Albemarle County Planning Commission

June 28, 2005


The Albemarle County Planning Commission held a meeting and a public hearing on Tuesday, June 28, 2005 at 6:00 p.m., at the County Office Building, Room 241, Second Floor, 401 McIntire Road, Charlottesville, Virginia. Members attending were Rodney Thomas, Marcia Joseph, Vice-Chair, Jo Higgins; Pete Craddock and Bill Edgerton, Chairman. Absent was Calvin Morris, William Rieley and David J. Neuman, FAIA, Architect for University of Virginia.


Other officials present were Wayne Cilimberg, Planning Director; Rebecca Ragsdale, Senior Planner; Bill Fritz, Development Process Manager; Sean Dougherty, Senior Planner; and Greg Kamptner, Assistant County Attorney.


Call to Order and Establish Quorum:


Mr. Edgerton called the regular meeting to order at 6:00 p.m. and established a quorum. He apologized for the lack of air-conditioning.


ZMA 2004-007 Belvedere (Signs #62,76,84) - Request to rezone approximately 206.682 acres from R-4, Residential to NMD, Neighborhood Model District, to allow up to 775 dwelling units, with an overall density of 3.74 dwelling units per acre, ranging from a density of 1.6 dwelling units per acre in some areas to 9.4 dwelling units in others.  The property, described as Tax Map 61, Parcels 154, 157, 158, 160 (portion) and 161, Tax Map 62, Parcels 2A (portion) 2B (portion), 2C, 3, 5, and 6A, and Tax Map 62A3, Parcel 1, is located in the Rio Magisterial District on the east side of Rio Road (Route 631) immediately east of the Southern Railroad.  The Comprehensive Plan designates this property as Neighborhood Density in the northern portion of the property (3 to 6 dwelling units per acre), Urban Density in the middle and southern portions (6 to 34 dwelling units per acre), and Community Service adjacent to the railroad, in Neighborhood Two. (Sean Dougherty)


Mr. Dougherty summarized the staff report.


·         ZMA 2004-007 is a request to rezone approximately 206.682 acres from R-4 residential to NMD Neighborhood Model District.  It will allow up to 775 dwelling units with an overall density of 3.74 dwelling units per acre ranging from a density of 1.6 dwelling units per acre in some areas to 9.4 dwelling units per acre in other areas.


·         On March 29, 2005 the Planning Commission reviewed this proposal. Significant issues were outstanding and the applicant agreed to a deferral.  It has taken about two months to get back to this point and there are still several outstanding issues.  The submittal was made on May 18, which allowed staff no time for review and revisions. The request before the Commission tonight is what the applicant submitted on May 18, but additional items have been sent to staff that have not had the chance of a full review by all of the different departments.


·         Staff has identified factors that are of concern or that have not been sufficiently addressed that remain outstanding:


1. While a plan has been provided showing how Belvedere Boulevard could be accommodated within a 56’ right-of-way between the Fairview Swim Club and land owned by Philip Brown, no commitment to providing this right-of-way has been made.


2. The right-of-way for the Northern Free State Connector is reserved for the County to purchase rather than reserved for dedication upon demand by the County.


3. The alignment of Belvedere Boulevard from Rio Road to Roundabout #1 does not sufficiently accommodate a future widening, as requested by engineering staff.


4. The applicant has not demonstrated that the residential to non-residential mix is appropriate at this location.


There has been some question about that from the applicant.  Staff reviewed the February work session minutes and found nothing to indicate that this does not need some final resolution.


5. The applicant’s commitment to affordable housing places the responsibility for providing such housing on individual, future owners of carriage house units and provides no enforcement mechanism.


6.  Regarding the Village Green, conflicts remain between the general development plan and graphic representations offered in the Code.


7.  Preservation Areas have been decreased to 3.1 acres (from 83.4 acres) and Conservation Areas have been increased to 91.2 acres (from 10.3 acres).


8.  A table required by the zoning ordinance illustrating uses permitted by each block is missing from the Code of Development.


The applicant sent the missing table to staff about a week ago.  The table has not been reviewed by staff. The most critical reviewer of this would be Jan Sprinkle and myself.  Ms. Sprinkle was on vacation this past week and the table has not been reviewed. 


9. The County Attorney has identified significant problems with the proffers.


After consultation with Mr. Kamptner, staff was in agreement that they could move forward with some of the proffers acknowledging that there are still some issues that obviously need to be worked out.


10. Deficiencies with the Code of Development listed in the attached memos from Jan Sprinkle and Jack Kelsey.


Today the applicant has indicated that some of these things could be fixed, but that is nothing new.


11.Regarding archeological resources located on the ZMA parcels, applicant does not address the most recent findings of a Phase I study conducted this winter. Additionally, the findings of this study have not been identified in the Code of Development and the mechanism proposed for dealing with new information does not sufficiently address the County Attorney’s concerns for the guidance for the recovery process.


     Unfortunately, staff did not include number 11 in the staff reports that went out to the Planning Commission this week.  But, staff has copies of this list showing this additional comment. Mr. Kamptner feels that they do have some language that will sufficiently address these things.  The big question is if they should put both of them in the Code of Development and the proffers if it acceptable language. 


The outstanding issues noted above must be resolved before ZMA 2004-007 can be approved and, therefore, staff cannot recommend approval at this time.


Mr. Edgerton asked if there were any questions for Mr. Dougherty or Mr. Cilimberg from the Commission. There being none, he opened the public hearing and invited the applicant to address the Commission on this application.


Don Skelly stated that he would first like to start by thanking the Planning Commission and the staff for working with them so diligently on this.  They have found this process of dialogue instructive.  He felt that it has led to a better project.  He stated that he would begin by summarizing where they have been.  They started this process in November, 2003 when they began working with staff in what was suppose to be an expedited process.  One of their things that they really want to focus on is that yes they understand that they have some issues that are primarily technical in nature that they would like to get expedited and get those results. However, the key question here that needs to be asked is what the County’s commitment is to the Neighborhood Model. He felt that any model that takes as long to get something approved as this has is unfortunately setting a precedent. It is not setting a precedent that encourages use of the Neighborhood Model.  He pointed out that his wife could have had two children in the time that it has taken to approve this project assuming that it would be approved.  So they ask the Commission to move forward at this meeting. 


They understand that there are a number of technical issues. There are some substantive issues, some of which they disagree. So they ask the Commission to basically make an opinion on those and move forward. Each Commissioner should have received last night by email a summary of the ten points identified in the staff report.  They have tried to go through and address each of those staff points.  He felt that the majority of them can be resolved.  (Attachment – Letter dated June 27, 2005 to Planning Commission from Frank Stoner, which was sent by email that was a summary of the issues related to ZMA-2004-007 presented by Don Skelly) 


There are several issues on which they may not agree, which includes the reservation of the right-of-way of the Free State Connector and the necessary right-of-way at Fairview Swim Club. Now they are in the process of actively negotiating with the Fairview Swim Club.  They are very positive that they can move forward in a productive manner.  But, he felt that it really comes down that at this point they need to move forward.  At this point a deferment is not an option that they were willing to consider.  So at this point they would really like to ask that some decision be made and that they would be allowed to move forward so that they can bring to the County something that it has expressed the desire to have, which is a Neighborhood Model Development. As the Commission may recall, they do have just as many by right division rights. 


They are constructing the Free State Connector Road, which with the recent downgrading of Free State Bridge has become a pressing issue for the County.  That is a 2.3 million dollar road cost that is being absorbed by the developer.  They are constructing over 1.3 miles of the greenway system and providing a connection through that will allow greater access to the public to that Rivanna River basin.  They are providing a commitment to affordable housing. It may not be exactly what the County has outlined in its proposal, but he felt that they all recognize that Ron White has spoken to the fact that they need to have a diversity of affordable housing options.  Therefore, tonight they ask the Commission to take a look away from the trees and start to focus in on the forest and really get a sense after 18 months where are we and where do we want to be.  In their letter they suggested a framework that would allow them to hopefully recommend approval of their project pending completion of certain key items, which they are happy to work with staff on resolving.  But, he believed that the vast majority of the concerns have been resolved to date.  They understand that it will take some time to review that, but there should be sufficient time between now and any Board of Supervisors date.  If there are any questions, he would be happy to answer them.


Mr. Edgerton asked if any Commissioners have any questions of the applicant.  There being none, he opened the public hearing.  There is one person signed up to speak, Mr. Philip Brown.  He invited Mr. Brown to come forward and speak.


Philip Brown stated that the Browns did not want their small parcels of land to be left out of the rezoning request.  They have three tracts of land in Belvedere.  If the County rezones Belvedere they want the Browns, the Wells and Susie Brown’s Estate properties to be rezoned too.  He pointed out that the applicant surveyed across his land for a road to come across it, but nobody ever consulted him about a road coming across his property.  He felt that before someone tried to go and survey another person’s land that they ought to go and try to consult the owner. If the County approves the rezoning for Belvedere, he wanted a setback from his property.  He asked that the Commission take these things into consideration.


Mr. Edgerton invited further public comment on this matter.


Frank Stoner, representative for Stonehaus, stated that they would like the opportunity as part of this public hearing to address the ten items that are in your staff report.  They wrote the letter to the Commission last night about these issues.  Mr. Skelly did not bring those items up because they had the expectation that they would be able to work through those points one by one to hopefully satisfy the Commission that those items have been addressed.  He asked if the format of this public hearing would allow them that opportunity.


Mr. Edgerton stated that personally he felt that was what work sessions were for, but he would defer to what the rest of the Commission would like to do on that.  He asked if the Commission wanted to have a dialogue about this.


Mr. Thomas requested that the Commission go through the ten steps so that the applicant can have the opportunity to describe each one.  He felt that they might have the opportunity to condition in for something that is missing along the line.


Mr. Edgerton stated that was his initial response when he read the email today.  If the letter was mailed last night it must have been very late.  If the Commission allowed this, then they would be skipping the process of using the staff’s help in reviewing their allegations here.  The Commission has a letter from the applicant addressing these issues, but staff has not had time to review it.  If they have that dialogue they need to engage the staff in it.  Obviously, they are far more familiar with what has or has not been done or said in the past.  Therefore, he was a little troubled about bringing the staff review into a dialogue with the Commission.


Ms. Higgins stated that he agreed with Mr. Thomas in that she felt that the applicant and staff in a couple of issues were basically disagreeing.  The applicant is asking the Commission to weigh in on whether certain items will be a condition of approval or not. 


Mr. Edgerton stated that he did not think it was appropriate to have a dialogue with the applicant who says that they will not allow for a deferral.  Therefore, the Commission has to make a decision on what is before them, and staff had indicated that there is information which has come in rather recently that they have not had a chance to review.  It is hard to review a letter that fast.


Ms. Higgins stated that she did not agree with that.  Some of these items may or may not be able to be handled with conditions, but that would be left to the discussion.  She suggested that the Commission try to see if there is a way to move the request forward.


Ms. Joseph stated that she would be happy to hear Mr. Stoner address items 1 through 10, but she would really prefer not to have a dialogue and try to work some of the details out with Mr. Stoner at this time.  She felt that it was more appropriate for the applicant to present the information and then during a Planning Commission discussion they could discuss those items.


Ms. Higgins stated that the Commission could ask a question if they needed to.


Mr. Edgerton stated that he saw not reason for the Commission to change their usual format.


Ms. Higgins suggested that this be handled at the rebuttal at the end after the public hearing.


Mr. Edgerton stated that Mr. Stoner could address those items during the rebuttal.  He asked if there was anyone else present to speak regarding the request.


Michael Horn, resident of Rivercrest, stated that it was his understanding that the nearest building in the Belvedere would be 150 feet from their property lines.  That would include a 50 foot green buffer zone from their property line towards the buildings.  They would like to request that to be increased to 200 feet from 150 feet.  Also, they ask that the 50 foot green buffer be increased to a 100 foot green buffer inside the 200 foot buffer.  With those conditions the Rivercrest residents would be satisfied and their interest would be met.  Then they would be in favor of seeing the zoning request granted. It is a provisional support.  They would offer their support of Belvedere with those provisions.  He stated that as the Homeowner’s Association Manager he could speak for the Rivercrest residents.  The additional buffer would make a tremendous difference in that it puts it a little further up the ridge and leaves a lot of the larger growth trees. 


Dick Coleman, 2213 Shepherd’s Ridge Road, stated that his home was located in phase B of the Rivercrest Subdivision.  The back of his property abuts the proposed Belvedere phase one project.  He stated that he takes issue in the amount of green buffer area that the developers have proposed.  From the back of his property line to the woods measured almost 50 feet, and there are very few trees in this area.  Recently the developer has changed their green buffer zone from .6 acres to 1.2 acres or 50 feet from his property line to 90 feet.  The developer measures their green buffer zone from his property line.  The developer’s plan shows a nice green buffer zone, but in reality in that buffer zone there are few trees.  Looking from the developer’s building towards his property there is over 100 feet of woods.  Another 100 feet consumes the drainage ditch in his property.  If nothing is going to be built in that 100 foot of wooded space why can’t the developer preserve and proffer it.  It certainly would help with erosion on that hill and to visually block the back of the condominiums.


There being no further public comment, Mr. Edgerton invited Mr. Stoner to come forward to give his rebuttal.


Frank Stoner thanked the Commission for the opportunity to share with them in more detail their perspective on these ten items.  He felt that the biggest issue that staff has raised as an obstacle to this rezoning is the constrained right-of-way at the intersection of Belvedere Drive and Free State Road in area C on the map where the two points come together.  Currently they have about 46 feet of right-of-way.  Staff has requested 58 feet of right-of-way.  This has gone back and forth for some time.  Tonight they wanted to share with them a drawing that shows how the roadway could be accommodated in a 46 foot right-of-way.  They also wanted to share with the Commission the latest fruits of their efforts with regard to their Fairview discussions and negotiations.  He pointed out that there is a representative from the Fairview Board here tonight who could perhaps provide his input as well. 


Don Skelly stated that what they have tried to do is to provide an illustration under the current available right-of-way what could be constructed.  Staff had early on identified to them that they were concerned about the lack of the sidewalks on both sides of the streets.  They have gone back to the drawing board and come up with a solution that they believe provides for the issues that they identified at their last meeting.  They now have provided a sidewalk.  The illustration is a horizontal analysis of the road width. They have two 11’ travel lanes.  Staff had identified a desire to have 4 foot bike lanes.  Therefore, they have incorporated these 4 foot bike lanes 2 ˝ feet on each side for a curb and gutter pan.  Then they tapered the sidewalk down for a short vertical distance.  It tapers up against the edge of the curb.  The sidewalk is just slightly under the normal width of 4 feet down to 3.725 feet.  It still meets the 1 foot required setback that VDOT requires on the edge of the right-of-way.  Essentially, the net effect of this is that it still provides all of the features that are typically identified in the Neigborhood Model as being desirable in an urban streetscape.  They still have street trees and a tree lawn, with the exception of one 35 foot section.  They have found a solution that has identified in a worse case scenario, but it operates under the assumption that no additional right-of-way is acquired on either side of the road.  This deals strictly with the right-of-way that is there.  He felt that this plan successfully addresses some of the concerns that they heard during the last meeting.


Mr. Stoner provided the following rebuttal:


·         Item 2 was the Meadow Creek Parkway reservation north of Free State Road.  They proffered to reserve the right-of-way for the future Meadow Creek Parkway, which was a 100 foot right-of-way.  They have offered it up to the County for a period of 10 years at a price of $40,000 per acre.  They believe this request is fair and reasonable for three reasons.  First, the proposed right-of-way north of Free State Road takes significant developable land away from the Belvedere project and does little to provide any tangible benefit to the community unless it provides a connection across the river to Route 29.  They think it is unlikely that will occur anytime during the development of this project and probably for some time thereafter.  The perpetual proffer would hurt long term values of properties adjacent to that right-of-way.  Secondly, they are already funding their sole expense for the construction of two lanes of this road from Rio Road to Free State. Their estimated cost is 1.5 million. The County’s most recent estimate was 2.3 million dollars.  That represents a significant non-cash proffer.  They think that to ask for more from them would be unreasonable.  Third, the Belvedere rezoning proposes a density of less than the 992 units that they would be allowed by right.  This is a rezoning that they entered into purely for form or the Neighborhood Model, which is what the County had told us that they wanted.  The only tangible benefit for them in this rezoning process is really the flexibility of form and variable density.  The proposed level of compensation for this right-of-way is equivalent to the present value of the purchase price of the property.  They have offered to fix that for the entire ten year period.  Were they to make it subject to appraisal at the time they think the value would be at least 200 to 300 percent higher. 


·         Next, item 3, the alignment of Belvedere Boulevard from Rio to Free State is an issue that came up relatively late in the review of the process.  Engineering requested that they consider relocating the two lanes that they have designed from the outside of the right-of-way along the railroad to the inside of the 100 foot right-of-way.  What they have said as it relates to that is they don’t want to do it as part of the rezoning.  They have not engineered the roads so they are not clear about what the engineering implications would be.  They are concerned that it leaves them with a strip of ground on the other side of the road which will never be usable if that second two lanes of road is never built.  But, they are certainly willing to revisit it after the road has been engineered.


·         Fourth, the residential and non-residential mix, is an issue that he felt was covered early on in the second worksession with the Commission.  He stated that it does not warrant a lot of additional consideration unless there are particular questions.  He felt that staff and the Planning Commission have agreed that the location and the size of the commercial district that they have proposed is in fact appropriate for this area and development.


·         The fifth item is affordable housing.  Ron White has talked several times about the affordable housing they have proposed.  HeHHHeHe believed that Mr. White has indicated that it would represent a form of affordable housing that they don’t currently have in the County that has been popular in other areas.  He felt that the assertion that “it does not or that the form of affordable housing will not give the County enforcement” while accurate misses the point, which is that affordable housing of this type satisfies two things.  1. It makes the primary residence more affordable.  2.  It provides a form of rental housing, which is currently not available on the market.


·         The sixth item is the conflicts between the general development plan and the graphic illustrations.  He acknowledged that those are technical issues.  He believed that CDA is in the process of revising the exhibit, which was mislabeled.  He felt that they could make that a condition of approval this evening.  Staff has agreed that is purely a technical issue.


·         The seventh item is the reduction of preservation areas and the increase in the conservation areas.  He felt that they made that decision primarily because none of their stormwater or utilities have been engineered at this point.  They are fearful that if these areas are designated as preservation areas and then they find out that they need to run a sewer line through there because it is the only practical solution, they will have to come back in and request that the area be switched from a preservation or conservation area.  Again, he felt that once these areas are engineered they would be happy to reconsider these areas or the remaining areas as preservation areas.  But, they would be hesitant to do so at this point.


·         The eighth item is the missing table.  That has been replaced.  It was in prior Codes of Development.  He apologized for the omission in the last version submitted.  That has been corrected and sent to staff. 


·         The ninth item is the proffer problems identified by the County Attorney.  Revised proffers have been submitted.  Mr. Skelly and Mr. Kamptner have had several conversations about that today. They feel that those issues can be resolved.  Most of the issues are technical in nature.


·         The tenth item is the deficiencies with the Code of Development listed in memos fro Jan Sprinkle and Jack Kelsey.  All of those issues were technical issues and have been addressed.  The plan has been resubmitted with the appropriate corrections.  He believed that whatever outstanding issues for review since staff has not had a chance to review those, they could certainly make that a condition of approval that it would be subject to their review and approval of those changes.


Mr. Skelly asked to address the earlier comments about the buffer.  They are concerned with the buffer.  As such, they have made two modifications to the buffer between the Rivercrest Home Association’s property and our own.  They have also provided an illustrated diagram showing that, which was included in the staff report.  While the extra 40 feet of buffer is measured from a vertical perspective, because of the slope of the hill it actually provides a fairly meaningful buffer.  As you move horizontally it raises the level of trees.  By incorporating the 40 feet they feel the concerns of the residents have successfully been addressed in regards to visual impact on their properties.


Ms. Higgins asked if they have a problem incorporating the 100 foot strip outside of that area referred to by Mr. Coleman.  She asked if that area would actually be graded but was not shown because the final design has not been done.


Mr. Skelly stated that under their preliminary grading plan, they have asked their site engineers to bring that as close as they can.  They are willing to work with the home owners should they require additional plantings in those areas.  However, the preliminary grading does indicate that rough grading would extend to the edge of that buffer.  While it does not appear that it is being used, it is in fact a part of the mass grading of that area. 


Ms. Higgins asked if at this point if they have a landscape plan for that area.


Mr. Skelly stated that at this point they do not.


Mr. Edgerton asked if there were any other questions for the applicant.


Ms. Higgins stated that she had one question on item 11, which had to do with the archeological resources.  She asked the applicant to provide comment on whether they have addressed this in the revised proffers dated June 27.


Mr. Skelly stated that Steve Tompkins from Rivanna Archeology was here to speak to this if the Commission so desired.  He stated that they have not.  Those proffers remain unchanged.  The next phase has not been initiated just due to the fact that they just got the bid a couple of days ago.  Therefore, there was no progress to report.  They can suppose certain things based on the findings of the phase one.  However, it is premature at this point to try and speculate what phase two will find.


Mr. Kamptner stated that proffer A1 has been revised to incorporate the language that they suggested.  Julie Mahon has commented on it and she was fine with A1 with a couple of minor changes in the reference to the plan.  Proffer A2 is unchanged.


Mr. Skelly stated that they basically have agreed to take the archeological excavations to the next phase as is warranted by the findings of each phase.  They currently have completed what he believed was called the phase one.  They are currently looking at doing phase two.  They have committed already that they will undertake that and if that warrants further exploration, then they in turn will do a phase three.


There being no further questions for the applicant, the public hearing was closed and the matter placed before the Commission for consideration and possible action.


Ms. Joseph requested to ask Mr. Dougherty a question.  Within the staff report it says that Chuck Proctor says that they need 58 feet of right-of-way.  She asked if that was something that was negotiable with this body. 


Mr. Dougherty stated that was a very good point.  Essentially what Mr. Proctor said last week is that he would require the minimum of 58’. They went over places where you get reductions in the new Design Manuals, but 58’ would work.  That design cannot work just because anytime you use traffic circles you cannot have a break in the roadway and some sort of median needs to come along there.  Essentially, it is a 4’ median.  They went through everything, including the bike lanes and sidewalks that VDOT said in this instance would be required from the right-of-way.  The 58’ is what would be required by VDOT, and therefore the County is also requiring it.  The answer to the question is yes, it would be nonnegotiable.


Ms. Joseph asked if he had any discussions with any of the adjacent property owners regarding this right-of-way area.


Mr. Dougherty stated yes, that he had talked with Mr. Philips several times and had heard from people associated with the swim club.


Ms. Joseph asked concerning reservation of dedication of right-of-way it is true that our Comprehensive Plan calls for 20 years and not 10 years.


Mr. Dougherty stated that was correct.

Ms. Higgins asked if Meadow Creek Parkway was even in the Comp Plan along this alignment to cross at this point.


Mr. Cilimberg stated that it was in the Comp Plan at this point, but the plan is to be changed to reflect the regional plan which is not any longer defining a route.  It is defining this area for study as to what route a road would take.  So the applicant and staff are dealing with a bit of an unknown right now in terms of exact location.  He felt that the applicant was trying to provide for location that could be used, but they are not dedicating it, which is the issue staff raises.


Mr. Edgerton stated that this was one of the initial discussions that they had in one of the earlier work sessions.  The applicant was asking whether they would be comfortable allowing the realignment of it so it would not be cutting this property in half.  He believed that was how it had gotten to where it is right now.


Mr. Cilimberg stated that was correct.  The issue is dedication versus reservation. Typically the County gets right-of-way dedicated for what are felt to be the public transportation project needs. 


Mr. Kamptner asked if there was a distinction when the project itself generates the need versus a road like the northern connector, Meadow Creek Parkway.  This project is not necessarily creating the need for that.


Mr. Cilimberg stated that in the rezoning case when it has been a public project it has been our experience that dedication upon the demand of the County has been provided beyond that which is just associated with the project itself.


Ms. Higgins stated that really what it was about was the difference between having it reserved with a dollar amount associated with it versus reserved upon the demand of the County at no cost.   She felt that in older cases the dollar amount was not as clear.  She felt that based on the amount of time and where they were here today with these issues on the table they have just gotten drawn into a lot of important details, but this is the rezoning.  The road design is not done.  She pointed out that if someone submits a road design and asks for a waiver request, they are granted in a lot of cases.  VDOT is not allowed to say that a waiver will be granted.  It is the developer’s risk to take if a road is shown on a plan and he can’t get it approved by VDOT.  In the rezoning it is almost too premature to even make that decision over a few feet. She felt that the overall form of this development has a lot of positive things. She reinforced that this is not a typical rezoning.  This road has been proposed for years and has a huge price tag on it. The Commission can either disapprove it with specific items that can be addressed between now and the Board or they approve it with these technical issues to be worked out by staff and the applicant before the Board of Supervisors hearing.  If those issues cannot be addressed by that date, then the applicant can defer at that time.  She stated that the things about this right-of-way are not a reason to deny it.  They will not be making the call that the applicant can do it with 46 feet of right-of-way.  But, if the developer does not work it out and purchase it and get a waiver or whatever is necessary, then it is going to stop them cold.


Mr. Thomas suggested that the Commission move it along with that condition of the applicant acquiring enough area for the right-of-way or acquiring the necessary waivers.  That area is between Fairview Swim Club and Philip Brown’s property.


Mr. Edgerton stated that he took issue with some of the allegations made by Mr. Skelly about how uncooperative they have been and how much trouble they have caused.  All of these issues are issues that have been discussed over and over again going back at least to the second work session, and yet somehow they don’t get resolved or no progress is made.  He questioned whether that was the County’s fault.  He asked what gave them confidence that these issues would ever be resolved.  He asked if they would find themselves just pushing ahead because we don’t want to hold anybody up, but they are not going to resolve the issues. All of the issues were serious.


Mr. Kamptner stated that item 11 was partially addressed.  They still need Julie Mahon’s comment on what is now proffer 8.2.  That language is the same as it was in the May 18 set of proffers.


Mr. Edgerton stated that one of the proffers has been addressed and one has not.


Mr. Kamptner stated that was correct.


Mr. Thomas stated that the Fairview Swim Club Board member was present.  He asked if he could come forward and address the cold hard facts of what has been going on.


Reids Bailey, Board member of the Fairview Swim Club and Chairman of the Long Range Planning Committee, stated that this specifically was part of his job on the Board to try to figure out how they could as a private entity deal with a large development that is going to be occurring around the club.  They have been in meetings with representatives from Belvedere for some time and going back and forth on various points.  The Commission needs to understand that their issues don’t just deal with the small piece of land that they need to acquire, but they are working towards accommodating new memberships related to Belvedere residents that obviously don’t exist yet.  They need to improve their own facilities and provide for those increased memberships.  There are multiple parts to the negotiation that are going on between Belvedere and Fairview.  While they have not worked all of those details out, he does not have any reason to believe that they won’t get them worked out.  They have been sitting down and cooperatively working towards resolution to all of these different pieces as they have.  They are a group of volunteers that all have full time jobs and only have a certain amount of time that they can put into these negotiations and work with them.  It is taking a little bit longer than they would all like to come to a resolution.  Again, he did not foresee not being able to work with them in figuring this piece of the equation out.  He pointed out that that is the Board’s opinion.  The Board is positive about being able to work things out, but they are not there yet.


Mr. Craddock stated that he was totally against purchasing property and not having it dedicated for the County for future road use.  He also was disappointed in the affordable housing provisions. 


Ms. Joseph stated that she did not have any problems with the stormwater going into some of the conservation/preservation areas as long as they are healed in the process in that either the area is replanted or make it so that it was closer or better than the existing conditions.


Ms. Higgins stated that in conservation those things could be allowed under proper control and design standards. Therefore, she did not look at the conservation/preservation change as that detrimental.


Ms. Joseph stated that she did not mind if there were intrusions in those areas. The applicants wanted to change the acreage because they wanted to have the ability if during their final design they have to put in utilities or stormwater management in that area.  She reiterated that if those things go in that area it should done so it “reflects the area as it is or improves the area” and repairs the existing vegetation and the area.”


Mr. Cilimberg stated that they were dealing with a rezoning, which could not have conditions.  The applicant has to proffer those things that the Commission would feel are necessary for approval. Therefore, the Commission needs to recommend those items in their motion to the Board of Supervisors. 


Mr. Edgerton asked Mr. Kamptner to address the proffers.


Mr. Kamptner provided the following comments on the June 27 proffers submitted:

·         Proffer 1, which deals with the plan exhibits, was cleaned up as requested.

·         Proffer 2 deals with affordable housing.  Staff still has questions whether the carriage houses constitute affordable housing.  Ron White’s comments could be interpreted that this satisfies him.  It is a different kind of proposal for affordable.  The rest of that proffer did incorporate the requested changes.

·         The language in 3.1 and 3.2, with just one minor typographical error, is the language that was recommended.  This was the language that was developed in their negotiations with North Point.  There is still a question that staff needs to resolve as to whether this language belongs in the Code of Development or the proffers.  The Code of Development regulations are supposed to include the conservation/reservation area regulations.

·         Proffer 4.1 is still the language that was in the original proffer.  He has a number of questions that he asked of staff that have not been answered yet. 

·Proffer 4.2 deals with the greenway.  The language that was revised satisfies the comments and concerns that he had.  There are still some questions that staff needs to answer before the language is finalized.  But, substantially his comments had been addressed.

·Proffer 4.3, the greenway bridge – The text generally addresses his comments, but there are still some questions to be answered.  This includes the consent of the owners of the parcels that affected for where the bridge would be located and whether they consented to this and who would pay for the ongoing maintenance.  It may be some third party or the County as part of its greenway trail system.  It just has not been answered.

·The reservation of the right-of-way – The language was revised that addressed some of staff’s comments.  It raised some concern about the evaluation of the land at that future date.  The proffer was revised to simply include a $40,000 per acre flat rate rather than getting into appraisals some where in the future.

·Proffers 5.2 and 5.3 – These proffers need some minor adjustments.  The proposed right-of-ways need to be shown on a plan that will be adopted by the Board of Supervisors.

·Proffer 6.1 – dealing with overlot grading – The applicant addressed our comments completely.  This is the overlot grading plan language that has been developed during the latest round of North Pointe’s proffers.

·Proffer 7 – Staff did not have any comments on proffer 7 during the first review.

·Proffer 8.1 – The applicant incorporated the language staff requested.  Julie Mahon commented today, and there were just a couple minor word changes.  But, this substantially reflects all of our comments.

·Proffer 8.2 – This proffer is the same.  The only comment previously was to ask that Julie Mahon comment on that proffer.  No comments have been received at this point.

·Proffer 8.3 – There was one minor typo.  Staff is recommending more than this one roadside marker.


Mr. Kamptner stated that the proffers that the applicant has set forth are close to being in an acceptable form.


Ms. Higgins moved for approval of ZMA-2004-007, Belvedere, with the proffers as submitted subject to meeting the legal requirements for acceptance as provided by Mr. Kamptner.  She stated that her motion was based on the June 27 rezoning application proffer statement that Mr. Kamptner just reviewed, that the proffers would be worked out prior to the Board meeting as well as the missing items # 10 and # 6 resolved.  


Mr. Thomas seconded the motion.


The motion was defeated by a vote of (3:2).  (Joseph, Edgerton, Craddock – No) (Thomas, Higgins – Aye) (Morris, Rieley – Absent)


Mr. Kamptner stated that the Commission’s recommendation needed an affirmative vote.  Therefore, another motion would need to be made.


Ms. Joseph moved to deny ZMA-2004-007, Belvedere, based on the fact that the proffers could not be accepted as written. Although the proffers are procedurally correct, they do not contain information that the Planning Commission can support. The three reasons are summarized below:


·         The right-of-way for the Northern Free State Connector is reserved for the County to purchase rather than reserved for dedication upon demand by the County.


·         The applicant’s commitment to affordable housing places the responsibility for providing such housing on individual, future owners of carriage house units and provides no enforcement mechanism.


·         While a plan has been provided showing how Belvedere Boulevard could be accommodated within a 58’ right-of-way between the Fairview Swim Club and land owned by Phillip Brown, no commitment to providing this right-of-way has been made.


Mr. Craddock seconded the motion.


Mr. Edgerton asked for some clarification.  He asked if part of the motion was talking about the reservation/dedication issue.


Ms. Joseph stated that there was a proffer that had to do with the reservation of right-of-way.  She stated that two of the reasons were proffers.  One proffer had to do with affordable housing and she did not accept carriage houses as a means of providing affordable housing.  A second proffer is the reservation of right-of-way. The insufficient right-of-way is outside of the proffers.  It is what is shown on the plan as 44 feet.


Ms. Higgins asked if that was the issue that has to be worked out with Fairview Swim Club, even though they had indicated tonight that it was being worked out.


Ms. Joseph stated that she wanted to include that even though their indication tonight that it was being worked out.  She felt that the applicant has had 18 months to do this as they have previously told us.


Mr. Edgerton asked if she would consider an amendment to include the issue of reservation versus dedication for the Northern Free State Connector.


Ms. Joseph stated that had already been included.


The motion was approved by a vote of (3:2).  (Joseph, Edgerton, Craddock – Aye) (Thomas, Higgins – No) (Morris, Rieley – Absent)


Mr. Edgerton stated that ZMA-2004-007, Belvedere, will go to the Board of Supervisors with a recommendation for denial on August 10.


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