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Home My WebLink AboutAP202200003 Original Letter of Determination 2022-10-27401 McIntire Road, North Wing Charlottesville, l.iOuritp of Albemarle VA 22902-4579 p �r ! Telephone:434-296-5832 COMMUNITY DEVELOPMENT DEPARTMENT WWW.ALBEMARLE.ORG �LRGIN�l'� September 27, 2022 RE: LOD2022-00005 - OFFICIAL DETERMINATION OF USE Berkmar Flats, Permitted Bonus Density — Parcel IDs 04500-00-00-00810,-00820, and -0082A —totaling 3.51 acres (Property of THIRD MESA LLC, P O BOX 6551 CHARLOTTESVILLE VA, 22906), Rio Magisterial District (the "Property") Ms. Schlein: You have requested an official determination that bonus factors, provided for in Chapter 18, Article I, Section 2.4 of the Albemarle County Code, may be utilized on the Property. In response, I have reviewed your request and justification in Attachment A, and am making the following determination: Section 2.4 states: "The provision of bonus factors is intended to encourage development which reflects the goals and objectives of the comprehensive plan. To this end, bonus factors are based on development standards as recommended by the comprehensive plan." and, Section 2.4.1 states: "Bonus factors will be applied to the gross density -standard level in accordance with the regulations of the applicable district, except that (a) the resulting density shall not exceed the recommended density shown in the comprehensive plan and (b) the cumulative effect of all density factors may not exceed 50 percent.' Through the Places 29 Master Plan (the "Master Plan") and its "Future Land Use South" map (dated 11/5/2018), the comprehensive plan designates this area as Office/R&D/Flex/Light Industrial. (See Master Plan pages 4-6 and 4-7.) Master Plan Land Use Table LU2 does not establish a recommended density for residential uses within areas designated for Office/R&D/Flex/Light Industrial, only that residential is permitted as a secondary use. As a result, Section 2.4.1 does not permit the application of bonus factors on the Property, as the Master Plan does not have a recommended residential density for the Office/R&D/Flex/Light Industrial land use designation. The Property may develop by -right at the gross density -standard level. You may have a right to appeal this determination within thirty (30) days of this notice, in accordance with Virginia Code § 15.2-2311. This determination shall be final and unappealable if not appealed within 30 days. An appeal may be taken only by filing an appeal application with the Zoning Administrator and the Board of Zoning Appeals, in accordance with Albemarle County Code & 18-34.3, along with a fee of $295.36. This fee includes the $284 application fee and the 4% Technology surcharge of $11.36. Additionally, a separate fee of $448 is required for the cost of providing notice and advertising the appeal for a public hearing. Applications for Appeal of the Zoning Administrator's Determination are available at the Community Development Department office located at 401 McIntire Road, Charlottesville, Virginia 22902, or online HERE. This form applies to the appeal of a decision of the zoning administrator or any other administrative officer pertaining to the Zoning Ordinance. Regulations pertaining to filing an appeal to the Board of Zoning Appeals are in Chapter 18, Section 34.3 of the Zoning Ordinance and may be reviewed HERE. Please note that our online documents are in PDF format and must be viewed with a PDF reader. A link to download a PDF reader of your choice is available at the bottom of the page HERE. September 27, 2022 LOD2022-00005 Page 2 If you have any questions, please get in touch with me. Sincerely, Francis H. MacCall Chief of Zoning/Deputy Zoning Administrator Attachments: • Attachment A - Applicant letter dated 4/27/2022 SHIMP ENGINEERING, P.C_ Design Focused Engineering April 27, 2022 Mr. Bart Svoboda, Zoning Administrator / Director of Zoning County of Albemarle Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902 RE: SDP202200023 - Berkmar Flats Request for Official Determination Chapter 18 Article I Section 2.4— Intent of bonus provisions TMP 45-81, 45-82, and 45-82A Dear Mr. Svoboda, This is a request for determination that bonus factors, provided for in Chapter 18 Article I Section 2.4 of the Albemarle County Code, may be utilized on property zoned R-6 Residential and designated as "Office/R&D/Flex/Light Industrial" in the Places29 Master Plan. Pursuant to Article IV Section 32.5 of the Albemarle County Zoning Ordinance, Third Mesa LLC (the "Owner") has submitted an Initial Site Development Plan ("SDP2022-23") to construct 26 multi -family dwelling units in the Rio Magisterial District on tax parcels 45-81, 45-82, and 45-82A (collectively, the "Property"). The Property, in the aggregate, is 3.51 acres, and is zoned R-6 Residential, allowing a By - Right, Standard Level, Conventional Development of 21 units (or six units per acre). The Owner is proposing to build an additional five (5) units (an increase of 23.7u/u) using the bonus factor provisions provided in Sections 2.4.3 (environmental standards) and 2.4.5 (affordable housing standards) located in Article I of the Albemarle County Zoning Ordinance. The intent of bonus factors is stated in Section 2.4 as follows: "The provision of bonus factors is intended to encourage development which reflects the goals and objectives of the comprehensive plan. To this end, bonus factors are based on development standards as recommended by the comprehensive plan. " The Property is designated as "Office/R&D/Flex/Light Industrial" in the Places29 Master Plan, adopted February 2, 2011 and revised June 10, 2015. "Residential" is a secondary land use in this designation. There is no specific residential density range stated for the Office/R&D/Flex/Light Industrial designation however, since residential is imagined as a land use in this designation, the density allowance must be greater than zero. Given that the "Neighborhood Density Residential" designation is the only land use designation in the Places29 Master Plan limited to six (6) dwelling units per acre (DUA) or less, and that Neighborhood Density Residential is largely reserved for established single family neighborhoods and areas east of Route 29 in the Places29 Master Plan, the residential density imagined for the Office/R&D/Flex/Light Industrial designation should be more aligned with the density ranges listed for Urban Density Residential and Urban Mixed Use land use categories. SHIMP ENGINEERING, P.C. Design Focused Engineering In a pre -application comment letter for the Berkmar Flats development (PREAPP202200002), County Staff informed us that "The proposed use of bonus densities is... unlikely to be supported due to its inconsistency with the comprehensive plan... To this end, bonus factors are unlikely to be supported or approved. " The comment letter went on to reference a County Staff comment regarding bonus factors provided to the applicant for the Berkmar Overlook subdivision, which is adjacent to the Property, where the applicant for that project was informed that "Residential density bonuses are not available in areas where the Comprehensive Plan does not designate residential as a primary use. " The Owner requests that you provide an official determination that residential density bonus factor provisions are indeed permitted on the Property and may be utilized as proposed in SDP2022-23. Please consider the following in your determination: 1) Nowhere in Section 2.4 of the Zoning Ordinance does it stipulate that bonus provisions are intended solely for land use designations in the Comprehensive Plan where residential use is designated as a "primary" land use designation. To the contrary, we find no evidence where "primary" or "secondary" land use considerations are mentioned in Section 2.4 or where a distinction is made between the two. Section 2.4 states "bonus factors are based on development standards as recommended by the comprehensive plan " and primary and secondary land uses contribute to those development standards. 2) Secondary land uses are imagined to take shape when listed for a land use category. The Places 29 Master Plan notes that "Secondary land uses are intended as support uses for the primary ones. While these secondary uses should represent a smaller proportion of the development or the building, they are very important to `place -making"; adding them to a Center or the area around a Center increases the mix of uses and makes the area a more complete Neighborhood. " (Places 29 Master Plan, page 4-4) 3) Primary and secondary land use determinations are not meant to be characteristic of an individual parcel "The determination ofprimary and secondary uses is expected to be made over an entire contiguous designation, not an individual parcel (unless the designation is restricted to a single parcel). " (Places 29 Master Plan, Page 4-4). In this particular land use designation, several parcels (SPCA and Better Living, for example) have developed without any residential component. While it makes some sense to develop the higher intensity non-residential uses on the east side of Berkmar, it also makes some sense to develop the secondary residential uses on the west side of Berkmar, adjacent to the rural areas. In the broader context, there is a considerable amount of non-residential development within other nearby land use designations, such as the "commercial mixed use" designation where there are offices, car dealerships, and home improvement stores, among other commercial users, all within a quarter mile of the Property. 4) There are numerous goals and objectives in the comprehensive plan that will be achieved with the application of bonus factors on the Property. Consider the goals and objectives that are missed with the by -right adjoining R-6 development (Berkmar Overlook). Berkmar Flats provides diversified and affordable housing, relegated parking, and over 70% open space. Increased density within the development area will also delay the potential expansion of development area boundaries. SHIMP ENGINEERING, P.C. Design Focused Engineering 5) In general, the future Land Use Map and Tables LUI and LU2 provide neighborhood density residential designations (3-6 DUA) within existing older neighborhoods located east of Route 29. There are no neighborhood density designations located west of Route 29 between Rio Road and the Rivanna River. To the contrary, there are numerous areas designated for Urban Mixed Use (3- 34 DUA) and Urban Density Residential (6.01-34 DUA). The proximity of these designations and other higher intensity designations implies that a density higher than 6 would be appropriate for this area. Third Mesa LLC is proposing 7.5 DUA. The argument could certainly be made that, if residential units are proposed on these parcels, a rezoning to accommodate much higher density would be appropriate. 6) Certain land use designations within the Places29 Master Plan expressly state that residential uses are "not permitted." Table LU2 notes that residential is "not permitted" in Light Industrial, Heavy Industrial, and Open Space designations. For institutional land use categories, "residential" is neither listed as a primary or secondary use on page 4-7 of the Master Plan. It is clear that bonus factors may not be utilized on parcels with these designations where residential use is expressly not called for. Given this clear delineation of where residential uses are and are not imagined in the Comprehensive Plan, residential density bonuses should be permitted on parcels where residential development is a development standard called for in the comprehensive plan. Please let us know if we can provide any further information regarding this request for determination. We are attaching our initial SDP submittal as well as the comment letter from PRE-APP202200002 for reference. Thanks for your consideration, Kelsey Schlein Shimp Engineering, P.C. Attachments: SDP2022-23 PREAPP2022-02 Comment Letter