HomeMy WebLinkAboutZMA199500004 Study 1995-12-15 • PIEDMONT ENVIRONMENTAL COUNCIL
Protecting The Environment Is Everybody's Business
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MEMO:
TO: Albemarle County Board of Supervisors, Planning Commission, Staff
FROM: Tim Lindstrom
DATE: December 15, 1995
RE: University of Virginia Real Estate Foundation Proffers
Attached is a copy of an analysis of the zoning proffers submitted on December 7 by
the University of Virginia Real Estate Foundation in connection with its North Fork
rezoning application. This analysis has been shared with UREF.
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45 Horner Street, Bo\ 460, Warrenton, Virginia 22186/703-347-2334/Fax 349-9003
1111 Rose Hill Drive, Suite 1, Charlottemille, Virginia 2 290 3/804-9 7 7-203 3/Fax 977-6306
PIEDMONT ENVIRONMENTAL COUNCIL
Protecting The Environment Is Everybody's Business
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ANALYSIS OF PROFFERS DATED DECEMBER 7, 1995
University of Virginia Real Estate Foundation North Fork Application
Summary of Proffer Analysis
A careful and lengthy review of the most recent Proffers submitted by UREF and of
applicable County Zoning Ordinance provisions leads to the conclusion that the
Proffers, Zoning Application Plan, and Application provide very little substantive
benefit to the County beyond that which County ordinances already require. In some
cases the Proffers actually appear to restrict the County's authority below that
which now exists. A summary follows:
1.1 and 1.2 Plans and Illustrations
None of the plans and illustrations submitted with the Application are
binding upon the Applicant unless expressly incorporated in the Proffers.
The Zoning Application Plan is "conceptual" only.
2.1 through 2.5 Covenants, Conditions, and Restrictions
No covenants insuring coordinated development are proffered, and the
Proffers expressly preclude the County from enforcing any covenants
developed in the future by the Applicant. This constitutes a failure to
comply with important Ordinance requirements which go to the heart of the
PD-IP concept, and which are express prerequisites to any application for a
rezoning to the PD-IP Zoning District.
3.1 Density
Although the Proffers cap total density, exceptions to the cap could allow
substantial building in excess of the cap, and there is no phasing plan
provided implementing the allowed density. [In its response to this
analysis UREF indicated it may revise this Proffer to reduce the
exceptions.]
4.1 through 4.5 Stormwater Management and Water Conservation
The Proffered "Stormwater Management Plan" is without standards and its
implementation appears to be discretionary with the Applicant because
implementation is to be in phases undefined by the Proffer.
45 Horner Street, Box 460, Warrenton, Virginia 22186/703-347-2334/Fax 349-9003
1111 Rose Hill Drive, Suite 1, Charlottesville, Virginia 22903/804-977-2033/Fax 977-6306
Depending upon the amount of the cap on water use "by right"this new
limitation on future uses within the Project could be an important and
constructive Proffer. [In its response to this analysis UREF has indicated
that it may limit facilities allowed by right to those using less than 125,000
gallons of water per day. This would allow a single facility to use between
20% and 40% of existing capacity at the North Rivanna plant. Such a
facility could contain between between 530,000 square feet and 760,000
square feet, or between 2,100 and 3,000 employees per facility. This is not
considered a meaningful limitation.]
5.1-5.4 Transportation
The elaborate and complex transportation Proffers appear to provide very
little to the County in guaranteed road improvements which the County
does not already have the authority to require as part of site plan or
subdivision plat approval. In addition, the Proffers may significantly
restrict existing County authority regarding the timing of improvements.
6.1 through 6.4 Recreational Areas and Open Space
The boundaries of recreational areas and open space are not guaranteed by
the Zoning Application Plan or by the Proffers. While some degree of
latitude may be reasonable, the Proffers provide no limitations on the
extent to which boundaries may be shifted during Project buildout.
The Public is not granted access to recreational or open space areas; there is
no proffered plan to protect environmentally sensitive land beyond that
which existing County ordinances already requires; and virtually all of the
land identified by the Proffers to be left undeveloped is undevelopable due
to slope or soil limitations.
7.1 and 7.2 Landscaping and Buffering
No binding comprehensive landscape plan has been proffered and Proffers
relating to buffers are subject to the limitation contained in the Zoning
Application Plan that it is "conceptual" only.
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Proffer Analysis
This Proffer analysis corresponds to paragraph numbers contained in the Proffers.
Preface
The preface to the Proffers says that development of the Property shall be "in
substantial compliance" with the Proffers, a phrase which allows the Applicant an
undeterminable degree of latitude in compliance.
Although awkwardly worded the December 7 revisions appear to have been improved
by specifically stating that they do not allow any person to vary from County
ordinances or regulations. However, this provision is modified by the phrase "except
as permitted in the PD-IP Zoning District." The meaning of this phrase is unclear
because there are no provisions of the PD-IP Zoning District which appear to
authorize variance from County ordinances or regulations.
The statement that the Proffers do not allow variance from County ordinances or
regulations also conflicts with specific provisions of certain Proffers which directly
contradict local ordinance provisions. In the case of such a direct conflict how are the
Proffers to be interpreted?
1.1 and 1.2 Plans and Illustrations
None of the plans and illustrations submitted with the Application are
binding upon the Applicant unless expressly incorporated in the Proffers.
The Zoning Application Plan is "conceptual" only.
This Proffer stipulates that all plans and illustrations provided with the Application
are not binding, but illustrative only. In other words, nothing in the Application except
the Proffers and Zoning Application Plan (ZAP) shall be taken as binding upon the
Applicant. Therefore the focus of review and discussion of the Application should be
limited to the 11 pages of the Proffers and the ZAP only.
This Proffer also states that development shall be "in general accordance" with the
ZAP. What is meant by "general accordance?" Is this standard less binding than
"substantial conformance" used by the Applicant in the Preface? The uncertainty of
the ZAP is underscored by notes to the ZAP which indicate that it is conceptual only.
The uncertainty raised by this Proffer and notes to the ZAP about the extent to which
the ZAP will be binding upon the Applicant raise the question of whether or not the
ZAP complies with the provisions governing the PD-IP. The PD-IP Zoning District
regulations (Section 29.5, incorporating Section 8.5.1 j) require that an applicant
submit a plan showing the general location of various features of the project which
requires more than that the location of such features is "conceptual" only. The ZAP
submitted does not purport to show locations, but only a concept which can be varied
by the Applicant in the future.
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2.1 through 2.5 Covenants, Conditions, and Restrictions
No covenants insuring coordinated development are proffered, and the
Proffers expressly preclude the County from enforcing any covenants
developed in the future by the Applicant. This constitutes a failure to
comply with important Ordinance requirements which go to the heart of the
PD-IP concept, and which are express prerequisites to any application for a
rezoning to the PD-IP Zoning District.
One of the requirements of the PD-IP Zoning District is that development be under
"unified control" and "be planned and developed as a whole" (Section 8.3.a). The only
way in which this can be assured in a project of the size proposed in the Application,
particularly where it is evident that the Applicant intends subdivision of the Property
and sale to others who will be responsible for future development, is through
covenants and restrictions controlling the use of the Property and binding upon all
future owners.
The importance of such covenants is underscored by the Ordinance requirement that
in reviewing applications for planned development districts the Planning Commission
shall include in its recommendations to the Board of Supervisors findings relating to
the "Adequacy of evidence on [sic] unified control and suitability of any proposed . . .
deed restrictions . . . or the need for such instruments or for amendments in those
proposed;" (Section 8.5.4.c.).
These Proffers express only an intention to create covenants which will provide for
coordinated development of the Property. In failing to provide such covenants for
Planning Commission review, and in expressly prohibiting the County from enforcing
any covenants which are developed the Applicant has failed to comply with
important requirements which go to the heart of the PD-IP concept, and which are
express prerequisites to any application for a rezoning to the PD-IP Zoning District.
3.1 Density
Although the Proffers cap total density, exceptions to the cap could allow
substantial building in excess of the cap, and there is no phasing plan
provided implementing the allowed density. [In its response to this
analysis UREF indicated it may revise this Proffer to reduce the
exceptions.)
This Proffer does cap development potential on the Property at 3 million square feet.
Nothing in the Proffers limits the amount of this development potential which can be
realized at any one time, or how much of the potential can be allocated to any one
type of use. The phasing schedule contained in Proffer 5.3 is expressly stated to be
"For purposes of determining the schedule of road improvements . . ." which means
that it is not an actual phasing schedule limiting the rate and type of development
over time. Even if uses are restricted by the phasing described, nothing in the
Proffers prevents all of the phases from being developed at one time.
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F
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In the absence of any definition of the term "modular" the exception for "modular
buildings" from the 3 million square foot cap provided in this Proffer creates a major
loophole as many very large buildings are constructed by assembling modules
manufactured offsite. An example of such a structure is the office building located at
300 Preston Avenue across from the County office building. [In its response to this
analysis UREF indicated it may drop the exception for modular buildings.]
The December 7 revisions have eliminated the provisions constituting an illegal (and
unenforceable) delegation of legislative authority to a non-legislative body.
4.1 through 4.5 Stormwater Management and Water Conservation
The Proffered "Stormwater Management Plan" is without standards and its
implementation appears to be discretionary with the Applicant because
implementation is to be in phases undefined by the Proffer, therefore it
appears to add nothing to existing County stormwater regulations.
Depending upon the amount of the cap on water use "by right"this new
limitation on future uses within the Project could be an important and
constructive Proffer. [In its response to this analysis UREF has indicated
that it may limit facilities allowed by right to those using less than 125,000
gallons of water per day. This would allow a single facility to use between
20% and 40% of existing capacity at the North Rivanna plant. Such a
facility could contain between between 530,000 square feet and 760,000
square feet, or between 2,100 and 3,000 employees per facility. This is not
considered a meaningful limitation.]
Proffers 4.1 through 4.3 add virtually nothing to regulatory authority already
possessed by the County or other governmental units. The December 7 modifications
did eliminate earlier provisions which permitted violations of Sections 30.3.5.1. and
30.3.5.1.2 by allowing "Common Area amenities" within the Flood Plain and Floodway
Fringe.
• The Proffered "Stormwater Management Plan" is without standards and
its implementation appears to be discretionary with the Applicant
because implementation is to be in phases undefined by the Proffer.
• Wetlands protection is mandated by Section 404 of the Clean Water Act
and the Proffers cannot limit that Federal statute.
Proffer 4.4 appears to provide an important limit on development within the Project,
depending upon the number of gallons allowed per "facility" (not specified at the time
of this writing). The cumulative impact of a number of"facilities"just below the
specified threshold may be significant. However, with respect to the impact of the
rezoning upon public sewer and water capacity only, this Proffer does (again,
depending upon the threshold established) eliminate the possibility of a very large
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user of public sewer and water without project specific review and approval by the
County. Of course, very large single land uses generating other types of significant
impacts on the community are still allowable under the Proffers if this Application is
approved.
5.1-5.4 Transportation
The elaborate and complex transportation Proffers appear to provide very
little to the County in guaranteed road improvements which the County
does not already have the authority to require as part of site plan or
subdivision plat approval. In addition, the Proffers may significantly
restrict existing County authority regarding the timing of improvements.
There are two principal issues relating to the Applicant's transportation proffers:
timing and adequacy. As is discussed below, the transportation proffers appear to
limit existing County authority with respect to the timing of improvements. The
adequacy of the proffers hinges upon the Applicant's traffic study which assumes
that the western alignment of Meadowcreek Parkway will be in place at the time of
Project buildout in 2015.
Adequacy
It would seem reasonable that the Proffers obligate the Applicant to provide for all
transportation improvements required by the Project. However, at least one of the
Proffers, 5.4 (a)(4), explicitly allows the Applicant to avoid its fair share of the cost of
improvements needed to serve the Project at the intersection of Route 649 and U.S.
29 if that share exceeds $100,000 (no adjustment for inflation is provided).
A side by side comparison of the proffered improvements with the list of
improvements identified in the Applicant's traffic study indicates that most, but not
all, of the identified improvements have been proffered, again based upon the critical
assumption of the existence of the Meadowcreek Parkway. It is assumed that the
analysis has been accepted by VDoT.
It does appear that most, if not all, of the proffered improvements could be required
by the County at site plan or subdivision plat approval even without the proffers.
liming — Internal Road Improvements
Proffer 5.2 (a) appears to supersede important County authority regarding the timing
of the bonding and construction of required roads. By proffering that internal roads
shall be built or bonded to VDoT standards at the time of subdivision plat
recordation the Proffers may preempt County authority under Section 32.3.7. to
stipulate when construction of required roads is to be completed and to preclude the
County's authority to require that such roads be bonded at the time of final site plan
approval
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p.
Proffer 5.2.(b) also appears to preempt the County's authority under Section
31.2.3.1. to require that road improvements serving a building for which a certificate
of occupancy is sought be complete prior to the issuance of such a permit, or at least
bonded to be completed within one year of issuance of the certificate. The Proffer
provides instead that road improvements shall be constructed (no standard is
specified here) within six months of the issuance of certificates of occupancy for
three users along the "relevant road phase" (undefined).
Under this Proffer the Applicant could indefinitely defer construction of any
improvements by limiting development to no more than two users along each "road
phase." No limit is placed by the Proffers upon the size of the first two users along a
road phase. In the event of financial difficulty after uses are in place but prior to the
bonding or construction of such roads to state standards it can be anticipated that
such users will look to the County to complete these improvements.
In general the Proffers do not require construction of identified improvements until
build-out of the phase with which the improvements are associated unless a traffic
study acceptable to VDoT demonstrates the need for the improvements. There are
three potential problems with this. One is that the Proffers do not indicate who is to
be the judge of the need. Second is that the County clearly does not have a role in the
Proffers in determining whether there is a need. Finally, it appears that the standard
is whether or not certain designated intersections operate at a LOS "D" which the
Proffers set up as the goal the improvements are to achieve. It would seem
questionable whether the County in this rezoning should be striving to achieve only a
LOS "D" or be seeking something better for its major roadways.
Timing — Offsite Road Improvements
Offsite road improvements are to be developed according to a phasing schedule
provided in Proffer 5.3. However, as modified December 7, the phasing schedule does
not appear to add up properly, and does not appear to allocate any square footage to
light industrial use.
The phasing schedule is expressly limited to governing the phasing of offsite road
improvements, not the actual development of the site.
Note 4 to the phasing schedule allows the Applicant to alter the mix of uses within
each phase. Because traffic demand is a function of the type of use as well as total
square footage per use, the retention of this flexibility would appear to undermine the
usefulness of the phasing schedule in.predicting when offsite improvements will be
required. The Applicant has stated in a separate letter that the projected needs
assumed the most intensive mix of uses, however, this is not apparent from the
Proffers or Application.
Proffer 5.4 provides, as a general principle governing all three phases of development
that unless otherwise specified in the Proffers road improvements need not be built,
bonded, or contributed for, until density in that particular phase has been built in full.
Under this Proffer, if the Applicant is under the ceiling by as little as 5% or 10% it has
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no obligation to perform the transportation improvements necessitated by that
phase. While it can be expected that being permitted to proceed with the next phase
of development will be a meaningful incentive to the Applicant to complete the
improvements associated with the current phase, this incentive will be absent with
respect to the third phase with which some of the most expensive improvements are
associated. [In its response to this analysis UREF indicated that it may amend this
proffer to address the fact that there may be no incentive to complete phase three,
thereby allowing the Applicant to avoid completing phase three improvements.]
Phase one
Applicant may build up to the density maximum for this phase (980,000 square feet
which could generate nearly 4,000 employees according to the ITE Manual) prior to
being obligated to perform proffered improvements, unless a traffic analysis approved
by VDoT demonstrates a need for earlier construction. Nothing in the Proffer says
who is to be the judge of the need, or what Level of Service (LOS) is to be considered
the test of need. Other provisions in the Proffers indicate that a LOS "D" may be the
standard.
The Proffers allow the Applicant to develop the Property beyond phase one if a traffic
analysis acceptable to VDoT indicates that intersections directly affected by the
Project will function at a Level of Service `D' (LOS D) or better with the proposed
additional densities in place.
Phase one improvements proffered are these:
• 150 foot north bound turn lane on Rte. 606 onto Quail Run
• 2 northbound left turn lanes on Rte. 29 at Road A
• channelized southbound left turn lane on Rte. 29 at Road A
• 2 right turn, left turn, through lanes on Road A at Rte. 29
• Traffic signals at Road A and Rte. 29
• Pro-rata cost capped at $100,000 for left turn lanes at Rtes. 29 and 649
It appears that most of these proffered improvements could be obtained by the
County under the existing authority contained in the Site Plan and Subdivision
Ordinances.
Phase two
Applicant may build up to the maximum density allowed for phase two (an additional
588,000 square feet which could generate nearly 2,400 additional employees over
phase one) prior to constructing any of the following improvements unless an earlier
need to build these improvements is demonstrated by a traffic analysis acceptable to
VDoT. In addition Applicant proffers to build internal Road A from Rte. 649 through
the Project to Rte. 29 within six months of the issuance for the first Certificate of
Occupancy in Phase two. Road A shall be improved to four lanes when traffic
volumes create the need (no standards are proffered for determining the existence of
this need).
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Phase two improvements proffered are these:
• 2 southbound left turns, 1 southbound right turn, two through lanes on
Road A at Rte. 649
• 1 westbound right turn lane, 1 eastbound right turn lane on Rte. 649 at
Road A
• Signals at Rte. 649 and Road A
It appears that all of these proffered improvements could be obtained by the County
under the existing authority contained in the Site Plan and Subdivision Ordinances.
Phase three
The language of the Proffers establishing the timing of phase three road
improvements is very ambiguous ("Applicant may develop the Project through the
total Phase III Density defined in 5.3 above if any one of the following conditions shall
have occurred (but such conditions shall not be viewed as conditions for achieving
Phases I and II Densities)"). The principal problem is that there is no indication of
when "the following conditions" must occur to allow development of full phase three
density.
Further, Applicant may develop all of phase three if it can demonstrate to VDoT that
a LOS "D" or better "can be maintained" at the Rte. 29 and 649 intersection.
Phase three improvements proffered are these:
• construct a third southbound through lane on Rte. 29 from Rte. 649 to
Road A, unless VDoT has approved funding for design and construction
of Rte. 29 to six lanes in this area
• dedicate land within the Project for construction of a future grade
separated interchange unless other landowners with land needed for the
interchange fail to donate land for the interchange
Both of these Proffered improvements are conditional and may leave the County
without actual construction of the needed third lane or land for a necessary
interchange.
6.1 through 6.4 Recreational Areas and Open Space
The boundaries of recreational areas and open space are not guaranteed by
the Zoning Application Plan or by the Proffers. While some degree of
latitude may be reasonable, the Proffers provide no limitations on the
extent to which boundaries may be shifted during Project buildout.
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The Public is not granted access to recreational or open space areas; there is
no proffered plan to protect environmentally sensitive land beyond that
which existing County ordinances already requires; and virtually all of the
land identified by the Proffers to be left undeveloped is undevelopable due
to slope or soil limitations.
Because the Zoning Ordinance does not require the provision of recreational areas, or
the preservation of open space (except critical slopes and flood hazard areas) these
Proffers provide additional amenities to the development. However, while the
recreational and open space proffers may provide a significant amenity to users of
the Property, they provide little benefit to the public at large. This is for the following
reasons:
• None of the recreational areas or open space proffered will be open to
the public. Although proffer 6.1 does agree to make ball fields open to
the public there is no proffer to actually build any ball fields contained in
the Proffers.
• While the Proffers preclude "stadium lighting" of recreational areas
without County approval, there is no definition provided for such lighting
and therefore the extent of lighting which might be allowed cannot be
determined.
• Virtually all of the land generally identified on the ZAP as "undeveloped
area" is area which is undevelopable due to slope limitations or soil
quality constraints. Although not governed by the County's open space
regulations (and the Proffers expressly preclude application of the
standards contained in those regulations) if the proffered recreational
and open space areas were governed by those regulations it is doubtful
that much of the proffered area would qualify.
• The Proffers do not guarantee what areas will be left in open space
because no map clearly delineates this space. The ZAP does provide the
outlines of development parcels, but the notes to the map expressly
state that the map is conceptual only. While some degree of latitude
may be reasonable, the Proffers provide no limitations on the extent to
which boundaries may be shifted during Project buildout. Furthermore,
the Proffers allow use of open space for "common area amenities" which
are unspecified but may include substantial structures.
• Failure of the Proffers or ZAP to guarantee what areas will remain
undeveloped and failure to distinguish which areas will be left
undisturbed and which areas will be used for active recreation or the
construction of"common area amenities" means that the Proffers do
nothing to insure protection of environmentally sensitive areas of the
Property or insure that recreational areas will be suitable for the uses
proposed.
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• The proposed Rivanna Green Belt agrees to protect an area mostly
protected by flood hazard overlay provisions, or critical slope
restrictions.
Proffers to leave the cemetery undisturbed are clear cut. However, the proffered
"preservation plan" for the homestead and ice house contains no standards for the
plan. Under the Proffer, such a plan could be as minimal as a placard located in the
building or on the parking lot which has obliterated these sites.
7.1 and 7.2 Landscaping and Buffering
No binding comprehensive landscape plan has been proffered and Proffers
relating to buffers are subject to the limitation contained in the Zoning
Application Plan that it is "conceptual" only.
At the time of this writing, no "Street Tree Master Plan" has been provided for phase
one, and the Proffers do not provide for any other landscaping which presumably
remains governed by the provisions of the County's site plan ordinance.
Proffered provisions relating to buffer areas allow an unlimited amount of intrusion
into the proposed buffers by signs, fences, and walls the size, design, or extent of
which is unlimited by the Proffers. Furthermore, proffered protection of the "Buffer
Areas" as depicted on the ZAP subjects the Proffer to the same weakness of the ZAP:
it is conceptual only and the Applicant reserves the right to rearrange the features
illustrated on the ZAP map, including the identified 150 foot buffer along Rte. 606.
8.1 Fire Station
This Proffer is a substantial improvement over the earlier agreement to provide a fire
station if the County and Applicant could agree upon a location.
IX Project Progress Report
It is not known what such a report would contain which would not be contained in site
plan and subdivision plat submittals.
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