HomeMy WebLinkAboutAP201800001 Staff Report 2018-12-05AGENDA DATE: 12/5/2018
TITLE:
Route 29 LLC Appeal of Zoning Administrator's Determination of Proffer Violation
SUBJECT/PROPOSAL/REQUEST: Appeal of Zoning Administrator's Determination that Route 29
LLC's ZMA 2012-005 Hollymead Town Center Al Violated Proffer Regarding Cash Payment of
Transit Operating Expenses
ITEM TYPE: Regular Action Item
STAFF CONTACT(S): Richardson, Walker, Kamptner, Herrick, Graham, McCulley, Ragsdale
PRESENTER (S): Amelia McCulley
LEGAL REVIEW: Yes
REVIEWED BY: Jeffrey B. Richardson
BACKGROUND: Hollymead Town Center Al (ZMA 2005-15) was originally rezoned to Planned
Development Mixed Commercial on September 12, 2007. The rezoning was amended by Route 29 LLC
twice: on January 12, 2011 with ZMA 2010-014 and most recently with ZMA 2012-005 on December 11,
2013. The relevant proffer was provided with the original rezoning and was not changed with the two
amendments. Proffer #4 of ZMA 2012-005 states: "Public Transit Operating Expenses — Within thirty days
after demand by the County after public transportation service is provided to the Project, the Owner shall
contribute $50, 000 cash to the County to be used for operating expenses relating to such service, and shall
contribute $50, 000 cash to the County each year thereafter for a period of nine (9) additional years, such
that the cash contributed to the County pursuant to this Proffer 4, shall total Five Hundred Thousand
Dollars ($500, 000). The cash contribution in years two through ten shall be paid by the anniversary date of
the first contribution. "
Public transit service was established to the site on May 2, 2016 and is ongoing. The service is operated by
JAUNT. On May 20, 2016, Rebecca Ragsdale, Senior Planner, requested payment of the first $50,000
cash contribution be made payable to the County by June 20, 2016 (Att B). Subsequent to this, Route 29
LLC filed litigation relating to the transit proffer to seek relief. On May 7, 2018, Rebecca Ragsdale
requested payment of $150,000 be made by June 18, 2018 to satisfy the three proffer payments that are
past due (Att C). On August 7, 2018, the Zoning Administrator issued Route 29 LLC an official
determination of violation (NOV) for failure to pay the transit proffer (Att A). On September 6, the appellants
filed this appeal (Att E).
STRATEGIC PLAN: Quality Government Operations: Ensure County government's capacity to provide
high quality service that achieves community priorities.
DISCUSSION: A commuter bus run by JAUNT on behalf of Charlottesville -Albemarle Transit (CAT)
constitutes "public transportation service." That is the trigger for the transit proffer payment. All other
contentions the appellant makes are more appropriate considerations as amendments to the proffer.
Proffer amendments are processed through a rezoning application rather than an appeal. These and other
considerations have been discussed with the appellant although a proffer amendment has not been fully
pursued.
Greg Kamptner, in his role as Deputy County Attorney, sent a letter to the appellant's attorney, Pete
Caramanis, stating that the transit proffer had been triggered because "JAUNT provides `public
transportation service' within the meaning of Proffer 4." His letter further stated "Unless, and until, Proffer 4
is amended, it is an enforceable obligation of Route 29 LLC. Failure to comply with the proffer will be a
zoning violation. Amending Proffer 4 would have to be accomplished through the rezoning process and
ultimately be subject to approval by the Board of Supervisors" (Att D).
BUDGET IMPACT: Proffers are intended, among other things, to provide mitigation of impacts and public
benefits without increasing the financial burden on the locality. The owner's failure to meet its proffer
obligation results in a $50,000 revenue loss per year, or $500,000 over the 10-year life of the proffer.
RECOMMENDATION:
Staff recommends that the Board adopt the attached Resolution (Attachment F) to deny Route 29 LLC's
appeal and to affirm the Zoning Administrator's August 7, 2018 determination.
ATTACHMENTS:
Attachment A: Notice of Violation: August 7, 2018
Attachment B: First letter requesting transit proffer payment: May 20, 2016
Attachment C: Second letter requesting transit proffer payment: May 7, 2018
Attachment D: Letter from Greg Kamptner to Pete Caramanis regarding Transportation Proffer: December
1, 2015
Attachment E: Appellant's letter of Appeal: September 6, 2018
Attachment F: Resolution Denying Appeal and Affirming Zoning Administrator's Determination
FAX (434) 972-4126
COUNTY OF ALBEMARLE
Community Development Department
401 McIntire Road
Charlottesville, Virginia 22902-4596
TELEPHONE (434) 296-5832
NOTICE OF OFFICIAL DETERMINATION OF VIOLATION
The Date this Notice of Determination is given is August 7, 2018.
REGISTERED MAIL # RE 234 267 096 US
Route 29 LLC (Owner)
Wendell Wood, Manager
PO Box 5548
Charlottesville, VA 22905
Property: Hollymead Town Center Area A-1
03200-00-00-042A,
03200-00-00-04400 (portion),
03200-00-00-04500 (portion) and
04600-00-00-00500 (portion)
Zoning: PD-MC-Planned Development
Mixed Commercial District
Dear Mr. Wood:
TTD (434) 972-4012
No: VIO-2018-153
Same as Above
Owner of Record
This notice is to inform you that the above -described Property is in violation of the Albemarle County
Zoning Ordinance due to unsatisfied proffers from ZMA-2012-00005.
Proffer 4 specifically provides:
" Public Transit Operating Expenses — Within thirty days after demand by the County after public
transportation service is provided to the Project, the Owner shall contribute $50,000 cash to the
County to be used for operating expenses relating to such service, and shall contribute $50,000 cash to
the County each year thereafter for a period of nine (9) additional years, such that the cash
contributed to the County pursuant to this Proffer 4, shall total Five Hundred Thousand Dollars
($500,000). The cash contribution in years two through ten shall be paid by the anniversary date of
the first contribution."
By letter dated May 20, 2016, the County made demand for the first $50,000 cash contribution under this
proffer by June 20, 2016. A second annual payment was due in 2017. The County further sent a reminder
VIO-2018-153 Page 2 August 7, 2018
letter on May 7, 2018, demanding payment of the third required annual payment by June 18, 2018. All the
three required payments have yet to be made.
These proffer violations are unlawful violations of the Zoning Ordinance, and may result in civil penalties,
criminal penalties, injunctive relief and/or other remedies, pursuant to Albemarle County Code § 18-36.
This letter is also to order you to comply with the above proffers by September 6, 2018. Failure to
comply with these proffers may result in legal action being taken against you and any other owner, tenant
or other responsible party. Your timely compliance with this order does not excuse the violations cited
herein and does not preclude the County from pursuing further legal action for these violations.
Pursuant to Virginia Code § 15.2-2301:
"Any zoning applicant or any other person who is aggrieved by a decision of the Zoning
Administrator made pursuant to the provisions of Virginia Code § 15.2-2299 may petition
the governing body for review of the decision of the Zoning Administrator. All petitions
for review shall be filed with the zoning administrator and with the clerk of the governing
body within thirty (30) days from the date of the decision for which review is sought and
shall specify the grounds upon which the petitioner is aggrieved. A decision by the
governing body on an appeal taken pursuant to this section shall be binding upon the
owner of the property which is the subject of such appeal only if the owner of such
property has been provided written notice of the zoning violation, written determination,
or other appealable decision.
An aggrieved party may petition the circuit court for review of the decision of the
governing body on an appeal taken pursuant to this section. The provisions of subsection F
of Virginia Code § 15.2-2285 shall apply to such petitions to the circuit court, mutatis
mutandis."
In accordance with Virginia Code § 15.2-2299, failure to meet all conditions of ZMA-2012-005 shall
constitute cause to deny the issuance of any of the required use, occupancy, or building permits.
If you have any questions, please contact Lisa Green, Senior Code Compliance Officer, at 434-296-
5832 ext. 3013.
,� (. / R 4 � �JP(3 1, r,
Amelia G. McCulley, Ad.C.P.
Zoning Administrator
County of Albemarle
RE 234 267 096 US
AUTHENTICATION OF RECORD/
CERTIFICATE OF MAILING
(Code of Virginia § 8.01-390)
(Notice of Official Determination of Violation)
1, L/SA �s9eEW , hereby certify:
1. that I am a Code Enforcement Officer and an employee of the Albemarle County
Department of Community Development;
2. that on U�rr 07 , 20 /8 , I mailed a true copy of the record attached hereto,
consisting of a Notice of Official Determination of Violation dated
AaXyyT 7 20/F pertaining to that property identified as Parcel ID
Number(s) D32 p32-LK to the recipient(s) identified thereon at the
address(es) specified thereon; and
3. that the copy of such record which is attached hereto is a true copy of the record that
was mailed.
Dated: $b /20/2 Signed
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF
The foregoing Authentication of Rec
ord/Certificate of Mailing was signed, sworn to and
acknowledged before me by /r& ZCaw,&,A"bemarle County Code Enforcement
Officer, this day of , 20 -g—.
Notary Public
My Commission Expires: Zj'
P'.l_AN ciA{ y �ji
Notary Registration No. 77 (o
- n : REG. A774770
EAD
�Zy .. � N
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 2290245%
Phone 434 296-5832 Fax 434)972-4176
NOTICE SENTFIRST CLASS MAIL, CERTIFIED MAIL, AND ELECTRONIC MAIL
May 20,2016 91 7199 9991 7035 5776 0457
Wendell Wood
Route 29 LLC
PO Box 5548
Charlottesville, VA 22905
RE: ZMA 2012-00005 Hollymead Town Center A 1
Proffer 3- Transit Stop Benches
Proffer 4-Public Transit Operating Expenses
Tax Map Parcel 03200-00-00-042AO
Dear Mr. Wood,
In accordance with the proffers approved with rezoning ZMA 2012-0005, Albemarle County hereby
requests that the requirements of Proffer 3 and 4 be satisfied. Specifically, the County hereby
requests the following pursuant to the terms of the Proffer 3:
3. n r ' n - The Owner has constructed oae public transit slap within
Hailymead Town Center Area A -I and 2 benches shall be installed within 30 days after transit service
is established to the trmsit stop;.
Public transit was established by JAUNT to Hollymead Town Center on May 2, 2016. The County
requests that two benches be installed by June 20, 2016.
The County hereby requests the following pursuant to the terms of the Proffer 4:
4. Public Transit Operating Exomses - Within thirty days after demand by the County after public
transportation service is Provided to the Project, the Owner shall contribute $50,000 cash to the
County to be used for operating expenses relating to such service, and shall comnribute $50,000 cash to
the County each year thereafter for a period of nice (9) additional years, such that the cash contributed
to the County pursuaA to tNs Proffer 4, shall total Five Hundred Thousand Dollars ($500,000). The
cash contribution in years two through ten shall be paid by the anniversary date of the first
contribution.
Since public transit service was established to the site on May 2, 2016, the County requests that
the first $50,000 cash contribution be made payable to the County of Albemarle by June 20, 2016.
Going forward, you will be sent an invoice each year as a reminder that the proffer payment is due
(example enclosed). Please remit payment to Community Development and include a copy of this
letter and the invoice when making the payment.
Be advised that failure to comply with proffers will constitute a zoning violation and may result in
civil penalties enforced by the Zoning Administrator as well as withholding of building permits and
plans.
Should you have any questions, please contact me at (434) 296-5832 ext.3226 or
rraasdaleOalbemarle.org.
Sincerely,
Y'Of �-4
Rebecca Ragsdale
Senior Planner -Zoning
2
County of Albemarle
401 MCINTIRE ROAD
CHARLOTTESVILLE VA 22902-4596
Bill to:
ROUTE 29 LLC
ATTN: WENDELL WOOD
P.O. BOX 5548
CHARLOTTESVILLE VA 22905
INVOICE
FY2016-00001053
Type
Date
5/17/2016
Page
1
1000-0301
Purchase Order ID Customer ID Salesperson ID Shipping Method Payment Terms ID
ROUTE 29 LLC UPON RECEIPT
Item Number Description Quantity Rate Amount
EXPENSES Expenses 1 $50,000.00 $50,000.00
ZMA 2012-00005 Hollymead Town Center A-1
Proffer 4- Public Transit Operating Expenses
To ensure proper application of your payment, Total $50,000.00
please remit the yellow invoice copy. A
self-addressed remittance envelope is included for
your convenience.
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 22902-4596
Phone (434) 296-5832 Fax (434) 972-4176
NOTICE SENT FIRST CLASS MAIL, CERTIFIED MAIL, AND ELECTRONIC MAIL
91 7199 9991 7035 5776 0662
May 7, 2018
Wendell Wood
Route 29 LLC
PO Box 5548
Charlottesville, VA 22905
RE: ZMA201200005 Hollymead Town Center A-1
Proffer 3- Transit Stop Benches and Proffer 4-Public Transit Operating Expenses
Tax Map Parcel 03200-00-00-042AO and others
Dear Mr. Wood,
The Board of Supervisors approved your rezoning application number ZMA201200005 on
December 11, 2013 with proffers. You were advised in a letter dated May 20, 2016 that the terms
of Proffers 3 and 4 of ZMA201200005 must be met. Specifically, the County hereby requested the
following proffers be satisfied.
3. Public Transit Stop Construction - The Owner has constructed one public transit stop within
Hollymead Town Center Area A-1 and 2 benches shall be installed within 30 days after transit service
is established to the transit stop-
4. Public Transit Operating Expenses - Within thirty days after demand by the County after public
transportation service is provided to the Project, the Owner shall contribute $50,000 cash to the
County to be used for operating expenses relating to such service, and shall contribute $50,000 cash to
the County each year thereafter for a period of nine (9) additional years, such that the cash contributed
to the County pursuant to this Proffer 4, shall total Five Hundred Thousand Dollars ($500,000). The
cash contribution in years two through ten shall be paid by the anniversary date of the fast
contribution.
Since public transit service was established to the site on May 2, 2016, the County requested that
the first $50,000 cash contribution be made payable to the County of Albemarle by June 20, 2016.
A second payment was due in 2017 and now a third payment is due in 2018.
The County hereby requests that payment of $150,000 be made by June 18, 2018 to satisfy
the three proffer payments that are past due.
Be advised that failure to comply with proffers will constitute a zoning violation and may result in
civil penalties enforced by the Zoning Administrator as well as withholding of building permits and
plans.
Should you have any questions, please contact me at (434) 296-5832 ext.3226 or
rragsdale(aD-albemarle.org.
Sincerely,
�AKJ'41_6
Rebecca Ragsdale
Senior Planner -Zoning
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 2290245%
Phone (4M) 2%-5832 Fax (434) 972-4176
NOTICE SENT FIRST CLASSMAIL, CERTIFIED MAIL, AND ELECTRONIC MAIL
May 20, 2016 91 7199 9991 7035 577L 0457
Wendell Wood
Route 29 LLC
PO Box 5548
Charlottesville, VA 22905
RE: ZMA 2012-00005 Hollymead Town Center A-1
Proffer 3- Transit Stop Benches
Proffer 4-Public Transit Operating Expenses
Tax Map Parcel 03200-00-00-042AO
Dear Mr. Wood,
In accordance with the proffers approved with rezoning ZMA 2012-0005, Albemarle County hereby
requests that the requirements of Proffer 3 and 4 be satisfied. Specifically, the County hereby
requests the following pursuant to the terms of the Proffer 3:
3. Poblic T=it Stag Qnstraction - 1he Owner has caasuucted one public transit stop within
Hollymead Town Cent= Area A-1 and 2 benches shall be installed within 30 days after transit service
is established to the transit stop. -
Public transit was established by JAUNT to Hollymead Town Center on May 2, 2016. The County
requests that two benches be installed by June 20, 2016.
The County hereby requests the following pursuant to the terms of the Proffer 4:
4. Public Transit Opera ' tg Ezncmm - Within thirty days after demand by the County after public
Uansportanon service is provided to the Projec4, the Owner shall coutnbute $50,000 cash to the
County to be used for operating expenses relating to such service, and shall com t ribute $50,000 cash to
the County each year thereafter for a period of nine (9) additional years, such that the cash contributed
to the County pursuant to this Proffer 4, shall total Five Hundred Thousand Dollars ($500,000). The
cash contribution m years two through ten shall be paid by the anniversary date of the first
contribution.
Since public transit service was established to the site on May 2, 2016, the County requests that
the first $50,000 cash contribution be made payable to the County of Albemarle by June 20, 2016.
Going forward, you will be sent an invoice each year as a reminder that the proffer payment is due
(example enclosed). Please remit payment to Community Development and include a copy of this
letter and the invoice when making the payment.
Be advised that failure to comply with proffers will constitute a zoning violation and may result in
civil penalties enforced by the Zoning Administrator as well as withholding of building permits and
plans.
Should you have any questions, please contact me at (434) 296-5832 ext.3226 or
rragsdaleg albemade.org.
Sincerely,
J4�-4
Rebecca Ragsdale
Senior Planner -Zoning
N
County of Albemarle
401 MCINTIRE ROAD
CHARLOTTESVILLE VA 22902-4596
Bill to:
ROUTE 29 LLC
ATTN: WENDELL WOOD
P.O. BOX 5548
CHARLOTTESVILLE VA 22905
INVOICE
FY2016.00001053
Type
Date
5/17/2016
Pa e
1
1000-0301
Purchase Order ID Customer ID Salesperson ID Shipping Method Payment Terms ID
ROUTE 29 LLC UPON RECEIPT
Item Number Description Quantity Rate Amount
EXPENSES Expenses $50,000.00 $50,000.00
ZMA 2012-00005 Hallymead Town Center A-1
Proffer 4- Public Transit Operating Expenses
To ensure proper application of your payment, Total $50,000.00
please remit the yellow invoice copy. A
self-addressed remittance envelope is incfuded for
your convenience.
LARRY W. DAVIS
COUNTY ATTORNEY
GREG KAMPTNER
DEPUTY COUNTY ATTORNEY
COUNTY OF ALBEMARLE
Office of County Attorney
401 McIntire Road, Suite 325
Charlottesville, Virginia 22902-4596
PHONE: (434) 972-4067
FAX: (434) 972-4068
December 1, 2015
Via Email pcaromanis@rcmplc.com and Regular Mail
Peter J. Caramanis, Esquire
Royer Caramanis & McDonough
200-C Garrett Street
Charlottesville, VA 22902
Re: Hollymead Town Center — Transportation Proffer
Dear Pete:
ANDREW H. HERRICK
JOHN C. BLAIR, 11
SENIOR ASSISTANT
COUNTY ATTORNEYS
RICHARD A. DELORIA
ASSISTANT COUNTY ATTORNEY
I have reviewed your letter dated November 16, 2015, in which you challenge the
County's reliance on Proffer 4, which was originally accepted by the Albemarle County Board of
Supervisors in conjunction with the rezoning of Hollymead Town Center Area A -I (ZMA 2005-
00015) on September 12, 2007. Proffer 4 was most recently accepted in conjunction with ZMA
2012-00005. Proffer 4 provides in part that, within 30 days "after demand by the County after
public transportation service is provided to the Project, the Owner shall contribute $50,000 cash
to the County to be used for operating expenses ..." Proffer 4 also commits the Owner to
contribute $50,000 each year thereafter for 9 additional years. Proffer 4 has not been amended
since it was originally accepted.
The purpose of Proffer 4 was to partially address the transportation impacts that would
result from rezoning the Hollymead Town Center Area A-1 lands from Rural Areas, an
agricultural zoning district, to Planned Development — Mixed Commercial, a district that allows
large scale commercial uses composed of both office and retail. The rezoning authorized 278,000
square feet of retail and office uses. The transportation impacts resulting from this rezoning were
a key consideration, and many of the proffers accepted in conjunction with the rezoning
addressed transportation -related impacts.
While it may be true that no other rezoning in Albemarle County has included a proffer in
which an owner has committed itself to contribute a cash amount for public transportation
service similar to that in Proffer 4, transportation impacts may be addressed at the rezoning stage
in a number of ways. Each rezoning is evaluated on its own merits and the proffers are tailored
by the owner to address the impacts generated by its particular project. Proffer 4 was not
unreasonable in 2007 nor is it unreasonable now.
Peter J. Caramanis, Esquire
December 1, 2015
Page 2
JAUNT provides "public transportation service" within the meaning of Proffer 4. To the
extent that the proposed route will be a commuter route, the parking lot in Hollymead Town
Center Area A-1 is not planned to serve as a park -and -ride location. Instead, Hollymead Town
Center Area A- I will serve as a transit stop, a use envisioned by the commitment by the Owner
in Proffer 3 to construct a transit stop within Area A-1. It may reasonably be assumed that riders
will get on and off the bus at the Area A-1 transit stop. While Route 29 LLC may want the
JAUNT bus to primarily be dropping off shoppers at the Hollymead Town Center Area A -I
transit stop, the plain language of Proffer 4 does not restrict "public transportation services" for
purposes of the proffer. Moreover, Hollymead Town Center is a large employment center and
providing public transportation for the employees of Hollymead Town Center reasonably
addresses some of the transportation impacts resulting from the Area A-1 rezoning.
Unless, and until, Proffer 4 is amended, it is an enforceable obligation of Route 29 LLC.
Failure to comply with the proffer will be a zoning violation. Amending Proffer 4 would have to
be accomplished through the rezoning process and ultimately be subject to approval by the Board
of Supervisors. If Route 29 LLC is interested in pursuing amending Proffer 4, I suggest that you
contact the County's Department of Community Development (434-296-5832) to schedule a pre -
application meeting.
Very truly yours,
Attorney
ROYER
^CK PETER CARAMANIS
Attttorneyat Law
CARAMANIS & pcar 200-C@arrett .com
McDONOUGH 2Otes Garrett Street
Charlottesville, VA 22902
(434) 260-8767 ■ Fax (434) 710-4061
REAL ESTATE EI BUSINESS 9 BANKING M WILLS, TRUSTS 5 ESTATES N CIVIL LITIGATION N CIiIMINAL DEFENSE EE FAMILY LAVJ N MILITARY LAW
COLLISON F. ROYER
PETER J. CARAMANIS
September 6, 2018
STACEY L. MCDONOUGH
J ESSICA F. PHILLIPS
ERNEST A. HARPER _
Board of Supervisors of Albemarle County
SHELLIE S.TAYLOR
Attn: Claudette Borgersen, Clerk
TAYLOR R. ODOM
SAMANTHA V. RICCI
401 McIntire Road
Charlottesville, VA 22902
cborgersen@albemarle.org
Via Email and Hand Delivery
Amelia G. McCulley, Zoning Administrator
County of Albemarle
401 McIntire Road
Charlottesville, VA 22902
amcculle@albemarle.org
Via Email and Hand Delivery
RE: Petition for Appeal of Notice of Official Determination of Violation
No: VIO-2018-153
Dear Members of Board and Ms. McCulley:
As you Imow, I represent Route 29 LLC in connection with the proffers related to Hollymead
Town Center Area A-1. I am in receipt of Ms. McCulley's letter to my client dated August 7, 2018
captioned "Notice of Official Determination of Violation" related to the unpaid invoices for Proffer
4, as referenced therein (the "Transit Proffer"), which is the subject of ongoing litigation (the
"Notice of Violation"), I hereby submit this letter as a formal petition for appeal of the Notice of
Violation pursuant to Virginia Code §15.2-2301, to request that Ms. McCulley reconsider her
determination, and to the extent her decision remains unchanged, to petition the governing body
to review the decision for the reasons and on the grounds more specifically set forth below.
History of the Transit Proffer Issue
The debate over the Transit Proffer goes back some time. The Transit Proffer was initially put
in place by a prior owner and developer at the height of the real estate boom as part of ZMA-2005-
00015. After the real estate market had crashed, the property was acquired by my client who
requested certain proffer amendments in order to facilitate development within Area A-1, namely
the Kohl's store. Among those proffer amendments was a request to amend the Transit Proffer
which gained the support of the Planning Commission. Unfortunately, when those amendments
got before the Board of Supervisors, it was determined that the public notice did not permit
ROYER, CARAMANIS & MCDONOUGH, PLC IS A VIRGINIA PROFESSIONAL LIMITED LIABILITY COMPANY
www.rcmptc.com
amendment of the Transit Proffer, and so my client was faced with a choice to amend those other
proffers that he could and to keep the Kohl's project moving forward or to start the process over
and likely lose the Kohl's project. They chose to accept those proffer amendments which were
possible at the time, saving the Kohl's project and planning to resubmit a proposed amendment to
the Transit Proffer at a later date. This is all clear from the Board of Supervisors minutes for ZMA-
2010-00014. It was everyone's expectation at that time (the County's and my client's) that the
Transit Proffer would be amended.
In 2016, there was conversation within the County government related to a new commuter
JAUNT bus (the "Commuter Bus") to travel from Hollymead Town Center to downtown
Charlottesville and the University of Virginia. My client spoke at multiple public meetings, as did
I on their behalf, informing the County that before it appropriated funds for this new Commuter
Bus route in reliance on the application of the Transit Proffer, that it understand our position that
the Transit Proffer is not triggered by a Commuter Bus that has nothing to do with any impacts
caused by the development. Without addressing our repeated comments, the Board of
Supervisors did authorize funding for the Commuter Bus.
We subsequently filed an application to amend the Transit Proffer (ZMA-2016-00002), held a
community meeting at which there was no opposition expressed, and received nothing but
understanding comments from the public and from County officials. Nevertheless, when the
County's staff report was released, it not only recommended denial of the application, but was
unable to cite even one favorable factor to our request — the first time in all of my years that I have
seen such a one-sided staff report. We deferred our request so I could have follow-up
conversations with staff regarding the nature of the report and my concern that important staff
turnover in the midst of our application had led to some important oversights. Before we could
even hold such a meeting with staff, my client was issued the first invoice for the full Transit Proffer
amount. My client took that as a clear sign from the County that it had no intention on trying to
amicably solve the issues before us, and consequently, filed the pending lawsuit over the Transit
Proffer. That being said, my client always intended and still intends to reach an amicable
resolution to this matter which involves a reasonably amended and jointly agreed proffer. We
have made additional overtures regarding such discussions since the lawsuit has been pending,
but, again, have received no real indication from the County that it desires an amicable resolution.
The latest action, of course, has been the issuance of additional invoices and your Notice of
Violation.
We believe this background is relevant to show that my client has not been ignoring the issue,
but rather has been making a great deal of effort to (1) head off the issue before it became a problem
by their initial comments at the public meetings, (2) attempt to resolve the issue through a proffer
amendment application, and (3) attempt to engage in dialog regarding a mutual agreement, but
unfortunately has not seen those efforts well -received or reciprocated. The context of the failure
to pay the invoices is critical to understanding these matters and whether a Notice of Violation
should have been issued.
10ROYER
CARAMAN IS Sc Page 2 of 4
14cDONOLIGH
The Underlying Arguments Regarding the Transit Proffer
It is also not possible to truly evaluate the appropriateness of the Notice of Violation without
considering the underlying arguments being made related to the Transit Proffer and the changes
in circumstance over time.
Before getting to the merits of the argument, it is important to note that conditions have
changed significantly since the initial Transit Proffer was adopted in 2007. Around that time, the
real estate market was at its peak and considerably more development than what we now see was
contemplated at Hollymead Town Center ("HTC). In addition, at that time, Route 29 was a much
narrower road and was the only real option for getting people from Charlottesville to HTC. Now,
there have been many transportation improvements including the widening of Route 29, the
construction ofTown Center Drive and the extension of Ber1cmar Drive. All ofthese improvements
alleviate transportation -related concerns and minimize the potential impacts of the development
on traffic. This leads us to the crux of the argument against the imposition of the Transit Proffer,
and consequently to the request to reconsider and withdraw the Notice of Violation — HTC Area
A-1 has not caused and is not anticipated to cause impact as would justify my client being required
to pay $500,000 toward the Commuter Bus.
Some of the relevant points are as follows:
The Transit Proffer only applies to HTC Area A-1. The Commuter Bus by its very definition is
intended to take people who live in the HTC area to places closer to downtown Charlottesville,
i.e., "commuters". HTC Area A-1 does not include any residential units, i.e., no commuters.
Furthermore, the people who come to HTC Area A-1 to work are (a) minimal in number and
(b) do not work typical 9-5 work day hours which would be served by the Commuter Bus. In
other words, the Commuter Bus is not intended to, and does not, bring people to and from any
of the businesses within HTC Area A-1, and more importantly, does not address any impact
actually created by HTC Area A-1. Rather, over the course of its existence, the Commuter Bus
has taken a mere handful of people who live near HTC to their jobs at UVA or in downtown
Charlottesville. Again, this need is completely unrelated to the HTC Area A-1 development.
My client could hire a van and a driver to shuttle those people at a fraction of the cost of the
Transit Proffer if transporting these people were actually their responsibility.
2. HTC is a large development, and it seems County staff can get confused in trying to justify the
application of the Transit Proffer by assessing the larger project. In fact, in their report for
ZMA-2016-00002, Staff specifically tried to link HTC Area A-1 and A-2, stating, in part, "When
Hollymead Town Center Area A was initially discussed, the transit proffer was intended to
cover all ofArea A, which is now Area Al and A2. When the two projects were split, the proffer
remained in the Al proffers. The A2 proffers made provision for affordable housing, a pocket
park and greenway, a 2 acre site for a recycling center or other public facility, and cash proffers
for the residential uses. The transit proffer addresses the transportation/traffic impacts
generated by Area Al and A2." That is a complete misstatement of fact, because it is without
question that the proffers for HTC Area A-1 only relate to Area A-1 as is clear on their face. As
stated previously, the transportation/traffic impacts have already been addressed by the
widening of Route 29 and the construction of additional, alternative roads — much of which it
should be noted was funded by my client who has spent over $11 Million in those efforts.
OROYER
CARAMAN I S & Page 3 of 4
WDONOUGH
It is clear from the County's own Land Use Law Handbook and otherwise, that proffers are
generally intended to address "the impacts resulting from a rezoning," and that they must be
"reasonable," connected to the rezoning by an "essential nexus" and show "rough
proportionality to the impacts they seek to address." The application of the Transit Proffer to
the Commuter Bus, and the Notice of Violation that has arisen as a result, fail to meet any of
those standards. As stated above, the Commuter Bus does not address any impact resulting
from the rezoning. The rezoning of HTC Area A-1 did not create additional commuters. Any
traffic impacts caused by the rezoning have been fully addressed by the widening of Route 29,
the construction of Town Center Drive and the extension of Berkmar Drive. There are no
transportation/traffic impacts left to address, and the Commuter Bus is certainly not the type
of public transit contemplated by the original Transit Proffer.
For the foregoing reasons, we ask that you reconsider and rescind the Notice of Violation. We would
hope this could be done in the context of working toward an agreed resolution to the Transit Proffer
situation as a whole, but at a minimum, that it be rescinded pending determination by the Court whether
the Commuter Bus was a legitimate trigger of the Transit Proffer.
Again, we believe there is reasonably middle ground here, but we certainly cannot find it unless the
County is also attempting to do so. We, once again, ask that the County come to the table to discuss this
issue in an attempt to resolve it. To the public, it seems on the surface very clear that this has been a simple
"money grab," where the County tries to fit a square peg into a round hole just to get the maximum amount
of money it can from proffers which may never otherwise be triggered. However, that interpretation goes
against the nature of the individuals that I know and work with at the County, so I am asking that those
honorable and well-intentioned individuals give this matter a fresh and objective look and help work with
me to resolve it in everyone's best interest.
I look forward to your reply, and will be happy to meet to discuss or otherwise answer any questions
or provide any additional information that may be helpful as you consider this appeal/petition.
Best regards.
Very truly yours,
Peter J. Caramanis
Cc: Greg Kamptner, County Attorney (via hand delivery)
Shellie S. Taylor, Esq.
Client (via email)
IMROYER
CARAMAN IS & Page 4 of 4
McDONOUGH
RESOLUTION DENYING ROUTE 29 LLC'S APPEAL AND AFFIRMING
THE ZONING ADMINISTRATOR'S AUGUST 7, 2018 DETERMINATION
WHEREAS, on December 11, 2013, the Albemarle County Board of Supervisors approved
ZMA 2012-005 Hollymead Town Center Al with proffers; and
WHEREAS, Proffer 4 requires the contribution of $50,000 cash per year to the County for a
period of ten years and a total cash contribution of $500,000 to be used for operating expenses relating to
public transportation service to Hollymead Town Center; and
WHEREAS, Proffer 4 requires the first payment to be made within thirty days after demand by
the County after public transportation service is provided to Hollymead Town Center, and payments two
through 10 to be made by the anniversary date of the first contribution; and
WHEREAS, public transportation service was established to the Hollymead Town Center on
May 2, 2016 and is ongoing, and on May 20, 2016, the first $50,000 contribution was requested in writing
to be paid to the County by June 20, 2016; and
WHEREAS, Route 29 LLC did not make the payment, and filed suit against the County seeking
relief from the requirements of Proffer 4; and
WHEREAS, on May 7, 2018, the first three contributions of $50,000 each, or $150,000, was
requested in writing to be paid by June 18, 2018, and Route 29 LLC did not make the payment; and
WHEREAS, on August 7, 2018, the Zoning Administrator issued a Notice of Official
Determination of Violation to Route 29 LLC for failure to pay the amount due pursuant to Proffer 4; and
WHEREAS, Route 29 LLC appealed the Zoning Administrator's August 7, 2018 determination
to the Board as provided by Virginia Code § 15.2-2301, asserting that Proffer 4 should have been
previously amended and should still be amended.
NOW, THEREFORE, BE IT RESOLVED that, upon consideration of the foregoing, the
executive summary prepared for the Appeal of the Zoning Administrator's Determination and all of its
attachments, and the information presented at the Board of Supervisor's December 5, 2018 meeting, the
Albemarle County Board of Supervisors hereby denies Route 29 LLC's appeal and affirms the Zoning
Administrator's August 7, 2018 determination that Route 29 LLC is in violation of Proffer 4 because
public transportation service is provided and Route 29 LLC has failed to make three annual $50,000
contributions to the County for a total of $150,000, and has thereby failed to satisfy Proffer 4 accepted in
conjunction with ZMA 2012-005.
I, Claudette K. Borgersen, do hereby certify that the foregoing writing is a true and correct copy of a
Resolution duly adopted by the Board of Supervisors of Albemarle County by a vote of to
as recorded below, at a meeting held on December 5, 2018.
Aye Nay
Mr. Dill
Mr. Gallaway
Ms. Mallek
Ms. McKeel
Ms. Palmer
Mr. Randolph
Clerk, Board of County Supervisors