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HomeMy WebLinkAbout03 20 90 PC MinutesMARCH 20, 1990 The Albemarle County Planning Commission held a public hearing on Tuesday, March 20, 1990, Meeting Room 7, County Office Building, Charlottesville, Virginia. Those members present were: Mr. Keith Rittenhouse, Chairman; Mr. Phil Grimm, Mr. Tom Jenkins; Ms. Ellen Andersen; Mr. Walter Johnson; and Ms. Babs Huckle. Other officials present were: Mr. V. Wayne Cilimberg, Director of Planning and Community Development; Mr. Ron Keeler, Chief of Planning; Mr. Bill Fritz, Senior Planner; and Mr. George St. John, Deputy County Attorney. Absent: Commissioner Wilkerson. The Chairman called the meeting to order and established that a quorum was present. The minutes of February 27, 1990 were approved as submitted. Ms. Scala very briefly previewed the items which would appear on the March 27th Consent Agenda. SP-90-07 Charles & Julia F. Jones - Request in accordance with Section 10.2.2(15) of the Zoning Ordinance for the issuance of a special use permit to allow for a group home on 2.63 acres, zoned RA, Rural Areas. Property, described as Tax Map e7, Parcel 46, is located on the east side of Rt. 712 approximately 0.3 miles south of its intersection with U.S. Rt. 29 in the Samuel Miller Magisterial District. WITHDRAWN BY STAFF. Mr. Fritz explained that it had been determined that due to recent legislation passed by the General Assembly which changed the definition of a group home to "8 persons," this use would not require a special permit because it proposes to accommodate only 6 persons. ZMA-69-03 Preston Stallings - Request in accordance with Section 33.3.2.1 of the Zoning Ordinance to rezone approximately 2 acres from RA, Rural Areas to HC, Highway Commercial and 2 acres from HC, Highway Commercial to RA, Rural Areas (Proffered). Property, described as Tax Map 56, Parcels 109B, 110A, and 110E, are located on the south side of U.S. Rt. 250 approximately one mile east of its intersection with Rts. 240 and 635. White Hall Magisterial District. Mr. Fritz presented the staff report. Staff recommended approval subject to acceptance of some of applicant's proffers. Referring to proffer No. 1, which provided for two alternatives, Mr. Rittenhouse asked who would choose which alternative was followed. Mr. Fritz responded that would be at the applicant's March 20, 1990 Page 2 discretion and was immaterial to staff. Mr. Fritz also explained the intention of this proffer, i.e. "it would actually be rezoned to RA and also shown as open space. The two alternatives are to combine all of parcel 110E and iIOA and note the 2-acre portion as open space as well as rezone it to RA. The rest would be HC, so you'd have a parcel with two zoning designations. The other is to combine the portion of 110E that will remain HC with 110A leaving behind the portion zoned RA." Mr. Johnson asked Mr. Fritz to point out where the screening referred to in proffer No. 2 was to be planted. Mr. Johnson asked if staff had determined this to be the only screening necessary. Mr. Fritz responded that screening would be addressed at the time of site plan review. He felt the proposed screening would be adequate and, in fact, exceeds the requirements of the ordinance. The Chairman invited applicant comment. Mr. Dale Shumate, part owner of Blue Ridge Builders' Supply, addressed the Commission. He explained the reason for the requested expansion was due to the fact that a mistake had been made in the estimation of the amount of storage that would be needed. He also stated additional storage was needed in order to be competitive with other businesses. He stated the area requested was already "substantially ready" to serve as a storage area. He stressed that the proposed area was well removed from the scenic highway. Mr. Dan Wagner, also representing the applicant, addressed the Commission. He presented copies of aerial photographs of the site and explained the history of the proposal. He also noted that "designating this area as open space would not preclude, at some future time, a utility line, or some such public use, from going through that land. Mr. Wagner answered several questions for Ms. Huckle as follows: (1) The storage area will not be within a building --it will be an open area. (2) Previously approved site plans will require a good deal of fill which will be taken from this borrow pit and moved to the front (which will require site plan approval to show the cutting back at the back and the building in the front). The dirt will probably be taken from a small portion (approximately 2 acres) of the total cleared area. (3) The rezoned area will be delineated from the other cleared area in the usual manner by the surveyors (i.e. corner stakes). (4) Grading should clearly delineate the storage area and thus prevent it from spreading into the other cleared area. (5) Plans for the residue of the RA zone are not known at this time. (Mr. Stallings responded to this question.) Mr. Wagner stressed that this was not a request for additional HC, but was a zoning "swap." The Chairman invited public comment. f4 March 20, 1990 Page 3 Mr. John Marston, representing what he described as several concerned citizens of the Crozet area, addressed the Commission and expressed his opposition to the proposal. He spoke at some length and made the following requests: --That further landscaping be required; --That screening be required on all sides; --That the existing trees be preserved; --That restrictions be made limiting the facility to day- time hours only; --That restrictions be placed on the types of materials that will be stored outside. He felt that approval of the request would be inconsistent with the Comprehensive Plan and that the proposal did not reflect the public interest. He stressed that the property is surrounded by RA zoned property. He expressed concern about the location of the scenic highway and the fact that the property is in the watershed area of two creeks. In response to Mr. Grimm's question as to why he felt this facility would be a detriment to the area, he mentioned concerns about increased growth, increased traffic, precedence of HC on Rt. 250 and location in the watershed. Mr. William E. Werling, a resident residing on lot 25Ai, addressed the Commission. He expressed concern about the possibility of hazardous materials which could be stored, days and hours of operation, noise from delivery vehicles, and security provisions (i.e. types of lighting). Mr. Rittenhouse invited staff to address Mr. Werling's concerns. Mr. Keeler noted that the concerns being expressed are matters which will be addressed at the time of site plan approval. He noted that the property will be subject to the Runoff Control Ordinance and that official will determine what types of materials can be stored. Regarding lighting, Mr. Fritz explained that light must be directed towards the site and away from adjoining properties. It was determined that hours of operation cannot be controlled with a site plan approval. Mr. Rittenhouse noted that the applicant could proffer certain hours of operation, but it could not be required. Regarding noise levels, Mr. Keeler noted that there are no noise limitation controls which are applicable to commercial zoning district. Ms. Sally Thomas, representing the League of Women Voters, addressed the Commission. She read a statement which is made a part of this record as Attachment A. The applicant was allowed to address public comments which had been made. Mr. Wagner addressed the Commission. Regarding the question of sufficient area, he stated that "staff had reviewed the preliminary site plan that was previously submitted for storage �7 March 20, 1990 Page 4 on some of the currently zoned HC and agreed that it was feasible to use that land for storage and staff and applicant agreed that it was more in the public interest to give up some of that existing storage and put it somewhere else." Regarding the stream crossing, he explained: "The Ordinance calls for a 100 foot buffer and it is more than 100 feet back to the storage area. You do cross the stream but that is not at all unusual...." Regarding the commercial zoned boundary he stated: "This boundary that's defined on our request outlines an area that would become HC. All the rest of the area that is rural would remain RA. The stream would remain the boundary for the HC area that's between the stream and Rt. 250." Regarding jurisdictional area, he stated: "There's no plan for any building back here that would require water." There being no further public comment, the matter was placed before the Commission. Ms. Huckle asked how far the area on the north side of the stream, toward Rt. 250, extended. Mr. Wagner explained that the stream "is the boundary of the HC area." He was uncertain how far the existing storage area is located from the stream, but noted that it is closer than will be the proposed storage area. Ms. Huckle was under the impression it was supposed to have a 100 foot buffer. Mr. Wagner explained that with the approved preliminary site plan for the shopping center, "we were required to stay 20 feet away from the steam." (Mr. Fritz explained that at the time of the preliminary plan for the shopping center, there was a 100 foot septic setback (which has since been revised to a 100 foot building and septic setback) but there was no provision in the ordinance at that time. Ms. Andersen asked staff to comment on the question raised by Ms. Thomas as to what circumstance has changed since the previous request which caused staff to change their recommendation from denial to approval. Mr. Fritz explained: "The 9.7 acres (which was cited) has been approved for the shopping center." Mr. Keeler added: "We had, in the original review, recommended that there was adequate area for this expansion, and it would have been a logical expansion of the existing storage area...on the north side of the stream. That area, subsequently, was included in the site plan for the shopping center." Mr. Johnson made the following observations: "(1) It appears this commecial endeavor has been quite successful and they are to be congratulated and if it is within the means of the local government to support it, they should; (2) There could be nothing more beneficial to the protection of the scenic highway than having zoning as they are requesting here reverting to RA along in that two acres; and (3) Observing the site...I noted that you can see the graded area from the road.... I would want !Y March 20, 1990 Page 5 to support this but with the provision that the screening be proposed around the complete periphery of the area in anticipation not only of other homes, but also to screen it from the road." The issue of screening was discussed in terms of what could be required with this application. Mr. Keeler explained that the applicant has proffered a specific screening plan on one side of the property. "You cannot give an applicant relief from a requirement of the ordinance in a zoning proffer. He can only further limit the zoning on the property. Section 32.7.9.e, Screening Provisions of the ❑rdinance, remain in full effect on this property. What he is offering in terms of screening is in specific response to an adjoining property owner; but if you accept this zoning proffer, it does not preclude you from enforcing the screening provisions in the Site Plan Ordinance when the site plan is presented. Mr. Fritz explained that the provisions would require the screening of storage areas from the public road and adjacent residential properties, and that would consist of 4-5 foot evergreens, planted 15 feet on center. Ms. Huckle asked that the following conditions be added; ---"The wooded area between the proffered and the storage area and the paved area behind the existing building, i.e. the ravine on both sides of the stream, to be left undisturbed and this vegetation to be protected from (damage by vehicles)." --"The rezoned area to be delineated on site and the storage area to be confined to this area only and area not to be used for storage of loose sand or gravel." --"The use to be restricted to the daylight hours." Mr. Rittenhouse questioned whether conditions could be applied to a rezoning. Mr. Cilimberg stated that such limitations could be accepted as proffers only because this is not a special use permit. Mr. Keeler pointed out that proffers are voluntary on the part of the applicant and staff is very careful not to provide specific warding for proffers. Mr. Rittenhouse summarized the request and stated the central question was whether this was of benefit to both the County and the applicant. He noted that he agreed with Mr. Johnson's assessment and he did feel it was of benefit to bath the County and the applicant, i.e. the applicant can increase his existing business and the County and the citizens have an opportunity to achieve a better public appearance for the scenic highway at this location. He understood public concern that this "swap" might have a tendency to "grow," i.e. by either spreading of the storage area beyond two acres, or by inviting future rezoning applications. He explained that rezoning applications would be Possible "with or without this swap and the Commission and the /q March 20, 1990 Page 6 Board would deal with those on an individual basis." He stressed that if the Commission should recommend this request for approval, it was in "no way implying that we foresee any other use of the property that would bound this rezoned HC area, i.e. we are not implying to this or any other applicant that we are inviting increased commercialization adjacent to the rural areas or that we are implying that there would be any acceptable growth into the RA zone from this 2 acres of re -located HC zoning." He noted that the applicant had indicated there was another area that could be used for additional storage, so it is not a question of whether there will be additional storage, but rather where that additional storage will take place. He stressed that the types of materials stored will be addressed at the time of site plan approval. He stated he was inclined to support the application. Ms. Huckle conceded "there may be benefits to both sides, but I think there is more benefit to the applicant." Mr. Jenkins asked how this proposal would benefit the shopping center. He asked if the additional .6 acre which would become part of the shopping center as a result of this proposal was the only benefit. Mr. Wagner acknowledged that it was the only benefit. Mr. Jenkins also noted: "You plan to bring dirt from the borrow pit over here, but you can do that, if I understand it corrently, regardless of whether this was before us? Is that correct?" Mr. Wagner responded that he thought that would require approval of some County official, probably the Watershed Management Official. Mr. Keeler interjected: "In the rural areas, borrow not exceeding 50,000 cubic yards is a use by -right. You have to have a grading permit for soil erosion and sedimentation control and possibly Runoff Control official approval." Mr. Grimm moved that ZMA-89-03 for Preston Stallings be recommended to the Board of Supervisors for approval subject to the acceptance of the following proffers of the applicant: 1. Parcels 110E and 110A to be combined in a 2-acre area approximately shown on the proposed sketch to be designated as open space on the revised plat combining the parcels. Alternatively the boundary of parcel 110E to be revised to include only the two acres shown on the sketch with the parcel to be rezoned RA and designated as open space on the subdivision plat. 2. Screening consisting of twenty-five white pines, 5--6 feet tall, spaced 10 feet apart, and 48 Russian olives, 14" to 24" tall, spaced two between each two pines, to be planted along the March 20, 1990 Page 7 southern property line of parcel 110A. 3. Areas of parcel 56-110A and 56-109B rezoned HC to be used only as storage area for the building supply business on parcel 110A. Mr. Johnson seconded the motion which passed (5:0:1) with Commissioners Grimm, Jenkins, Rittenhouse, Andersen and Johnson voting in favor and Commissioner Huckle abstaining. Northfields Lot 30 Block B. Section 6 Subdivision Plat - Proposal to divide an existing 1.4 acre parcel into two lots of 0.68 and 0.72 acres. Lots shall have access to Huntington Road and are served by public water and sewer. Property is located on the south side of Huntington Road two -tenths mile east of its intersection with Carrsbrook Drive in the Charlottesville Magisterial District. Property is described as Tax Map 62A(2) Block B, Parcel 30 and is zoned R-2, Residential. Mr. Fritz presented the staff report. The report concluded: "Staff opinion is that the proposed division complies with the Ordinances ... staff recommends approval subject to ... conditions." Mr. Fritz called the Commission's attention to a letter he had distributed from a member of the public. In reference to that letter, he stated: "Please note that the Subdivision Ordinance does not allow for County interpretation or enforcement of private deed restrictions and convenants." In reference to this letter, Mr. Johnson asked if it had any legal status. Mr. St. John stated: "I think the copy of the deed which the objecting parties sent to the Planning Office recites that it has been recorded." Mr. St. John stated he had not checked to see if it had been recorded because of the provision in the Subdivision Ordinance which Mr. Fritz had just referred to, i.e. that County government has no power to enforce private restrictions and has no power to rule on the validity of private restrictions and it has no power to interpret private restrictions. He added that restrictions that are placed on a document requiring County approval, such as a plat, are enforceable by the County. He reminded the Commission that their action on this request would neither enhance, nor diminish, the rights of the objectors based on any private restrictions. In response to Ms. Huckle's question as to the Commission's function, Mr. St. John explained it is the Commission's function to determine whether this division meets the requirements of County ordinances, not whether it is contrary to these private restrictions. He noted that staff has determined that it does meet those requirements and it is entitled to approval by the P/ March 20, 1990 Page B Commission unless it does not meet the requirementments of the County ordinances. The applicant was represented by Mr. Jim Hill. He offered no additional comment. The Chairman invited public comment. Mr. Harold Taylor addressed the Commission and expressed his opposition to the request. He displayed a subdivision map which he stated had been "platted by the party now before you wanting to set this aside." He objected to the proposal because he felt it was not in keeping with the otherall appearance of the neighborhood and was a violation of a recorded plat. He asked Mr. St. John to comment on whether it was a state or local restriction which prevented the County from supporting deed restrictions. Mr. St. John responded that it was a "restriction imposed by the separation of powers of the governmental structure --state and federal." He explained that to deny this request on the grounds that it violated private restrictions would require interpretation of these restrictions ... and the function of interpreting this type of document is one for a judicial branch and what we have here is the executive/legislative branch of the government. And to enforce private restrictions once they are intepreted is also a function of the judicial branch, not the administrative or legislative branch. That's a fundamental rule aside from what's in our ordinance, so I think what is in our ordinance is simply a recognition, or codification, of this rule which exists whether we write it in our ordinance or not." In response to Mr. Taylor's question "Where do we stand?", Mr. St. John responded: "I am not going to give private parties legal advice as to how to go about asserting these rights. I don't think this is the proper forum to do that." Mr. Taylor pointed out ways in which this proposal would violate the deed restrictions. He pointed out that the restrictions referred to had also been set up by the applicant who now proposes to break them. Mr. Taylor questioned whether or not all adjacent property owners had been notified of this hearing. He asked that the Commission "seriously consider the impact of the reduction in the size of the frontages on the area." Mr. Claude Gianining, owner of lot 31, addressed the Commission. He noted his opposition to the proposal and stated many of his neighbors were also opposed. Mr. Larry MacElwain, attorney for the Northfield Community Association, addressed the Commission. He asked Mr. Fritz to explain the statement in the staff report which said that the proposal "meets the requirements with a few minor variations." Mr. Fritz explained these variations were the two technical notes ;Z ;Z March 20, 1990 Page 9 referred to in the suggested conditions of approval. Mr. MacElwain acknowledged understanding. He noted that his clients intended to follow through with their objection and "by our presence here we are not waiving any rights that we may have with respect to contesting any subdivision that this committee approves." There being no further public comment, the matter was placed before the Commission. Ms. Huckle noted that this would change the character of the neighborhood considerably and asked, "Is there nothing we can do?" Mr. Rittenhouse noted that this was an uncomfortable position to be placed in. He stated that staff has determined that the request meets the requirements of the ordinance and, therefore, "we would need some compelling reason to deny it." Mr. Johnson asked if the subdivision had been recorded at some time. Mr. St. John responded to this comment and stated that he could vaguely recall an Attorney General's opinion which stated that "once a plat is put to record which purports to be the plat of a subdivision, it becomes a fixed thing when it is recorded and ... you don't have an absolute right to change it --you have to have some valid reason to change it." However, Mr. St. John stated he has been unable to find evidence of any such law so it has evidently been repealed. Mr. Rittenhouse stated he was uncomfortable with this request because there is "something implied by this to people who purchase lots on the basis of an approved plat that's been recorded with given lot sizes that implies to them that this is the configuration of the subdivision .... This implies what the character of the subdivision is. He felt that decreasing lot sizes on a recorded plat changes the character of the subdivision and he felt "some measure of concern has to be afforded to people who have purchased lots there." Mr. St. John again stated he felt that before this type of change could be made, the applicant would have to go through the process of vacating the original plat. However, he had been unable to find anything to substantiate this belief. Mr. Jenkins moved that the Northfields, Lot 30, Block B, Section b Subdivision Plat be approved based on the fact that the information presented to the Commission indicates that the request is incompliance with the Ordinances and subject to the following conditions: March 20, 1990 Page 10 1. The final plat shall not be signed until the following conditions are met: a. Indicate Tax Map and Parcel Number. b. Note deed book reference for sewer esement. This motion died for lack of a second. Mr. Johnson moved that the Northfields, Lot 30, Block B, Section 6 Subdivison Plat be rejected "on the basis that it is incompatible with the plat as originally approved." Ms. Huckle seconded the motion_ Discussion: Ms. Andersen asked it might be possible to "table" the item until more information was available. Mr. St. John stated the Commission had all the information it was ever going to have. Mr. St. John added: "If you pass this motion I'll defend it as best as I can ... but I can't guarantee that there's any ground to defend it on." Mr. Rittenhouse noted two obligations of the Commission; (1) To correctly interpret the Ordinances; and (2) To change them if we think they're flawed. He noted also that the restrictions contained in the deed were set up in such a way as to address this type of problem, as if it had been anticipated. (Mr. St. John stated they were restrictions imposed by the developer and binding on him as well as the homeowners.) Mr. Rittenhouse stated that though he was concerned about the possibility of precedent, he would support the motion. The motion for denial of the request passed (4:1:1) with Commissioners Grimm, Rittenhouse, Johnson and Huckle voting for the motion, Commissioner Jenkins voting against the motion, and Commissioner Andersen abstaining. NOTE: At this point there was a discussion as to the way the Commission has traditionally cast votes. Mr. St. John informed the Commission that it was not following the requirements of the Freedom of Information Act in not taking a roll -call vote. It was finally determined the Commission would hereafter have a roll call for each motion. 40 March 20, 1990 Page 11 Taylor Auto Body Shop Major Site Plan Amendment - Proposal to construct a 4,000 square foot addition to the existing auto body shop. This proposal will require relocation of existing parking areas. A total of 31 spaces will be provided. Property, described as Tax Map 61, Parcels 168C, and 166D, are located on the east side of Brockway Drive, approximately 480 feet north of Rt. 631 (Rio Road). Property is zoned C-i Commercial in the Rivanna Magisterial District. Mr. Fritz presented the staff report. Staff recommended approval subject to conditions. Ms. Huckle asked what modifications to the floodplain have taken place. Mr. Fritz explained that a previously existing open channel has been piped and gravel has been located in the parking area. Mr. Fritz added that the Engineering Department had agreed with the applicant's analysis of the situation and stated they would approve a special permit if necessary. Mr. Fritz stated that staff determined that a special permit was not required. Mr. Fritz explained that if a special permit was determined to be necessary by the Commission, the applicant would have to submit application, the item would have to be advertised for public hearing and would then be reviewed by both the Commission and the Board. However, he stated that no additional staff review would be required. The applicant was represented by Mr. Tom Muncaster. He stated he agreed with the staff report. However, he asked that the applicant be allowed to install a parallel pipe to the existing 15" pipe rather than removing the old pipe. Mr. Doug Taylor, owner of Taylor's Auto Body Shop, addressed the Commission and explained the reason for requesting the parallel pipe. There being no public comment, the matter was placed before the Commission. Mr. Jenkins moved that the Taylor Auto Body Shop Major Site Plan Amendment be approved subject to the following conditions: 1. The final plat/plan shall not be signed until the following conditions have been met: a. Department of Engineering approval of grading and drainage plans and calculations; NOTE: With the approval of both Mr. Jenkins and Mr. Johnson, this condition was later changed as follows: I? S' March 20, 1990 Page 12 Department of Engineering approval of grading and drainage plans and calculations to include removal and replacement of existing 15" CMP pipe OR emplacement of reinforced concrete pipe parallel to the existing CMP pipe. b. Department of Engineering issuance of an erosion control permit. Mr. Johnson seconded the motion which passed unanimously. Heritage Hall XV Nursing Home Site Plan Amendment.- The applicant is seeking relief of Planning Commission condition requiring dedication of right-of-way on Route 631 and noting internal right-of-way to be dedicated to public use upon request of the County. Property is located north and adjacent to Four Seasons PUD and Berkeley Subdivison on the east side of Rio Road approximately 0.1 mile west of Rt. 659 (SPCA Road) in the Charlottesville Magisterial District. Property is described as Tax Map 45, Parcel 26 and is zoned R-6, Residential with SP-84-4. Mr. Fritz presented the staff report. The applicant was requesting relief from condition 2(c) which was attached to the site plan approval (as stated in a letter dated June 11, 1986 from Amelia Patterson, Planner, to H.C.M.F. Development Corporation) and which was tied to the certificate of occupancy. That condition stated: "Recordation of plat dedicating right-of-way on Route 631; showing sight easements; and noting and showing the internal road right-of-way to be dedicated to the public use at some future date upon request by the County." The staff report concluded; "Staff opinion is that the condition requiring the noting of internal public road right-of-way is necessary in order to provide for orderly development. Staff sees no change in circumstance since the original approval. Therefore staff recommends denial of the applicant's request. Should the Planning Commission choose to approve this request, staff recommends the deletion of 2(c) (as stated above)." Mr. Keeler suggested that it be determined exactly what the applicant was seeking relief from, i.e. which part of 2(c) did the applicant wish to be deleted. He explained that the applicant could not request deletion of the sight easements and he believed that the right-of-way had already been dedicated. Mr. Forbes Reback, representing the applicant, stated that the applicant was making this request for one reason --to get the bond back that the County presently is holding. He explained: March 20, 1990 Page 13 "Specifically, we want to maintain our internal road as a private road. We want relief from the condition that it be reserved for future dedication. We also want relief from something that has just come up, which was not in the original plan, despite what Mr. Fritz has told you --we have never agreed to provide access to the 19 acre Nuttycomb property." He stressed that that does not appear in any of the approvals. Mr. Fritz stressed that staff saw no change in circumstance, i.e. that the entrance locations on this section of Rio Road have not improved. In response to Mr. Johnson's questions, Mr. Fritz explained staff felt access to the adjoining property had been envisioned at the time of the special permit approval in order "to provide for the orderly development of the County due to the limited sight distance of the adjacent properties." Mr. Johnson asked if it was specified or just envisioned. Mr. Fritz explained: "When the special permit was approved, this was still the 60-foot access. If this had been a public road, this lot would have had access over it, without a doubt --it borders it. In order to get approval, it had to be moved. We still are envisioning...from the conditions... that this property have access." For a basis for this requirement, Mr. Fritz explained: "What the Code says, as well as what the condition actually says --'Noting and showing an internal road right-of-way to be dedicated to public use at some future date upon request of the County."' It was determined this had been a condition of the site plan approval. Mr. Keeler asked that Mr. Fritz read from the body of the original report for the original site plan. Mr. Fritz read: "The access road shall be built to state standards for future acceptance into the secondary road system. Other undeveloped properties in this area consist of about 18 acres zoned R-6 Residential." Mr. Rittenhouse asked: "It doesn't specifically talk about access to an adjacent parcel." Mr. Fritz responded: "No, not specifically; but in the opinion of staff, it is clearly implied." Mr. Keeler stated that the special permit report stated in addition "that the property owners should figure out where they want to have the access points." Mr. Fritz quoted from the staff report for the special permit: "Other undeveloped properties in this area consist of about 18 acres zoned R-6. Staff opinion is that even with the future improvements to Rio Road, obtaining commercial access in this area will be limited and staff would recommend that the applicant and seller pursue location of one entrance to serve all vacant parcels." It was determined that the 18 acres in question only partially belonged to the applicant, i.e. 5 acres with the balance belonging to the Nuttycombs. In response to Mr. St. John's question, Mr. Fritz stated that though staff had envisioned one access for the vacant parcels, it had not been made a condition of approval. He added, .27 March 20, 1990 Page 14 however, that the condition from which the applicant is seeking relief, was generated by the statements quoted from the special permit report and site plan report. Mr. Rittenhouse asked if there was any indication in the Commission's minutes that it had contemplated such an access in its approval. Mr. Fritz stated he was not familiar with the mintues, but would review them again. Mr. St. John asked Mr. Reback to explain the status of the former 60-foot easement in terms of legal rights. Mr. Reback responded: "It was extinguished by merger when my client, H.C.M.F. XV Unlimited Partnership, purchased both the dominant and the servient tenant." Mr. St. John went to the plat and, along with Mr. Reback, attempted to clarify the status of the easement. He asked if the Nuttycomb property ever had a right to use "this" easement. Mr. Reback responded: "No. These were all subdivided out of the same property." Mr. St. John asked: "Are there no documents by which Nuttycomb ever reserved the right to use "this strip" for access to Rio Road?" Mr. Fritz responded: "To the best of our knowledge, that's correct." Mr. St. John agreed that was his understanding also though he had not done a title search. Mr. Keeler summarized two major issues: "Had the access been established as it was shown at the time of the special use permit approval, and been dedicated to public use, there's no question that this would have had access to it." Mr. St. John interjected: "That was the purpose of requiring that it be dedicated to public use so that the adjacent property owners would have frontage on a public road other than Rio Road because there's no sight distance on Rio Road. If it had been dedicated, whether Nuttycomb had been deeded any right to use --as a matter of law Nuttycomb would have a right to use it because it would be a public road and Nuttycomb would front on it. That's the background." Mr. Keeler continued: "What happened when this road got moved over here, it left the Nuttycomb property remote from the road right-of-way. And clearly from the applicant's point of view,they would lose land to provide access to Nuttycomb because it would be a 50-foot right-of-way plus they would have to set back 25-feet on either side of that, so that would be 100 feet —of property that they would lose. At the time of the review of the special use permit, the request was on about 9 1/2 acres out of this existing 11 acre piece. At that time it was my clear recollection that they were going to divide off 2 1/2 acres and the remainder of these properties would be available for residential development. There is no provision in our Subdivision Ordinance to mix commercial and residential uses on a private road. Subsequent to the the special permit, and everything else, the applicant now has acquired not only the nine acres, but sought not to divide off the 2 acres that was originally envisioned and, in addition to that, acquired this 5 acres in the front. So now you have 16 to 17 acres that's under 121 March 20, 1990 Page 15 one ownership and under this plat would be combined in one tract of land. I want to make it very clear on the record, that their approval is an 9 acres for a nursing home facility and by combining land it doesn't give them any right --it doesn't prohibit any future granting of a special use permit --to expand in these other areas. They cannot use this other land for the nursing care facility." Mr. Keeler then explained he felt the second issue was whether or not the road ought to be reserved for dedication to public use at some future date. "As I said, there's no provision to mix residential and commercial uses on a private road. I believe there's 250 feet of road frontage on either side, so while it can be put to record as one tract of land now, conceivably somebody could take off a 5-acre piece here and be exempt from our ordinance. 'Smith' could buy this land and he has no control over whether or not it gets dedicated. So this can get very complicated. What we're attempting to do here is try and assure the future development of this residential land. If you don't reserve this for dedication to public use, you may be idling more residential land in the urban area or you may be setting the stage for some type of exempt transaction of a purchaser coming before you --the seller wouldn't be here --and saying 'Well, I can't develop this residentially because you don't have a private road for both commercial and residential so I'd like some kind of commercial use.'" (It was determined all the property in question is zoned R-6). Mr. Keeler concluded; "We're Just trying to keep the door open here for residential usage of these properties for which they are zoned." Ms. Huckle asked if the road could not be dedicated to public use at some future time. Mr. Keeler responded: "If I buy 5 acres over here and I have no fee interest in that road, I cannot dedicate it (because it would be owned by someone else)." Mr. St. John suggested the possibility of deleting the note on the plat requiring dedication of the road upon demand by the County, on the condition that a note be attached to the plat "that no further division will take place on any of that land until such time as it will be dedicated to public use." Mr. Keeler asked if that would included exempt and family divisions. Mr. St. John respandeda "No further division, period." Mr. St. John felt this would give staff the power to require the dedication at the time a request for a subdivision came in. The Chairman invited applicant comment. Mr. Forbes Reback addressed the Commission. Regarding Mr. Keeler's concern about exempt and family divisions, he stated that an unlimited partnership cannot have a family, and he also felt that experience leads him to believe there is no such thing as an exempt subdivision. He pointed out that at the time there 1 a9 March 20, 1990 Page 16 are three separate users for the road, it will have to be dedicated. He noted that he currently has no development plans, and does not object to coming before the Commission at such time as plans occur. However, he objected to the requirement that the applicant must give access to an adjoining private property owner, in spite of Sec. 32.7.2.5 which says that the Commission may require provision for travelanes or driveways to serve adjoining properties. He felt that did not apply to this situation because the County was not asking for a travelane or a driveway, but rather for a "future public access." Mr. Reback cited the case of the Board of James City County vs. Rowe where the question of whether a local governing body had the right to enact a Zoning Ordinance which requires individual landowners, as a condition of the right to develop their parcels, to dedicate a portion of their fee for the purpose of providing a road, the need for which is substantially generated by public traffic demands rather than by the proposed development." The Court had determined: "Our enabling statutes delegate no such power. Moreover, Article 1, Section 11 of the Constitution of Virginia expressly and unequivocably provides that the General Assembly shall not pass any law whereby private property shall be taken, or damaged, for public use without just compensation." He concluded: "We are asking you to relieve us of the requirement in Amelia Patterson's letter, which came after the site plan was approved, in fact came three years after the site plan was approved --relieve us of the burden to dedicate the road to public use at this time, or on demand of the County, and also to provide access to the adjoining property, thereby allowing us to recover our $10,590 which has been held since May of 1988." In response to Mr. Rittenhouse's question as to the propose for the bond, Mr. Reback explained "it's the things that would have to be accomplished at the changeover to public maintenance, such as maintenance bond, maintenance fee, grading, shoulder regrading, street signs, removal of lights from right-of-way (etc.)." It was determined the road is already built, but Mr. Reback was under the understanding that the bond was held for those things which would have to be done before acceptance into the state system. Mr. St. John asked why the applicant had been willing to post the bond, given the present position. Mr. Reback responded: "This was all done before Amelia• came through with her bombshell." Mr. St. John still expressed a lack of understanding. Mr. Reback explained: "We were prepared at that time to dedicate this road at a later date. Then Amelia says, 'Not only do we want that note on the plat, but we also want this other road to connect to it to serve the Nuttycomb property.' At that point we just said, 'Well, we'll just keep the road private before we'll do that.- It was a change in condition which came from the County." .10 March 20, 1990 Page 17 Mr. St. John stated: "You don't bond assurance that in the future you'll do something at the command of the County. That's an indefinite term. A bond has to have a definite cutoff date after which you are in default. So that bond only provided for the construction of the road as shown up there to state standards so that it could be put in the state system." Mr. Rittenhouse asked if that had been satisfied. Mr. St. John replied: "No. It's been built but the state won't take it in at this point in time." Mr. Reback added: "The state won't take it in until there are three users." Mr. St. John added: "It's never been dedicated to public use, and whether there are three users or not, it has to be dedicated before they will take it in and you're unwilling to do that." Mr. Reback responded: "That's correct." Mr. Johnson asked: "This all happened after you acquired the total land? It wasn't done before in anticipation with various owners that they would need that public road. Is that right?" Mr. Reback responded: "That's correct. This occurred a year after we were in operation." Mr. Johnson asked: "The discusison of public road?" Mr. Reback responded: "Not the original, no. The attempt by Amelia Patterson to ask us to put a note on the plat that we would dedicate access to the Nuttycomb property upon request or demand of the County." Mr. Johnson tried to determine if he and Mr. Reback were talking about the same road. Mr. Johnson asked: "The access you're talking about is from your road to the adjacent property, is that right?" Mr. Reback responded: "There are two accesses. One is our private road that is now built; the second is a road from (that road to the adjacent property)." Mr. Johnson asked: "The second one, as I gather, has never been reduced into writing as a requirement." Mr. Reback responded: "That's correct." Mr. St. John added: "And it's not shown on any plat --it's location is undetermined." Mr. Johnson asked: "The first one, when you accepted the provisions to ultimately dedicate your existing road as a public road --at what stage of the development game was that done? Was that after you had procurred all of the property rights?" Mr. Reback responded: "That was in our site plan request and in a site plan review and it was approved by the Planning Commission and the Hoard of Supervisors." Mr. Johnson asked: "And you yielded to that?" Mr. Reback respondeded affirmatively and added: "And now we are asking relief from that condition under a section of the Zoning Ordinance which allows us to do that." Mr. Rittenhouse asked Mr. Reback to clarify the condition which he was citing as his justification for relief. Mr. Reback responded: "The condition that I am citing ... is that we own the entire parcel ... we have built a road to state standards; it's been approved by the County Engineer; we have a cash bond that will ensure that when demand is made by the County that that road 3/ March 20, 1990 Page 18 be put into the public highway system, that the wherewithall will be there to do whatever has to be done to get it into the system. Now we're asking relief from that because our position is that there is no point, at this time, in requiring us to do that since we have no plans to subdivide the property --we are the sole user of the property --it serves only us." Mr. St. John asked Mr. Reback: "Are you saying that that's a condition for which there was no justification to begin with and it shouldn't have been imposed to begin with, or are you saying that it was valid to begin with but there has been a change in circumstance which no longer justifies that?" Mr. Reback responded: "I think it was valid for the County to ask for it to begin with .... The change in circumstance is that it may be years before we do anything with the front part of that property. In the meantime, our money's being held up." Mr. St. John stated: "It could have been years then. If it's invalid now, why wasn't it invalid then?" Mr. Reback responded: "I didn't say it was invalid. I said I want relief from it." Mr. Rittenhouse summarized two separate issues for the Commission to address: (1) Lateral access to the adjacent property; and (2) Whether there has been a change in circumstance which warrants this no longer being dedicated as a public road vs. a private road. Mr. St. John cautioned that though these are two separate issues, they are closely interrelated "because the only need for a public road there is that it would eventually serve adjacent property." Mr. Keeler noted that, after looking over the bond, he felt there was a portion that could be returned, regardless of the outcome of this request, i.e. the maintenance portion, because "in essence,.we are holding a maintenance bond that may, conceivably, never be used, for a road that, for one reason or another, may never go in the system." Mr. St. John noted that the Planning Commission had no authority to order a bond returned and that issue was not a matter before the Commisison. Mr. Jenkins asked how the Nuttycomb property would access Rio Road. Mr. Keeler explained that they had frontage on Rio Road though that property probably does not have, and will not be able to obtain, commercial sight distance. Mr. St. John gave the following opinion on the matter: "This is coming down to a question of law, really, of where you have to, whether that condition is valid at this time or not. That's the question. (Mr. St. John went to the plat and pointed to various parts of it as he spoke.) This whole piece of land here --the Nuttycomb property and everything --was at one time one piece of land and it was subdivided... some time ago, maybe before we even .1z March 20, 1990 Page 19 had any effective subdivision ordinance, and these things became separate lots. During the process of subdivision is the time when our Code and the Rowe case and everybody else agrees --the Courts are unanimous --we had the power, at that time when the lots were being subdivided, to require an access that would give the entire tract being subdivided a good access onto this road at a point where there was good sight distance so none of them would be cut off from access at a point where there was good sight distance. And when we didn't do that we, by not exercising that power at that point, we lost our power to require later individual owners to do what amounts to give part of their land to provide access to other homes. I thought (at the beginning of this meeting) when the special permit for this nursing home was approved --remember that's a legislative decision which amounts to a rezoning --I thought that as a condition of getting that special use permit somewhere you would find in County papers that the owners of the nursing home had agreed that as a condition for getting this special use permit they would provide access not only to, if this land of theirs were ever subdivided in the future, but also to the Nuttycomb property and whatever other property surrounds this place. But if that isn't true --and Mr. Reback says nowhere in the history of this thing did they ever agree to that, then I don't think we have the power to require this owner to provide access to this land. We had the power, because the power exists within the subdivision process. We're no longer in that process with respect to the division of this whole tract and I think Mr. Reback is right ... in that we cannot now make him provide some kind of ... public access across his land for this property. And the Nuttycombs, or their successors in title are not in here now and I don't know how they feel about this, but when they sold this land, or subdivided it, they didn't provide any access for themselves over this land which it was in their power to do, but they didn't do it, and they can't do it now and we can't do it for them. I have to say I think Mr. Reback is right. That having been accepted --if you accept that -- the reason for having this dedicated to public use and going into the state highway system now, when it really is just a private driveway to this nursing home --there is no reason for it. It doesn't serve the public interest in any way to require that or, indeed, to spend part of your secondary road funds for that purpose. Let them maintain it and our purpose is served whenever, if and when, there is further subdivision of this property, then the pieces that are subdivided out of it, of course, ought to have access over this same road. And as a condition of any subdivision which comes in here, you can require --you are back in the area where you have that power." In response to Mr. Johnson's question as to when the condition from which the applicant was seeking relief was recorded, it was determined this condition had been a part of site plan approval, dated June 11, 1986. Mr. Johnson asked what had changed since 33 March 20, 1990 Page 20 then. Mr. Keeler responded: "They did not own all that property at that time and at the time of the special permit they were only going to acquire 9 acres. They've acquired everything now." Mr. Reback conceded the special permit was, and still is, for 9 acres. Mr. Johnson asked what section of the Ordinance he ws citing as justification to allow this relief. Mr. Reback responded that it was "just the regular administrative provisions in Chapter 32." Mr. Rittenhouse clarified that this was the section which allowed the applicant to ask for relief (i.e. Section 32.3.e). There being no further public comment, the matter was placed before the Commission. Mr. St. John asked if Mr. Reback was willing to note on the plat "that no further division was to take place without Planning Commission approval." Mr. Reback stated: "I don't think we require an additional plat. We're all done platting. We have recorded it." Mr. St. John questioned this statement: "You haven't recorded that plat.showing the new location of the driveway?" Mr. Reback responded: "Yes." Mr. St. John asked: "How did you get it recorded if Amelia refused to approve it?" Mr. Reback responded: "Well, we recorded a survey. We didn't record a plat. We did it by a meets and bounds description." Mr. St. John stated: "You did it surreptitiously." Mr. Reback responded: "No, I did it the way that the engineer said he could do it, i.e. that he made a meets and bounds description of the property." Mr. St. John asked: "That plat there, with the road shown on it has never been recorded, has it?" Mr. Reback responded: "No, not in that form." Mr. Jenkins asked if a future request for subdivision of the land would automatically come back to the Commission, at which time it could be required that the road be made public. Mr. Keeler responded: "No sir, not if he refuses to put a note on the plat." Mr. Keeler stressed that it was possible that an exempt subdivision could be proposed which would preclude the road from becoming public, but if there is a note on the plat disallowing any subdivision without Commission approval, then, based on Mr. St. John's statements, that would address the same issue as reserving the road for future dedication. Mr. Rittenhouse asked if staff would be satisfied with such a note on the plat. Mr. Keeler responded affirmatively. Mr. Rittenhouse noted that if Mr. Reback's belief about the non- existence of exempt plats is genuine, then he should have no objection to such a note on the plat as he believes any request for future subdivision will undoubtedly require Commission approval in any case, and would be of no detriment to the applicant. March 20, 1990 Page 21 Mr. Reback stated he had no legal way to record such a plat at the moment because he had "nothing to attach it to," i.e. no deed of trust, no deed. Mr. St. John clarified that Mr. Reback meant there is no transaction taking place at this time. Mr. Johnson asked why the County should be concerned even if an exempt subdivision were proposed at some future time, i.e. "if they want to subdivide it and not have a road, that their business; if they want to subdivide and use a private road, what's the problem?" Mr. St. John explained the County is concerned about the County eventually having to maintain such a road. Ms. Huckle asked if the road maintenance agreement which is required in the rural areas could not be applied to a private road in this area. Mr. St. John explained that the County has no ordinance which permits private roads to be used by mixed residential and commercial entities and also there is the consideration of the possibility of the property having entirely new owners at some future time. Mr. Jenkins questioned the possibility of a resolution and suggested that the item be deferred. Mr. St. John stated that the Commission had as much as information as it would ever have on this issue. In response to Mr. Reback's continued insistence that there was no such thing as an exempt plat, Mr. Keeler stated emphatically: "I guarantee you that that property can be divided in an exempt fashion and we cannot refuse to sign the plat." Mr. Rittenhouse asked if there was a mechanism for imposing a substitute condition as suggested by Mr. St. John early in the hearing, i.e. which would allow the County to require that this be a public road at some point in the future, should further division take place. Mr. St. John felt this was possible because he was under the impression that the nursing home had been occupied for some time without a permanent occupancy permit, i.e. it has been operating under a temporary occupancy permit until all these issues are settled. He added: "I think that as a condition for granting this relief, you can require that a plat be put to record with whatever declaration is necessary to put it to record. All that requires is the owner's name and the plat can be put to record. It doesn't have to have a transaction going on for it to be put to record." There was some discussion as to how to amend the original r condition 2(c) so as to accomplish the desired results. 35' March 20, 1990 Page 22 Mr. St. John confirmed this would be a substitute condition to take the place of the one the applicant is seeking relief from. Mr. Rittenhouse explained the implications of a subsitute condition as suggested earlier by Mr. St. John. Regarding the bond, Mr. St. John explained: "As far as this condition is concerned the bond is no longer dependent on fulfillment of that condition because you have relieved it." Mr. Rittenhouse added that whether "you relieve the bond in it's entirety or whether you require all of the conditions of that bond to be satisfied for its relief is an administrative item. It would appear to be an opportunity for the applicant to recover substantially, or completely, his bond, but that's somewhat separate from what we're considering." Mr. Rittenhouse then brought up the other issue, that of the lateral access. He summarized the opinion given by Mr. St. John earlier in the meeting. He noted; "We don't have a condition before us that required that lateral access, so we're really not commenting on that condition because it's not a condition that exists that we know of that we're being required to address." Mr. St. John disagreed, stating: "Yes, it was; it was in the site plan." Mr. Reback stated: "But that was not in the site plan, George --in the original site plan. The problem was that the site plan was approved and the plat was approved and signed and my client, who was then not represented by me, failed to record the plat within six months. So when they came back with the plat, now ready to recorded, Amelia said 'It was a big mistake, we left out this condition."' Mr. Reback confirmed: "That plat has not been recorded." Mr. St. John asked: "Why did you bring it in here to be recorded? Don't you need it? Isn't that the plat that this condition I'm recommending can go on? You are still trying to get it recorded." Mr. Reback stated: "It's an outdated plat." Mr. St. John responded: "Well, you put a new date on it; you still need it." Mr. Reback responded: "Yeah." Mr. St. John concluded: "Well that's the plat that this condition can go on." .0 March 20, 1990 Page 23 Attempting to sort through the confusion, Mr. Rittenhouse asked: "That plat wasn't recorded." Mr. Reback confirmed: "It became a nullity because it wasn't recorded." Mr. Keeler interjected that all the staff needs to know is if the Commission wants the lateral access provided. There was confusion as to whether or not the Commission can require the lateral access. Mr. St. John stated that the access could not be required at this time, rather it should have been required at the time of the original subdivision and since it was not,it could not have been required at the time of the site plan. Mr. Rittenhouse interpreted: "We don't have that option." Mr. St. John explained: "If you relieve them of this condition that they ask relief from, staff will take care of the mechanics of implementing your decision.... But make sure that you do not relieva them of the requirement for improvements along the front of Rio Road. They are not asking for that, but the written request that's before us includes that." It was finally decided the the original condition 2(c) would be deleted and the following substituted in its place: "Recordation of plat dedicating right-of-way on Route 631, and showing sight easements. Plat shall state 'No future division of the applicant's property without Planning Commission approval." And also that a new condition would be added as follows; "No future division of the applicant's property, as shown on the plat of survey exhibited at the Planning Commission Meeting of March 20, 1990, (Plat of R.O. Snow showing road dedication and Parcel AB, dated 4-11-86 and revised 8--11- 86, 10-8-86 and 11-3-86), without Planning Commission approval." Mr. Jenkins moved that the Heritage Hall XV Nursing Home Site Plan approval be amended as follows= Delete condition 2(c) (as stated in letter from Amelia Patterson dated June 11, 1986) and substitute in its place: AND Recordation of plat dedicating right-of-way on Route 631, showing sight esements. Plat shall state "No future division of the applicant's property without Planning Commission approval. 37 March 20,1990 Add condition (4): Page 24 No future division of the applicant's property as shown on the plat of survey exhibited at the Planning Commission Meeting of March 20,1990 (Plat of R.O. Snow showing road dedication and Parcel AB, dated 4-11-86 and revised 8-11-86, 10-8-86 and 11-3-86), without Planning Commission approval. Mr. Johnson seconded the motion which passed unanimously. Mr. Johnson distributed to the Commission copies of a document related to roads. Route 631 Reconstruction Project - Mr. Cilimberg presented the staff report. Mr. Roosevelt, representing the Virginia Department of Transportation, also added comments. No action was required of the Commission. The Commission expressed no disagreement with staff's position and endorsed Mr. Roosevelt's recommendations to the Board. Mr. Johnson expressed concern about the private driveways which will open directly onto the road, particularly at the northern end, and asked that "significant more attention" be given to the safety of those residents. Two members of -the public addressed the Commission. Mr. Rob Craykers, of 1120 Pinehurst Court, expressed support for the concept of a crossover. He made reference to a petition containing SO signatures. Mr. Ethan Miller expressed his support for the project. University Corporate Center Subdivision Plat - Request for 18- Month Extension and Branchlands Phase 3 Site Plan - Request for 6-Month Extension and Sherwood Commons Site Plan - Request for 12-Month Extension Mr. Cilimberg presented the staff reports for these requests all at the same time. --------------- For University Corporate Center he explained that an 18-month extension was requested and staff had no objection. He noted also that this was with the understanding that staff would have S8 March 20, 1990 Page 25 administrative approval of the final plat, to be signed within the 18-month period. The applicant was represented by Mr. Claude Cotten who explained the reason for the request. ---------------- For Branchlands Phase 3 Site Plan he explained that staff had no objection to the request for a 6-month extension and this included administrative approval of the final. The applicant was present but offered no comment. ---------------- For Sherwood Commons Site Plan, the applicant was requesting a 12-month extension, but staff was recommending a 6-month extension for granting of administration approval. Mr. Ethan Miller, representing the applicant, asked that a 12-month extension be granted, with the understanding that the Commission would review the final. It was noted that with all three of these requests, staff would have the opportunity, during this extension period, to review the proposals for compliance with current ordinance provisions in effect at the time of the final review. Mr. Jenkins moved, seconded by Ms. Andersen, that the University Corporate Center subdivision plat be granted an iB-month extension as described by staff. The motion passed unanimously. Mr. Jenkins moved, seconded by Mr. Grimm, that the Branchlands Phase 3 Site Plan be granted a 6-month extension as described by staff. The motion passed unanimously. Mr. Jenkins moved, seconded by Ms. Huckle, that the Sherwood Commons Site Plan be granted a 12-month extension with the Commission to review the final. The motion passed unanimously. MISCELLANEOUS The Commission asked staff and the County Attorney to research the issue of requests for changes to recorded plats in terms of whether or not an amendment to the Ordinance might be in order. There being no further business, the meeting adjourned at 11:45 p.m. DS V. Way Cilimber cretary 39 r�