ZMA 00-009 North Pointe Update

SP 02-72 Residential Uses at North Pointe



Public Hearing



Tucker, Foley, Davis, Kamptner, Graham, Cilimberg, Echols





May 10, 2006


ACTION:     X                          INFORMATION: 



  ACTION:                                INFORMATION: 











The North Pointe rezoning request is a request to rezone 269.4 acres from RA Rural Areas to PD-MC with special use to allow a mixture of commercial and residential uses. The property is located in the Entrance Corridor Overlay District (EC).   A maximum of 893 residential units is proposed with special use permit SP 2002-72.  Approximately 540,000 square feet of retail use is proposed, along with approximately 135,000 square feet of office and 217,000 square feet of other non-residential uses.  Two hotels containing a total of 250 rooms are also proposed. 


Approximately 180 acres are devoted to residential uses which is approximately two-thirds of the area of the site.  Density in the areas devoted to residential use is 5 units per acre.  Over the entire site, density is approximately 3 units per acre (gross). The development includes Tax Map 32 Parcels 20, 20a, 20a1, 20a2, 20a3, 22h 22k, 23, 23a, 23b, 23c, 23d, 23e, 23 f, 23g, 23h, 23j  and 29i is located in the Rivanna Magisterial District north of Proffit Road, east of Route 29 North, west of Pritchett Lane and south of the north fork of the Rivanna River. The Comprehensive Plan designates this property as Regional Service, Office Service, Urban Density (6 - 34 dwelling units per acre) and Neighborhood Density (3 - 6 dwelling units per acre) in the Hollymead Community.


Uses of surrounding properties are residential (low density single family detached and a mobile home park), commercial (84 Lumber), a church, and medical office (Martha Jefferson Outpatient Facility). 



The North Pointe rezoning was submitted to the County in August 2000.  After receiving the first set of comments, the applicant indefinitely deferred the project until a traffic study was submitted in the summer of 2002.  At the request of the applicant, the Planning Commission held a public hearing on the project in late 2002.  The Commission unanimously recommended disapproval and the applicant asked the Board of Supervisors for a worksession to talk through the next steps.  The Board of Supervisors held a worksession and advised the applicant to go back to the Planning Commission to work through the details of the project.  The applicant went to the Planning Commission for a short series of worksessions in the summer of 2003 and, in the fall, asked the Commission to make a decision.  The Commission held a public hearing and the applicant requested several deferrals before asking the Planning Commission for action in November 2003.  The Planning Commission again recommended disapproval and the applicant again asked the Board of Supervisors for a worksession to talk through the next steps.


Throughout most of 2004, the Board and a smaller subcommittee appointed by the Board worked with the applicant to try to find resolution to some outstanding design issues identified by both the staff and the Planning Commission. The Board reviewed the project several times in 2004 and made its last review on November 10, 2004 during a worksession.  At that time, staff and the applicant were at an impasse on whether the project’s impacts were adequately addressed and appropriate.  Staff recommended that the Board act on the project rather than continue to ask the staff and applicant to find mutually agreeable resolution to the outstanding issues.  The Board agreed with staff and advised the applicant to bring the project back when the applicant’s proffers were ready for a public hearing and action by the Board.  Final proffers and a final application plan were provided over a year later, in December 2005.


On the request of the applicant, the Board of Supervisors held two worksessions in 2006 to discuss outstanding issues related to the proffers and the plan.  These worksessions were held on January 4 and February 8.  No conclusions were reached at either of these worksessions and the applicant resubmitted a final plan and final proffers on April 14, 2006. (See Attachment A for the application plan and Attachment B for the proffers.) The applicant has requested a public hearing and decision on May 10, 2006.   


A special use permit application for 893 residential units was submitted with the rezoning.  Staff has recommended special use permit conditions.  The applicant has taken exception to a few of the staff’s recommendations.  Attachment C contains staff recommended conditions. The applicant’s concerns and issues are identified in the staff report below for the Board’s information and review.



3.3  Develop and implement policies that address the county's growth and urbanization while continuing to enhance the factors that contribute to the quality of life in the county.



This rezoning has been in the process of review for approximately six years.  Significant time has passed between worksessions of the Board of Supervisors after the Planning Commission recommended denial of the rezoning in late fall of 2003.  As part of the standard review and analysis, staff assessed the rezoning for conformity with the Comprehensive Plan and adequate mitigation of impacts of the commercial and residential uses on streets, schools, utilities, environmental resources, and service provision.  Additionally, staff reviewed the rate of growth and trends and needs of the community for additional residential and non-residential space.   


Since the request was initially submitted in some of the problems have been addressed and others have not.  The most substantial change to the proposal occurred between 2005 and 2006 when the applicant dropped from the proffers the proposal for a Community Development Authority as a way to finance many of the costs of the development at a lower-than-market interest rate.  Staff believes that this change was positive as was the additional cash proffer of $100,000 for the development’s share of a regional transportation study. 


Below is a description of the major problems which are still present with the proposal.  A list of proffer changes and staff’s response to the appropriateness of those changes follows the list of major problems. 


1.       Southbound Route 29 improvements still do not have a calendar date for completion – The development as proposed will have three entrances on Route 29 North.  In order to construct those entrances, an additional lane will be needed on both the north and southbound lanes.  Improvements needed in the southbound lane include turns and tapers for street entrances as well as correcting a vertical curve in the street.  Staff has repeatedly requested that these improvements take place by a specific a calendar date. The proffers, as written, would result in construction of a varying number of lanes with no date for completion of improvements. The applicant has not been willing to commit to a completion date for these improvements.   Without a calendar date, staff believes the project could generate a demand for the County to complete these improvements before the developer would be required.  Additionally, staff believes the reluctance of the applicant to proffer a completion date for these improvements indicates a lack of confidence that there is a market demand for more than 290,000 square feet of commercial space in North Pointe.  That is consistent with staff’s concern about possible stale zoning.  


2.   Intersection of Rt. 29 and Proffit will likely fail if the middle entrance to the project is not constructed prior to construction of 290,000 square feet of commercial space – Between the 2004 proffers and proffers submitted at the end of 2005, the applicant made changes to the timing for construction of the Middle Entrance from Rt. 29 to North Point Blvd.  The changes reflect the applicant’s desire to not construct the middle entrance until 290,000 square feet of commercial space has been constructed if Northwest Passage is built first.  This change was not modeled in the traffic study.  County Engineering believes that using Leake Road and Northwest Passage as the sole streets to support 290,000 square feet of commercial area will likely cause the intersection of Rt. 29 and Proffit Road to fail because Leake Road and Northwest Passage cannot handle the amount of traffic generated by 290,000 square feet of commercial use.  Staff suspects that future complaints could put pressure on the County to resolve this problem for the applicant. 



2.       The commitment to construct residential units is too low relative to commercial development – Demand for residential units, especially affordable residential units, is fairly large relative to supply in Albemarle, yet the developer’s emphasis is on commercial development.  This is of concern to staff because staff expects that a large commercial component will be constructed, and then the residential units will lag along with provision of infrastructure to serve those residential units.  To help mitigate this concern, staff has suggested that commercial square footage be limited to 290,000 until at least 224 units have been constructed.  This number is 25% of the total number of units proposed.  The applicant is not willing to commit to more than 138 units prior to permits for more than 290,000 square feet of commercial area.


At the last worksession, several Board members expressed interest in a much stronger commitment to completion of the residential component and to assuring the residential units were being completed concurrently with the commercial development.  Old Trail Village was mentioned in the meeting and, if used, would translate as follows:


Prior to the issuance of a certificate of occupancy for the one hundredth (100th) dwelling unit within the Property, the aggregate building permits for commercial space within the Property shall not exceed one hundred thousand (100,000) square feet. Prior to the issuance of a certificate of occupancy for the two hundred fiftieth (250th) dwelling unit within the Property, the aggregate building permits for commercial space within the Property shall not exceed two hundred thousand (200,000) square feet. Prior to the issuance of a certificate of occupancy for the four hundredth (400th) dwelling unit within the Property, the aggregate retail space within the Property shall not exceed two hundred fifty thousand (250,000) square feet. Prior to the issuance of a certificate of occupancy for the five hundred ninety fifth (595th) dwelling unit with the Property, the aggregate building permits for commercial space within the Property shall not exceed three hundred fifty six thousand (356,000) square feet.  


Putting this in a table form, the paragraph says:


Residential C.O.s

%Residential Complete

Commercial Allowed (square feet)

% Commercial allowed


11 %












67% (2/3)


67% (2/3)


In this scenario, the commercial development starts much quicker than the residential, but by the time the project is 2/3 complete, residential and commercial completion ratios are equal.  This does not restrict the office space. 


Staff offers this arrangement as an alternative to the recommended special use permit conditions which limit commercial use to 290,000 square feet until more than 25% of the residential certificates of occupancy have been issued.


3.       Affordable housing does not meet County policy and VHDA limits have been increased to allow for units priced at $293,900 to qualify as “workforce housing”   --- The County adopted an affordable housing policy in 2004 and since that time, almost all legislatively approved residential developments have provided 15% affordable units or an equivalent.  While this project was originally designed and submitted before the policy was adopted, the project has now been under review for over five years.  During the last year, two major rezonings have occurred approving 775 units and 2200 units, respectively.  Each of these rezonings provided at least 15% affordable housing or an equivalent.  Staff believes this project should not be treated any differently.  The current proffer is for 8.9% affordable units – half for sale, half for rent; and $300,000 to the County for housing projects.  The 40 single-family for-sale units in a single-family detached product would be for “workforce housing.


At the last worksession, the Board of Supervisors discussed whether to allow “workforce housing” to qualify as “affordable housing” to meet the County’s policy.  “Workforce housing” is more expensive than the County’s definition of “affordable housing” would allow.  Under definitions used today, affordable for-purchase housing would be housing of less than $238,000. For “workforce housing”, the applicant is using the Virginia Housing Development Authority (VHDA) mortgage lending limits for first-time homebuyers.   In this market, VHDA will finance housing up to $293,900, which is well in excess of what the County considers “affordable”.  Staff does not know whether the Board would agree to accept “workforce housing” in lieu of “affordable housing” for the single-family detached units.  If the Board is agreeable to this concept, however, staff believes that the proffer for workforce housing be changed to allow for only 80% of the VHDA maximum mortgage for first time homebuyers for single-family detached housing, rather than 100%.  This figure would equate to roughly $ 238,000. For attached housing or condominiums, staff recommends that the figure be changed to 60% of the VHDA maximum mortgage which translates into a $176,000 unit.  The Housing Director believes that the lower figures are more appropriate to needs in the County.


4.       The applicant has not committed to construct emergency access points to a minimum public road standard until Pritchett Lane is upzoned – When North Pointe originally was proposed, staff asked for street connections to Pritchett Lane.  The applicant declined, stating that commitments had been made to the Proffit community that no connections would take place from the North Pointe property to Pritchett.  Citing the need for access that didn’t require driving to Leake Road or Route 29, County staff asked for public road access to be provided from the development to Pritchett Lane early in the rezoning process.  The Board of Supervisors affirmed the staff’s recommendation for the need for future public access; however, they asked that the access be “emergency access” only with the potential to upgrade the roads to public roads in the future, should the need for public road access exist.  


Staff has recommended special use permit conditions for the applicant to dedicate right-of-way, grade out the accessway for a future public street to minimum VDOT design and construction standards, and build the accessway for emergency access.  The applicant has declined to grade out the accessway for a future public street or complete a public street, until the land across Pritchett Lane is upzoned.  Since the land across Pritchett Lane is in the Rural Areas and is not under consideration for inclusion in the Development Areas with the Places 29 project, staff does not believe the applicant will actually grade the accessway out for a future public street within five years and, as such, staff cannot support the applicant’s proposal.  Staff is recommending that the rights-of-way be graded and prepared for a future public street for the County to open if a true public road connection is desired or warranted in the future, without a condition for upzoning.


5.       Overlot grading proposals will result in drainage problems on residential lots and poor lot-to-lot relationships – Because of the steep topography in most of the residential areas on the site, staff asked for a commitment to an overlot grading plan for the residential uses.  The applicant agreed in principle, but the applicant and staff disagree on the details.  The applicant wants to use a non-conventional contour interval for the overlot grading plans (2 ½ feet) instead of a conventional 2 feet used by all other applicants.  The applicant believes that drainage should be possible across 5 lots before putting it into a channel, rather than 3 lots as recommended by staff.  Finally, the applicant does not wish to have any requirements for flat areas around houses and basements for residents to prevent major drop-offs from back yards.  Staff recommends that these restrictions be placed in the special use permit conditions.


6.       Commercial square footage has slow absorption rate and the development areas will be overbuilt with too much commercial space – Early in project review by the Board of Supervisors, most Supervisors were not concerned about the possibility of too much commercial area being rezoned relative to potential absorption.  Staff raised this as a concern and the Commission shared the worry of having too much land zoned commercially, ultimately resulting in stale zoning or vacant shopping centers at other locations in the corridor. Based on studies provided by the County’s Fiscal Impact Planner and also by a consultant for the Places 29 master plan, Staff still believes the area has an abundant supply of retail space and this project will intensify that oversupply.  Additionally, staff continues to fear that this oversupply of “greenfield” development will constrain the ability to redevelop underutilized space in the Route 29 corridor.  While the Comprehensive Plan does not speak specifically to “phasing” of development within the designated development areas, it strongly speaks to the need for redevelopment of underutilized spaces.  The Code of Virginia also directs localities to consider in a rezoning the trends of housing, commercial, and industrial development and the community’s need for additional housing and non-residential development relative to growth.  Finally, staff is concerned that North Pointe effectively “stretches” commercial development over a larger area long before demand dictates the need.  That “stretching” potentially reduces the County’s ability to use mass transit to address transportation needs.  


7.       25-foot landscape area and double rows of parking in Entrance Corridor have not been modified -- The County’s policy for many years has been that the Architectural Review Board (ARB) review rezonings and special use permits in the Entrance Corridor prior to a rezoning to ensure that the plans will be able to conform with the County’s Design Guidelines in the Entrance Corridor.  Although the applicant would not submit plans to the ARB architectural review, staff asked the ARB to comment on the rezoning plan in 2004.  The ARB reviewed the plan and, among other things, requested that a 25-foot landscape area be provided on the applicant’s property between Route 29 and the parking areas.  The ARB also requested that double rows of parking adjacent to the Route 29 be reduced to a single row of parking in front of the buildings. 


The applicant had been responding to the request for the 25-foot landscape area by saying that part of the area could be accommodated in the Route 29 right-of-way. and part on the applicant’s property.  The applicant has proffered that, if the right-of-way. is ever needed by VDOT or the landscaping removed, the 25-foot landscape area would be established entirely on the applicant’s property.  Legally, the applicant can make this proffer; practically, it is unworkable.  Although the applicant has made the commitment in writing, in actuality, the future removal of parking and, possibly buildings is very unlikely.  Staff does not believe this proffer appropriately addresses the ARB’s request. 


8.       Proffers are needlessly complex, convoluted, and difficult to comprehend – From the beginning of this process, the reviewing Planner, Engineer, Zoning Administrator, and County Attorney’s office have struggled to understand the meaning of many of the individual proffers.  Many hours of staff time have been devoted to determining the exact intent of the words and to clearly comprehend the applicant’s commitments. To illustrate, each person reviewing proffer 5.3.5 has a slightly different interpretation of what it requires.   Because of the reviewing staff’s difficulty in understanding the proffers, staff believes that neither the Board of Supervisors nor future staff can clearly or consistently read each proffer and understand its intended meaning. 


At present, the proffers are not in a form that is legally acceptable.   At a minimum, a minor wording change in Proffer 3.1 is necessary as well as rewriting of Proffer 5.3.5 described in #8 below and on page 3.  The County Attorney does not believe that action should be taken on the rezoning until those modifications are made. To date, the reluctance of the applicant to rewrite the proffers in a more simple and direct format has resulted in and will continue to result in inordinate amounts of staff time devoted to understanding intent and application.  Staff does not recommend approving the proffers as written, and cautions that future reviews of site plans and subdivision plats will likely require additional staff time and delay reviews as the proffers are applied to the plans. 


Since the Board last saw the proffers, several changes have taken place.  The changes are described below, as well as staff’s assessment of how well they address impacts or meet expectations previously established by the Board.  Where problems are noted, they are in addition to the list identified above.


  1. Proffer 3.2 -- Changes to the maximum square footage allowed for two “big box” buildings.  In prior plans, two of the three big boxes were shown as 88,500 square feet and 72,000 square feet.  A third big box was identified as 55,000 square feet.  Previous proffers limited the footprints of the two larger buildings to no more than 88,500 and 72,000 square feet, which was in keeping with the expectations of most members of the subcommittee of the Board and most members of the Board. Current proffers allow for the two largest big boxes to be over 97,000 and 79,000 respectively. 


Staff understood that a majority of the Board desired the limitations of 88,500 and 72,000 as footprints for the two largest buildings.  As a result, staff believes that the change would not be acceptable to the Board given previous concerns for the size of the building footprints and limitations on some previous big box buildings (70,000 square feet in Albemarle Place).


  1. Proffer 4.2 -- Addition of a proffer for biofilters for 20% of the required parking lot landscaping of the commercial areas. 


Staff asked for a greater commitment to erosion and sediment control because of problems experienced at Hollymead Town Center.  The applicant responded by proffering to provide biofilters in 20% of the parking lot landscaping.   Since landscaping is required for 5% of the parking lot, biofilters would be provided in 1% of the parking lot.  While this proffer is beneficial, it doesn’t offer a great deal because biofilters would typically be required for more than 1% of the parking lot area.


  1. Proffer 4.3 -- Addition of a proffer for “additional appropriate erosion and sediment control measures that exceed State and Local minimum standards”. 


Staff believes that this proffer is legitimate and beneficial, but notes there is ambiguity in the ability of the County’s Program Authority to administer erosion and sediment control requirements.  The proffer allows the Department of Conservation and Recreation to review and advise in circumstances of disagreement on the extent erosion and sediment control measures.  Staff would like to be clear that it interprets the proffer to mean that the Department of

Conservation and Recreation advises, but does not make decisions on the extent of the proffer language to provide additional erosion and sediment control measures that exceed State and Local minimum standards, to the “maximum extent practicable”. 


  1. Proffer 4.4 -- Addition of a proffer that the applicant will contact the County for a list of areas inside the County that would be good candidates for off-site mitigation as an exchange for the U.S. Army Corps of Engineers’ permission to pipe a portion of Flat Branch Creek through the property.


Staff supports this proffer although the offer ultimately may have no effect on the U.S. Army Corps of Engineers’ permits nor cause the Corps to allow for mitigation within Albemarle County.  Nonetheless, staff believes it is advantageous to have the wording in the proffer.


  1. Proffer 5.3.1. (a) (1) (iv) -- Addition of a proffer to allow sufficient shoulder width for construction activities for Rt. 29 north between Proffit Road and Northwest Passage.


Although staff appreciates the offer, this proffer simply recognizes a VDOT traffic management technique rather than makes any commitment to needed future roads. 


  1. Proffer 5.3.1. (a) (2) (ii) --  Addition of a proffer for $200,000 for future construction of a roundabout at Leake Road and Proffit Road if VDOT does not require construction of the roundabout as part of North Pointe Blvd.


Staff believes that the need for the roundabout is generated by the development and that it should be constructed as part of the intersection improvements to Leake and Proffit.  At present, the applicant has not provided staff any basis for determining if $200,000 will actually cover the cost of a roundabout, if or when the Proffit Road improvements will happen or how the County would administer the proffer. Additionally, staff notes the timeframe assumes VDOT funds Proffit Road improvements, which remains uncertain.  Next, this puts the County, rather than the applicant, at risk for cost overruns.   Finally, if Proffit Road construction does take place within the required timeframe, staff will have no way of determining how much the roundabout actually cost because it will be a small part of the entire project rather than a separate project.  That would prevent staff from quantifying a required reimbursement with this proffer.   As a result, staff does not believe this proffer is adequate and also believes it cannot be administered. 


  1. Proffer 5.3.1. (a) (2) (iv) -- Addition of a proffer for $67,500 for VDOT to construct an additional through-lane eastbound on Proffit Road in conjunction with the Proffit Road improvements.


Staff does not support accepting this proffer because staff does not know if $67,500 is a reasonable amount to cover the cost of lane construction.  At present, the applicant has not provided staff any basis for determining if $67,500 will actually cover the cost of the lane, if or when the Proffit Road improvements will happen or how the County would administer the proffer. Additionally, staff notes the timeframe assumes VDOT funds Proffit Road improvements, which remains uncertain.  Next, this puts the County at risk, rather than the applicant for cost overruns.   Finally, if Proffit Road construction does take place within the required timeframe, staff will have no way of determining how much the roundabout actually cost because it will be a small part of the entire project rather than a separate project.  That would prevent staff from quantifying a required reimbursement with this proffer.   As a result, staff does not believe this proffer is adequate and also believes it cannot be administered. 


  1. Proffer 5.3.5 -- Staff believes [but does not know] that this additional proffer is for a contribution of 75% of the total cost of the southbound improvements plus interest if the County or VDOT decides it wants to make the Rt. 29 southbound lane improvements constructed prior the time the developer is ready to make the improvements.

Staff disagrees in principle with this proffer.  Staff has repeatedly asked for a calendar date for construction of the southbound lane improvements which the applicant has repeatedly declined to do.  The offer to pay for only 75% of the cost plus interest is inconsistent with County policy to require developers to mitigate the impacts of their own developments.  This proffer would require the County to pay the entire cost of the improvements up front.  The applicant would not have to reimburse the County for the 75% portion of the cost until it obtained a building permit allowing the aggregate commercial, office and hotel gross floor area to exceed 290,000 square feet.  Because the applicant is not required to obtain that building permit, there is no assurance when, if ever, the County would ever be reimbursed.  Thus, the proffer is unacceptable.  In addition to a disagreement in principle, staff finds the proffer to be nearly incomprehensible and impossible to administer.



As presented in the December 2003 Board worksession, the project’s fiscal impact analysis showed that North Pointe can have a net positive fiscal impact when completely built out.  The fiscal impact analysis, however, did not take into account

regional transportation needs for Route 29 which, in the past, have not been covered through County expenditures.


Staff notes that, the net positive fiscal impact minus regional transportation needs occurs only at build-out.  Staff anticipates there will be a long period of time in which a negative impact will occur because of the time period to absorb additional retail square footage.  The scenario where the development reaches 290,000 square feet of commercial and then stops has been repeatedly discussed with the Board.  If residential development continues while commercial development languishes, the fiscal impact of the project can be negative.  



In previous Executive Summaries, most recently the February 8, 2006 Executive Summary, staff has articulated the reasons why approval of the rezoning is both premature and not recommended.  Staff has analyzed the proposal for conformity with the Comprehensive Plan and finds that the proposal represents a conventional suburban form with a segregated land use pattern that is not in keeping with the following principles of the Neighborhood Model:


1.       Pedestrian orientation – uses are spread out and separated, diminishing the use of sidewalks because of excessive distances between housing and shopping/employment areas.

2.       Neighborhood friendly streets and paths – many streets in the central commercial area are actually parking lot drives that do not look or act like real streets.

3.       Relegated parking – parking surrounds most of the non-residential buildings in the development.

4.       Neighborhood Centers – a large commercial center is created; 2-3 walkable smaller centers could be created.

5.       Buildings and spaces of human scale – no commitments to the appearance of structures have been made.  Pedestrians must walk through vast expanses of parking lot area to get to buildings.


The proposal does not appropriately mitigate transportation impacts because there is no calendar date for constructing the middle entrance or constructing a southbound lane within a reasonable period of time.  Affordable housing is not provided in accordance with the County’s policy for 15% affordable units and the administration of the proffers for affordable housing will be problematic.


The proposed rezoning does not reflect trends in growth and the economic needs of the community.  Retail space is proposed in excess of absorption within a reasonable amount of time, which staff believes will result in vacancies throughout the Route 29 corridor.  Zoning property before the use is actually needed will limit the County’s ability to cause the owner to respond appropriately to a changed future condition.  The County has recently dealt with this situation in Gazebo Plaza and Faulkner Construction.


For all of the reasons listed above, staff recommends disapproval of the rezoning and the special use permit for residential use.  If the Board wishes to approve the rezoning and special use permit, staff would encourage the Board to delay action until the County Attorney is satisfied the proffers are acceptable. 



Attachment A:  Application Plan dated April 14, 2006

Attachment B:  Proffers dated April 14, 2006

Attachment C:  Recommended Special Use Permit Conditions dated May 1, 2006
Return to regular agenda