that he had two sets of remarks the first set of which are his own and thus are disjointed, but touch on some of the things that Mr. Kamptner raised.  He was still uneasy with regards to the changes for 8.6 with regards to what property owners sign when and how they influence the other property owners.  He was really thinking specifically of the Hollymead case and how that could be construed in a very tightly understood language to impact everyone.  It really freezes that particular land owner.  He thought that was a reason not to go into a Planned District.  He thought that Planned Districts generally have a very solid purpose and a planning purpose.  He thought that it would be good to preserve those.  He needed to spend a little more time thinking about what Mr. Kamptner presented on the PowerPoint.  In the Round Table discussion staff quantified the PD’s that were out there that might be impacted by this.  He would love to have staff quantify an estimate of the number of PD’s that were created with the 1980 zoning, which is kind of where they have honed down to.   Also on his wish list he also would love it if the provisions regarding the application of parking and entrance corridor, etc. could be applied in an ala carte method if it works better for the plan. He did not know if that could be codified. 


In addition Mr. Williamson noted that his good friend Valerie Long has put forth a very comprehensive memo with details and things that he thought was worthy of his touching on it.  He passed out a copy to the Commission.  (Attachment – Valeria Long’s Memorandum)  She cites a number of issues including the section that Mr. Kamptner referenced suggesting that the Planning Director/Zoning Administrator and all others makes sense but it might have some language like other changes that the Planning Director deems reasonable to add some flexibility.  One of the key things that most of these recommendations in Ms. Long’s memo touch on is the need for the flexibility within the Planned District to accomplish the overall goals.  He thought that the Commission has been pretty clear dating back to some of their services on DISC II that flexibility and a level of trust is going to be required to make these things work.  There is a lot of good stuff in Ms. Long’s well organized memo that he did not write.  Therefore, he would turn the memo over to the Commission to review.  He would love to see them move this forward, but he would also like to see if these issues can be addressed.  As Mr. Kamptner proved from an examination just this morning of the Code there is always more legal work to be done.


There being no further public comment, Mr. Strucko closed the public hearing to bring the matter before the Commission for discussion and action.


Ms. Porterfield suggested pushing off the decision for a couple of meetings so staff could go back and make the changes before they adopt it.


Mr. Morris felt that was a realistic suggestion in that there are so many changes that the Commission had suggested.  He did not know if he could support the proposal as it was before them.   The majority of it is great, but do they really want it to go forward before they have a chance to look it over.


Mr. Cilimberg noted that what Mr. Kamptner suggested was pretty straight forward and simple modification that staff can take care of very easily before the Board would see it.  The Board is going to have a work session before the public hearing.  He asked if the Commission felt that the things in the memo should be considered as well for possible changes.


Mr. Edgerton said that he was not comfortable saying to just hand the memo over and incorporating it.   He thought that the Commission needs a chance to review it and if it puts it off a week or month it is okay.  


Mr. Kamptner said that he would be happy to incorporate the changes they discussed and work with staff to review Mr. Williamson’s comments and Ms. Long’s memo. 


Mr. Cilimberg said that they would not need to have another public hearing.


Mr. Kamptner said that they don’t need to readvertise it if they set it to another date to come back and discuss.


Ms. Cilimberg noted that March 24 is going to be next real opportunity. 


Motion:  Mr. Edgerton moved and Mr. Morris seconded to defer ZTA-2008-02 Amendment to Planned District (PD) and Neighborhood Model District (NMD) Regulations.


The motion passed by a vote of 6:0.


Mr. Strucko noted that ZTA-2008-02 was deferred to March 24, 2008.



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