SP-2007-00063 5th Street Development (Sign # 27)

PROPOSED: special use permit for fill in the floodplain, no residential units proposed.

ZONING CATEGORY/GENERAL USAGE: HC Highway Commercial - commercial and service uses; and residential use by special use permit (15 units/ acre); LI - Light Industrial - industrial, office, and limited commercial uses (no residential use); AIA Airport Impact Area - Overlay to minimize adverse impacts to both the airport and the surrounding land; and FH Flood Hazard - Overlay to provide safety and protection from flooding

SECTION: (3), which allows filling of land in the floodway

COMPREHENSIVE PLAN LAND USE/DENSITY:  Regional Service - regional-scale retail, wholesale, business and/or employment centers, and residential (6.01-34 units/acre); Community Service - community-scale retail wholesale, business and medical offices, mixed use core communities and/or employment services, and residential (6.01-34 units/acre); Parks and Greenways - parks, greenways, playgrounds, pedestrian and bicycle paths in Development Area 5.


LOCATION: approximately 1100 feet north of I-64 on the east side of 5th Street, north and east of the Holiday Inn.

TAX MAP/PARCEL: 76-55A, 76M1-1


(Judy Wiegand)


Ms. Wiegand presented a Power-point presentation and summarized the staff report. (See Staff Report) This purpose of this special use permit is for fill in the floodplain.  It is related to a zoning map amendment and an earlier special use permit.  Both requests were approved in 2002.  The request is back before the Commission this evening because the prior special use permit has expired.   


The application for the first zoning text amendment and special use permit was made in 1999.  At that time the 1980 Flood Insurance Rate Maps were in effect.  Shortly after that the applicant obtained a letter of map revision from the Federal Emergency Management Association.  It indicates that FEMA is prepared to adjust the floodplain boundaries to accommodate development should the county approve.  In 2000 the County Engineer signed off on the letter of map revision.  In 2001 the application went back and forth between the applicant and staff several times while it was discussed.  In 2001 staff and Planning Commission recommended denial of both the zoning map amendment and special use permit. 


Staff recommends approval of the request with the conditions recommended in the staff report primarily due to lack of sufficient information at that time.  When the application went to the Board both applications were referred back to the Commission.  In 2002 after resubmission and continued review and discussion the staff and the Commission recommended approval of the applicant’s resubmission and the Board approved both the zoning map amendment and the first special use permit.  In 2004 the special use permit expired.  In 2005 FEMA issued a whole new set of flood insurance rate maps.  Normally when a new flood insurance rate maps are issued it supersedes all existing letters of map revision and several other things.  Realizing that FEMA then turned around and sent out a letter to the county a whole series of letters of map revision that had been technically revalidated.  However, the list did not include the one for this property.  In 2007 the applicant came in and requested this new special use permit.


The reason that special use permits have the 24-month expiration is to allow any subsequent change in circumstance to be considered and also any ordinance changes should any extension or reapproval be requested.  Staff has looked into this and determined that there have been no significant changes in circumstance or ordinance changes since the special use permit for fill in the floodplain was approved in 2002.  The special use permit is for fill in the floodplain so that the applicant can sell or develop the property as a convenience store with gas pumps, a sit down restaurant and associated parking. 


Factors favorable:


1.       There are no significant changes in circumstance since the 1999 special use permit was approved by the Board of Supervisors in 2002. 

2.       The applicant has shown that fill in the floodplain is possible without raising the flood elevation or having an impact on neighboring properties.


Factors Unfavorable:


1.       The county engineer does not support this request based on his concerns regarding good practice and policy, proximity of flood waters to occupants, integrity of fill slopes in the long term and the precedent this kind of fill in the floodplain set.  His comments are attached to the staff report.


Staff and the Planning Commission did not recommend approval of the original rezoning and special use permit back in 2001 due in part to the impacts to the floodplain.  However, the Board after additional information review and consideration of these factors approved both the rezoning with proffers, including the proffered plan that establishes use of the property, and the special use permit for fill in the floodplain.  Since there have been no changes in the development proposal for this property since the original special use permit and rezoning were approved by the Board, although they have changed the FEMA floodplain map, they have not materially changed the floodplain boundary as it existed at that time.  Therefore, staff finds no change in circumstance since the Board’s prior approval of this special use permit that would change the basis of that decision and therefore recommends approval of the special use permit with the conditions listed in the staff report.


Mr. Morris invited questions for staff.


Mr. Edgerton said that staff said that FEMA came back and revalidated other parcels, but not this one.  He asked if staff has been able to follow up on why FEMA did not revalidate this one.


Ms. Wiegand replied that staff has not received that information.  Staff’s understanding is that the applicant was going to look into that issue.  The applicant has to address that issue as part of one of the conditions that the existing permit is still valid or get a new one.


Mr. Edgerton said that as proposed tonight all of the buildings are being proposed in the floodplain.  They are being asked to approve the fill in the floodplain from the hotel all the way out.  He asked if that was the fill that they were being asked to authorize.


Ms. Wiegand replied that was correct.


Mr. Cilimberg noted that it was essentially the same floodplain as existed back when the original approval occurred and the same fill that was requested.


Mr. Edgerton said that the significant difference is that they had a reinterpretation by FEMA, which has not occurred for whatever reason.


Mr. Cilimberg said that they had a letter of map revision that was not reapproved or revalidated for the same fill in the floodplain area basically.  That is a condition.


Mr. Loach noted that staff in their unfavorable factors said that the current county engineer does not support this request based on good practices and policies yet was recommending approval of this with conditions two and three requiring county engineer approval.  He asked if that was paradoxical.


Ms. Wiegand noted that the county engineer was not able to attend this evening due to illness.  Basically, he does not think it is appropriate to do this, but if the Planning Commission and Board decide he would be the one to approve those conditions to make sure the plan complied with county and FEMA regulations.


Mr. Cilimberg said that one of the things Mr. Brooks raised was that he would not be in support of this in any situation where they have this level of fill.  They have a rezoning and proffered plan that established the zoning of the project with a special use permit approval and they need to look at what is changed since then.  The only change is the lack of the lomar, which would be a condition of the approval if granted by the Board of Supervisors.


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


Katurah Roel, with Dominion Development Resources, represented the owner and applicant. In addressing the lomar a new letter was issued on July 5 of this year. It was after the map revision was issued by FEMA.  That will be implemented into it.  The reason it was not carried forward was that the fill was not put into place during that period. The owner was in the process of getting site plan approval and ran into some trouble with the ARB over a building design.  The site plan fell through and this ended up expiring over the time frame.  They are asking to have it renewed again.  The blue lines that show the floodway on the current 2005 map are slightly off.  They had drawn on this app 383 elevation.  In the new 2005 new floodway maps it lists the elevation as 383, which is 10’ below the Holiday Inn parking lot.  Additionally to that it does not cross the road.  The road is 2’ higher than that.  It does not back up against that.  Once this new letter is put into effect increase and the fill is put into effect it increased the water of the floodway 2”.  The 2005 map actually lowered the 1980 flood elevation from 384 to 383.  So it decreased a foot.  They are bringing it back up 2”.  That in conjunction with the zoning in the previous approval they see it has no negative impact on the floodplain volume or the upstream at all.  They have met with Dan Mahon and continue to work with the greenway access.  He presented a power-point presentation of the site showing the existing conditions.  They feel the conditions of the site would be improved with their proposal and would not be negative to the floodplain conditions.


Mr. Morris invited public comment.   There being none, the public hearing was closed and the matter before the Planning Commission. 


Ms. Joseph said she could understand why the Commission denied this in the first place.  It is really hard to think that the floodplain should be filled in at that extent.  Therefore, she could not support the request.


Mr. Edgerton said that he took issue with one statement made by staff that there have been no significant changes.  Since there is a new board it may be significant, but he could not speak as to how they will respond.  He felt uncomfortable when the county engineer says it is a bad idea and staff says ignore it and approve it.  He wished that the county engineer were present to explain it.  He would trust that the Commission would be allowed to use the county engineer’s recommendation that it is not good practice to fill in the floodplain for purposes of adding development capacity.  Most significantly it sets a precedent to fill in the floodplain where it is not strictly needed for access of utilities or reasonable use of a parcel.


Mr. Strucko noted that the most compelling document is the last page of the staff report.  Therefore, he agreed with Mr. Edgerton.


Ms. Monteith noted that from a natural perspective in terms of how the natural process works that floodplains have a role and if filled to raise them up enough for development they certainly can’t play that role.


Mr. Porterfield said that her concern having walked through this area was that it is an awful mess and how could they make it productive.


Ms. Joseph noted that it would depend on how one defines productive because there were a lot of animals that feel that it is a great place to live.


Motion: Mr. Strucko moved, Mr. Edgerton seconded, for denial of SP-2007-00063 5th Street Development based on the county engineer’s recommendation that the use is not in harmony with the purpose and intent of the ordinance.


The motion for denial passed by a vote of 4:2.  (Ms. Joseph, Mr. Edgerton, Mr. Strucko and Mr. Loach voted aye.)  (Ms. Porterfield and Mr. Morris voted nay.)  (Mr. Cannon was absent.)


Mr. Morris stated that SP-2007-00063, 5th Street Development would go before the Board of Supervisors on May 14 with the recommendation for denial.


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