HomeMy WebLinkAboutZMA200900001 Special Exception 2012-08-09WILLIAMS MULLEN
Direct Dial: 434.951.5709
vlorig0a williamsmullen.com
February 16, 2010
VIA HAND DELIVERY
Claudette Grant
Senior Planner
County of Albemarle
Department of Community Development
401 McIntire Road
Charlottesville, Virginia 22902
RE: ZMA 2009-01 Fifth Street / Avon Center
Critical Slopes Waiver Request
Dear Claudette:
New Era Properties, LLC is submitting this request for a waiver of Section 4.2 of the zoning
ordinance to allow disturbance of a critical slopes to develop the project known as "Fifth Street
/Avon Center" consistent with the approved application plan per ZMA 2006-00009, and
consistent with a proposed amendment to the approved application plan that is being reviewed as
ZMA 2009-001. The subject parcels are identified on the County tax maps as parcels 76M1 -2A;
76M1 -2B; 76M1 -4A; and 77M1 -I IE (collectively, the "Property").
Overview:
The project consists of a shopping center with associated site and infrastructure improvements,
including Bent Creek Parkway. Generally, these improvements consist of access roads, travel
ways, surface parking, utilities and Storm Water Management (SWM)Best Management
Practice (BMP) facilities. The total project area is 89.6± acres, with approximately 55.0 acres of
disturbance, and of the total project area, there are 21.8 acres of critical slopes. -
The critical slopes to be disturbed primarily lay within proposedparking areas, travel ways and
small portions of retail buildings. The layout was prepared with considerable effort to preserve
existing floodplain limits, wetlands, and natural resource areas. In doing so, the site will be
elevated on the northeast side, where the creation of man-made critical slopes are located.
Attachment J
A Professional Corporation
NORTH CAROLINA • VIRGINIA • WASHINGTON, D.C. • LONDON
321 East Main St., Suite 400 Charlottesville, VA 22902-3200 Tel: 434.951.5700 Fax: 804.783.6507 or 434.817.0977
www.williamsmullen.com
WILLIAMS MULLEN
February 16, 2010
Page 2
Please refer to the following table for a breakdown of the critical slopes areas relative to this site:
Critical Slopes
Total Area of Critical Slopes
21.80 acres
Existing Natural
10.66 acres (49%)
Existing Man -Made
11.14 acres (51 %)
Total Area of Disturbed Critical Slopes
12.01 acres
Natural Area
2.34 acres (19%)
Man -Made Area
9.76 acres (81 %)
TECHNICAL PERFORMANCE STANDARDS:
The applicant will address the five health, safety and welfare provisions of section 4.2 of
the Zoning Ordinance (also known as the "Technical Performance Standards") below:
1. Rapid and/or large scale movement of soil and rock:
Constriction of the site will require on-site earthwork moving operations, but will be
phased. The areas of disturbance will be stabilized with erosion control measures that will be
designed with the final engineering construction documents. The erosion control plan will
consist of at least two (2) phases. The stabilization measures may include:
• Silt fence
• Super silt fence
• Sediment traps
Sediment basins
• Diversion dikes
Right-of-way diversion
• Stabilization mats
• Inlet protection
Outlet protection
Temporary seeding
• Permanent seeding
With these stabilization measures in place, there will not be a risk of rapid or large-
scale movement of soil and rock.
Attachment J
WILLIAMS MULLEN
February 16, 2010
Page 3
2. Excessive stormwater run-off
The increase in runoff generated from the improvements will ultimately be controlled and
detained by proposed SWM/BMP facilities. These facilities will detain the project site runoff
and release it at or below the pre -developed runoff rate, such that excessive stormwater run-off
will not occur. Erosion and sediment transport will be minimized or prevented as discussed in
the previous item.
3. Siltation of natural and man-made bodies of water
Currently onsite there is one man-made pond facility and Moore's Creek meanders along
the western and northern boundary of the. site. The existing pond facility will be removed with
the proposed site improvements. Several other facilities will be constructed on-site which will
provide water quality, stabilization and detention measures that will prevent the discharge of silt
into the nearby creek.
4. Loss of aesthetic resource
The areas of critical slopes being disturbed on this site are not featured on the Open
Space Plan maps, and over 80% of the slopes being disturbed are man-made. Although existing
vegetation and trees will be removed to accommodate the project, the site plan construction
documents will conform to landscaping and preservation requirements set forth on the approved
Application Plan. This includes interior parking, landscaping, perimeter buffers and screening,
road frontage setbacks, and open space areas within the site that provide landscaping
opportunities. Additionally, as shown on the Application Plan, the project will provide for parks,
trails, conservation areas and landscape enhancements areas within the Virginia Department of
Transportation (VDOT) right-of-way. Therefore the overall end result of this project will not
create a loss of aesthetic resources. Rather, it creates an opportunity to create a much more
aesthetically pleasing community attraction.
5. Greater travel distance of septic effluent
No septic systems are being proposed as part of the project, thus this provision is.not
applicable.
ANALYSIS OF SECTION 4.2.5(a)(3) CRITERIA:
Section 4.2.5(a)(3) allows the Planning Commission to waive the restrictions against disturbing
critical slopes upon a finding that:
Attachment J
WILLIAMS MULLEN
February 16, 2010
Page 4
• the waiver would not be detrimental to the public health, safety or welfare; and
Granting the waiver would not be detrimental to the public health, safety or welfare, for
the project will ensure that none of the "health, safety and welfare" factors discussed above will
be compromised. In other words, the applicant can reasonable design the project using
engineering measures and techniques to protect against the adverse impacts of disturbing the
slopes.
• the waiver would not be detrimental to the orderly development of the area; and
The Planning Commission, Board of Supervisors and Community Development staff
spent many hours reviewing the proposed project, proffers and Application Plan, and by
approving ZMA 06-09, determined that the project was appropriate for this area and in
conformance with the Comprehensive Plan. Thus, granting the waiver would not be detrimental
to the orderly development of the area since it is consistent with the Comprehensive Plan.
i
• the waiver would not be detrimental to adjacent properties; and
Granting the waiver would not be detrimental to adjacent properties because the project
will utilize measures to ensure that adverse impacts associated with disturbing the critical slopes
do not occur. Concerns such as siltation of Moore's Creek, excessive stormwater runoff will not
occur, as described above. In fact, by approving the waiver and allowing the project to move
forward, the applicant will be able to carry out many measures that will actually enhance
adjacent properties.
0 the waiver would not be contrary to sound engineering practices;
The waiver request is based on sound engineering practices.
AND at least one of the following:
1. A strict application of these provisions would not forward the purposes of the
Zoning Ordinance or otherwise serve the public health, safety or welfare; OR
The combination of the proposed engineering practices, the constraints and requirements of
the approved Application Plan, the proffers, and the site plan ordinance requirements will ensure
the protection of the public health, safety and welfare, such that strict application of the section
4.2 provisions would not forward the purposes of the Zoning Ordinance or otherwise serve the
public health, safety or welfare.
Attachment J
0
WILLIAMS MULLEN
February 16, 2010
Page 5
2. Alternatives proposed by the developer would satisfy the intent and purposes of
Section 4.2 at least to an equivalent degree; OR
The engineering alternatives proposed by the applicant, as discussed in more detail above,
will satisfy the intent and purposes of Section 4.2 at least to an equivalent degree, in that the
adverse impacts often associated with the disturbance of critical slopes are not expected to occur.
Furthennore, several elements of the project will actually further the intent and purposes of the
ordinance even further by contributing toward the improvement in the health of Moore's Creek,
such as the proposed improvements to the former landfill property and the addition of the
proposed BMP facility adjacent to Interstate 64.
3. Due to its unusual size, topography, shape of the property, location of the property
or other unusual conditions, excluding the proprietary interest of the developer, the
requirements of section 4.2 would.effectively prohibit or unreasonably restrict the
use of the property or would result in significant degradation of the site or adjacent
properties; OR
. Due to the unusual shape of the property, topography and location, the strict adherence to
Section 4.2 would effectively restrict the use of the property. The site is bound by natural
resource areas including wetlands, floodplain and Moore's Creek. Careful planning, research
and significant effort has been put forth with the current location of travel ways, surface parking,
buildings and needed infrastructure to adequately serve the site. As a result of the planning and
research efforts, impacts to the natural resources such as Moore's Creek will be prevented or
significantly minimized under accepted County and State regulations. It provides for appropriate
balance between natural resource preservation and use of the property that is located within the
County's designated development area. The intention and theme with this project is to create a
"life style" center that will be a major attraction to the residents within the County as well as
generating vital tax revenue for the government.
4. Granting such modification or waiver would serve a public purpose of greater
import than would be served by strict application of section 4.2.
Granting the waiver would enable the project to move forward, which enables the applicant
to address a number of problems that already exist. For instance, the proffers set forth a detailed
plan for addressing the former landfill property, which will dramatically improve the health of
Moore's Creek. In addition, the revised proffers will propose a SWM/BMP facility to capture
drainage from an off-site area that is currently flowing untreated into Moore's Creek. This
proposed BMP facility will therefore also contribute to the health of the Creek.
Attachment J
WILLIAMS MULLEN
February 16, 2010
Page 6
In addition, granting the waiver will facilitate the reasonable and orderly development of
property within the designated development area that carefully balances the protection and
enhancement of existing natural resources. Given that 80% of the critical slopes to be disturbed
are man-made, and the proposed engineering measures to be utilized will avoid any adverse
impacts, granting the waiver would serve a public purpose of greater import than would be
served by strict application of Section 4.2.
Conclusion:
Therefore, the proposed waiver effectively addresses the Technical Performance Standards, and
satisfies all of the criteria of Section 4.2.5(a)(3). Should you require any other information to
review this waiver request, please contact me at 951-5709.
Sincerely,
VA'�� WJ-L
Valerie W. Long
Enclosures
cc: Alan Taylor, River Bend Management, Inc.
6884443 2.DOC
Attachment J
SPECIAL EXCEPTION TO DISTURB CRITICAL SLOPES
The applicant has submitted a request and justification for a special exception to disturb critical slopes.
(See Attachment J) The attached critical slopes waiver request was based on a plan dated December
17, 2009. The revised plan, dated June 6, 2012 is significantly different than the plan submitted with the
critical slopes waiver request and dated December 17, 2009. Based on the plan dated June 6, 2012
staff does not have enough information to analyze this request to address the provisions of the
Ordinance. Engineering staff is deferring review of the special exception to disturb critical slopes to the
site plan process when more detailed information is submitted regarding the proposed development.
Section 4.2.3.2 of the Zoning Ordinance restricts earth -disturbing activity on critical slopes, while
Section 4.2.5 (a) establishes the criteria by which a request to disturb critical slopes is evaluated. Under
Section 31.8 (b), the Board must consider the factors, standards, criteria, and findings delineated in
Section 4.2.5 (a), but it is not required to make specific finds in support of its decision.
The Application Plan shows so little detail, there is not enough information to adequately process this
waiver request
Section 4.2.5(a)
Review of the request by Engineering staff:
Staff does not have enough information to adequately process this waiver request.
Description of critical slope area and proposed disturbance:
Areas
Acres
Total site area
Area of critical slopes
man-made & natural
Total critical slopes area
Man-made =
Natural =
%of development
% of development
% of development
Total critical slopes disturbed
% of critical slopes
Exemptions for driveways, roads and utilities without reasonable alternative locations:
Description of critical slope area and proposed disturbance:
Compliance with Zoning Ordinance 18-4.2:
"movement of soil and rock"
"excessive stormwater runoff'
"siltation"
"loss of aesthetic resource"
"septic effluent"
Attachment I
Review of the request by Planning staff:
There is not enough information to adequately process this waiver request.
Summary of review of modification of Section 4.2:
Section 4.2.5 establishes the review process and criteria for granting a waiver of Section 4.2.3. The
preceding comments by staff address the provisions of Section 4.2.5(a). Staff has included the
provisions of Section 4.2.5(a)(3) here, along with staff comment on the various provisions.
Under 31.8, the Board may modify or waive any requirement of section 4.2 based on these
provisions, however, no specific finding is required in support of the Board's decision on the special
exception.
A. Strict application of the requirements of section 4.2 would not forward the purposes of this chapter
or otherwise serve the public health, safety or welfare;
B. Alternatives proposed by the developer or subdivider would satisfy the intent and purposes of
section 4.2 to at least an equivalent degree;
C. Due to the property's unusual size, topography, shape, location or other unusual conditions,
excluding the proprietary interest of the developer or subdivider, prohibiting the disturbance of critical
slopes would effectively prohibit or unreasonably restrict the use of the property or would result in
significant degradation of the property or adjacent properties, or
D. Granting the modification or waiver would serve a public purpose of greater import than would be
served by strict application of the regulations sought to be modified or waived.
SUMMARY AND RECOMMENDATION:
RECOMMENDATION OF SPECIAL EXCEPTION FOR CRITICAL SLOPES DISTURBANCE:
Staff recommends deferral of review of the special exception to disturb critical slopes for the site plan
process when more detailed information is submitted regarding the proposed development.
Attachment I