HomeMy WebLinkAboutZMA200400024 Action Letter 2008-08-30COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, Room 227
Charlottesville, Virginia 22902 -4596
Phone (434) 296 -5832
August 30, 2008
Peter J. Caramanis, Esq.
Tremblay & Smith, LLP
P.O. Box 1585
Charlottesville, VA 22902
Fax (434) 972 -4126
RE: Official Determination Regarding the Interpretation of Proffer #2 of ZMA -2004-
24- Old Trail Village
Dear Mr. Caramanis:
You have asked if a site development plan or subdivision plat could be submitted and
approved for Old Trail Village which does not contain 15% affordable units within that
particular plan or plat. You contend that such a plan or plat remains consistent with
Proffer 2, particularly if it were to note and acknowledge the affordable housing
requirement and state that the remaining plans or plats were intended to satisfy the
affordable housing proffer.
I have reviewed the proffer and consulted with Greg Kamptner, Amelia McCulley and
other staff. It is my determination that the answer to your question is "no" except in
instances where 15% affordable units are provided on previous subdivision plats or site
plans and "carried over" or "banked" as provided in Proffer 2. A minimum of 15% of the
units in Old Trail Village must qualify as affordable an ongoing basis. Furthermore, the
mixture of types, as provided in Proffer 2C must be maintained on an ongoing basis.
This determination is based primarily on the fourth sentence of the proffer that states:
Each subdivision plat and site plan for land within the Property shall designate
the lots or units, as applicable, that will, subject to the terms and conditions of
this proffer, incorporate affordable units as described herein, and the
aggregate number of such lots or units designated for affordable units within
each subdivision plat and site plan shall constitute a minimum of fifteen percent
(15 %) of the lots in such subdivision plat or site plan.
This sentence establishes, in very clear language that: (1) each subdivision plat or site
plan must designate the lots or units, as applicable, that will incorporate affordable
housing; and (2) the aggregate number of lots or units designated for affordable units
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Peter J. Caramanis, ESQ
August 30, 2008
Page 2
within each subdivision plat or site plan shall constitute a minimum of 15% of the lots
in the subdivision plat or site plan.
The plain language of the proffer results in the continuous, ongoing compliance with
the first sentence of the proffer which states:
The Owner shall provide affordable housing equal to fifteen percent (15 %) of
the total residential units constructed on the Property, in the form of for -sale
condominiums and townhouses, and for -rent condominiums, townhouses,
apartments and accessory units.
The deferral of the provision of affordable housing to later plats or plans would result
in a violation of the proffer at any time that less than 15% of the dwellings in the
development qualify as affordable. The ongoing enforcement of the proffer requires
that the present owner(s) assumes responsibility for the provision of the affordable
housing proffer rather than shifting that responsibility to future owners. Current owners
cannot guarantee that future owners will comply with the proffer.
Furthermore, it is my determination that the mixture of types of affordable units
provided in Section C of Proffer 2 also apply to each subdivision plat and site
development plan. That provision states:
(1) At least forty percent (40%) of the affordable housing dwelling units shall be
for -sale units.
(2) No more than thirty percent (3091.) of the affordable housing dwelling units may
be for rent apartments.
(3) No more than thirty percent (30 %) of the affordable housing dwelling units may
be accessory units...
The basis for this conclusion regarding the mixture of types is the same as that the
fourth sentence of the proffer provides that the requirement to provide a minimum of
15% of the units as affordable housing is "subject to the terms and conditions" of
Proffer 2.
If you are aggrieved by this determination, you have a right to appeal it within thirty days
of the date notice of this determination is given, in accordance with Section 15.2 -2311 of
the Code of Virginia. If you do not file a timely appeal, this determination shall be final
and unappealable. An appeal shall be taken only by filing with the Zoning Administrator
and the Board of Zoning Appeals a notice of appeal which specifies the grounds for the
appeal. An appeal application must be completed and filed along with the fee of $120.
The date notice of this determination was given is the same as the date of this letter.
Sincerely,
John Shepherd
Manager of Zoning Administration
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