Albemarle County Planning Commission

April 22, 2008



Item Called Up From the Consent Agenda:


Resolution of Intent Ė to amend section of the Zoning Ordinance (Greg Kamptner)


Mr. Morris said that this item originally appeared on the consent agenda, but the Commission wanted to pull it.  This is strictly the first step in actually coming up with a resolution of intent.  Last week the Commission requested counsel to take a look at this and draft some language.  He thanked Mr. Kamptner for being so responsive.


Mr. Kamptner summarized the proposed amendment.


         Over the last ten years or so there have been several projects that came forward that were approved as planned developments, most likely with the comprehensive rezoning in 1980.  Some of those were actually approved under the 1969 zoning ordinance as some form of planned development.  That planned development designation was carried over.  The most recent project was Clifton Lake that came before the Commission a couple of weeks ago.  The current regulations under Section allow, as an option, the owner of the property to proceed under the regulations that were in effect when the planned development was approved or under the current regulations. The zoning and subdivision ordinance regulations have changed over the years and the County has tried to improve the standards of development over time. 


         The Commissioners have expressed some frustration that the applicants coming before them always select the regulations that were in effect when the planned development was approved.  There will be a number of reasons why they chose those regulations.  One reason is that their projects have approved application plans that accompanied the rezoning.  Clifton Lake is an example where there was an approved application plan. When the applicants are developing the project, they cannot deviate significantly from the approved application plan.  That might be one reason why the applicants choose to proceed under the regulations that were in effect when the planned development district was proposed.  The Commission has expressed some frustrations with the old regulations. 


         Therefore, they have presented the resolution of intent with the concept in mind to require that land developments proceed under current regulations unless the applicants can establish that they have a vested right under state law.  There are a number of ways in which an owner can establish that it has a vested right.  Particularly, the planned developments that have been approved by the county over the last several years likely have substantial cash proffers or propose to dedicate substantial amounts of land having significant value.  Under the proffer statutes, that is enough to establish vested rights.  Staff recognizes that there may be some circumstances where the applicant cannot establish vested rights.  But, at the same time, if the current regulations applied, the owner could not stay within the parameters of the application plan.  The concept is to create a safety valve in those circumstances that would allow variations to the application plan to the extent that a variation is needed in order to meet the current regulations. 


Mr. Morris asked if once this is drafted would it come back to the Planning Commission for an open public hearing.


Mr. Kamptner replied yes, that the Commission could certainly ask that it come back first for a work session and it could be farmed out to community development to establish a round table type of discussion that they sometimes do with new regulations. Before it is acted on the ordinance has to come to the Planning Commission for a public hearing and a recommendation before it goes to the Board of Supervisors.


Mr. Morris opened the hearing and invited public comment.


Neil Williamson, of the Free Enterprise Forum, spoke. He strongly encouraged the Planning Commission to direct staff to hold round table discussions with folks who in some cases are unaware of the impacts this may have on them, how to mitigate those impacts and how to establish vested rights. Also, they need to have information on what is the actual scope of this amendment. He felt that the best way to move forward with this and address the frustration that exists is to involve those that are going to be regulated and have a very open conversation. 


Valerie Long echoed Mr. Williamsonís comments and expressed great interest on behalf of the development community and a number of clients she represents who have obtained rezoning approvals for planned district projects about the significance of this issue and the concern that it has created with their clients who have invested tremendous amounts of money in projects that have obtained zoning approval and have spent years and hundreds of thousands of dollars preparing and obtaining zoning approvals for application plans or master plans for their projects. She knew that there have been cases that have been very frustrating.  She was present last week at the Clifton Lakes hearing and she appreciated their frustration about that.  There are a handful of those types of projects.  She asked that they donít throw the baby out with the bath water.  Most of the projects of significant size that have been approved in this community are a planned district.  She asked that the Planning Commission not make it too big of a solution when it is a few number of projects that are causing the problem. They would welcome the opportunity to participate in discussions on behalf of clients that they work with.  Their clients would as well be interested in participating. 


Mr. Morris reiterated that this will come before the Commission again.  He closed the public hearing to bring the matter before the Commission.


Mr. Edgerton said that in response to the comments that it would be very healthy to have a handle on the number of projects mentioned that do not fit into this situation because they have been approved under the existing ordinance.  It is the projects that are being grandfathered back 30 years that he thought they were struggling with. He very much would welcome the participation and engagement of the development community in this process.  He felt that it may be important in an effort to be fair to all to try to get a handle on it by asking the development community to let us know which projects they feel would be unfairly treated under what is being proposed.  In the project reviewed last week there has been no effort in 30 years to vest any rights.  As Mr. Kamptner noted under state law it would not qualify for any vesting.  They are trying to address a glaring loophole in the ordinance that goes back to stale zoning that does not exist any more.  Certainly they need to hear about the ones that may feel that they are being challenged by this. 


Motion: Mr. Edgerton moved, Mr. Strucko seconded to approve the resolution of intent to amend section of the zoning ordinance.


The motion passed by a vote of 7:0. 


Mr. Morris said that the Commission looks forward to this item coming back.


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