Albemarle County Planning Commission

April 1, 2008



ZMA-2006-00008 Berkmar Business Park (Sign# 88 & 89)

Rezone 5.67 acres from R-6 zoning district which allows residential uses and up to 6 units per acre to Neighborhood Model District (NMD) for up to 275,000 square feet of commercial use and up to 190 units.  NMD allows residential (3 - 34 units/acre) mixed with commercial, service and industrial uses.  PROFFERS:  Yes

EXISTING COMPREHENSIVE PLAN LAND USE/DENSITY:  Regional Service - regional-scale retail, wholesale, business and/or employment centers, and residential (6.01-34 units/acre) in Neighborhood One. 


LOCATION: Along the east side of Berkmar Drive between Woodbrook Drive and Hilton Heights Drive north of Planet Fun. 

TAX MAP/PARCELS: Tax Map 45  Parcels 112, 112 E, and a portion of 112G. 


(Elaine Echols)


Ms. Echols presented a power-point presentation and summarized the staff report.  (Attachment Ė power-point presentation)  (See staff report)


            The applicant is proposing to build a portion of the connector road with their proffers.  They will build the remainder of the connector road at which time that VDOT would allow the public road connection to take place.  The portion of the property where they have the entrance problems is on a fairly steep hill.  This section of the road needs major upgrades in order for it to become a public road.  They are not committing to make this upgrade or make the changes that would need to occur at the entrance in order to bring it to a VDOT standard so that the full connection could be made.  Staff feels that is important.  They talked this afternoon to get a better feel for where they are in terms of staff, the applicant and VDOT.  They have come up with the position, but differ in terms of what is appropriate for this use right now.  But, the applicant will want to speak about that.  Joel DeNunzio, of VDOT, is present tonight. Glenn Brooks, County Engineer, is present and can speak about road transportation and stormwater management. 

            Staff recommends deferral of action until the outstanding issues have been resolved.


Mr. Morris invited questions from the Commission


Mr. Edgerton asked if the applicant has the legal ability to make the connection and the recommended improvements.


Ms. Echols replied that there is apparently a 40í right-of-way that exists in this particular location. She was not sure how far it goes down.  The applicant has talked to the adjoining property owners about how to make the connection.  The applicant would like for the connection to be made.  There is no doubt about that.  They just donít believe they can be responsible for making the connection. 


Mr. Edgerton asked if a 50í right-of-way was needed for a VDOT standard road connection.


Ms. Echols replied that it depends on what the road is.  She suggested that Mr. DeNunzio could answer that question.


Mr. Edgerton noted that seems to be the most major concern listed.   He felt that it was a great idea, but if the applicant does not have the legal ability to do that they needs to determine that. 


Mr. Cilimberg recalled that several years ago Pantops Place, which is now Virginia National Bank on Pantops, came to the Commission.  It was a somewhat similar circumstance where there was a real need for a connection back to South Pantops Drive from 250, which utilize their access and then extent on through property that applicant did not own.  Ultimately, the Commission and Board were very insistent that connection needed to be made.  That required the applicant in that case to work with those adjacent owners to ultimately get an agreement and create that connection. 


Ms. Joseph asked if there was a right-of-way with that also. 


Mr. Cilimberg said that they did have access.


Mr. Brooks said that Spotnap Road was an existing private road.   Some of it was owned by Dr. Hurt and some by the Service Authority. They had to work it out. 


Mr. Cilimberg noted that it was not public right-away. 


Mr. Cilimberg noted that in this case this portion is owned by Better Living. They would have to work with those folks, and hopefully they will be cooperative.


Mr. Morris asked if that is the area parallel to 29 that is owned by Better Living or are they talking about the road itself.


Mr. Brooks said that it was the road itself.  A big portion of that road is within the Better Living parcel. 


Mr. Cannon said that it would require, therefore, the agreement of Better Living to be built.


Mr. Brooks replied yes, that has been one of the difficulties.


Mr. Cilimberg said it is similar to what was in the Pantops Place project.


Mr. Brooks said that VDOT, on the other hand, has been very flexible with the ultimate right-of-way required.  They just require that all of the improvements be within the right-of-way.  They are not necessarily saying that it is 40í or 50í, but whatever it takes.  It is more getting cooperation from the two property owners and moving their entrances around, doing their grading and that kind of thing.


Mr. Morris invited Joel DeNunzio, of VDOT, to provide some input on this topic.


Joel DeNunzio, representative of VDOT, said that regarding right-of-way requirements 40í typically is a good right-of-way for a two-lane road with sidewalks and curb and gutter.  But, it is not necessarily the minimum requirement.   Their requirements are that they need to have enough space behind the outermost item that they need to maintain, which is 3í behind the curving and 1í behind the sidewalk. So if they can get an acceptable road in there and they can get a right-of-way width that is 3í behind the curving, they can accept that.


Ms. Joseph asked what kind of improvements they are looking at for the entrance itself.


Mr. DeNunzio said that the entrance is there now.  The road that goes up between Schewelís and Better Living was built with the 29 widening project as a commercial entrance.  It does not meet the standards for a street connection.  It is too steep.  It also does not have a flat landing area where cars can come to a safe stop without sliding into the interconnection if there are bad conditions.  The third thing is the two access points where Schewelís parking lot and Better Livingís frontage road access are too close to the 29 intersection for a road connection.   


Ms. Joseph asked if that meant that Schewelís would have to close their entrance.


Mr. DeNunzio replied that in order for that to be a public road both the Schewelís connection to that entrance and the Better Living entrance would have to be closed.  Both entrances are too close.


Mr. Cannon asked where the entrance to the road would go.


Mr. DeNunzio noted that the current requirement for the commercial entrance, assuming that it was a public road connecting to 29, the minimum standard now is 50í from the radius of the curb ends to where the radius of the entrance begins.  The design standards are changing this year.  That requirement will be 225í.   Assuming that this will be a collector road that requirement will take effect July, 2009.


Mr. Echols asked that he speak to the Rivanna Plaza site plan that they have looked at and how that may relate.


Mr. DeNunzio said that he has been looking at a site plan with Rivanna Plaza which is just south of Schewelís.   In the latest revision they will be relocating the Keglerís entrance a little closer to Schewelís entrance on 29.  They are going to cut off the access that Schewelís has to the private connector road.  They are going to give them an access to the south with their entrance.  It is about 275í south of the existing entrance where Schewelís and Better Living share that connection right now.  


Mr. Strucko asked if that would accomplish cutting Schewelís off from that access road to the north.


Mr. DeNunzio replied yes.  The south side of the parking lot where it comes out to Route 29 will actually access through Rivanna Plaza.  It will come back out to Route 29.  Keglerís will also access through that point under the current plan. 


Mr. Morris asked with the proposed connector road and looking at what is required at the intersection of Route 29 is it doable to make it meet the standard.


Mr. DeNunzio replied that engineering wise it is doable.


Ms. Joseph asked if it was doable and still maintains the Better Living access at that point.


Mr. DeNunzio replied it would not for a public road standard.  They had a discussion about that today and whether they could get a signal to work there to have another phase at Better Living.  He actually called their traffic engineers in the northwest regional operations who now manage all of the signals in Albemarle and a lot of the surrounding counties.  He was told that it would be very difficult to make a signal work at this location.  He had safety concerns with that leg right there going into Better Living.  He said that the traffic would not permit that type of signal.


Mr. Strucko said that if that was the case and if this connector road would be built people coming from Berkmar down it would only be able to make a right hand turn on 29 just to head south.


Mr. DeNunzio said that it would be full access.  The frontage road from Better Living is separate from Route 29 and runs parallel to it.  In order to make a signal work there for a road connection they would need to have a phase for those people coming out to 29.  There would be a three leg intersection right there. 


Ms. Echols said that the Better Living access would have to be reworked.


Mr. DeNunzio replied yes, that there are a couple of options there.  He also looked at the original VDOT plans for the 29 project.  Originally at this connection they provided a 4í median strip on the connection there.  So the frontage road could not make a left turn to get to 29.  He understood that they did not install that because of a concern with truck traffic.  However, if the connection were to be made back to Berkmar it would be a possibility of keeping that connection there, but they would not allow them to come back out to 29.  They would have to go back around to Berkmar and maybe come out either north or south of here onto 29. 


There being no further questions for Mr. DeNunzio, Mr. Morris asked if there were any other questions.


Glenn Brooks, County Engineer, asked to add one more piece of information that they have not heard.  The North Town Center development is located right across the road.  That would be a fourth leg to this intersection. Part of their plan is also to build another face on that signal and turn lanes into their site.  So that grows the intersection.  It just complicates matters.


Ms. Echols added that staff has not received the first set of written comments from the traffic study from VDOT because they have not finished their review of it.  The indications they have gotten from them, as seen in the email, are that this particular development according to the traffic study generates the need for this connector road because the connector road is being offered as the mitigating measure for the impacts.  So at the level of 275,000 square feet and 190 units staff believes that this road is necessary.  The applicant may discuss some lesser amount where it may or may not be necessary.  They talked about that this afternoon.  They discussed what opportunities or solutions there might be to this particular problem.  But, right now with the traffic study they have it appears that the development is creating the need in part for the connector road. 


Ms. Joseph asked if staff has had discussions with the Better Living people and if they have been involved in this.


Ms. Echols replied no, that the applicant has, but staff has not initiated any discussions with the Better Living people on behalf of the applicant for this connector road.


Mr. Edgerton said that in the staff report on page 15 staff makes the point that more time is needed to address these issues in a substantive way.  Staff suggested that the applicant request a deferral to allow for that.  The applicant has been working on the request two years.  He asked how much longer it would take for them to be able to address it to the satisfaction of staff. 


Ms. Echols replied that it would be hard to tell because they donít know what they might get back.  If they were to propose a change or reduction in the amount of square footage or number of dwelling units then they would need to provide the traffic study that relates to that which would suggest what improvements were necessary, if not the connector road.  So it really all depends on what they would come back with.  There are two very big issues being the storm water management and the issue about the connector road.  Staff asked for the traffic study to see whether or not the project generated the need for the connector road.  So there has been a lot of conversation on the traffic study until staff finally got the requested traffic study.  The traffic study came in about four weeks ago.  The staff report was completed about one week, which gave a minimal amount of time to review the traffic study.  While it has been going on for a while staff did not have all of the information needed to do the appropriate review over this whole time period.  There has been a lot of time spent on coming to an agreement on what is necessary for this review.  Once the connector road is sorted through and the storm water management the rest of the details takes whatever time they take.  It depends on how the applicant gets those things done and then staff has a review period for making sure that everything is right.  The proffers are not in very good shape.  They can spend a lot of time on proffers.  Staff could not tell the Commission that within a month or two that this would be done.  If the applicant gets the big issue pictures taken care of, then the little ones should not take that long.


Mr. Edgerton said that at the scale of what is being proposed staffís determination is that this connector road is required.


Ms. Echols agreed.


Mr. Edgerton asked if staff could give a rough idea of how much the applicant would have to reduce the proposed density or the scope of the project.  He questioned if the applicant cut the proposal in half would that eliminate the need for the connector road.


Ms. Echols replied that she could not answer that. The applicant has provided some traffic information early on, but it was a much smaller project.  She urged the Commission to talk with Glenn Brooks on any more of those details about the traffic study. 


Mr. Morris asked if anyone wanted to address the storm water management issue.


Ms. Joseph pointed out that in reading through the staff report it looked as if this detention basin was sized for a lot of the properties out there.  She asked if it included this property.


Mr. Brooks replied that it was at the time that the Berkmar Road was built. 


Ms. Joseph why they donít feel comfortable accepting this property if the detention basin was sized for this property.


Mr. Brooks said that the detention basin was not sized for this entire property, but there is a line somewhere through the middle of the site.  It covers the Planet Fun portion and a little more, but it does not cover the entire rezoned portion.  They are adding a little drainage area to the Berkmar basin, which is also called the Keglerís basin.  That basin was built before the current Water Protection Ordinance, which made the standards more stringent.  So it does not cover a lot of what the new ordinance requires.  It requires storage for a lower volume storm that can be done.  That is the retrofits that they are talking about.  It would require a little more volume in the basin.  They are trying to do that with regarding the basin itself.  The new ordinance requires water quality measures, which they propose to do on site with the manufactured facilities.


Ms. Joseph asked if he felt that they canít expand the size of this basin.


Mr. Brooks said that there is debate.  Certainly they can.  They talked to Jack Kelsey who did some work previously with this as the County Engineer and with Greg Harper who is with our Maintenance Division.  They go out to the basin every year.  It is their feeling that there is quite a lot of bedrock in that basin and it would be very difficult to expand it.  It could be blasted and expanded. If that was the case there would be some risk to the buildings and walls right next door.  But, they felt that if that was the case it would make the basin more difficult to maintain for them.  They might try to put some top soil in there to make things grow a little better.  This kind of a basin is not the ideal basin for General Services because it only does volume control.  It is just a big hole in the ground and does not provide any water quality benefits.  It is very hard to retrofit it to provide water quality benefits because it is a steeply shaped hole and there is rock where a lot of planting cannot be done.  It canít be made nicer in ways like that. 


Ms. Joseph asked if the water quality would have to take place on site. 


Mr. Brooks replied yes, that the applicant proposes to do that.  They are proposing to the storage in here.  That is a county decision on many levels with the Commissionís approval and General Services accepting the changes in the maintenance to a county facility.  They donít have a clear answer on that from General Services.  They feel that it would be more difficult to maintain.  They have thrown out the suggestion that the applicant take back the basin.  It originally belonged to Keglerís.  The owners of Keglerís gave the basin to the county for a regional basin for county maintenance.  General Services has said if they take it back so the county does not have to do maintenance they can do with it what they will. 


Ms. Joseph asked how many regional basins the county takes care of, and Mr. Brooks replied that there are nine or ten. 


Mr. Cannon said that there is the ability to take care of the storm water flow from this property.  That is he has in mind an engineering solution that would be adequate to that task.  He asked if that was correct.


Mr. Brooks replied yes, but with caveats.  Their proposal can work if the county allows them to make modifications to the basin and if the blasting and improvements in that regard can be done physically.


Mr. Cannon asked if there is a fall back option.


Mr. Brooks said that if the county says they donít want them blasting in their facility and wonít give them permission, the fall back option they assume is large storage reservoirs under their parking area.  But, nothing has been proposed.


Mr. Cannon said that staff has questions about their proposal and staff and the applicant have not examined alternatives that might avoid those questions.


Mr. Brooks said not in detail, but their narrative does say that they can provide it on site in reservoirs.


Ms. Joseph asked if the county owns the basin or assumes maintenance for the basin.


Mr. Brooks said that in this case there is varying ways that this is done.  But, he believed that it was an easement that the county has.


Mr. Kamptner pointed out that they have not determined that yet.  He received an email a couple days ago from Greg Harper indicating that one of the proposals is for the county to convey or at least grant the right of maintenance to the applicant.  But, they have not determined ownership or anything else at this point. 


Ms. Echols said that it is not a separate tax map and is not a separate tax parcel that staff is aware of.  It is in some other form of ownership.


Mr. Brooks said that it appears that some of it is on the Loweís parcel.


Mr. Kamptner said that it was probably an easement to allow the county to enter Keglerís and the adjoining parcel to do the maintenance.


Ms. Joseph pointed out that the Board of Supervisors can decide that it is okay modify this basin and continue maintenance.


Mr. Kamptner said that the county has the ability to do that if they so chooses.


Mr. Morris opened the public hearing and invited the applicant to address the Commission.


Frank Stoner, of Stonehaus, provided the history of the project.


Nat Cunningham, with Stonehaus, presented a power-point presentation and explained the proposal.


Mr. Morris invited public comment.   There being none, he closed the public hearing to bring the matter before the Planning Commission.


Mr. Cannon asked staff if they had seen the revised traffic study


Glenn Brooks said that the new information at the meeting makes his job extremely difficult.  The traffic study he saw was completely different and he only had a short time to review.  The day before the meeting the applicant submitted a completely different study.  It has not been vetted.   His initial reaction was he didnít think it would be built out by 2010 and the planning horizon should be to at least 2016.


Mrs. Porterfield said that the County is asking them to do something that they have no control over. She said this is a moot point.  Do we want to hinder development in the county based on something the applicant canít do?  They are saying they will do what they can do.  Does the county have to get involved?


Mr. Brooks said that is the Planning Commissionís decision.


Ms. Joseph said that if it is in an approved master plan, then staff needs to ask for it.  She asked what are the ramifications if the applicantí doesnít do the connector road?  Could it be phased?


Mr. Brooks said yes, it could be phased to time improvements at a certain point of square footage. The first plan did not spell that out.  The applicant made a good effort to show a connector road because that is what the county wanted to see.


Mr. Cilimberg said that the Planning Commission has spent untold hours on rezonings over the last several years really focusing on having the adequate infrastructure to support the proposed development.  Sometimes the applicant canít control all of that and it would have to be phased.  He said it isnít unfair imposing something on a development when the County has gone through the proffer policy and many reviews to make sure the infrastructure is being adequately addressed with rezoning. Maybe with sufficient information we would know what can be built with the infrastructure.  Completion of the connector road may be in the hands of VDOT or the County or other developers of Schewelís.


Mr. Cannon asked why a cash proffer wouldnít be appropriate.  Why wouldnít we look at the limits of what the applicant can achieve here?  VDOT can get involved and compel others to be part of the improvements.


Mr. Cilimberg said that the Countyís approach is that you can take a proffer for the completion of the improvement or only have enough development for what it can support. 


Mr. Cannon said that the County would be getting density of development inside the growth area and the applicant has done a conscientious job of trying to meet the Countyís needs.  He said he had concern about the already stressed infrastructure that wonít accommodate that development. There must be some alternatives rather than insisting on something that does not appear to be possible for the applicant to do, i.e., the connector road.  But we need more information on the traffic study.


Mr. Edgerton felt that Mr. Cannon had a good idea.  He had hit on key considerations.  But, this project will not be built out in 2010. To look at a traffic study showing completion of the project in 2010 is inconceivable. Staff needs more time.  Phasing might solve this problem long term.  It is a good plan and is going in the right direction.  It fits with the Comprehensive Plan, but he was not ready to recommend approval at this time. Staff needs more time. The applicant should come up with phased development and proffers to contribute to intersection work.  He would like to encourage the applicant to work with staff on this.  But, we canít legally defer the project.  The 90 days are up.


Mr. Kamptner reminded the Commission that failure to act would deem recommendation for approval of the project.


Mr. Loach said the project with this many outstanding questions is problematic.  We need to make sure infrastructure is there.  Otherwise, there will be degradation to everyoneís quality of life. He would like to be more cautious.


Mr. Morris invited the applicant, Frank Stoner to speak.


Mr. Stoner said that they need to address the fact that the project reflects a 50-year plan. In traffic planning there is a voodoo science about what will happen on Berkmar Extended and 29. He said that, in terms of a traffic study, it took three months to get agreement on scoping.  He said he is in the unfortunate situation of running out of extensions with property they have under contract.  If they canít secure the rezoning by June 1, 2008, they are done.  As he tried to work with Ms. Echols to get this moved along by June 1 it became clear that he needed to get before Planning Commission tonight.  He could address some of the issues of the traffic study and a phasing plan, which may be the solution.


Ms Joseph said there was just too much outstanding information that she needed answers on before she could support it.


Mr. Cannon asked Mr. Stoner if he was proposing downscaling the project.


Mr. Stoner said the plan will essentially be phased because it will not be built out in his life time.  He said he was trying to provide a durable code of development looking over 50 years. 


Ms. Joseph said if gas gets higher people will want to be closer to town. There is a benefit to that.


Mrs. Porterfield said she canít go with any of the suggestions of the rest of the Commission.


Ms. Josephs said she wants a phasing plan.


Mr. Loach agreed with Ms. Joseph.


Mr. Kamptner said that the applicant was willing to contribute to maintenance, but not take over full maintenance of the basin.  He said the applicant said he would proffer his share.


Mr. Stoner said he was happy to proffer money towards maintenance of the pond or take the pond back.


Mr. Kamptner noted that the details of maintenance still needed to be worked out and the project is scheduled for the Board of Supervisors for May 5. He said that Mr. Brooks indicated that VDOT has had the current traffic analysis for 4 weeks. How would the new traffic analysis be done in time for staff review to incorporate into a staff report by April 20?


Mr. Cilimberg said that final information has to be submitted 23 days before the hearing.  If the Commission forwards this to the Board that list has to be addressed 23 days before May 5.


Mr. Loach asked if staff had heard from any adjacent owners.


Ms. Echols said staff has not heard from anybody, which is surprising.


Ms. Joseph asked about whether verbatim minutes would go to the Board.


Mrs. Porterfield said that the additional traffic study could be required as part of the site plan.


Mr. Brooks said that certainly we can require the study, but what can you do with it once the rezoning has been approved.


Mr. Cilimberg said that they canít require anything.  They have to accept the proffer and what is the proffer going to be to cover that stipulation.


Joel DeNunzio, representative with VDOT, said they sent the traffic study to the Culpeper District Office.  He talked with the Culpeper engineers today who were happy with the study because the mitigation for the project -- the connector road --would be constructed. It is hard to say what VDOT will say with changes or no connection. They are happy with the mitigation shown in that study.


Ms. Joseph asked if Mr. DeNunzio had seen the Butch Davies letter.


Mr. DeNunzio replied no.


Ms. Joseph said that the letter says you are responsible for improving the intersection.


Mr. DeNunzio said the intersection is adequate for a commercial entrance.  They just donít like the configuration of the entrance. VDOT did not make those connections. They were made off of our right-of-way.  They widened the road and when it came to the entrance, whether a private or commercial entry, they put that standard back in.  They donít own the right-of-way along that road.  Looking back at the plans it is hard to say it is VDOTís responsibility.


Frank Stoner said that they will reevaluate the traffic study and if it comes back that no improvements are needed until 150,000 square feet are constructed, then this mitigation is not necessary until then.  There is not a lot of value that can be gained with either proffer or not depending on the capacity.


Mrs. Porterfield said this is the kind of thing that designs like this get hung up on.  They can solve the runoff problem somehow and the other issues are minor, but will take a little bit of time.  The connector is a problem.  It canít be made because it needs Better Living to get involved and they need to have a reason to get involved. 


Mr. Loach asked what the traffic impact is now.


Mrs. Porterfield asked what could be built on it right now.


Mr. Edgerton answered 39 units.


Mr. Strucko said if there is an impact on the roads and traffic he wanted to know what it is.  If the Commission wants to tie a figure to square footage they need to know about traffic


Mr. Morris stated that the applicant wants to take his proposal to the Board of Supervisors with a recommendation for denial or approval.


Mr. Stoner said preferably with an approval.  He questioned if they agreed to a deferral and then went back and fine tuned the traffic study and found it was deemed that there was not a traffic impact to justify the connector road what would happen.  He asked if they removed that from their proffers would that be acceptable to the Commission.


Mr. Cannon said that he did not know how they would insist on a proffer if he did not have an impact that would cause the proffer to be required.  It would be sad, but he did not know how they could require it.    The basis for the requirement now is that the conclusion is that they would have an impact sufficient to require that the road be built.


Mr. Stoner said that they were suggesting that either the data will show that it does not need to be built or the square footage will be reduced.


Mr. Cannon said that in that case it seems that the conceptual basis for the problem disappears. 


Ms. Joseph said that they were looking at this road that is in a master plan that has not been adopted.  It is something that they anticipate because it is in some comprehensive plan that really is not part of their comprehensive plan right now.  That was why she was confused.  In normal cases if this were in a master plan that had been approved, the Commission would absolutely positively require this connection.


Mr. Morris noted that was one of the reasons that he liked the alternative that is being presented by the applicant that will create this road down to a certain point, and then if it is needed they will connect it.


Mr. Strucko noted that the slide indicated the road in three colors. 


Nat Cunningham asked to make it very clear about what they have proffered.  They have proffered that with a site plan for this site they would build this portion of the road in such a way that it could be connected down to this interconnection in the future.  They would include a study of the center line and the grading necessary so it could be approved at that time.  They also in the proffers say that they would build the portion of road shown in green at such time that they were granted a public entrance permit by VDOT.  That way when the road is able to be used they would construct the road.  They would be willing to put aside funds for that.  What they have not proffered to do is build any portion of the road shown in purple, which is not on their property that they control and they have numerous issues regarding access management, grade and adjacent land owners.  So that is what they have currently proffered.


Ms. Joseph asked if she could assume they were going to be building the green space and take into account the steep portion there to design it to make sure that connection could be made.


Mr. Nat replied yes that the issue is really that the grades that they are most concerned about are in this area.  So they would want to build this portion when this has been resolved so that they could tie it in appropriately.  That is why they donít want to build this portion in green because they could have a situation where they are building a portion of road that comes down and dead ends into an existing road 5í or 6í below what the current road is and so they wonít require any bollocks, it will be unusable.  They want to build the road when it is useable.  They have made the commitment to do that even though it is not required by their traffic impact.  He emphasized that it would be unfortunate if they went back and found that they had very minimal impacts.


Mr. Cannon said that they had given some consideration in lieu of actually being required to construct a road through to 29.   He asked if the additional proffer keyed to the ultimate construction of the purple part or was that related to the faint pea green section.


Mr. Nat replied that it was related to the pea green section because they felt that they did not want to construct a road that is not going to be use.  So that is a way to provide the bollards to hopefully create a situation where they were 75 percent of the way there and hopefully the rest could come in and put those funds aside.  They have not at this time included any monies in their proffer related to making these improvements in here to do the purple area.


Mr. Cannon asked if that is not something that they would consider offering here now conditional on the approval of the intersection.


Mr. Nat replied that he would be hesitant because it would be hard to put a dollar amount to it.  Part of the reason they were concerned about the purple area because there was potentially a lot of money to correct the existing condition there.  They know the cost for the green section.  They could proffer some small additional amount, but he could not tell them whether it would be 5 percent or 50 percent of what it would take to correct the purple section.


Mr. Strucko said that seemed reasonable with that arrangement.



Ms. Porterfield moved to approve ZMA-2006-00008, Berkmar Business Park with the staff reporting indicating the major and minor issues being attended to, as shown on the screen, with the exception of the connector road; they are not asking the applicant to build it in entirely, but to build the first section and then to agree that when the road could be connected to Route 29 that they would build the second section as shown on the applicantís drawing.  They would request that if the applicant felt so magnanimous they might help contribute to the purple section.   They would let them take a look at how they might feel about that.  Also, the unresolved stormwater management is worked out with staff.  There were at least two different arrangements that could be handled to work this out.  They might recommend that if the applicant is willing to take it back the drainage basin and if the county does not want it that might be one way to resolve the issue.  Regarding spatial enclosure, the applicant has said that they would to a 20í high building on Berkmar if they have to stick with the one floor.  The off site easements have been taken care of with a letter to staff.  The applicant is committing to no more than 25 percent retail.  The applicant is committing that they will come up with landscaping plan that meets staff needs and thoughts.  The applicant is also committing on this that they will phase the building and that they are basically committing to approximately 150,000 square feet, which is shown on their initiate plan. 


Mr. Kamptner noted that Ms. Echols just put the smaller issues.  He did not know if all of those were addressed.


Ms. Porterfield added that the applicant would work out the smaller issues with staff with the correct verbiage and the items that are needed to be taken care of.


Mr. Cilimberg asked if she was expecting the higher level of stormwater management and E & S in the recommendation.


Ms. Porterfield said that they were expecting the two-year.


Mr. Cilimberg noted that the 80 percent removal is what the Board has been requiring on all of the urban projects that they were getting now.


Ms. Porterfield said that they were able to go to 74 or 76 percent.  She asked for a suggestion.


Ms. Joseph pointed out that those were different issues.  She suggested that whatever verbiage they have used on other rezonings.


Mr. Porterfield added the recommendation that they use whatever verbiage they have used on other rezonings.


Mr. Morris noted that it was a complex motion.  He asked if there was a second to the motion. The motion died due to the lack of a second.


Ms. Joseph asked the applicant if he would like to ask for a deferral one more time.


Nat Cunningham replied that he did not want to belabor the issue, but wanted to emphasize that they would be comfortable taking a deferral if the sense of the Commission was such that if there are no traffic impacts to mitigate under their current plan then none would be required.  That specifically relates to the connector road.


Mr. Cannon asked if they could work with the applicantís overture here.  In his view staff says that they have recommended that the completion of the connector road be a condition because traffic studies at the level of development at full build-out indicate that the connector road will be necessary to avoid unacceptable traffic impacts.  It seems that logic is if they go back and reduce the size of this thing and are able to demonstrate to staff and VDOT that there will be no impacts that necessitate a connector road and that the connector road is no longer a requirement.  It may be desirable, but by the logic of the staffís recommendation it would no longer be a requirement.


Mr. Edgerton felt that Mr. Cannon was being very logical and Ms. Josephís point was well taken.  It is interesting because staff has reviewed this as if this master plan for Places29 has been adopted. It has not been adopted.  Right now they donít have the authority to mandate this connection. But, that said they are in the final throws of adopting this master plan.  It will be adopted with some variations within maybe months or a year.  It is anybodyís guess how long it is going to take and what sort of form. There is no telling whether that connection road will be part of it when it is finally adopted.  But, they have paid for with tax payerís dollars a consultant who has told us that road should go there.  They have an expert, which is already hired, that says a connector road is needed there.  That is not based on this specific project, but on a bigger impact that will benefit from that road.  What he was struggling with was what he was saying is absolutely logical. Under the current situation they donít have the right to require that connector road because it is not in any of our master plans.  It is just a line on a piece of paper.  He was struggling in how they can push this ahead.  The applicant is saying if our studies today with our project being the only thing they are looking at shows no need for that road, then let them off the hook.  He was not comfortable with that at this point.


Mr. Strucko noted that the master plan has not made it to policy yet.  He felt that was the triggering point.  He would like to see the traffic study.  He questioned if going from a level B to a level C triggers a proffer.  If asked if going from a level C to a level D trigger a proffer.  He felt that there was going to be an off site impact.  There are going to be more cars on Berkmar Road as a result of this project.  He asked if they mitigate the costs of that whether Berkmar has the capacity to handle that traffic now or not.  He was struggling with that.  He was uncomfortable making this conditional arrangement based on that fact alone.


Mr. Cannon said that his preference would be to have the plan as it is with the proffer of the road and at least some substantial contribution towards the purple thing.  But, he did not know if they were in the position to know what to ask for there. 


Mr. Edgerton said that they were not going to be able to determine that tonight.


Mr. Cannon said that he did not have the basis for even exploring that issue.


Mr. Edgerton asked at what point the impacts require this connection road.  Curiously enough if he heard correctly they have heard two conflicting reports this evening.  The applicant in their review of the adjusted traffic study this evening gave us a cut off point of Level E as an acceptable level.  Staffís statement was anything below a Level C.  He asked if that was correct and what is the cut off point.  He asked what is acceptable to VDOT.


Joel DeNunzio replied that the current policy out of the Culpeper District is Level Service C as Mr. Brooks said.  Generally acceptable in an urban an area is Level D and in a rural area is Level C.  As the new regulations take effect that were written in December, 2007 it does not state either one.  It reads if the proposed entrance will cause the system of state highways to experience degradation and safety or an increase in delay or a significant reduction of capacity beyond an acceptable level of service the applicant shall be required to submit a plan to mitigate these impacts and to bear the costs of such mitigation measures. 


Mr. Edgerton said that a one second delay would qualify for that.


Mr. DeNunzio noted that is why he would say that it is up to the Commission.  Currently the policy before this goes into effect is Level Service C.  This regulation went into effect January 1, 2008.  However, part of it takes place in July, 2008, another part takes effect in January, 2009 and the last part gets implemented in July, 2009.  So it is very difficult to say.  To expect the Level Service C is a little unrealistic all around here.


Mr. Strucko clarified that he did understand that certain sets of infrastructure, whether roads or schools, have existing capacity.  He was trying to find the point where cost mitigation is triggered.  That was what was just discussed and whether it was Level C, D or E.  He did not know.  If additional cars on the road have no change in the grading he did not think they should expect the cost mitigation. But, if it moves then they should expect something. 


Mr. Cunningham asked to clarify what he presented.  What he presented today was he had gotten from Mr. DeNunzio that a Level D was an acceptable level of service.  So when he said that a Level E was failing those are the ones he had flagged.  There was only one marked at a Level E service.  He emphasized that he agreed with Mr. Struckoís stronger statement that all property owners should bear some of the costs of the impacts they put on the roads.  Unfortunately, the situation they are in is where there is no clear guidance from either the state or the local level about when traffic impacts need to be mitigated, in what way they need to be mitigated and what sort of dollar amounts.  He would much prefer for this to be a science much like the proffer policy has become per unit in which it is clear once you drop below a certain level and based on certain levels of delay that you provide money in order to off set those impacts.  That would give the county a lot greater flexibility.  He took a very conservative approach in terms of evaluating their impacts.  The worse they had on one intersection was a ten second increase in delay on a secondary road.  Overall, what they will find that it is very minimal impacts and they can certainly take more time to discuss this.  He wanted to be clear if the Commission was willing to give them clear guidance in terms of what impacts they would want them to mitigate and what sort of dollar amounts would be associated with those impact, he felt that they would be very comfortable deferring. 


Mr. Edgerton said that the Commission has given them a clear indication of what they would be comfortable with. The Commission wants that connection as much as they can give, but what he has heard this evening is that all of a sudden if they can prove that with this particular project and the study on this particular project there is no need for this connection, then they donít want to be required to do it.


Mr. Cunningham asked to clarify their position.  They included the road because they felt it was a positive addition.


Mr. Edgerton noted that he heard Mr. Stoner say that he wanted to withdraw that proffer.


Mr. Cannon pointed out that was a response to his argument that down sizing might be a way out.  He heard that he was happy to down size, but he did not want to down size with the continued obligation of the road.  So he would be willing to back off his current proposal, which he assumes he would stand behind, with that as an alternative.


Mr. Stoner replied that what he wanted to demonstrate as well was that the proffer they have offered really because it is in the countyís interest and in their interest long term to get that road built would be even under a scenario in which they determined that there were some traffic impacts, it would be a fair proposition for the county if they said they would build that section of the road that they can control.  That is why he rephrased it.


Mr. Edgerton said that he would be comfortable going along with his idea if they had the capacity at this late hour with the limited amount of information they have to make a determination at what scope or how much commercial space his project is going to have.  They donít know that and will not be able to figure that out tonight.  The Commission has been told that they have run out of extensions on their option to purchase or develop.  He was not convinced that they will be able to get the answers to the questions that they need answered in a timely fashion.  It does not sound like VDOT or the county can perform fast enough to meet the May 7 date.  The Commission is struggling with this because this is the kind of project they want to see there.  The applicant has done exactly what they want to do.  They want to finish it up, but want to do it responsibly.  They cannot do it responsibly without more time and more study.   That forces him to recommend a motion for denial unless the applicant is willing to request a deferral.  He likes the project and would like to see it happen.  He made a motion for denial.


Mr. Stoner asked to make a response.  If they accepted the 275,000 square feet and the traffic impacts as presented subject to verification by the county engineer so they donít have to find the threshold and assume that is what it is, and they look at the proffers they have offered up, if it was determined that there was some impact they still would not have the ability to fix that intersection.  What they can do is either proffer money.


Mr. Edgerton said that they have already heard that.  Every single Commissioner has stated in one way or other that they canít ask him to do what he canít do. 


Mr. Stoner said that they are willing to proffer money.  They are willing proffer that they will build the section of the road that they can control.  But, the traffic study ultimately wonít change anything because if it determines that there are modest impacts on these intersections he is still in the same boat.  He cannot build the entire thing.  All he can offer up is what they have already offered.  So they are back trying to make a decision based on new traffic data.


Mr. Edgerton noted that he was confused.  He thought that his offer had been changed to if the traffic study shows that this particular project does not require mitigation that he would withdraw that part of his proffer.


Mr. Stoner replied no, that he said if they had a deferral and they came back would that be acceptable.  It was hypothetical.  Obviously, the goal is to try to get through the process.


Mr. Edgerton asked how the Commission was suppose to deal with the fact that staff says they canít possibly perform a responsible review to meet the May 7 deadline.  He questioned how they are supposed to respond to that.


Mr. Stoner said that ultimately it wonít make any difference.  Whether it is 150,000 square feet or 275,000 square feet they have offered everything they can offer in the way of traffic improvements on that connector road.  They can offer cash to mitigate other impacts that they want to address elsewhere. But, regardless of what the traffic study says it wonít change their ability to proffer.  The purple section and the intersection they canít fix.


Mr. Kamptner asked to correct one thing.  They have had projects where there were impacts that were identified and in order to address those impacts the applicant was asked to resolve those off site impacts. They might not have had control over the property, but that was a condition that they proffered.  If there is an impact that canít be mitigated one of the options is that the Board of Supervisors would deny the rezoning. They try to work to come up with solutions that address the impacts that have been identified.  But, they are not working in a scenario where there is an impact that is identified, the applicant says he canít address it and the project gets approved.  That is not the absolute way that this course has to go. 


Mr. Cannon reiterated that he was saying one option is to say here is an impact and the applicant is only able to partially address it because the means to address it are not fully within the applicantís control and therefore they deny the application.


Mr. Kamptner replied yes that is one of the options.  The other option at the other end of the spectrum is that this is a Neighborhood Model project and it satisfies a lot of things they are looking for and they area willing to forgo addressing that particular impact because this project has a lot of significant benefits.  That is the other end of the spectrum. 


Mr. Stoner asked to clarify their offer.  If there was a motion tonight for approval they would build 90 percent of the connector road at such time that they had an entrance permit.  He could have their traffic engineer speak about the level of impacts that are currently shown in the study that have been reviewed by staff and are currently being reviewed by VDOT are more than outweighed by what they are currently offering.  Although, staff has recommended that they need to build the entire connector road that from a dollar perspective for the impacts that they are making and what they have offered it significantly outweighs the impacts that they are currently having even without the changes as shown tonight.


Ms. Joseph asked if it was the entrance permit on Berkmar or Route 29.


Mr. Stoner replied the intersection on 29 at Schewelís Furniture Drive.


Mr. Strucko asked what if they never get it and have to make improvements at other intersections at other lights.  He asked if they would see that in the proffer.


Mr. Stoner said that was why initially they would have preferred to offer money that the county could use to the best of their judgment to off set the impacts from their development.


Mr. Strucko said that if they never received the entrance permit and they had impacts on other intersections along Berkmar what would be the results of that scenario.


Mr. Stoner replied that VDOTís current estimate for a two-lane road to be constructed by public dollars is 4 million dollar a mile.  So for the section shown in the salmon color that is a value of roughly $260,000.  The section shown in the green portion is roughly $720,000.  In total they are offering close to a million dollars.


Ms. Joseph noted that they need the salmon colored section just to get into the site.


Mr. Stoner pointed out that for access they actually have an entrance that comes off of Berkmar Drive.


Ms. Joseph said that this is too little information.


Glenn Brooks pointed out that this is why they need staff review in his opinion.


Motion:  Mr. Edgerton pointed out that his motion for denial is on the table.


Second:    Mr. Cannon seconded the motion.


Mr. Cilimberg asked if the Commission should cite the reasons for denial.


Mr. Edgerton said that they donít have enough information to responsibly make a decision.


Mr. Kamptner pointed out that they needed more information regarding the traffic impacts, which pertains to the first bullet regarding the connector road.  It may be that it is adequately proffered.  Staff just does not know at this point. 


Ms. Porterfield asked to go on record as saying she thinks that it is much better for the Commission to put a positive motion on the table with all of the pieces that have been discussed and then if they want to vote it down do so.  That would at least be sending to the Board of Supervisors the best that they can do in a motion because there have been things discussed here that are not in the staff report.


Mr. Morris noted that there has been a motion and second on the floor.


Mr. Kamptner asked Mr. Edgerton to cite the reasons for denial.


Mr. Edgerton said that staff had noted all of the reasons for denial.


Mr. Kamptner noted that it would be for the Boardís benefit.  They were looking at the first three bullets and the last bullet on the screen. 


Mr. Cilimberg noted that it was really the first two bullets.


Mr. Edgerton said that it was the connector road and the unresolved stormwater management.  He said that there needed to be a greater commitment to landscaping.


Mr. Stoner asked if they were to agree to a deferral it would be subject to further review of a traffic study.  He asked if that is the only thing.


Mr. Edgerton replied no, that he wanted the unresolved stormwater management addressed.


Mr. Stoner asked staff if the stormwater was unresolved in their mind because that is not what he heard the other day.


Mr. Brooks said that he did not know what he meant by resolved.  He thought that it was workable.  Ms. Porterfield in her motion mentioned that they would use the wording from the previous rezonings about the 80 percent removal rate and providing extra erosion control.  But, he was not sure if that has been worked out.  He asked which issue they were talking about. 


Ms. Joseph noted that is the point.  There are too many unresolved issues.


Mr. Brooks agreed.


Mr. Morris said that is part of the reasons for denial.


Ms. Joseph said that even if they had the traffic study they would still not know whether or not there was funding that would be necessary to do the final connection or if there was some way they could fund something off site that would make this better. 


Mr. Edgerton said to be fair to the entire Commission he asked if he was legally allowed to withdraw his motion.


Mr. Kamptner replied yes if the second was withdrawn also.


Mr. Edgerton asked to withdraw his motion.


Mr. Cannon withdrew his second to the motion.


Mr. Morris asked if the applicant had a request for deferral.


Mr. Stoner said that he was still a little unclear about what they would want to see other than the results of the revised traffic study.  Their engineer has provided a tremendous amount of data with regard to the storm water. He was not sure what else they could provide that would provide comfort. They have offered to take that storm water pond back if there are maintenance concerns.  He said that whatever could possibly happen in the storm water detention pond they have offered to address.  What they have offered in the way of a proffer related to this road is in excess of whatever potential impacts they may have on the system.  If they go back and revise the traffic study and it shows that their impacts will reduce the scope of the project, but they canít proffer up any more.


Mr. Morris said that what he was hearing from the Commission is that they would like to hear from staff as to their analysis of the stormwater plan and the traffic. 


Mr. Cannon said that would allow the Commission to determine the adequacy on the proffer on the road.


Mr. Stoner asked what information they need on the storm water pond that they have not provided.


Mr. Brooks said that he again would go back to what the goal is.  If the goal is the additional removal rates and that is the direction the Commission wants to go they would need to see something more in that regard.  Otherwise, there was an unresolved issue about the ownership and there was a question into the County Attorneyís Office about how maintenance might be handed back to the applicant.  He thought that was the preference of the General Services Division rather than a cash proffer for the county to do maintenance in the future.  That needs some resolution from other departments in the county.


Mr. Morris noted that could be hammered out.


Mr. Stoner said that would be hammered out between now and the Board hearing.  There is no issue with regard to the ownership.  They know who owns it.  It is on record that they own it.  The Keglerís property owners own that pond.  It was given to the county for maintenance at the countyís request.  They provided more than enough design criteria to determine whether in fact they can use the pond or not.  That is really at a rezoning stage.  That is the threshold that they need to cross.


Mr. Morris asked if he has addressed everything for a deferral.


Mr. Edgerton noted that he had withdrawn his motion.


Mr. Stoner said that he was not sure what data they could provide that would change this decision matrix at all.


Ms. Porterfield said that it sounds like they can hammer out the stormwater issue.  The Commission really wants to see the traffic study and evaluated by staff.


Mr. Edgerton said that he would like to see the storm water analyzed by staff, too.


Ms. Porterfield agreed that the storm water needed to be analyzed, too.  She asked that the traffic study be looked at in two ways.  One would be at the 275 and the other would be the 125 to 150 to see how much phasing they might have to go through if they come back with the traffic study at 275 that has a big impact.


Mr. Strucko said that it would be with the road and without the road


Ms. Porterfield agreed.


Mr. Edgerton requested that the matter be brought back for discussion and close the public hearing.  He liked project and welcomed a positive motion.


Motion:  Ms. Porterfield moved for approval of ZMA-2006-00008, Berkmar Business Park, with the factors that the connector road is being proffered by applicant; they will build the first section that was in orange and then will either proffer and give the county the amount of money needed to build the green section or they will build it themselves when there is a connection to Route 29;  the storm water management will have the verbiage that has been used in previous motions and that it will be worked out to the satisfaction of the county engineer and staff.  In addition, the spatial enclosure along Berkmar will be not shorter than 20í high if they opt to go to a one level building.  The off site easements or commitments will be given to staff in writing.  There will be no more than 25 percent retail in the project.  There will be a greater commitment to landscaping and tree planting in the Code of Development, which will be worked out to the satisfaction of staff.  The remaining small issues will all be worked out to the satisfaction of staff.  The applicant has indicated that they will phase the project depending upon the traffic impacts and when they are able to see a connection to Route 29 for the connector road.


Mr. Cannon asked what is meant when they say phase the project in relation to the traffic study and when there will be a connection to Route 29.


Ms. Porterfield said that if the current roads cannot sustain more than 150,000 square feet of construction that they canít any more than that until they have a connection.  That is the maximum that the project can be.


Mr. Strucko asked to what level of sustainment the roads would need to be.


Mr. Morris pointed out that they were asking Ms. Porterfield to do things she canít.


Mr. Kamptner suggested that they leave the level of service to the county engineer.


Ms. Porterfield agreed with Mr. Kamptner.


Mr. Cannon said that it was a wonderful motion, but where they got bogged down is precisely where they need the additional information analysis.  He could not see it clearly and did not think they could give adequate instruction based on the information they have.


Mr. Morris asked if there was a second to the motion. The motion died for a lack of a second.


Ms. Joseph suggested that they go back to Mr. Edgertonís previous motion.


Motion:  Mr. Edgerton moved, Mr. Cannon seconded, for denial of ZMA-2006-00008, Berkmar Business Park for the reason that the Commission does not have the information needed to address the factors as outlined in the staff report as unfavorable which were identified as the following:


  1. Appropriate proffers for constructing the connector road. 
  2. Resolution of the stormwater management approach since the applicant wishes to modify and use the regional pond that is currently maintained by the County.
  3. Provision for spatial enclosure along Berkmar Drive.
  4. Off-site easements for grading and construction of the connector road (Applicant provided letter to staff agreeing to off-site easements immediately prior to the hearing). 
  5. A commitment for no more than 25% retail uses for the development.
  6. A greater commitment to landscaping and tree planting in the Code of Development to deal with loss of trees identified on the Open Space Plan.
  7. Information on special conditions for Tier III wireless facilities and commercial recreational establishments or removal of these uses from the proposal.
  8. Information on how the amenities for a significant residential use would be provided where buildings are shown on the General Development Plan.
  9. Provision of a conceptual grading plan which works with the connector road as well as with any option constructed that conforms to the General Development Plan.
  10. Provision for a higher level of stormwater management and erosion and sediment control.
  11. Provision of standard language for cash proffers for off-site impacts.
  12. Provision of commitment for bus shelter for transit. 
  13. A number of other small technical changes are needed to the Code of Development, General Development Plan, the Context Map showing Option 1 from Rezoning Narrative dated 2/18/08, and the Project Narrative.


The motion for denial passed by a vote of 5:2. (Ms. Porterfield and Mr. Morris voted nay.)


Mr. Morris noted that ZMA-2006-00008, Berkmar Business Park will go before the Board of Supervisors on May 7 with a recommendation for denial.


Mr. Edgerton emphasized the importance that complete minutes are provided to the Board of Supervisors on this matter in order that the Commissionerís comments are heard. 




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