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HomeMy WebLinkAbout05 05 81 PC MinutesMay 5, 1981 The Albemarle County Planning Commission conducted a public hearing on Tuesday, May 5, 1981, 7:30 p.m., Board Room, County Office Building, Charlottesville, Virginia. Those members present were Mrs. Norma A. Diehl, Chairman; Mr. David Bowerman, Vice -Chairman; Mr. James Skove; Mr. Kurt Gloeckner; Mr. Corwith Davis; Mr. Richard Cogan. Mr. Allan Kindrick was absent. Other officials present were Mr. Frederick Payne, Deputy County Attorney, and Mr. Ronald S. Keeler, Assistant Director of Planning. Mrs. Diehl called the meeting to order after establishing that a quorum was present. Mrs. Diehl explained the procedure to be followed during the public hearing: the presentation of the staff report, comments by the applicant; questions and comments from the public; the applicant's response to such questions and comments; then close of public hearing with the matter before the Commission for discussion and possible questions of the applicant. ZMA-81-13 General Electric - Deferred from April 14, 1981. Located west of Route 29 North and east of Route 606, south of intersection of Route 606 and Route 763. County Tax Map 21, Parcel 12, Rivanna Magisterial District. Proposal to rezone 6.376 acres from RA Rural Areas to LI Light Industrial. Mr. Keeler gave the staff report. Mr. Lloyd T. Smith, Jr., representing the applicant, explained that the purpose of this application was to consolidate G.E. property and put the substation on the side of the road. Mrs. Diehl asked whether there was public comment. Since there was none, she stated that the matter was before the Commission. Mrs. Diehl asked for Commission comments or questions. Mrs. Diehl asked whether it was Parcel 5B that would be transferred to the Rappahannock. Mr. Smith said that it was, plus the right to use the power easement shown on the subdivision plat. Mr. Skove asked whether General Electric planned to put any buildings on this parcel. Mr. Smith responded that engineering offices presently exist on Parcel 3, near the boundary with Parcel 5A. He stated that future expansion of this building was a possibility, plus parking, and that would involve Parcel 5A. He said that presently a swill exists on Parcel 5A, making a natural boundary between the Rappahannock property and General Electric. M Mr. Cogan asked whether the possible future parking would be on the western side of Route 606, or involve crossing over Route 606. Mr. Smith replied that he did not believe that General Electric owned land on the western side of Route 606 at that point. :Mr. Cogan explained that his concern was to avoid a situation such as Morton with parking opposite offices, involving crossing over a highway. Mr. Smith did not deny that such a possibility existed further up Route 606 where General Electric owns land on the western side, but he stated that such a possibility did not exist with the application before the Commission at present. Mr. Skove moved for approval of ZMA-81-13. Mr. Gloeckner seconded the motion which passed unanimously with no further discussion. SP-81-11 Edward A. Anderson - Located on the west side of Route 649, south and adjacent to the Southern Railroad at Proffit, County Tax Map 46, Parcel 67, Rivanna Magisterial District. Proposal to locate a public garage, in accordance with Section 10.2.2.37 of the Zoning Ordinance. Mr. Keeler gave the staff report. Mrs. Diehl asked whether the applicant had any comments. Mr. Anderson stated that he had some pictures to show the Commissioners. He ; said that he found Mr. Keeler's remarks in the staff report very reasonable. Mrs. Diehl asked whether there were any comments from the public. She asked that each speaker identify himself and limit his remarks to one time per person. Mr. Craig Redinger identified himself as an attorney and said that he was speaking for the Proffit Homeowners' Association, as an officer of that Association and as an independent homeowner. Mr. Redinger told the Commission that the character of the area was rural and residential. He said that the community had once had the features of a village - banks, school, commercial activity, but that this had not been true since 1951. He said that for the past thirty years there had been no commercial use of the Proffit Exchange Building. Mr. Redinger said that the nearest commercial enterprize to this site was three and a half or four miles away. He said that he and many of the other residents of the area had chosen this community for the purpose of quiet country living - a quality of life that would be substantially changed by this application. Mr. Redinger said that he had four sheets with sixty names of residents objecting to the application. He added that in addition to the objectional change in the character of the neighborhood, there were other severe limitations to the site with regard to public health and safety. Mr. Redinger said that part of the parcel consists of a right-of-way for Route 649, leaving less than a half acre. Mr. Redinger continued, addressing the statement in the staff report pertaining to whether the proposed garage would serve area residents. He pointed out that there were numerous public garages in the Charlottesville area already. He added 30 the applicant bought the Proffit Exchange Building as an investment and intended to lease it, becoming in effect an absentee owner. Mr. Redinger said that denying this application would not jeopardize a salary, this being a secondary investment. Mrs. Diehl asked whether there was further public comment. Mrs. Mary Anne Lally -Graves, an adjoining property owner, spoke of the quaint stone facades of homes surrounding the Exchange - a quality that attracted her two years before. She stated that she wanted to start a family and the quietude was one of the appeals of the area. She continued that she could not stress enough her concern over the possibility of having a garage next door - not only the noise factor but the decrease in land value. Mrs. Lally -Graves also expressed concern about the railroad bridge, which allows only one car to pass at a time, further hampering access to and from the site. 'The Rev. T. R. Hanner said that he had moved to Charlottesville from Roanoke and had spent two thirds of his life in Charlottesville. He stated that he chose the Proffit area for the peace and quiet and country -living that it offered. He spoke of having gardens and living a quiet rural existence. He said that he doubted that a garage could be next door or two doors away and not cause disturbance. Mr. Hanner concluded by expressing his belief that this application would hurt the community and he was therefore against it. Dr. David Morris introduced himself as a doctor at Martha Jefferson Hospital and resident of Proffit, living about 400 yards from the Proffit Exchange Building. He confirmed the Rev. Hanner's remarks, adding his objections to this application. Mr. Larry Hall said that he was the owner of a body shop on Route 29 and lived in *As-'` the Proffit area. He said that he was familiar with the restrictions the County had placed on his shop, which already had the proper zoning, in particular parking space requirements for customers and employees. He stated that he objected to this application and did not see how the applicant could meet County requirements. Mrs. Diehl asked the applicant if he wished to make a concluding statement. He responded that a letter from an electrical contractor was contained in the staff report, attesting to the dangerous condition of the wiring when the building was purchased the previous year. Mr. Anderson said that this contractor made improvements to the electrical system. In addition, Mr. Anderson said that the general condition of the site was poor with overgrown brush and discarded trash. Mr. Anderson stated that in the three months of operating the garage, he had made improvements to the site, maintained a brisk trade, had not parked cars on the grass. Mr. Anderson said that Associated Steel was located less than a half a mile from the site and was a manufacturer of steel for the housing industry. He said that as far as adequate parking and entrance requirements were concerned, a Highway Department representative on January 21, 1981, had inspected the site and had no problems with it. Mr. Anderson next addressed the issue of his livelihood, saying that this business was necessary to his income. He reiterated his desire to continue upgrading the property and return to the business started prior to notification by Mr. Jesse Hurt, Deputy Zoning Administrator. Mrs. Diehl stated that the matter was now before the Commission. She asked Mr. Dan Roosevelt of the Highway Department to clarify the Department's position on this application. Mr. Roosevelt responded that it had been determined that there was adequate sight distance at the entrance at Route 649 in order to qualify as a commercial entrance. He said that curbs and the standard width were substandard, but the sight distance was adequate. He said that there were problems with the parking area. Mr. Roosevelt said that three to four vehicles would be the maximum number that could be parked on the site without blocking the entrance. Mrs. Diehl asked about the close proximity of the bridge to the site. Mr. Roosevelt answered that there was no problem involving sight distance or hindering the highway and that he did not really foresee a significant increase in traffic. Mrs. Diehl asked whether a deceleration lane had been required. Mr. Roosevelt said that it had not. Mrs. Diehl asked whether the Commissioners had questions or comments. Mr. Skove asked what uses the building had had since the fifties and whether it had ever been used as a residence. He asked about other acceptable uses of the site. Mr. Keeler responded that it was his understanding from the Zoning Department that the building had had various uses since the fifties, the most recent being a warehouse. Mr. Keeler said that the Health Department had indicated it would only approve a septic system for a one -bedroom residence. Mr. Skove asked about the sizes of surrounding parcels. Mr. Keeler indicated that there were several small lots in the area and directly adjacent,: ranging from a quarter of an acre to a half or three-quarters of an acre. Mr. Gloeckner asked whether nearby homes were occupied. This was not determined. Mrs. Diehl asked about the Health Department requirements, since the parcel contained so much less area than now required. She expressed concern about needing a grease trap and special drainage arrangements for a public garage. Mr. Keeler said that this matter would be addressed under the plumbing code rather than by the Health Department.and regulated by the Building Inspector and Fire Official. Mrs. Diehl asked about how this material was disposed of. Mr. Keeler indicated that it was supposed to be disposed of in some appropriate manner, not permitted to permeate soils on the site. Mr. Davis asked about the existing water and sewer system. Mr. Keeler said that there were neither and due to the configuration of the parcel and surrounding development, a well would have to be located at the other end of the property. Mrs. Diehl asked whether the placement of the septic drainfield and well would interfere with the already limited parking area. Mr. Keeler responded that it was quite possible and for this reason a site plan requirement was included as one of the recommended conditions of approval. Mrs. Diehl asked whether this parcel was not subject to the present requirement in the ordinance of having two drainfields shown on each parcel. 3z1 M Mr. Keeler answered that at the present time it was, but pending amendments (scheduled for action the following week) would change this requirement. Mrs. Diehl asked whether there were additional comments or questions. Mr. Cogan said that he tended to agree with the staff recommendation that a site plan should be submitted simultaneously with this application, but that he really did not feel favorably inclined toward the petition and would hesitate to suggest that the applicant go to the further expense of drawing up a site plan. Mr. Gloeckner stated that he agreed with Mr. Cogan and felt that a garage here would not be an appropriate use. He added that probably some other use could be found for the property which would be more suitable and in keeping with such a residential neighborhood. Mrs. Diehl said that she had visited the site during the afternoon and believed that putting a garage on this site would drastically change the nature of this quiet neighborhood, which consists of small lots. Mr. Gloeckner moved for denial of SP-81-11, which was seconded by Mr. Bowerman and passed unanimously with no further discussion. ZMA-81-10 James P. Reilly was the next item on the agenda, but Mrs. Diehl ascertained that neither the applicant nor his representative were present. She stated that the public hearing would proceed to the next item on the agenda. SP-81-13 Adial Full Gospel Church - Located on the east side of Route 758 about 1,500 feet south of Route 637, County Tax Map 69, Parcel 37, White Hall Magisterial District. Proposal to locate a 3,584 square foot church on a 1.95-acre tract zoned RA Rural Areas, in accordance with Section 10.2.2 of the Zoning Ordinance. Adial Full Gospel Church Site Plan Mr. Keeler gave the staff report. Mrs. Diehl asked whether the applicant wished to make a statement at this time. Mr. Bland Wade introduced himself as the architect for the church and said that he or Mr. McQuarry, the applicant, would be happy to answer any questions. Mrs. Diehl called for public comment. Since there was none, she stated that the matter was now before the Commission. Mrs. Diehl asked about the Highway Department recommendations. Mr. Keeler said that the Highway Department required a 25' radius to be shown on the site plan. ,32Z Mr. Gloeckner said that since there were no objections from adjacent property owners, he would move for approval of this special use permit, SP-81-13. Mr. Cogan seconded the motion, which passed unanimously with no further discussion. Mrs. Diehl asked whether there were questions concerning the site plan. Mr. Gloeckner asked Mr. Keeler about the wording of the last condition, g. Redesign parking to allow for perpendicular parking, subject to staff approval. Mr. Keeler explained that adding "subject to staff approval" was due to staff not having been able to consult the applicant on a redesigning of parking. Mr. Cogan asked, with regard to parking, what requirements were for spaces. He said that he thought they were required to be 10' by 201. Mr. Keeler answered that there was a range, depending upon the width of the aisleway. He said that spaces could be as small as 9' by 18' if the aisleway were 24'. Mrs. Diehl asked whether only one handicap space was required. Mr. Keeler responded that it was. Mrs. Diehl asked about Health Department approvals. Mr. Bland said that a perc test had been approved. Mr. Cogan asked about buffering and adequate screening of the cemetery. Mr. Keeler said that he did not recall a condition being placed on a church to screen its cemetery. Mr. Gloeckner said that there was such a thing as deeding of cemetery plots. Mrs. Diehl asked whether the Commission was approving a future cemetery in that area as shown on the site plan. R Mr. Payne answered that he did not believe so, that the particular location of the cemetery was not being approved by approval of the church site plan. He thought that placement of a cemetery would be an accessory use to the special use permit. Mrs. Diehl asked what the property adjacent to the church consisted of. Mr. Keeler said that the nearest dwelling to the church property was 300 feet. Mr. Gloeckner asked Mr. Cogan whether he wanted to require a buffer. He responded that if there was no one to be bothered by the presence of the cemetery, he did not feel it was necessary. IR 223 Mr. Skove moved for approval of the Adial Full Gospel Church Site Plan, subject to the following conditions: 1. A building permit will be issued when the following conditions have been met: a. Written Health Department approval; b. Staff approval of a landscape plan; c. Dedication of 25 feet from the center line of Route 758, to be accomplished by separate deed or plat; d. Virginia Department of Highways and Transportation approval of the commercial entrance; e. Compliance with the Soil Erosion Ordinance; f. Correct acreage of the site to 1.95 acres; g. Redesign parking to allow for perpendicular parking, subject to staff approval. Mr. Gloeckner seconded the motion, which passed unanimously, with no further discussion. Since neither the applicants nor their representatives were present for ZMA-81-10 James P. Reilly and ZMA-81-15 Woodbriar Associates, Mrs. Diehl declared a ten-minute recess. ZMA-81-10 James P. Reilly - Located at the intersection of Routes 22 and 231 at Cismont, County Tax Map 65, Parcel 12C, Rivanna Magisterial District. Proposal to rezone 2.88 acres from RA Rural Areas to C-1 WITH PROFFER. Mr. Keeler gave the Staff Report. Mrs. Diehl asked whether the applicant had any comments. Mr. George M. Coles, Jr., an attorney, identified himself as representing the applicant. He said that at this time he had no comment, but wished to reserve the opportunity to speak later. Mrs. Diehl asked for public comment. Mr. R. A. Broan remarked that this application was very similar to the earlier one. He stated that he questioned whether there should be commercial zoning in the midst of substantial RA zoning. Mr. Broan stated that he did not believe that any other commercial zoning existed east of Route 250. Mrs. E. H. C. Goss identified herself as having property behind the applicant's. She stated that a traffic problem already existed without opening up a restaurant, which would attract additional people. She said that Cismont was a quiet, peaceful place that did not want change. She stated her objection to the application, saying that she wished to see Cismont remain a residential area. Dr. Joseph W. May identified himself as a resident of Cismont, living within 500 feet of the applicant's property. Dr. May said that he was a physician in *#Abw Charlottesville. He stated that he did not wish to obstruct livelihood from the community, but that the business in question had been supported by local residents as it exists. Dr. May said that two previous owners, Joe Goldberg ,324/ Harry Bishop, had operated the business. Dr. May said that he thought there was no need to increase the size of the operation for a single family to make a sufficient profit margin. Dr. May also stated his concern about setting a precedent. He said that a piece of property across the road from this parcel was on the market, and he believed that if C-1 zoning was granted to this applicant, another application from that property would follow swiftly. Dr. May terminated his objection to the application by saying that he had moved to the Cismont community for the peace and quiet of country living and believed Mr. Craig Redinger's comments (as an officer of the Proffit Homeowners' Association) during the public hearing on SP-81-11 Edward A. Anderson were appropriate here also. Mr. Thomas Salmon said that he lived 1.8 miles from the proposed rezoning and that he had only learned of the application that afternoon. He added that he believed the earlier application had been approved because there had not been any objection to it. Mr. Salmon suggested that this was due to people not knowing of the existence of a rezoning application. He stated that many people now knew of this application and he hoped their objections would be influential in having the application denied. Mr. Gordon Haines stated that he lived within a quarter of a mile of the property. He said that the rezoning could change the whole character of the community and that he was opposed to it. He added that the intersection of Routes 22 and 231 was already very, very bad and that a restaurant use would only add to the danger. Mrs. Diehl asked whether there was further public comment. Mrs. Pat McCauley stated that she lived within sight of the property. She said that she had grown up in the community and did not want to see a rezoning on this property. Mrs. McCauley voiced concern over subsequent uses, should the rezoning be granted and change hands in the future. Mr. Pruit Sims stated that he had talked with numerous land owners in the community and found that virtually all of them were opposed to this rezoning petition. He said that people are afraid of setting a bad precedent, that a commercial zoning could bring about a change in the character of the community. Mrs. Diehl asked whether there was any further public comment. When there was not, she asked the applicant if he would like to make a statement at this time. Mr. Reilly said that he would like to attempt to answer some of the questions raised. He said that he would be the first to agree with those who commented on the high traffic count through Cismont, but he explained that his restaurant would pull from the already existing traffic and not draw from Charlottesville or other areas. He stated that his purpose was a small -family type operation where people could come in and eat sandwiches. He said that he did not intend to draw a lot of customers, that his proffered hours precluded that. Mr. Reilly stated that the earlier comment that no commercial zoning existed beyond the rock quarry was incorrect. He stated that Pittman's on 250 had B-1 zoning and had had this zoning since the original ordinance. Mr. Reilly said that the prospective purchaser of the vacant property across from his store wanted to raise the building and clean up the lot. He added that of the 400 to 600 people who come through his 4,000 square foot store each day, many 325 favor a restaurant. He stated that in 1981 it was economically not feasible to have rr+r a 4,000 square foot grocery in a community the size of Cismont. He said that it was not relevant to speak of previous owners whose financial needs or ambitions were unknown. Mr. Reilly said that this rezoning would be controlled growth and that he did not intend to build a shopping mall; indeed he only wanted to offer a beer and hamburger to people who might otherwise have to travel to Charlottes- ville for a meal. Mr. Reilly also stated that this rezoning to C-1 might provide a convincing case against future rezoning applications, since it would provide all the commercial zoning needed in the Cismont community. Mr. Coles stated that his client was most articulate in his own behalf. 14r. Coles offered to answer any legal questions that the Deputy County Attorney might have. He said that at this time he only wanted to point out that this establishment had enjoyed commercial use for thirty years and that the proposed use was consistent with C-1 zoning. He said that the property across the street had remained unused for some time and therefore any rezoning application was unlikely. Mr. Coles stated that Mr. Reilly was a good businessman, who intended to stay in business and uphold all laws. When there was no further comment from the applicant, Mrs. Diehl announced that the matter was before the Commission. Mrs. Diehl asked the Commissioners for their remarks and questions. Mr. Gloeckner asked to have the past history of this rezoning application reviewed. He said that he remembered that the Commission had recommended approval and that there had been no public objection. Mr. Gloeckner asked why the Board had denied it. Mr. Coles said that the denial had been related to the late hours it was feared a restaurant would operate until. Informally, he said that the applicant had understood a nroffer on hours would be looked on more favorably. Mrs. Diehl and Mr. Bowerman asked whether the area had been reduced in this rezoning application. Mr. Keeler said that 2.8, close to 2.9,acres were involved in order to establish a second use, the requirement being 60,000 square feet per use. He said that there had been no change in the area in the rezoning request, but that the total acreage of the property was between six or -seven acres. Mr. Keeler said that under this rezoning there could be the grocery use and one other use with the back of the property continuing in residential use. Mrs. Diehl asked under what provision the store was operating at the present. Mr. Keeler replied that it was non -conforming. Mr. Cogan asked whether with the approval of this rezoning two uses would be permitted. �rW Mr. Keeler replied that this was correct. 326 Mr. Payne explained that it should be clarified, the limit was to two uses, but not necessarily to the current grocery use and proposed restaurant use, as far as the rezoning was concerned. Mr. Cogan said that he was not t-7.k`.ng about types of use, but number. Mr. Bowerman said that as he recalled only one person spoke against the application originally, and he was the owner of the property across the road. Mr. Gloeckner said that he did not speak against the application but was concerned about the second use, which Mr. Reilly indicated would be a restaurant. Mrs. Diehl asked whether the applicant was precluded from adding another use, such as a craft shop or florist's, should it not prove feasible to have just two uses in a 4,000 square foot building. Mr. Keeler answered that once the zoning was obtained, there were no restrictions on enlarging the existing building, but the number of uses was limited to two. He said that there had been no discussion of limitation on the size of the building and that such a limitation would have to come from the applicant. Mr. Davis asked whether the general store and restaurant combined might be one use. Mr. Cogan said that it was a good point, since both were under the same roof. Mr. Payne said that he did not believe they would be considered as one use, but that the outcome of this petition might answer that question. Mr. Cogan asked whether Mr. Roosevelt could address safety concerns. Mr. Roosevelt indicated that sight distance requirements and widths for commercial entrance existed along the frontage of the site. He added that as far as a major increase in traffic was concerned, he did not foresee any. He said that the intersection of Routes 22 and 231 was bad, but traffic in and out of the site was not going to further affect either the intersection or the roads, from what he understood. Mr. Bowerman asked Mr. Keeler to explain his note on the Staff Report: The applicant has modified the entrance to the property and installed additional gas pumps. Both of these actions require site plan approval. Staff felt that the purpose of a site plan in this case could be satisfied by approvals from the Virginia Department of Highways and Transportation and the Fire Official and suggested the applicant seek relief from the site plan requirement. Intensification of the use of the property by addition of a restaurant use is, in staff opinion, a separate issue for which a site plan should be required. Mr. Keeler explained that some modification to the site had taken place without a site plan. He said that the Highway Department has recommended that the applicant be required to install a commercial entrance to current Highway Department standards. He added that the Fire Official had already given approval of the work done to the gas pumps and fuel system. 327 Mr. Keeler further explained that it had been his intent to deal with this matter as a separate issue from the rezoning application, and, indeed, required action. Mrs. Diehl said that she wanted to go back to the number of uses that could possibly be permitted in the 4,000 square feet. Mr. Payne explained that the ordinance required 60,000 square feet per establishment, and he said that to date there had been no problems in defining an establishment. He gave examples of instances that would be "judgment calls," whether a general store with a counter selling flowers would constitute a florist's, or a vending machine with sandwiches constitute a restaurant, but he indicated that circumstances such as these had not been a problem. He said that clearly identifiable businesses with different owners, different cash registers, under one roof, would be more easily identified as separate establishments. He said that as long as the ordinance is enforced, he did not foresee any major problem. Mr. Keeler stated that if the Commission wished to limit the uses to the existing general store and proposed restaurant, he would recommend that this idea be conveyed to the applicant. He said that he thought a limit of uses could be better controlled through the rezoning than any subsequent interpretation of the Zoning Ordinance. Mrs. Diehl responded that no conditions could be placed on a rezoning. Mr. Keeler agreed, explaining that any such limit of uses would have to come voluntarily from the applicant in the form of a proffer. Mrs. Diehl asked about conditioning the site plan, limiting it to two uses within the building. Mr. Payne said that this would be the same situation, calling for interpretation of the zoning regulations in defining two uses. Mrs. Diehl stated that she was trying to determine the nuance between use and establishment. She asked whether there were further comments. 1r. Davis said that he had heard no opposition the first time, but that with all the objections tonight, he had a problem with the C-1 rezoning. He added that he could only support it with certain proffers from the applicant. Mr. Coles said that the application had been recommended for approval originally by the Commission and he thought it would again and he did not believe that additional proffers would be appropriate at this time. He stated that he would wait for the vote. Mr. Bowerman asked the applicant to respond to staff comments about the work done without approval. Mr. Reilly responded that there had been a problem with the antiquated fuel system, and he had visited County offices to find out how to go about repairing it. He said that he was told to contact the gasoline company that was going to make the improvements, have them fill out the necessary applications and permit requests. Mr. Reilly said that after work was well underway, we found out that -32K there were no permits for the construction. He said at that point he had to get electrical, building, etc. permits, meet fire regulations, and halt work. Mr. Reilly said that he was simply misinformed and had never intended to do the construction without the proper permits and inspections. Mr. Bowerman asked Mr. Reilly exactly which department had he spoken of when he initially visited County offices. Mr. Reilly replied Inspections. He spoke with the Fire Official, Ira Cortez. Mr. Coles asked to respond to an earlier comment by Mr. Davis. Mrs. Diehl said that he could do so, provided that he spoke briefly. Mr. Coles explained that Mr. Reilly already made sandwiches for customers. He said that these customers wanted to be able to have a cold drink with their sandwiches and sit down in the store. Pair. Coles said that it was the demand by these customers that had prompted Mr. Reilly to pursue this application. He explained that many of the people buying sandwiches did not necessarily want to take them out to cars, but wished to have a place to sit and eat comfortably. Mr. Gloeckner stated that he still had trouble with all the public opposition expressed this time, as opposed to the first time when he was fully in favor of the application. Mr. Cogan said that some of the objections came from people who live some distance from the store, which to him changed the situation somewhat. Mr. Davis said that this case was distinct from the earlier Anderson application for a special use permit. He said that a rezoning for commercial was a much broader sweep and would not be restrictive enough in a rural area. Mr. Cogan inquired as to whether there might be another zone under which this application might be filed. Mr. Payne expressed his opinion that he doubted that staff would recommend any other area of the community for commercial use. Mrs. Diehl asked whether there was further comment. Mr. Skove expressed his concern with all the permitted uses under C-1 and moved for denial. Mr. Davis seconded the motion. Mr. Cogan asked Mr. Payne if he had understood Mr. Cogan's question earlier. He explained that he wondered whether this use might be allowed by special use permit in some other zoning district, not necessarily a commercial one. Mr. Payne answered that the store could operate in Rural Areas with a special use permit, but that the restaurant use presented the problem and there is no provision for this use by special use permit in any zoning district. Mr. Davis elaborated on his concerns about there being to too wide a range of uses permitted under C-1. He suggested that with a proffer limiting the uses he could be more sympathetic to the applicant 3Z4 Mrs. Diehl remarked that this was similar to her problem with the rezoning request. She said that she had been concerned with the amount of acreage in the rezoning, but that Mr. Keeler and Mr. Payne explained this requirement in order to have two "establishments." However, she believed that various uses could still be permitted under a C-1 rezoning. Mrs. Diehl suggested that if the applicant were so disposed, he might wish to consider further proffers of use at a future point in the process. Mr. Payne concurred with Mrs. Diehl that action this evening had to be confined to the application as it was submitted and presented to the Commission. He indicated to the applicant's attorney that it would be appropriate to submit any additional proffer prior to the public hearing of the Board of Supervisors. Mr. Coles indicated that his client would so proffer to limit the rezoning to the two uses, restaurant and general store. Mrs. Diehl said that in her opinion, the Commission should proceed and take action on the motion presently on the floor. She said that there could be further discussion after action and even a substitute motion, if appropriate. Mrs. Diehl called for a vote. The motion for denial passed with five for and one against, Mr. Cogan voting against the denial. Mr. Davis remarked that no further action was necessary at this time by the Commission, because a proffer by the applicant before the Board would bring about the same result in all probability. Mr. Coles asked if for public record it could be shown that had the applicant proffered limitation of uses before the Planning Commission public hearing, its action would probably have been favorable. Mrs. Diehl responded that Mr. Coles could request a copy of the minutes of the meeting, which would reflect that sentiment, to submit to the Board. Mr. Keeler stated that there was another matter related to Mr. Reilly's application that had still to be addressed by the Commission. Mr. Keeler said that the entrance to this property had been changed without Virginia Department of Highways and Transportation approval and without a site plan. Mr. Keeler said that the ordinance permits waiver of a site plan if it would not further the purpose of the ordinance. Mr. Keeler said that he would recommend the waiver for the existing use of the building. He said that any additional use would require a site plan. He further recommended a waiver with the condition that the applicant make application within thirty days for a commercial entrance which would be installed within six months of Planning Commission action, failure to do so constituting a violation of the Zoning Ordinance. Mr. Keeler added that he believed that technically speaking the Highway Department could close the existing entrance, since it had been installed without Highway Department approval, until constructed to Highway Department standards. A site plan would still be required according to the ordinance, Mr. Keeler stated. Mrs. Diehl asked Mr. Dan Roosevelt if there were any Highway Department comments on this matter. Mr. Roosevelt concurred with Mr. Keeler's remarks. He said that it would be harsh to close the entrance and that he agreed with the alternative, having the applicant comply as recommended by Mr. Keeler. Mrs. Joan Graves remarked that it should be noted that a waiver should apply before an action takes place, not after. She said that if there had been a site plan requirement, Health Department approval might have been necessary. She added that Health Department approval might be an appropriate additional condition, since it may have been some time since this site had been reviewed. Mr. Coles objected to this issue coming up at the rezoning request. He stated that his client had been misdirected by the County. Mr. Keeler answered that his understanding was that the applicant had sought information from the County, been given the appropriate applications, and the applicant's agent had failed to file for the required permits. Mr. Keeler said that at no time had the applicant been given authority to construct his entrance. Mr. Coles asked that this issue be postponed until a determination were made on the proffer of limitation of uses. He observed that modifying the entrance might be contingent on the outcome of the proffer. Mrs. Diehl pointed out that action had already been taken by the Commission on the rezoning request and that it was unlikely that the applicant would come before the Commission again. Mr. Coles again expressed a desire to come before the Commission, before proceeding to the Board. Mrs. Diehl asked Mr. Roosevelt how the Highway Department would address this matter, if the Commission deferred action. Mr. Roosevelt said that the Highway Department could request compliance, involving partial reconstruction of the island that was removed, and close the entrance as a final action. He said that to date the applicant had not filed for a permit. Mr. Payne said that actually this constituted a violation of the Zoning Ordinance since the required site plan was not submitted. Mr. Payne said that Mr. Keeler's recommendation was a solution. If the issue were not dealt with through his proposal, Mr. Payne suggested that the Zoning Administrator might have to be approached with regard to prosecuting or enforcement. Mr. Bowerman asked the applicant to explain whether he had been given advice that he did not follow or that he did follow, from the Zoning Administrator's office. Mr. Reilly replied that he had understood that the responsibility for filing for the appropriate permits had rested with the construction company actually doing the work. He then requested permission to describe the improvements to the entrance to the property, which entailed removing cement islands to widen access to the property and permit easier flow of traffic into and off of the property. 331 Mr. Payne pointed out that the Commission did not have a site plan before it and explained that the options open to the Commission were to waive the rr requirement of a site plan and let staff do what it has proposed or to require a post -hoc site plan. If the applicant did not comply with submittal of a site plan, a violation of the Zoning Ordinance would result, Mr. Payne explained, and enforcement would be pursued by the appropriate parties. Mrs. Diehl said that this action, then, was apart from waiving a site plan for the rezoning. Mr. Payne concurred, explaining that in effect the Commission was radifying an action post -hoc by granting a waiver of a site plan after the work had been done. Mr. Bowerman remarked that if the County was at fault through oversight, by not advising the applicant of a site plan requirement, then he believed that a waiver was in order. Mr. Payne pointed out that it was possible that the applicant had not asked any questions that sufficiently demonstrated his intentions and was therefore not advised of the site plan requirement due to its not being evident that one would be necessary. Mr. Davis remarked that he did not believe that Mr. Reilly had deliberately gone about doing the work to avoid the site plan requirement. He went on to move for approval of a waiver of the site plan requirement, on the property as it stood now, with its existing use, subject to the applicant obtaining a commercial entrance permit from the Virginia Department of Highways and Transportation within thirty days of May 5, 1981, and installing such entrance within six months of May 5, 1981, and additionally Fire Official approval of the work completed. Mr. Gloeckner seconded the motion, which carried unanimously. ZMA-81-15 Woodbriar Associates - Located on the west side of Route 29 North between Camelot and General Electric, County Tax Map 32E, Parcel 1 (part), Rivanna Magisterial District. Proposal to rezone 2.6 acres from C-1 Commercial to PRD (Open Space) . Mr. Keeler explained that this was a follow-up application to one reviewed for Briarwood, when Mr. Wood proffered to reduce commercial frontage by twenty percent. The last application satisfied this reduction partially and this petition would fulfill the proffered reduction, Mr. Keeler explained. Mrs. Diehl asked the applicant if he wished to speak. Mr. Wood stated that he did not. Mrs. Diehl asked for any public comment. There was none, and Mrs. Diehl declared that the matter was before the Commission. Mr. Keeler explained that the appropriate metes and bounds would be recommended to be included on the preliminary plan. He added that there were other amendments needed on that plan. 22Z- Mr. Gloeckner moved for approval of the rezoning request, subject to metes and bounds being shown as requested by staff. Mr. Davis seconded the motion, which passed unanimously with no further discussion. Mr. Wood invited the Planning Commission to come out and visit Briarwood, to see how he is attempting to provide affordable housing for Albemarle County. Mrs. Diehl thanked him for the invitation. Mrs. Diehl ascertained that there was no OLD BUSINESS or NEW BUSINESS. Mr. Gloeckner asked to make some remarks on the Reilly resubmittal. He expressed his belief that when the Board has indicated that an applicant should return with a proffer, after action by the Commission, then such a petition should not come before the Commission again. Mr. Gloeckner said that it put the Commission in a difficult position and the Commission should be bypassed in the second procedure, if the Board was interested in a proffer. Mr. Gloeckner said that he was uncomfortable with having changed his vote from approval originally and this time denial. He said that the amount of opposition had influenced his decision. Mr. Payne said that the problem was that the Statute required a resubmittal to come before both bodies, the Commission could not be bypassed in the second action. Mr. Payne said that if different, significant issues were raised in the resubmittal which were not in the original action, a change of vote was under- standable. He said that opposition on the grounds of "not liking" the proposal was immaterial. Mr. Cogan said that to him the opposition lacked substance. Mrs. Diehl said that the 4,000 square feet area bothered her. Mr. Davis said that the tone of the application had changed radically from the original one to the second. He said that originally the applicant had sought relief in order to sell sandwiches to serve on the premises. Mr. Cogan added that the whole issue of what kind of restaurant the applicant envisioned was not completely clear. Mr. Gloeckner concurred with Mr. Davis' recollection, saying that it was the original intent to have a deli -type operation. He added that the issue had not been brought up as to how the property might be used if it were sold. Mr. Gloeckner said that the multi -use aspect might in that case well become a problem. He said that it was unfortunate that the application could not be conditioned in some way to limit it to the individual applicant and the one restaurant use. Mr. Cogan agreed with this dilemma, saying that the only way the applicant could proceed was through this rezoning request to C-1. He lamented that there was no alternative inbetween. 333 Mr. Payne said that this situation had come up a couple of times. He said that an informal suggestion implying to an applicant that a certain proffer would bring approval might in fact not develop that way. Mr. Payne explained that someone might not have fully contemplated all of the implications of a proffer and act differently on the proffer when it was fully discussed during public hearing. Mr. Keeler cautioned that anyone advising an applicant should be extremely careful. He said that an applicant could misunderstand. Mr. Gloeckner said that he did not feel sorry for the applicant because he had had an opportunity to defer the application, when Mr. Davis asked him whether he preferred a deferral. Mr. Davis said that he believed that his suggestion to the applicant on an additional proffer had been carefully worded to caution that such a proffer could possibly be looked upon more favorably, but did not imply any guarantee of approval. Mrs. Graves expressed her pleasure that the Commission had not acted further on the proffer of the applicant; she said that she believed such a response would have opened up more public debate. Mr. Gloeckner said that further suggestions on proffers would have then come forth and that a proffer should be cut and dried without discussion on further proffers. Mr. Cogan asked Mr. Payne whether the general public was aware of being able to come in with a list of proffers on a rezoning. Mr. Payne answered that it depended on the applicant or legal counsel. He said that there are two or three lawyers who know the ordinance well and can proffer accordingly. Mr. Gloeckner asked how staff could help with filling in the Commissioners on the Board's thinking when a resubmittal came in. Mr. Keeler responded that he did not believe the Commission's action should be tainted by the Board's action. He said that the Commission should make recommendations to its Board and leave the Board to take its own action. The meeting adjourned at 10 o'clock. M obert W. Tucker, Jr. ecretary 33q