ZMA 06-08 Berkmar Business Park



Request to rezone 5.67 acres from R6 and C1 to NMD District for up to 275,000 square feet of office and commercial use and up to 190 dwellings



Cilimberg, Echols






July 2, 2008


ACTION:     X          INFORMATION: 



  ACTION:             INFORMATION: 







On April 1, 2008, the Planning Commission held a public hearing on the Berkmar Business Park rezoning. Attachment I contains the action memo of the Commission from April 1, 2008.  Attachment II is the staff report reviewed by the Planning Commission with the plan and proffers submitted for the public hearing.



The Planning Commission recommended denial of the rezoning indicated below in bold.  The status of the applicant’s response follows each along with staff comment. 


1.       Appropriate proffers were not provided for constructing the connector road.  This item is still outstanding.  When the Planning Commission saw the plan and staff reviewed the plan previously, the applicant was depicting a future connecting road between Berkmar and Route 29 at a location that is currently between Schewels and Better Living.  This connector road was looked at as an asset by the Commission and staff and is also shown on the Places 29 Plan as one of the perpendicular roads that serve parallel roads to Route 29.  The sticking point at that time of the Planning Commission meeting was that the applicant said he could not commit to making the intersection improvements needed at Route 29 to make the connector road a through-road. He said he did not control the right-of-way between Schewels and Better Living and could not convince the owner to provide it at that location.  Further, he said that he believed that VDOT should be responsible for making any intersection improvements at Route 29.  At the meeting, he provided a (previously unseen) 2005 letter from Butch Davies saying that VDOT should not be in the position of making the developer pay for (what Mr. Davies perceived as) VDOT’s design inadequacies at that intersection.  The Planning Commission, however, was not convinced that all possibilities had been explored regarding the connector road.  They also did not know the threshold at which the need for the connector road occurred.


With the most recent submittal of information for the rezoning, the applicant has removed the connector road and placed a driveway between two buildings in Block 4.  This change has caused the grading problems described later in the report.  Instead of providing for a significant portion of a connector road that was shown on the prior plan, the applicant has instead proffered to dedicate the portion of the easement between the end of Schewels driveway and Berkmar Drive which he owns.  In addition, the applicant has proffered $363,000 for transportation improvement projects in and around the US Route 29 Corridor.  A sum of $132,000 is offered when the development reaches 60,000 square feet and the remaining $231,000 is offered at $1.32 per square foot over 100,000 square feet. 


In analyzing the traffic study, the County Engineer has said that the need for the connector road comes into play at 60,000 square feet of building.  He has also said, “It is unlikely that improvements will be in place when needed, if only cash contributions, and only for a share of the costs, are provided.  Improvements need to be in place when they are needed.  For this to occur, the applicant needs to build the improvements.  The full cost of these improvements, by the applicant’s figures, is $609,700.  With contingencies, the actual cost of accomplishing these improvements may be around $762,125.  However, the real cost to the county if the project must be undertaken by the county, is in years of county staff time, which are not currently available.”


Further, the County Engineer says, “The issue now is a fundamental difference in philosophy on when transportation improvements need to be in place, what those transportation improvements are, and who will build them.  The applicant’s proposal is that improvements be in place some time in the future, that improvements are to be determined by long range county plans for the area, and that the county will build them with the help of contributions from the applicant.  It is my opinion that this is not a realistic way to address impacts for development, especially when county staff and money are simply not available.  Improvements should be in place before the development is built and the vehicles are on the roads, the improvements should be those identified in the study as applicable to the current network, and the county should not be expected to build them or contribute money.”  Staff believes that the applicant should not construct more than 60,000 square feet until a connector road is built between Berkmar and Route 29.


2.       Resolution of the stormwater management approach was needed.  This item has been addressed.


3.       Provision for spatial enclosure along Berkmar Drive was not made.  This item is still outstanding.  To better achieve spatial enclosure along Berkmar Drive, staff had recommended that the applicant commit to build 2-story buildings fronting Berkmar.  The applicant offered to provide a minimum of 20’ with a single story, but not two stories on Berkmar.  The Planning Commission did not indicate agreement with this proposal; instead they asked the applicant to defer until some of the many outstanding issues had been worked out.  The applicant has continued to include the provision for only 20’ tall buildings on Berkmar in the Code of Development.  The applicant has told staff that the parking requirements for 2-story buildings are such that he cannot provide sufficient parking on-site if all buildings are 2-stories.  For that reason, he would prefer to place 2-story buildings internal to the development than on Berkmar.  He has not committed to providing a minimum of 2-stories anywhere in the development unless he builds solely residential buildings in a particular block.  Staff is concerned that having a single story building of 20’ in height will produce a tall building with a false story.  Such buildings do not create a good pedestrian relationship nor do they enhance the spatial enclosure desirable on Berkmar.  Staff also has concerns with the applicant’s proposal to allow for at-grade parking lots along a majority of the “main street”.  Staff would hope that at-grade parking lots along this street would be temporary and, over time, would be replaced with buildings.


4.       Off-site easements or commitments from adjoining owners to provide easements for grading and construction of the connector road had not been provided.  This item is still outstanding.   The development plan shows construction of a portion of what might be a future connector road on the adjoining property.  A letter provided by the adjoining property owner (Attachment VII) says he will grant temporary easements for construction of a road once he and the applicant agree on a location and elevation of the road. The adjoining owner does not support the connector road and is not committing to anything related to a connector road.  This situation is extremely problematic because staff has no evidence that the adjoining owner will even allow a portion of the driveway on his property.  This driveway is shown as a major element on the applicant’s General Plan of Development.  In addition, at present there is no guarantee for the driveways and parking on the southern side of the development which are shown on the adjoining property.  This property, however, is owned by the applicant and receiving easements should not be problematic.


5.       There was no commitment for only 25% retail uses for the development.  In the Code of Development, the applicant has now made a commitment for no more than 10% of the 275,000 square feet to be developed as retail, although, if only 50,000 square feet of non-residential use is built, 25,000 square feet could be retail.  Staff believes this is acceptable because over time, a greater mix of office to retail will likely take place.


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 was needed.  The applicant has clarified in the Code of Development how and where trees would be planted in order to help compensate for the loss of trees shown 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 was needed.  These items have been addressed in the Code of Development. 


8.       Information on how the amenities for a significant residential use would be provided where buildings are shown on the General Development Plan was needed.  This item has been addressed.


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 was needed.  This item has not been addressed adequately and the conceptual grading plan continues to have problems.  According to the County Engineer, “The grading concept has changed with this revision to add patio areas between buildings, eliminate building 3, and change the tie-in at the connector road and the rear of the site.  The connector road tie-in requires off-site work.  The tie in at the rear of the property line is in error at elevation 500.  The patios appear problematic at 10% to 14% grade and will likely need retaining walls and stairs.”  This issue has not been resolved and it relates directly to the changes resulting from removal of a portion of the connector road from this plan.


10.   Provision for a higher level of stormwater management and erosion and sediment control was needed.  This item has been addressed in proffers.


11.   Provision of standard language for cash proffers for off-site impacts was needed.  This item has been addressed in the proffers.


12.   Provision of commitment for bus shelter for transit was needed.  This item has been addressed in proffers.


A number of other small technical changes were also 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 technical changes have been made.


Several other changes have also been made since the Planning Commission meeting.  The applicant has now added a section in the Code designating Primary and Secondary Development Zones which are shown on the General Development Plan and described on page 16 of the Code. The Primary Development Zones indicate where buildings should be constructed first (along Berkmar and where the connector road would be).  The Secondary Development Zones are intended to be built out after the Primary Development Zones to ensure relegated parking will take place.  The applicant has made an exception to this requirement by saying that secondary development zones can be built first as long as the primary development zones aren’t built as at-grade parking lots first.  This provision is to allow for phasing of buildings that is market-driven.  The applicant prefers to build-to suit in this development rather than build according to a phasing plan that requires buildings on Berkmar first.  Staff believes that it would be preferable to have the buildings on Berkmar constructed first, but can accept this proposal with the applicant’s provision for no at-grade parking on Berkmar.


A second area of change has to do with requests for waivers.  While a critical slopes waiver was requested with the rezoning, the Commission did not act on that waiver at the meeting.  Two additional waivers have now been requested.  One is to allow street trees to be in the right-of-way.  The other is to reduce the amount of amenity area for the development.  Staff can recommend approval of the waivers for critical slopes and street trees. 


When the Commission reviewed the proposal, approximately 5% of the area was devoted to amenities.  The current waiver is to allow only 2.5% of the area as amenity area.  The requirement is for 10%.  These two requests are in Attachment VIII.  Staff cannot recommend reduction of the amenity area to 2.5%.  There are no nearby outdoor public spaces within ¼ mile of the site.  Additionally, the site is so compact that having meaningful amenity area is essential to creating a high-quality space.



As the recommendations of the Planning Commission have not been fully addressed, staff cannot recommend approval of ZMA 06- 08 Berkmar Business Park with the proffers, the Illustrative Plan, the General Development Plan, and the Code of Development for the following reasons:


·         Proffers are not sufficient to address traffic needs; a connector street is needed between Berkmar and Route 29 for more than 60,000 square feet of building area

·         Essential elements of the plan are shown on a property not owned by the applicant and there is no guarantee that the elements can be built

·         Buildings should be a minimum of 2-stories along Berkmar

·         Amenity areas are too small


Staff recommends that the rezoning be sent back to the Planning Commission.  If the Board of Supervisors, however, desires to approve the rezoning, staff recommends that there be a proffered commitment that street infrastructure be in place prior to construction of more than 60,000 square feet of building area.



ATTACHMENT I:            Planning Commission Action Memo from April 1, 2008

ATTACHMENT II:           Staff Report dated April 1, 2008

ATTACHMENT III:          Application dated June 24, 2008

ATTACHMENT IV:          Attachments to the Application – Rezoning plans dated June 24, 2008

ATTACHMENT V:          Code of Development dated June 23, 2008

ATTACHMENT VI:          Proffers undated and unsigned (Signatures pending from Arizona)

ATTACHMENT VII:         Letter from adjoining property owner regarding off-site construction and grading

ATTACHMENT VIII:        Waiver requests not received/approved by the Planning Commission

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