ZTA-2008-00003 Planned Development Changes
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, Preapplication 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; 188.8.131.52, Contents of site plans and subdivision plats, to revise a cross-reference; 184.108.40.206, 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; 220.127.116.11, 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; 18.104.22.168, Building permits and erosion and sediment control permits, to revise references to county officers and bodies and to clarify other clauses; 22.214.171.124, 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)
Ms. Echols presented a PowerPoint presentation and summarized the staff report. (See PowerPoint Presentation)
She noted that the last work session was held on December 9, 2008. On February 10, 2009 the Planning Commission held a public hearing. At that public hearing there were some comments that came at the end and the Commission wanted to have some time to look at them before taking action on this particular zoning text amendment. Ms. Echols reminded the Commission that the proposed amendment is about clarifications, clean ups, change of titles, vesting, the parking study timing and architecture.
Ms. Echols said that at the public hearing there were comments that came in from Valerie Long. Staff has incorporated her comments into the proposed draft where they agree with Ms. Long’s comments. There were additional comments from the County Engineer related to clarification which have also been incorporated. Then there were some additional changes from the County Attorney. Ms. Echols briefly reviewed the changes in the amendment before the Commission. The changes were noted as follows:
· Added to Section 126.96.36.199 -- Water Protection Ordinance applies regardless of when the application plan was approved
· Added to Section 188.8.131.52.b. – Application plans approved after March 19, 2003 is considered “significant governmental acts”. Ms Echols said that this was half of what Ms. Long asked for staff to do.
· Added to Section 184.108.40.206.c – The County Engineer determines conformity of grading and road plans. Ms. Echols said that if a conceptual grading plan has been provided with a Planned Development application, after a rezoning occurs an applicant can get an early grading permit. As a rule the County doesn’t allow any kind of grading until a site plan has been approved. This is one of the incentives that the County provides for Planned Districts. What has been added in this section is the County Engineer’s role. The County Engineer has always been involved in making the determination for conformity of an early grading plan to the conceptual grading plan submitted with the rezoning, but staff just clarified how it works.
· Added to Section 220.127.116.11. – Variations – The County Engineer recommends to the Planning Director whether changes in stormwater management and disturbance of conservation areas should be approved. The same is true with variations that deal with anything such as storm water management. The new section has been added to clarify the County Engineer’s role. For clarification, Ms. Echols told the Commission that in Neighborhood Model Districts and Planned Districts there are preservation areas and conservation areas. Preservation areas are “do not disturb” zones. Conservation areas are “disturb with care” areas. The County Engineer is the one who would determine what needs to be disturbed in the conservation areas and advise on the care that needs to be taken with that disturbance.
· Added to Section 18.104.22.168.b.and c -- Clarifies County Engineer involvement in early grading permits.
· Re-added option to Section 20.a.3. – Parking Study
· Added to Section 20A.6.a – Clarifies how Zoning Administrator determines if use is allowed in NMD
· Added to Section 20A.f.4 – new words, “any proposed” to “connections” in requirements for an application plan. The ordinance currently says “connections to existing streets.” Ms. Long asked for the change due to the potential ambiguity of the requirement.
Ms. Echols told the Commission of the requested changes not included with the proposed amendment where were requested by Ms. Long:
· Planned districts approved between 1980 and March 19, 2003 be considered as “significant governmental acts” Because many of the application plans between those dates were very vague, staff felt that a significant governmental act should be something that came after March 19, 2003.
· Provision for and applicant to submit an “interim” grading plan if no grading plan had been submitted with a rezoning. Ms. Long had suggested that an “interim” grading plan be allowed even if a conceptual grading plan had not been provided with a rezoning to a Planned District. Because it was a Planned District they could provide a grading plan that looked like it conformed to the application plan. Ms. Echols said that the County’s engineers felt like that was leaving the door open for any kind of site work because there might not be a follow-up site plan for many years. Therefore, the engineers were not comfortable with adding this particular provision.
Ability for Planning Director to approve any other variations that he/she considered “reasonable” and adding to the list of variations that the Planning Director was authorized to approve, a “catch all” category. Ms. Echols said that this starts to get into the gray area of what is a rezoning and what is not a rezoning. Ms. Echols said that the Planning Director was not comfortable with having a “catch all” category without any parameters, which is why that was not included. The County Attorney was also not comfortable with it.
· Ability for PC or staff to approve increases in density beyond what was approved by BOS. Staff is not allowed to administratively change the density by state law.
Ms. Echols reiterated that the staff has incorporated the changes that they thought were appropriate. Staff has addressed the recommended changes that they have not incorporated. The Commission has not seen one set of comments received from Morgan Butler with Southern Environmental Law Center. Mr. Butler has been in contact with Greg Kamptner about some of the language and comments about subdivision regulations. There is a reference to subdivision regulations included in this amendment. They have been communicating back and forth on the mechanics of how all of that works in the legal framework.
Ms. Echols noted that Morgan Butler had another comment regarding landscaping that staff believes has been resolved. Mr. Butler asked if landscaping standards in a Code of Development that had been previously approved would remain. Ms. Echols said she had told Mr. Butler that the ordinance clarified that only landscaping beyond what is required in the zoning ordinance should be in a Code of Development. Approved projects with landscaping in excess of the current requirements would remain in those Codes.
Ms. Echols said that staff recommends approval of the ordinance as it stands. There might be tiny tweaks that generally happen after this occurs because the County Attorney’s Office might find something else.
Mr. Strucko invited questions from the Commission.
Mr. Edgerton asked the legal meaning of the term “significant governmental acts”, which was referenced by Valerie Long.
Mr. Kamptner replied that it was in the context of the State statute that confers vested rights on certain types of land use decisions, which are certain proffered rezonings that specify use or density, special use permits, preliminary and final subdivision plats and site plans. It is an open ended list. What the Code says is significant governmental acts includes what he just listed, and other types of approvals as well.
Mr. Edgerton asked if the designation staff is recommending relates to any application plan approved after March 19, 2003 or the identification of that is being a significant governmental act. He asked if that guarantees that the applicant has a vested right.
Mr. Greg replied no, that is only the first of three elements that a land owner needs to establish in order to obtain vested rights. That just gets them in the door.
Mr. Loach said that the time frame from 1980 to 2003 if there was a Planned Development is considered a significant act by virtue of that time frame.
Mr. Kamptner replied no. The March 19, 2003 date is important because that is the date when the Planned Development regulations were amended and when the Neighborhood Model regulations were adopted. That is the demarcation line where they are confident that the level of specificity that is contained in application plans is pretty substantial. The plans before then particularly as they go farther back in time get less and less specific. Staff was not comfortable saying those early plans should be considered as significant governmental acts. Mr. Kamptner said it is possible that there may be a pre-2003 rezoning that had a plan where the application plan is not sufficient to constitute a significant governmental act. But there may be a proffer that goes along with the plan that specifies a specific use or a specific density. So a pre-2003 application plan may get into the door that way. Just in the last couple of weeks there has been a Virginia Supreme Court decision in the town of Blacksburg, which is indicated that in order for an act to be considered to be significant governmental act specificity is required. So that further bolsters our comfort that the March 19, 2003 demarcation line is appropriate if they are going to go that route.
Mr. Franco asked if they have a list of what fell out between 12-10-1980 and 3-19-2003. He asked if they have a list of the planned developments that were approved during that period of time.
Ms. Echols replied that staff has a lit of properties that have particular zonings on them and it is in an earlier staff report. She did not have the list with her right now. There were questions about three of the projects listed on the list of old ones in terms of whether or not they had ever been acted on.
Mr. Franco said that he remembered the discussion about the pre-1980 ones. He thought that those were the three projects. But since that discussion they have moved this line up to 2003 now. He was trying to understand what the plans are that fall into that range now.
Mr. Kamptner noted that he might be misunderstanding what this new language does. The grandfathering provisions have not changed from the prior version. What Valerie Long had asked for was that they consider that Planned Developments that have been approved that the application plans be deemed significant governmental acts. So they have said that the ones after March 19, 2003 they will deem those to be significant governmental acts. But the grandfathering provisions in 22.214.171.124 have not changed substantially in the last 2 or 3 iterations of the recommended ordinance. There are still the pre 1980 applications that need to establish vested rights. Everything from 1980 on is allowed to proceed since they are grandfathered except for the 6 specific types of regulations.
Mr. Franco said that is what he was trying to understand. He knows that there were a lot of Planned Developments that came forward in the late 90’s that he was not really sure when they go approved. As the Neighborhood Model was being developed some of the requirements of that were being introduced to regular Planned Developments that were moving forward during that period of time. So he was trying to understand if there were any of those that are undeveloped that are still sitting there that might be affected by how they are approaching this thing.
Ms. Echols replied that she did not think that there are, but she would have to go back and check them. From her memory, anything that was rezoned with Neighborhood Model principles prior to March 19, 2003 has been acted on.
Mr. Franco said that he understood that, but the amendment indicates that post March 19, 2003 plans were getting preference. He was just trying to make sure that there are not things that were in 2002 that might deserve that same preference. Without knowing which projects were on the list he could not tell.
Mr. Edgerton said that if he heard Mr. Kamptner correctly, some plans between 1980 and 2003 could be considered significant governmental acts if their approval was specific enough.
Mr. Kamptner replied yes, that every owner of a Planned Development project has the ability to establish vested rights. That is required by State law and the County can’t impinge on that. Right now every Planned Development is grandfathered as far as subdivision and zoning regulations are concerned. The ordinance amendment has said that pre-1980 Planned Developments are no longer grandfathered and need to establish vested rights in order to proceed under the old regulations rather than the current ones. Everything from 1980 forward is grandfathered with the exception of the six specific types of regulations where they can establish vested rights if they chose to. They have added this additional provision that what they are saying that any application plan that was approved after the March 19, 2003 date will be considered a significant governmental act, which is the first step towards establishing vested rights. Usually it is the lapse of time that is problematic for the serious vested rights claim. They have to diligently pursue their approval. The case law unfortunately is all over the board. A 50 year delay is obviously not diligent pursuit. One, two up to five years or even longer than that factoring in economic conditions may be considered diligent pursuit. This provision is an additional protection for the owners of the Planned Developments.
Mr. Franco said that he understands that. But, it is a condition that exists today. What they really are doing is keeping post 2003 in the same condition that they have today whether they are grandfathered and removing some of the protection that exists for 1980 to 2003.
Mr. Kamptner replied no, that actually the Planned Developments approved between 1980 and the present have the same protections as they do under the current regulations except for the six specific areas. In his email to Morgan Butler, Mr. Kamptner said this particular type of regulation needs to be amended every several years because things are changing and certain projects are becoming more and more out of compliance with the regulations. This particular provision substantially has not changed since 1980. It is basically the same. It has been reorganized a little bit, but substantially it is the same provision that was adopted on 12/10/1980.
Ms. Joseph said that on page 17 it talks about the zoning administrator to determine the uses. They just talk about commercial uses in the Neighborhood Model. She was wondering if some other uses besides commercial should be included in the list. For example, she wondered if light industrial in employment centers could be included.
Ms. Echols noted that was a very good call and agreed.
Mr. Kamptner said that this type of regulation exists as the introductory section to the commercial districts where the zoning administrator has the authority. He noted that the zoning administrator does not have similar authority for industrial. It is just the commercial, which is why it is limited to commercial.
Ms. Echols asked Mr. Kamptner if the proposed changes needed to be limited to commercial uses.
Mr. Kamptner replied no.
Mr. Edgerton suggested that they cross out the word “commercial” so that it said “By right in a conventional zoning district”.
Mr. Cilimberg noted that C-1, CO and HC are all conventional districts. Highway Commercial, Commercial Office and Light Industrial are basically the non planned districts.
Ms. Joseph asked if the zoning administrator would include industrial uses with her ability to make determinations about commercial uses.
Ms. Echols replied that she would not think so. She thought that Mr. Kamptner could change the language to be more inclusive of other uses. . She said this would be particularly relevant where the Places29 Plan is recommending research and development and flex space. Different types of things that might not be explicitly stated, but are similar to other kinds of uses could be appropriate in a particular Neighborhood Model District.
Mr. Cilimberg noted that if the Planning Commission wanted broader language staff could make sure that they get that in for the Board.
Ms. Porterfield noted in the same section going down to visual impacts she wondered with reference to the concerns that came up with the Vess application that they should add “visual, auditory and olfactory impacts”. She said those issues were big league problems in the Vess proposal. It was not just visual problems but taking the other senses into consideration. She asked if adding these words is possible or if staff or the Commission sees the additional words as useful.
Ms. Echols replied that she thought it could be useful and asked if it was something the Planning Commission wanted to add. She asked Mr. Kamptner if he could see any issue with adding that type of language.
Mr. Kamptner replied no, but he would defer to staff on whether or not any of those things are included in operational characteristics that are right before visual impacts.
Mr. Cilimberg replied that they probably are. But, if they wanted to be sure that they were covering those other impacts then they could add it.
Mr. Franco said that at one point there was a catch-all in the proposed amendment that gave the Director of Planning the ability to permit minor modification of a plan that might be necessitated for conformance to the current ordinance. He asked if that was still in there somewhere. For instance, if the Water Protection Ordinance or one of these six things kicks in that requires changes to the plan.
Ms. Elaine noted that language previously was in the variations section. After further scrutiny by the County Attorney’s Office, staff did not feel as comfortable having that language in there.
Mr. Franco asked if variations would be available only for the things that are listed in the proposed amendment.
Ms. Echols replied that is correct.
Mr. Cilimberg said that #6 in the variations list does get in to some of that for storm water management, land disturbance including disturbance within conservation areas.
Mr. Franco said that he was not sure what he was looking for there that might change, but he can see changes especially in those six items in the Water Protection being something that could create big changes to the application plan.
Ms. Echols said that it is only so far one could go without a rezoning.
Mr. Cilimberg said that there was some general concern, but the Water Protection Ordinance is going to basically supersede. The WPO is going to take away potentially from what could be developed on a plan. That does not require a variation to happen.
Mr. Franco said that they were not worried about elimination of developable areas shown on the plan.
Mr. Cilimberg said that they may have to be eliminated due to other ordinance provisions then that can happen. He believed that the plan does not have to be rezoned basically to do that.
Mr. Kamptner said that up until now he was not aware that the Water Protection Ordinance when applied had affected Planned Development or what has been shown on an application plan to a significant degree. If there was a circumstance where it did materially change they need to look at that and evaluate it on a case by case basis as to the extent to which the two regulations are going to mesh together.
Ms. Echols said that she was only aware of two instances when the Water Protection Ordinance affected an application plan and in those two instances it was because the applicant did not provide enough environmental information with their application plan. When the site plan or a subdivision plat was being prepared, the owners found streams that had been there all along, just not identified with the application plan. All of a sudden, a stream buffer had to be applied to the streams, in which case the applicant had to do some shifting. In one case, staff was able to use the existing language of the variation to deal with the modification to the plan. She was not sure if the other case has been finished. But it comes back to the question of the due diligence at the very beginning in making sure that developers know what land they are dealing with before bringing in a plan for development.
Mr. Franco said that he had this funny hat on now. He said he was aware of projects that have been approved where staff was aware of streams and creeks and said that interconnections and intensity to development was more important than protecting those resources in the development area. Current staff in charge of the WPO doesn’t necessarily agree with that. So where are they going to put that applicant in the future.
Ms. Echols said that these kinds of determinations take place on a case by case basis and where a variation is required staff will try to sort through that at the administrative level.
Mr. Cilimberg said that he did not think what Mr. Franco was talking about related to variations actually. Mr. Cilimberg said it is about a level of development shown on an application plan that would have been under review at the time of the zoning as the maximum area of development that could occur and then the application of ordinance provisions ends up removing the potential of developing some of that area or making that interconnection. He did not think that in and of itself is kicking in a variation. At public hearings he had told the Board of Supervisors that some of which is shown as being for development on an application plan may have to be modified based on regulations such as critical slope provisions that they did not see in the original review. They can’t get down to all of those details sometimes in the review of a rezoning or storm water facilities that might be necessary.
Mr. Franco asked if the Water Protection Ordinance supersedes everything.
Mr. Kamptner said that superseding might not be the best way to characterize it. It operates and exists independently of the zoning regulations. Zoning regulations are also unique in that they apply to what is there at the time. The Water Protection Ordinance can have retroactive effect when it kicks in. It applies to whatever is happening on the property or whatever has previously been approved on the property. There are only certain things that trigger its application.
Mr. Franco noted for example stream buffers there are sites that have been approved where the stream buffers rose. The WPO requires a 100’ buffer. The federal governed state would be as low as a 25’ buffer on the same creek. But, all of a sudden if the 100’ buffer is applied the development area is changed. He thought that the WPO gave the ability to work within that buffer. He questioned how that is going to get resolved for the applicant at that point if staff says no that they cannot go in the buffer and the zoning does not protect them at that point in any kind of fashion.
Mr. Cilimberg replied that to the degree that the administrator for the WPO can reduce buffers staff is going to look for that in accordance with the zoning that was approved if it was shown in that area.
Mr. Franco asked if staff would encourage the applicant to reduce it.
Mr. Cilimberg replied that it depends on whether it can be.
Mr. Franco asked if it was so case specific that it is hard to make a blanket statement.
Mr. Cilimberg said that if it was shown on the plan it is giving staff the guidance of what they are expecting can happen as part of the development of the site. If there is discretion that can be exercised in how a particular ordinance provision is applied in that case then if that discretion is to potentially allow a reduction in a buffer, as an example, staff’s view of it going to be let’s make sure that reduction is permitting development that was approved under the zoning. So it is not about varying the zoning really, but about how the particular ordinance provision is being exercised. Staff cannot vary other ordinance provisions to achieve the zoning since it is not the role of this ordinance section. It is about varying the plan that was approved in order to accommodate some changes that are desired.
Mr. Franco said that he understood that. He noted that it is hard to predict what changes may be required when they apply these outside ordinances to a plan. It made him nervous without having some catch-all ability to be flexible in design. If an interconnection was important and now it is precluded by an ordinance then maybe that is a simple one that is very doable. But if crossing the stream means one could not develop a portion of the site and they had a minimum density that was now required how are they going to deal with that aspect.
Mr. Cilimberg said for a minimum density requirement for the whole development staff does not have that in terms of number of units. They have it in terms of the low of floor of density.
Ms. Echols noted that one development has a minimum density requirement and acreage would be a number.
Mr. Cilimberg noted that was proffered, which was a different animal. This speaks to the application plan and was not about proffers.
Mr. Franco said that he did not know if it was proffered other than it came in as part of the code of development.
Ms. Joseph asked Mr. Ron Higgins how the statement on page 21 (b), which was all underlined, about parking would be accomplished. It says the applicant can submit the parking information after the rezoning, which she agreed with. But the way it was written if she wondered what she has to do to demonstrate to the satisfaction of the zoning administrator that the uses that may occupy the buildings are not sufficiently know at the time of the zoning map amendment. She asked how an applicant would be able to do that except by saying they had no idea who was going in there and they wanted this amount of parking,
Ron Higgins replied that this has come out of some projects where the code of development allowed so many different types of uses. For example, if uses allowed include offices and restaurants, an applicant could end up with a building that is all offices or retail and offices.
Restaurants increase the parking requirements. If the applicant does the parking studies at the time of rezoning it may be very different than what the reality is in the future
Ms. Joseph asked how she could demonstrate that she did not know what is going on other than just saying it at the preliminary stage.
Mr. Higgins replied that he thought she was reading it wrong. It was supposed to mean if at the rezoning stage the applicant can demonstrate to our satisfaction that the uses are not sufficiently known, then the applicant could just wait until they do the preliminary site plan.
Ms. Joseph asked how she could demonstrate that she did not know at the rezoning stage.
Mr. Higgins replied that she would show on the code of development and application plan that they did not know which of the list of uses would be in the 4,000 square foot building, as an example. That is all an applicant would have to do.
Ms. Joseph noted that the language seemed overpowering and made her think she would have to come in with all of this information. She questioned how she would be able to convince staff of this.
Ms. Echols asked if it was the desire of the Commission that language could be modified so it is not quite as imposing.
Mr. Franco suggested that they say the applicant may do it later.
Mr. Higgins pointed out that if the applicant says that is the case, then he would accept it. He felt that this is an opportunity to simply say they do not have a detail layout of their floor plan and were going to do it at the site plan stage. Staff tries to get the information early so they will have some idea about parking.
Mr. Loach asked if it ever occurs that even though staff and the applicant come to a meeting of the minds on the uses the applicants still need more parking.
Mr. Higgins agreed. He noted that the applicant needs to be anticipating that. In the past he has had projects where the applicant did a great study up front and needed 70 spaces. But when they put the project on the ground they needed 90 spaces. At that point the applicant did not have room on the ground to put 90 spaces. He has always told people up front if they are thinking in those terms remember that they are limiting themselves. The applicant essentially can eliminate some of the uses they can put in this building because they did not give themselves enough room to grow the parking. That is the object staff is talking about here.
Ms. Joseph suggested that the language be tweaked a little bit.
Ms. Porterfield asked on page 13, #1 where they talk about historic structures and sites. She asked it this includes cemeteries. She asked if staff could ask for cemeteries on the plans.
Ms. Echols replied that staff does not specifically ask for them, but the Commission should assume that they are going to be there because an applicant would have a lot of problem moving a cemetery.
Ms. Porterfield asked that staff just go ahead and ask for identification of cemeteries so that people know that they have to at least put them on the plan. That would also help people who are in the historic preservation that are interested in these old cemeteries in documentation. At least those persons would know that they are coming in on a piece of property.
Ms. Porterfield asked that on page 14 staff take the hyphen out of “lay-out”. She also said that at the bottom part under the pre application conferences in the first line it says each applicant for a planned development shall and in the next paragraph it says each applicant is encourage to use. She felt there was a big difference between shall and encourage. If they want it then it should be shall. But if they don’t want it, then encouraged is fine.
Ms. Echols replied that in 8.5.2 it was saying that they have to attend a pre application conference and you may or may not do what staff recommends you to do.
Ms. Porterfield noted that when she read this she got the impression that she did not have to come if she did not want to. She thought that staff wanted everyone to show up.
Mr. Cilimberg suggested that it say that each applicant is encouraged to use the outcome, direction or guidance of the pre application conference process.
Ms. Porterfield agreed that it needed to make the applicant understand that it is a requirement of this to show up at the pre application conference. She noted on page 15 #c under 8.5.3 it says the underlined addition including all requests of waivers or modifications. It sounded like they would have to approve the application with all the waivers and modifications. She questioned if it should read all or some so that there is the opportunity to drop some things out. It sounds like the choices are to approved everything that is brought in, approve changes that are going to be made prior to Board of Supervisors as opposed to having them in what the Commission sends on to the Board of Supervisors or disapproval. On page 17 she was confused with #1 (b). They have all these things that are going to apply to development districts that are established after December 10, 1980. She asked if those items also apply to anything in front of or earlier than December 10, 1980.
Ms. Echols replied that earlier it said that everything has to apply and everything before 1980 all the regulations apply unless the applicant can establish a vesting. After 1980 these are the things that apply unless for some reason there is some kind of vested right that would not allow them to apply. It saying affirmatively they have to abide by these regulations.
Ms. Porterfield said if they were before December 10, 1980 and can show vesting these things do not apply. So those people don’t have to.
Mr. Kamptner pointed out that they would not have to anyway because once they establish vested rights they were allowed to develop.
Ms. Porterfield asked if on page 18 # (e) if the applicability of chapter 17 applies to the old zoning or pre December 10, 1980.
Mr. Kamptner replied yes it applies to the pre December 10, 1980.
Ms. Porterfield noted under (a) under 126.96.36.199 #4 staff refers to architectural standards and then they move to page 23 where they refer to architectural styles in #4 and then in the underline following that architectural standards. She asked if they have a definition of both terms since she does not know the difference in style versus standards.
Ms. Echols replied that standards would be the full set of the restrictions and the architectural styles are the specific types of architecture like colonial.
Ms. Porterfield asked that staff make sure that is clear.
Ms. Joseph asked Mr. Edgerton about the difference between “standards” and “styles”.
Mr. Edgerton explained that one relates to “requirements” and the other relates to types of architecture as Ms. Echols had indicated.
Ms. Porterfield asked if Section 188.8.131.52 regarding the grading is going to keep them from the Hollymead Towne Center situation where there is a lot of land that is being graded and nothing is being built. She said the situation is kind of sad and it would be nice not to do that again. Also, they have sections up there where the streets don’t connect. She was wondering if they have solved that problem or is there anything they can do about it.
Mr. Kamptner replied that the history of the Hollymead Towne Center grading is that a big chunk of property was zoned rural areas. That was the starting point because all of the trees could be removed.
Mr. Cilimberg said that Hollymead Towne Center A1 and A2 rezonings that surrounds the Target, Harris Teeter Shopping Center was all rezoned after the grading had taken place. The grading was done under the old rural areas zoning district. That is not part of what the Commission was dealing with here.
Ms. Porterfield asked if they are closing the loop or is this not where the loop is.
Mr. Cilimberg said that it is going to depend on what the zoning is at the location that is being graded. If the zoning is under a Planned Development where grading was shown on the plan then grading could take place according to the application plan grading in advance of any development taking place.
Ms. Joseph pointed out that a lot of planned developments that have come in during the last few years have been done in phases. It has been the requirement of the rezoning that they phase how they do the grading.
Mr. Cilimberg noted that loop had been closed in the rezoning phase. In fact, Biscuit Run was one of the developments that got that kind of treatment for phasing.
Ms. Porterfield noted that she wanted to make sure that the Village of Rivanna does not suddenly look like everybody has taken everything down.
Mr. Franco pointed out that he did not think it has the constraint that Biscuit Run has. He felt that the other challenge that was going to exist out at that particular project is that terrain is going to be kind of close to what Hollymead Towne Center is and in order to provide the major interconnections of the roads and things like that a lot of that site is going to have to be graded all at once in order to get the infrastructure in that the county has asked for. It is not necessarily a loop hole so much as the form of the development and the requirements for the development of interconnections are things that necessitate that massive grading.
Ms. Porterfield noted that it was not here that they would address that issue.
Ms. Porterfield asked that on page 23 under # 3 (g) the preservation of historic structures sites and architectural sites identified by she asked that they put in cemeteries there, too. In #4 where it says compatible with it says contiguous developed surroundings. She felt that contiguous means adjacent or abutting. She was not sure that is really what they want here. It is sort of like the area, but not the property directly adjacent to it. It could be the surrounding area as opposed to just the pieces that were contiguous.
Mr. Kamptner asked if there any discussion on the contiguous versus surrounding.
Ms. Joseph noted that because they were dealing with an urban area she felt that contiguous is more appropriate than the area. If it is abutting they need to be compatible with what is abutting. She did not think they need to give an extra burden to the applicant to look around the area because sometimes it is a mix-match. She felt that it was easier to look at just what was directly adjacent in an instance like this.
Ms. Porterfield pointed out that the reason she brought this up was because of Rivanna Village. Her understanding was that they wanted it to be in the “Williamsburg style” because what is out there with Glenmore and other things that were there as far as what it looked like. But Glenmore is not contiguous to Rivanna Village. It is in the area and it was something that she was told was supported. She thought it was something they had talked about before and was put in to try to maintain the architectural styles if they were important in a rezoning that they stay important as the rezoned property is developed.
Ms. Echols noted that Rivanna Village won’t be affected. The application of the “compatibility” standard would be with a new infill project. It is a question of how far out do they go to look for compatibility and it would be what is close in.
Ms. Porterfield noted that staff was basically talking about infill here and not about an entire project.
Mr. Kamptner noted not necessarily. If something is already there they are speaking in the context primarily of infill. Contiguity actually has a secondary meaning that does not necessarily require physically touching. So if they want to constrain it more, “abutting” would be the more accurate term to use.
Mr. Loach agreed with Ms. Porterfield that it should be stretched out a bit.
Mr. Strucko questioned how far is a bit, two miles?
Mr. Loach replied no, that he did not want to say they just had to look at what is in front of, behind and on the two sides of a project and that was the end of it.
Mr. Cilimberg noted that as part of the rezoning process they had talked about if the Commission felt that they needed to reflect styles, materials and what have you that were a broader area than this provision sets out they could stipulate that as part of the zoning action in a particular case. So if they were in an area that was “Williamsburg” style and they wanted to reflect that beyond what was fairly intermediate they could actually put that in as part of their zoning action. It could be proffers.
Mr. Strucko asked that they move this discussion along. He invited public comment.
Neil Williamson, of Free Enterprise Forum, said that he appreciated the Commission’s work in this late hour. He requested the resolution of the concept that was discussed last time on the ala carte menu items just because it has not been answered. He knew the answer was probably that they can’t do it legally, but he wanted to make sure that they close that loop. He also appreciates the consideration of Valerie Long’s memo. It was most helpful in framing some of his thoughts on this. As this comes forward it would be helpful to have a specific list, as specific as staff can get, with regard to those planned districts that occurred that may be falling under this. He asked how many there are or how big the scope of what they are dealing with. He remembered when there were applications coming forward when DISC II had wrapped up its work and the ordinances had not yet been placed in 2002 and early 2003 where elements of the Neighborhood Model were being embraced by the development community. From what he was hearing it sounds like those are going to be held harmless, but he wanted to make sure that takes place as well. He commended the Commission for their attention to detail on this ordinance.
Mr. Cilimberg noted that the question was whether the Commission wanted to see this anymore. If the Commission is inclined to move it forward staff can review what they heard tonight and make the changes.
Mr. Strucko said that he wanted to make sure that everybody’s concerns were met. He asked for Commission input.
Mr. Edgerton said that staff has done a very commendable job. He would like to move it on with the minor adjustments that have been mentioned. The only issue he was struggling with that staff has recommended is whether they really want to draw a line on March 19, 2003. It has occurred to him in particular from listening to what Mr. Kamptner has said and the process involved with establishing vested rights and this being one piece of it. Certainly that is available the way it is written without that deadline. The demonstration is available. He sees this as being a problematic issue. Granted in 2009 those of us sitting here and present staff look back and say well gosh as long as they meet the rules and regulations on March 19, 2003 that certainly will be adequate. But, maybe ten years down the road things may be different and all of a sudden it will have be gone back to and readjusted. He was just wondering what value they have in drawing the line there. With the exception of that he thought that staff and the Commission have done a remarkable job.
Ms. Joseph felt that it was a fluid document and it is going to change. She felt that they should expect it to change. It is sort of a place holder.
Mr. Edgerton asked what the value of the place holder is.
Ms. Joseph replied that the value of the place holder now is making the community feel a little bit more comfortable if they have spent a whole lot of time and money getting something done with a whole lot of detail. She thought that was what she was hearing from many people. As Mr. Kamptner said if they look and see that our regulations have changed significantly then they go ahead and change that date.
Mr. Kamptner said that the other value is that when the Neighborhood Model was established on that date they are asking for mixed use and typically ranges of density. What the state law does is that it determines a significant governmental act where the applicant specifies a use or density. The kind of development that they are encouraging now in the Neighborhood Model District kind of gets away from a specific use or a specific density. They are encouraging mixed uses and various densities. So another way of looking at this is that it kind of closes the loop or opens up the avenue for proffered planned rezonings that they are encouraging here by elevating them to a status of a significant governmental act. They really don’t want the conventional type of rezoning where the applicant is proffering that specific use or that specific density.
Mr. Edgerton said that he would buy that and back off of the issue.
Mr. Morris said that he would like to support the item that both Mr. Franco and Mr. Williamson brought up. At some point in time he would really like to see a list of the items between December, 1980 and 2003. He would just like to see what the list looks like.
Mr. Cilimberg pointed out that they actually had a list for the Commission at one time. The master list had a few or possibly 3 projects before 1980, but most were after. Staff had a list, but did not know which projects fell where.
Mr. Franco said that he would be comfortable with seeing these changes made and then coming back on the consent agenda as quick as possible in order to move it forward.
Mr. Strucko asked staff to bring it back on the consent agenda so the Commission could have one last reading of the proposal to make sure to get the details right.
Mr. Cilimberg agreed that staff would bring the ordinance amendment back under the consent agenda. He asked if the Commission would agree that staff only give them the ordinance under the consent agenda and not put together a staff report.
Mr. Kamptner noted that he would add a color that would highlight just the words being changed from this version to the one received.
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