Albemarle County Planning Commission

February 28, 2006


The Albemarle County Planning Commission held a meeting and a work session on Tuesday, February 28, 2006, at 4:00 p.m., at the County Office Building, Room 235, Second Floor, 401 McIntire Road, Charlottesville, Virginia. Members attending were Bill Edgerton, Calvin Morris, Vice-Chairman, Pete Craddock; Jo Higgins, Eric Strucko, Jon Cannon and Marcia Joseph, Chairman. Pete Craddock arrived at 4:45 p.m. Julia Monteith, Senior Land Use Planner for the University of Virginia, representative for David J. Neuman, FAIA, Architect for University of Virginia was absent. 


Other officials present were Wayne Cilimberg, Planning Director; David Benish, Chief of Planning & Community Development; Mark Graham, Director of Community Development; Scott Clark, Senior Planner; John Shepherd, Manager of Zoning Administration; Joan McDowell, Principal Planner and Greg Kamptner, Deputy County Attorney. 


Call to Order and Establish Quorum:


Ms. Joseph called the work session to order at 4:00 p.m. and established a quorum.


            Work sessions:


ZTA-2005-004 Phasing and Clustering, RA District - Work session to discuss and make recommendations to the Board of Supervisors pertaining to Rural Areas clustering of subdivisions, phasing of development, and the public review/input process. (Joan McDowell)


Ms. McDowell stated that last October staff brought the issues of phasing and clustering and the implementation for the rural areas to the Commission.  It was Ms. Higgins that raised the question if there would be any impacts on conservation easement.  So it has taken staff a while, but they have two of the local experts on conservation easements that will start off the meeting.  After they have discussed the pros and cons of conservation easement and phasing and clustering then they can move into the phasing and clustering individually and then the combination of phasing and clustering and the issues that they need to consider.  Also, staff has laid out two options for public input for the Commissionís review.  They will begin with Rex Linville, of Piedmont Environmental Council, and Ridge Schuyler, of the Nature Conservancy.  It turns out that they have a little different view points on this, which she felt would be more interesting than one view point.  But, they both agree to the main benefit of slowing growth in the rural areas.  They both agree that it outweighs any potential for slowing easements. 


Ms. Joseph asked staff what was her expectations for the end of this meeting.  She asked what she wanted the Commission to have accomplished.


Ms. McDowell hoped that they could get agreement on the phasing and clustering issues that are in the report and that they pick the option or a combination of the two for public input.  Then they can send this back to the Board of Supervisors as they agreed to do and let them agree on the public input.  The Board wants to condense this process so that they can get phasing and clustering to them by fall.


Ridge Schuyler, Director of the Piedmont Program at the Nature Conservancy, stated that the Nature Conservancy is a global organization that has been around for about 50 years.  They use a science based process to identify the Rivanna water shed as one of the places that they want to protect.  It is one of the best examples of a kemont river system left.  So they want to protect it before it disappears.  So their interest here is in the Rivanna water shed.  A lot of the work he does is to try to protect the Rivanna water shed.  As an organization they both purchase land and hold conservation easements.  For context, in the United States they own 3.3 million acres of land, which is land they purchased for their mission.  They have easements on 3.2 million acres of land.  In Virginia they own about 64,000 acres, and have easements on about 50,000 acres.  He employs a lot of different strategies to protect the water shed and a couple of forests that they have identified.  One of the things he does is negotiates and holds conservation easements.  Last year of the 10,000 or so acres that got eased in Albemarle County, the Nature Conservancy accounted for 2,100 acres of those and POF pretty much the bulk of those.  The Rainer, P.C. also did some of those.  So he actually is on the ground working with land owners trying to help them realize their vision of protection.  That is just one of the tools that they use for protecting the water sheds. 


Rex Linville stated that he worked for the Piedmont Environmental Council as a Land Conservation Specialist.  They work in a much smaller area of nine counties from here up to Loudon County.  They are a much different model in the sense that they are looking more broadly at what constitutes the land that they are trying to get preserved.  It is everything from scenic open space to natural habitat areas to civil war battlefields, preserve structures and productive agricultural and timber land.  He noted that his main role is really to do some seed work with some of the land owners that ultimately Ridge will work with.  He was out trying to do more sort of whole sale education and outreach to the land owners in the community that have parcels that are in one capacity or another worth of protection. That might be that they would donate an easement to the Nature Conservancy or to the Virginia Outdoors Foundation.  Or they might use the Albemarle County Ace Program as a way to preserve their property or the Thomas Jefferson Soil and Water Conservation District. So he was really trying to bring a range of options to land owners and try to help them figure out what best fits their set of particular circumstances and what is going to be the best tool and mechanism for them to reach their land preservation goals for that property.  As a result they sort of cover the whole County rather than looking at those specific areas within the Rivanna water shed.  To put it in context of those easements, last year of the easements held in Albemarle County they accepted one of those and it was on a 116 acre property.  They really see themselves as easement holders as the last resort.  They really only step up to the plate to hold an easement when for whatever reason due to sort of a lack of fit between those other easement holders and the land owner or due to timing constraints or other issues and there is really not another outlet for that land owner to find a good place to park their conservation easement. 


Ms. Higgins stated that she felt that it was important to have them here.  She asked if he could explain why people are seeking to donate easements because that gets back to the issue that they are considering.  Right now there are predominantly large owners that are seeking easements and if their tax leverage is taken away, then they will not have a lot of people knocking on their door.  They do not want to interfere with that traffic.


Mr. Linville felt that was the main part of this discussion.  In his experience people put land under easement because they want to protect their property.  Unless someone was as the IRS would put it ďgaining the systemĒ, he has never worked with a land owner who put property under easement because it was the smartest financial decision to make.  In every instance the land owner is losing something by putting land under easement.  It is a thorn dropped gift of an access.  The tax incentive that you get back will never equal the value of what you have given up. It is not a money making proposition.  It is a charitable act.


Mr. Schuyler stated that it softens the blow.


Mr. Linville agreed that the tax incentive merely softens the blow.  So everybody is coming with some slant towards the desire to preserve their land. His job is to sit down and help people understand that dynamic and figure out what are the incentives, their preservation goals and is that going to make this a viable decision for them. 


Mr. Schuyler stated that to put a finer point on that without going into a lot of tax detail, but the financial incentives in his experience is that the land owner first wants to protect their land.  They also want to know what kind of financial incentives there are to determine where they kind of end up at the end of the day.  But those financial incentives are never going to get them to whole or else it would not be a charitable deduction of a charitable nature.  So the way it works is that if you donate an easement on a piece of property that is worth $2,000,000 before the easement and a $1,500,000 after the easement you diminish the value by $500,000.  That $500,000 is a charitable deduction on your federal taxes. So you are not getting that $500,000 back.  You are getting whatever you tax rate is, which is possibly 25 or 30 percent of that as a deduction on the federal level.  Then on the state level you get a tax credit that is worth 50 percent of the dollars of your donation.  But, in both those cases you are getting a mere percentage of the value of the donation.  So in no way could you ever come out whole by giving a gift of a conservation easement.  So if people are motivated solely by financial reasons they are never going to do a conservation easement.  Those people will just sell their land because they will never get back the whole.  The incentives are helpful because they do soften the blow and it may help people protect their land if they are having trouble making it worth.  It may help them go forward and do that.  But, it is never going to make it whole.  Therefore, they have to get the conservation effort first and the financial incentive second.


Mr. Linville stated that the fact that the incentives make a difference is born out by the numbers.  If they look at a chart of the trend in land conservation in Virginia and Albemarle County region wide they would see that before the land preservation tax credit was created PEC was probably throughout our service area seeing, which was in the late 90ís, it might have been as low as 5,000 acres preserved region wide.  Then it sort of jumped in 2002 up to 9,000 or 10,000 acres.  Then with the advent of this transferable tax credit in 2002 it has really skyrocketed up to as many within our service area 25,000 acres were preserved last year.  That included 10,000 acres in Albemarle.  VOF accepted easements on 41,000 acres.


Ms. Higgins asked doesnít that in itself proof the point.


Mr. Linville stated that what it proves is that what they are now doing as the incentives increase weíre capturing more people along that continual.  Ultimately, if the discussion really centers around is some change to our zoning ordinance going to in some way diminish that incentive and if that change to the ordinance is going to result in preservation of the rural area then he would love for them to put him out of business.  In other words, if they had an ordinance that was effectively preserving the rural area, then people would not need to put their land under easement. 


Mr. Strucko stated that they were generally in the business of preserving open space.  Does the concept of clustering as a policy achieve that ultimate need for the land owner who isnít on that end of the spectrum that is pure profit once they take their asset and make it productive in some form or fashion, but it wants to contribute to the general good of the rural area by putting a large section under a parcel into an easement and developing a smaller section.  Does that policy as a concept appeal to you?


Ms. Higgins asked to make one statement in response to what he was saying.  Clustering actually works with the conservation easement concept.


Mr. Strucko stated that he understood that, but just wanted to get their opinion.


Ms. Higgins stated that the one that doesnít is the phasing. 


Mr. Strucko suggested that they just focus on the clustering part first and talk about the phasing later.  If they want to exercise the existing development rights on their property and donít want to sell it, is the policy clustering going to do that in their perspective.


Mr. Linville stated that what clustering does not do from one perspective is that it does not take the infrastructure needs that are created as a result of the implementation of that cluster out of the rural area.  In other words, just because the houses are clustered they still have to provide the same services to that cluster.  It does not matter from a services perspective whether they are spread out on a map or clustered in a tight spot on the map.  So from a larger question of land use planning you have not changed that dynamic from maybe Ridges perspective of sort of are you preserving intact habitat areas.  He noted that he would allow Ridge to address that, but he felt that they have addressed some of those issues.


Mr. Schuyler pointed out that when the Nature Conservancy identifies a place where they are going to work one of the things that they do at the very outset because they are a science based organization is determine what is the outcome that they are trying to achieve.  What is the desired future condition? What is it that they are trying to protect with all of your efforts and strategies?  So it seems that the first order of business is to say what is it that you are trying to preserve or protect with your strategy that they are trying to implement.  For clustering if one of the things that you are trying to protect is unfragmented forest land, then clearly clustering is good for protecting more forest from being fragmented.  If their goal is to limit the effect of impervious cover on your water shed, clustering may or may not depending on how that clustering is implemented. To the intent that clustering involves the building of roads out to the cluster you may not have advanced the ball very far in terms of reducing the amount of hardened surface in your water shed.  It really depends on how it is accomplished and what it is that you are trying to achieve with the effort. But, he could see clustering done in a way that does protect the water shed by allowing you to concentrate your storm water problems in one place and deal with them. So he could see if done right with low impact development standards or something else if they decided to go forward.


Ms. Higgins pointed out that they all recognize that clustering does have a decrease in impervious area with roads because the roads are shorter.  That has always been the carrot for the Rural Preservation development.


Mr. Strucko stated that you are allowing them to exercise their property rights in a way that may have a minimal impact on rural land consumption.


Mr. Schuyler stated that it depends on what functions you are trying get the land to achieve for you.  If you are trying to achieve vast scenic open space, he felt that it would make sense.  But, if you clustered everything in one area and kept the rest of it open, then you are protecting that.  If you are trying to protect a forest similarly clustering would protect that forest.  If you have other desires for your land you have to judge the outcome by the standard that you are trying to meet or the outcome that you are trying to achieve.


Mr. Linville stated that if the question is if you take a 100 acre farm and create five 20-acre farmettes versus taking those five development rights and sticking them onto 5 acres all together in the corner, clearly that is better from the habitat, water quality, scenic and land use perspectives.  But going back to the services perspective and if you have diminished in any way the cost of the services associated with that, no.  So they have other issues that are still associated with that because you have not in any way reduced the density in the rural area in doing that.  They have not taken anything away.


Ms. Higgins noted that they would not have slowed down the rate.


Mr. Linville agreed, but noted that in some sense you have made some improvements in the way it was exercised.


Ms. Higgins stated that there was less consumption for residential use and potentially more for agricultural or just preservation for environmental issues.


Mr. Strucko pointed out that they have several scenarios.  But, that unused part is 100 acres and the 95 acres that are not used goes into a permanent conservation easement.


Mr. Schuyler stated that was where the rubber meets the road.  In other words, what happens to those 95 acres?  He worked some on the eastern shore of Maryland where some of the counties just recorded a county restriction along with it, which was something that the county could change their mind on later.  There was no long term preservation of that satisfied tract.  He felt that if they were going to a lot like that it would be advantageous to see a permanent open space easement that existed on that.


Ms. Higgins noted that they have been doing that under the Rural Preservation development.  Part of this about the tax equation and the potential financial benefit if it jumped in 2002 because of that it is diminished by clustering because the value of the particular land when you look at the before and after easement situation, the financial difference is probably not as great as no development or partial development versus full development in a cluster format.  There is probably some tax advantages associated with clustering.  They will still have a lump of land that might for various reasons.


Mr. Edgerton pointed out that it has not proven to be that way.  The clustered lots next to the large piece of land that will not be developed are far more valuable.  The market has supported that.  He had worked on projects where they got more value for those smaller clustered lots because they know that the adjacent land is not going to be developed.


Mr. Linville stated that the question when you determine an easement value is what would a third party buy the land for.  If they look at that clustered development and acknowledge that cluster development is really what people want, then he would be able to get a greater rate of return if he buys that land and cluster because he would not have as much infrastructure cost associated with it.  The price that they are going to pay to purchase that property is going to be the same or higher than if they spread the development out across.  If someone came with an appraisal that said that there was a diminish ion of value because they clustered rather than spread the development all over the property he would look at that appraisal and say that is suspect to me.  He could not believe that someone would pay a substantially less amount for a property that had a cluster on it than for a property other development.


Ms. Higgins stated that you would have to prepare a cluster of 10 versus a cluster of 20.  If someone gives up 10 of the right that it would still give them some potential leverage to at least provide some incentive.  If it is 25 percent or 50 percent of whatever it is still some leverage.


Mr. Linville stated that even in that case just diminishing the number of division rights from 20 to 10 might still not get you much of an easement value because those 10 remaining lots because they are on a bigger piece of land with more buffer around them might actually still be as valuable as the 20 were. They would want to look at what the developer would pay for the right to build those things.  Really they see was that the biggest diminish ion when there is a property with a lot of development rights and you really restrict them down to one, or if you have a really big property down to only a couple.


Ms. Higgins asked to turn the page because this is why she felt it was important to talk to them.  The tax incentives are there and the people want to do the right thing.  There are people who are wealthy land owners and not necessarily farmers doing this, but potentially a land owner who has the financial wealth to be able to say that he does not want this property to be developed and he wants to preserve it.  But, they are always dependent on when they buy easements is the value now versus the value of what could be if it were developed today.  Her understanding of the tax rules are that they have even gotten more critical of that and have actually challenged the ones who did not do a development plan.  But, they have to have someone do something that is a valid developable concept plan.  If they interject phasing and a time delay or if they have 5 development rights over 25 years with 2 per 10 years.  If you look at the today value before and you look at the tomorrow value after the development the development is only the creation of 2 lots in 10 years.  The tax incentive is gone.  It is literally just that one imposition could destroy the basis where people come knocking on their door.  That is a true question that she does not know here way around.


Mr. Linville stated that he had a couple of thoughts on that.  Fundamentally in the way that conservation easements are valued the scenario that she gave in doing a development plan and looking at what is the highest and best use of this property given its number of development rights is, of course, one way.  It is typically a very aggressive way that people use to justify a particular evaluation for a property.  It is referred to as the subdivision development analysis technique.  What is this property worth given sort of a developerís formula of development with X number of lots for X number of dollars, for X number of dollars for infrastructure costs and X number of dollars discounted over a certain number of time and using a real complicated methodology to determine todayís value.


Ms. Higgins noted that was what an appraiser does.


Mr. Linville stated that was only one technique that an appraiser may use.  Another technique would be to look at comparable sales and say here is a 100 acre property and here is another 100 acre property and this one sold for a million dollars and this is a similar property with a similar number of development rights and in a similar portion of the county.  Therefore, that property is also worth a million dollars.  Therefore, not all easements are done under that subdivision development analysis technique. That is a technique that is used when someone wants to maximize their tax deduction. Not all landowners are doing that nor are all landowners who are donating land easements simply are wealthy individuals.  There are people from all financial spectrums that are preserving land.  If you go back to the underlying assumption that people are preserving property because they want to preserve their property and that there are tax incentives for doing that.  They all believe in the perfect world that you are only given tax incentives for what you have given up.  If they use Ridges example of a 2 million dollar property was the before easement value and 1.5 million dollars after easement value today he was asking someone to give up one-half a million dollars.  They are going to get tax incentives that donít equal one-half a million dollars.  If as a result of phasing he was asking them that now their property was valued at 2 million and after the easement they were only diminishing it by $200,000. Then it would be 1.8 million as opposed to 1.5 million.  The phasing would result in a smaller incentive to them.  Therefore, he was only asking them to give up $200,000 instead of giving up $500,000.  He felt that from his perspective it was easier to ask since he was asking them to give up less capital. 


Ms. Higgins noted that they would be taking away their incentive to seek that.


Mr. Strucko stated that if someone was developing their property and going through a phasing what tax incentive are they seeking?  They are developing a property and we are just saying that they have to develop it over the course of 35 years.  Are they seeking a tax incentive?


Mr. Linville felt that Ms. Higginsís suggestion was that an easement donation would be less likely under a phasing scenario.  He did not know if he agreed with that.  His bigger overarching statement would be if phasing results in the preservation of the rural area and if you go back to Ridges point if that is the desired condition and phasing results in that desired condition, and then does it matter that you have had fewer conservation easements. Again, he would love for them to put him out of work.


Ms. Joseph pointed out that when they talked about phasing it was about creating two lots every ten years.  They now have a lot of land that is in agricultural forestall districts.  A lot of them are created in a ten year period.  She asked if that was something that is considered.  That is sort of a kind of phasing.  It is not a forever thing and they donít know if the zoning ordinance is a forever thing either.  But, they do know that someone has made the commitment to put this land in and not subdivide anything less than a 21 acre parcel for say 10 years.  Is that looked at when conservation easements are created?


Mr. Linville stated that the appraisers do look at that, but the ones that he has spoken with donít take much in to account for the fact that the land is in an agricultural district.  In other words, they find that again look at comparable sales that there is not much of an impact on easement value as a result of being an agricultural forestall district.


Mr. Schuyler stated that he could not think of any cases in doing appraisals where a property was in an agricultural district over the last couple of years.


Ms. Higgins stated that technically those owners could not deal with pre-development or post-development plans because they have given up the right to do their development.  Therefore, they are not in the tax incentive.


Mr. Schuyler stated that the Nature Conservancy is not just trying to get easements.  They are trying to employ whatever strategies that they can to protect their water shed from various threats.  The easement is just a tool.  If it is a vehicle, then it is not a destination.  The destination is the protection of the water shed.  If felt for the County that the destination is the protection of the rural areas in the way that they define it in their Comp Plan.  He views it that the easement is a tool to achieve that, but there are other tools.  It sounds like the Commission considering some other tools.  He felt that they would want to pick the tool that best accomplishes the arrival at the destination.


Ms. Higgins noted that they all agree that easements are permanent and that they achieve the overall goal.  The land goes in voluntarily and it is either paid for or there is an incentive paid for by the tax payersí dollars.  The ACE Program does the same thing.  But, when she sits here and looks at these farmers that are in the second or third generation and now they are talking about rules that will tell them that they held their most valuable asset for all of this time, but now they were going to change the rules potentially to say you can only get two lots every ten years.  Well what could keep your easement in its current state with this jump of people stepping up to the plate, and they donít want to take that away. 


Mr. Cannon asked would a phasing ordinance likely reduce the rate that they would be able to obtain donations of easements.


Mr. Linville stated that Ridge and he had talked about this earlier today.  He felt that it was a tough call to know.  It is not obvious that it would.  He felt that in certain circumstances with particular properties it in fact could.  With other properties it may not.  Again, it would depend on where that property is and who is the owner and what is the objective.


Mr. Strucko asked what would be the decision process for the land owner going through that.  If he was thinking about giving a conservation easement, but he has this phasing thing going on what is he trying to decide?


Mr. Linville felt that what they would find is when they go to talk to a land owner about a conservation easement they talk about two things primarily.  First, what is their vision for conservation of their property?  Then what are the financial implications of implementing that decision.  So they talk about both of them.  They would talk through what is their vision for protection of their property and what they would want an easement to accomplish. Then what are the financial implications of that decision.  The financial implications of that decision have to do with the incentives that are available and those kinds of questions.


Mr. Schuyler noted that every property owner is different, which why they ask how this is going to affect the donation of easement.  It depends on every single land owner out there and what motivates them to want to donate an easement in the first place.  There are as many variations of that as there are land owners.


Mr. Linville pointed out that if they go back to sort of the matter of what resulted in that dramatic increase it is the variable tax incentives that we have here in Virginia today.  It is not the value of the gift.  It the tax incentive and what someone is getting for giving up X.  If phasing has some impact on what X is from his mind it is not going to make a very big difference. What is going to make a bigger difference are the tax incentives robust. Currently, the tax incentives are pretty robust.  The reason that they are getting so many easements is that now people can get 80 percent of that back in the form of tax incentives.  He noted that the conversation starts with what they are trying to preserve.  The fact that when they sit down with a spreadsheet to show what they mean financially, yes, that then makes it easier to close the deal.


Mr. Strucko disagreed with Ms. Higgins that phasing was going to diminish land easements.  If he was a land owner looking to make a financial gain he was going to develop.  He did not think it would matter whether he had phased development of units because he was still going to develop.


Mr. Linville agreed that if it was all about finances the land owner was going to develop their land and not put it under easement.


Mr. Cannon stated that the percentage benefit to the land owner remains the same.  He felt what Ms. Higgins was saying is the increment of difference in value to which that percentage would be applied would likely be smaller under a phasing program. 


Mr. Linville stated that he did not know if that was correct.


Mr. Cannon stated that the alternative of selling the property for development would also be less valuable.  The reason that the increment is smaller is that the value for land if sold for development is less because it is phased.  There would be a decrease in the value of the alternatives if you will.  What he was hearing these gentlemen say is that it is very hard to calculate it under those circumstances whether this would have an impact on the likelihood of donations or not.


Mr. Linville stated that he 100 percent agreed with Ridge that easements are just one tool.  If phasing is a more effective tool than conservation easements for overall preservation of the rural area then that may be a good tool and any detrimental impact that it has on the total number of acres going under easement may not matter.


Mr. Schuyler stated that there were all kinds of different reasons why people put their land under easement.  But, even with regard to the incentive there are all kinds of factors out there that are beyond our control that are going to affect that incentive far more than anything that the Commission is considering.  For example, the General Assembly may racket back the generosity of the conservation tax credit.  That is why he would be reluctant to advise the Commission to work only on phasing as it relates to conservation easements.  There are other factors such as when VDOT changes their site line rules, which limits the amount of development that one can do.  That can change the incentives. There are all kinds of things happening that could change the incentive.


Mr. Kamptner stated that he wanted to understand better the context of this discussion.  What the County is looking at is mandating clustering and phasing with a preservation tract in rural areas. So if they mandate that isnít the whole idea of a charitable donation out the window.


Mr. Schuyler stated that right because that preservation tract would not be a charitable donation.  That is correct.


Mr. Kamptner stated that if they mandate this they are talking about conservation easements that are not part of the development.


Mr. Edgerton stated that they would just be changing the rural preservation part of the ordinance if they go with the phasing of lots.


Ms. Higgins stated that she was still looking at the two separately in order to understand both.


Mr. Kamptner stated that it was probably the whole RA regulations and not just the RPD because it will become the Subdivision Ordinance since it will become the form of development the way that they are looking at it right now.  It is throughout the rural areas.


Mr. Edgerton asked if the number of development rights would change.


Mr. Kamptner stated that the number of development rights would not change.


Mr. Edgerton asked if the Commission recommended the adoption of what staff has put before us for phasing and clustering that it would now become the by right scenario in the rural areas.  If he owned a piece of land that had ten development rights, does he have the option of doing the old form of development where he could do five two-acre lots and as many 21 acre lots.


Mr. Kamptner stated that what was before us now the answer to that is no that you would not have that option.


Mr. Strucko stated that every rural development would be a cluster.


Ms. McDowell stated that it would except for family divisions.


Mr. Kamptner stated that there is a bill in the General Assembly that would require that all localities allow cluster developments in at least 40 percent of its territory.  This is a way to mandate clustering on localities.


Ms. Higgins stated that they all agree with the benefits of clustering.  But, she has a problem that phasing will get in the way with clustering.  There is not explanation in the staff report on how it would work together.


Ms. Joseph stated that if they mandate a conservation easement on that property there is no tax benefit.  So they have to assume that the money will be made doing that cluster subdivision.


Mr. Kamptner stated that was the other component of what he heard Rex and Ridge saying was that your experience has shown that type of development really will not have a loss in value to the land owner because it is just that the form of the development has changed.


Mr. Edgerton stated that the person missing from this conversation is the person who determines the value for rights that are given up.  He has talked with a number of folks and has been told that it is not  necessarily how much you can develop it, but some of the larger parcels are actually worth more as larger parcels than they are with their development potential.  There are a lot of up front costs to developing a parcel that needs to be balanced out with the asset itself.


Mr. Linville stated that the question is what the highest and best use of the property would be.  Is it an estate property or is it a residential subdivision.  He felt that they were seeing a shift because the number of estate parcels are becoming fewer and farther between they are becoming more valuable.


Mr. Schuyler pointed out that the location of the property was going to make a difference in the value.  He felt that Albemarle County is an unique situation because of the large amounts of easements being held due to the many factors and canít be looked at in relationship to other counties regarding phasing. 


Mr. Linville stated that it would be hard to predict the effect on easements if they took away the incentives.  It is the land ownerís decision to make and every land owner is different.  There are a lot of other factors to consider other than do they have phasing.


Ms. Higgins stated that there was no issue with clustering because it fits with it.  If someone gives up their development it wonít affect their tax credits.


Mr. Linville suggested that they look at phasing to see how it would affect the goal that they are trying to achieve. 


Ms. McDowell asked the Commission to look at the staff report and try as a group say which items they want to send to the Board.  Their objective is to get through this list and through the two options for public input.  Staff will take this to the Board and then they would get started with work sessions and public input.


Mr. Edgerton stated that he preferred option one.


Ms. Joseph stated that first of all staff started out by using the guiding principles that they went through, which she felt was excellent.  Second, staff created this list that they had discussed for a long time about what sort of items within the rural areas do they think are important and worthy of preservation. She felt that was also excellent.  She felt that Ms. Higgins had brought up a point that some how, some place, somewhere it should be added to something that they reference as they are looking at these things.  So that is excellent also.  She felt that they talked about this phasing and they all shook their heads that 1 through 4 on page 2 was okay and that they were with her.


Ms. Higgins stated that she had a problem with phasing and item 3 as she understood it.  She asked to see how it would be implemented even though she knew it was a good tool.


Ms. Joseph stated that they would keep that as an addendum and a footnote.  She asked how the other Commissioners felt.


The consensus of all of the other Commissioners, except Ms. Higgins, was that they agreed with it.


Ms. Joseph stated that they were on to clustering they felt that it important to put preserved area in one grouping so that they have a large block of them.  She asked how the other Commissioners felt about clustering.


Ms. Higgins stated that it says these items would address the design of the rural area. She was really focused that they not lose sight of # 14, which was discussed and talked about relationship.  It was actually under #5 on page 4.  She asked why it was under one that is issues for considering both of them.  She felt that it should be in the right place.


Ms. Joseph suggested that it be put in the right place and then the Commission would be there.  She asked if any of the other Commissioners had any questions about 1-14 regarding clustering.


It was the consensus of the Commissioners that they agreed with items 1-14 regarding clustering with Ms. Higginsí comment about #14.  Also, Ms. Joseph had the following two questions:  Why parcels in the agricultural forestall districts would not be an exception, also. 


Ms. McDowell stated that one was that they would only be committed for a period of ten years in an agricultural forestall district.  Letís assume that clustering and phasing never gets off the table and they were just dealing with clustering.  They are committed to slowing growth for a period of ten years.  You can pull out and you can put your growth in and you can go back into an agricultural forestall district if you want.  The 21 acre lots that you are allowed in the agricultural forestall district has certainly shown over time not to be successful in preserving rural areas and cuts it up into estate lots.  It is not good for farming or forestry.  So what you are allowed to do is the opposite of what they are trying to do with clustering them together and use as little land as possible for residential to have the biggest bank for the buck with that preservation parcel.


Ms. Joseph stated that may be another part of the ordinance that they have to change when they change this for clustering.  She agreed with staff.


Ms. McDowell stated that it would definitely have to change with phasing because it is less restrictive with phasing.


Ms. Joseph stated that they were on to phasing and clustering combined. 


Ms. McDowell stated that this is new territory for Albemarle County.  When you put phasing and clustering together it creates some things that they had to think about.  Do they want to get the preservation recorded first? In which that is your fourth lot in which case triggers the need for a road.  So that was an issue that they considered.  Do they want the preservation parcel because it is tied to a conservation easement do they want that to be an exemption to a phasing requirement.


Ms. Higgins stated that she still did not understand how phasing overlaid on clustering can work with these requirements in place.


Ms. McDowell stated that the first phase they include the minimum of four lots being your parent parcel, the two new residential lots and the minimal preservation parcel if that is agreed that should be an exemption.  So there is a public road standard that would be required with that.  In being that they are phasing and clustering parcels together that road connection to what may be the preservation parcel would be a little longer than they would originally want without the ability to fill those lots in immediately.  The parent parcel is the holder of the development rights and where the rest of the clustering would take place.  So when they tie them together there are some issues that they need to think about, which staff has been thinking about.  Then the issues for phasing and clustering together the subdivisions may be needed for financial purposes.  This is not necessarily together.  She did not know a lot about this, but there are farmers who need to just for financial purposes to create a lot so that they are not mortgaging the entire farm to buy a tractor. They would just be using that one lot as collateral.  She did not know any way that they would know if that was bona-fide or that he could not sell it or use it as another estate lot later.  That was number 1 in issues with phasing.  They talked about the likely idea of it being 100 acre lots. But, there are some bona-fide reasons why folks might need to subdivide off big chunks of their land.  This is just something that they know, but it is an issue that staff needs the Commission to weigh in on. 


Mr. Benish stated that staff flagged that as an issue that they might have to tackle when this comes back to us.


Ms. Higgins stated that she had problems with #4 of clustering and phasing combined.  She did not understand what it meant.


Ms. McDowell stated that they would not be getting any more lots that they could of today.  This is saying the phasing potential is how many lots you could get out of the parcel today.  One has to show their conventional number of lots they could get now.  Then you could only create two.


Ms. Higgins noted that then they would have to build the road into those two lots.


Ms. Joseph stated that it could still be a dirt road perhaps from this point.  But, they would still have their parent parcel that would have the clusters within it and the preservation parcel.


Ms. Higgins noted that the cluster would not exist because they could not create those parcels.


Ms. McDowell stated that was correct.


Ms. Higgins stated that what staff was really suggesting is that someone that creates one or two parcels does all of the planning for the future 25 years and put it into the concept plan and create the two parcels and build the road into those two because you have to meet the road requirements, which is triggered by 3, and also the requirement of # 7. She questioned if that would make it reasonable.


Ms. McDowell stated that when they come in they know how many parcels they can get out of it.  That is what they have to show now with a RPD.


Ms. Higgins stated that they were not talking about the division right, but how to make the phasing which limits how many parcels can be created and works with the clustering.


Ms. McDowell stated that one of the things that they donít want is to vest properties prematurely.  If they get approval for the two lots and show us all the rest of them they are vested.  That is what they want to avoid.  They are going to show to themselves because they always do.


Ms. Higgins asked what if the rules change in the 25 years.  How do you deal with that?


Mr. Cannon stated that once they vest it does not matter because they can always go forward.


Ms. McDowell stated that they could only get the number of lots you could get today or December 10.  She felt that any developer or surveyor is going to show the lay out to himself. They are just actually verifying the development, but not vesting it.


Ms. Higgins felt that they are going to have to show the clusters with the septic and well locations.


Mr. Benish felt that they need to discuss that in the next round.


Mr. Cannon asked what the concern about vesting with what was shown is.


Ms. McDowell stated that if there were any rule changes in the future they would not apply.  If the County looks back and see if the 21 acres just did not do what it was suppose to do, then they could not adjust the change. If the County in 20 years looks back and finds that the density does not work, then they could not change it.


Ms. Joseph stated that they were going to need some additional information on vesting from Mr. Kamptner at some point.


Mr. Kamptner asked staff to provide some information about what the approval in year one would be.


Mr. Edgerton asked that staff provide several scenarios showing clustering and phasing.


The Planning Commission asked staff to schedule another work session to bring back additional information on vesting and to provide scenarios to show how clustering and phasing works before they take action. The next work session will be held on March 14 meeting at 4:00 p.m.


In summary, the Planning Commission held a third work session to discuss and make recommendations to the Board of Supervisors pertaining to Rural Areas clustering of subdivisions, phasing of development, and the public review/input process. Guest speakers were two local experts on conservation easements, Rex Linville, the Land Conservation Specialist for PEC and Ridge Schuyler, Director of Piedmont Program for the Nature Conservancy. The Planning Commission asked staff to schedule another work session to bring back additional information on vesting and to provide scenarios to show how clustering and phasing works before they take action. The next work session will be held on March 14 meeting at 4:00 p.m.


The Planning Commission recessed at 5:43 p.m. for a dinner break and reconvened at 6:10 p.m. in Meeting Room 241.


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