HomeMy WebLinkAboutZMA200400007 Action Letter 2009-03-20� GF AL
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COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, Room 227
Charlottesville, Virginia 22902-4596
Phone (434) 296-5832 Fax (434) 972-4126
MEMORANDUM
TO: Members, Albemarle County Planning Commission and Robert Hauser, Trustee
Belvedere Station Land Trust
FROM: John Shepherd, Manager of Zoning Administration %-----.
DATE: March 20, 2009
SUBJECT: Official Determination- ZMA 2004-7 Proffer #2.2
The Planning Commission reviewed HO 2009-00027 Kate White on March 10, 2009. This was a request for a
modification for a Home Occupation Class A for a massage therapy practice located in a carriage house in the
Belvedere subdivision at 658 Tyree Lane. The modification was necessary to allow up to seven clients per day
and off-site parking. The modification was approved, allowing the home occupation to be conducted on the
parcel.
Pursuant to this action the Planning Commission requested an official determination by the Zoning
Administrator as to whether the Belvedere proffers made a commitment that the carriage house units be used as
affordable housing.
After reviewing the language of Proffer 2.2 and its history, and consulting Amelia McCulley, Zoning
Administrator, Greg Kamptner, Deputy County Attorney and Wayne Cilimberg, Director of Planning, it is my
official determination that the proffer does not require the carriage house units to be used for affordable
housing. The basis for this determination follows.
On October 12, 2005, the Board of Supervisors approved the ZMA 2004-007 (Belvedere) and accepted a
number of proffers. The action included approval of the Code of Development. Proffer 2 and Appendix A of the
Code are provided below for reference.
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2. ,A 'fordable llousing,
2-1 Cash Congib rtion. Owner shall contribute to Albemarle COMIty a Rlinimurn of
one thousand dollars (8.1,000) per single family detached dwelling unit, sown hundred fifty
dollars (5750) per single DIMily attached or LaWnhouse unit, and five hundred dollars ($50=p1
per molt —fainly E.ondonninium unit: The cash conteibt ion shall be. due and payable with
each application for a building perru,jt. This crash prof er shall not apply to Carr a� �, ;1cusc
units or multi-f'araily rental lousing. ' °leis cash contflbiition shall be used fog• tht purpose Of
1"unding arTbrdable bous:ino programs inchidinp those proN6ded by :nonprofit h�susiTTEl ag enci(ss
within Albonraule County. If this cash contribution has not, been exhausted by tbt County for
the stated purpose within teri (10) years fi•orn the date^ of the last payment of the contribution.,
a]I (he, uncxpondWd funds shall bcreRinded, to the, Owne€.
12 Carr;age Bmm Urntts. owmer profkxs to require through the J,ot sate co"11tracEs oil
the Propei ty flit construction of a na, in:imum. of 103 Carriage lfttu;se Units on. the Prol�'ri�y shat
meet the regi iireni.en:ts for a single iarnily dwelling as defined in the Vlrgin,ia U'nifolir
Statvcvidc :wilding Code, Fath. CanirrgYe I -louse 'Unit: shall 0onform to the Code of
Development, Appendix A, Carriage House Units, Gicn.eral Standards, Each Carriage 1~lousc
Unit shall be on, the same paTeel. as: the primarwdwellhl;g unit to w] ',ch it is accesscr�r„
Carriage House 1rsttsrr�ay not be; subdivided from the prllnajiy residence. The subdivision
restriction shall be desenbed on the'plat ertating such parcels and bei ?corpora,ted into cat
deed conveying title to such. parcels.
When proffers are accepted by the Board of Supervisors, they become part of the zoning ordinance.
Jefferson Green Unit Owners Association, Inc. v. Gwinn, 262 Va. 449 (2001). Therefore, the rules applicable to
interpreting the zoning ordinance apply to the interpretation of proffers.
1. The plain and natural meaning of the words used in Proffer 2.2 is that the Applicant obligated
itself and its successors to provide 103 carriage house units, but with no limitation on how they
would be used.
Because Proffer 2.2 is unambiguous, the first step in interpreting its meaning is to employ the plain and
natural meaning of the words used. West Lewinsville Heights Citizens Association v. Board of Supervisors of
Fairfax County, 270 Va. 259 (2005). The key question is not what the governing body intended to enact, but the
meaning of the words of the ordinance enacted. Carter v. Nelms, 204 Va. 338 (1963). The governing body's
intent is determined only from what the ordinance says, and not from what anyone thinks it should have said.
Carter, supra; Logan v. City Council of the City of Roanoke, 275 Va. 483 (2008) ("We determine the General
Assembly's intent from the words employed in the statutes"). I have examined the County's and the Applicant's
intent anyway in Section 2, and find that the words in Proffer 2.2 are consistent with the County's and the
Applicant's intent as to what that proffer requires.
With the foregoing rules in mind, Proffer 2.2 can be broken down into the following requirements, and
nothing more:
A minimum of 103 carriage house units will be constructed.
Each carriage house unit will meet the requirements for a single family dwelling as defined in the
Virginia Uniform Statewide Building Code.
Each carriage house unit will conform to Appendix A of the Code of Development (analyzed below).
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Each carriage house unit will be on the same parcel as the primary dwelling unit to which it is
accessory.
No carriage house unit may be subdivided from the primary dwelling unit and this restriction will be
described on the subdivision plats and incorporated into each deed conveying title to the parcels.
The plain language of the proffer does nothing more than identify the minimum number of carriage
house units, impose minimum standards for their construction, and establish their relationship to the primary
dwelling unit. It makes no reference to "affordable housing" or affordability. It does not require that the
carriage house units be rented to third persons, does not require that they be rented for a particular rate, and does
not require that they be rented to persons eligible for affordable housing under the County's or any other
governmental definition of the term. Conversely, the proffer does not prohibit the owner of the primary
dwelling unit from using the carriage house unit in any way. In short, the proffer merely requires a particular
housing type. It is erroneous to read language into a statute or ordinance that is not there. See, e.g., Lilly v.
Caroline County, 259 Va. 291 (2000); Donovan v. Board of Zoning Appeals of Rockingham County, 251 Va.
271 (1996); Cook v. Board of Zoning Appeals of City of Falls Church, 244 Va. 107 (1992). Therefore, it would
be inappropriate to interpret Proffer 2.2 in a way that required the carriage house units to be used for affordable
housing.
Proffer 2.2 cross-references Appendix A of the Code of Development, which states:
Appendix Vii.— Carriage House Units
General Standards:
All Carriage House Units must be constructed in the same architectural style as the
primary residence and must employ the same exterior color selections as the prir7iauy
residence. Setback re.plations for Carriage House Units shall be the same as those for
garages
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Carriage House Units are separate, detached independent living units which are included
with a. single family detached unit. and clearly subordinate to the primary residence.
These emits are typically located above a garage and are restricted to a, maximum finished.
area of 800 ft`. WThile these units may have a distinct street address and may be provided
with separate utility rnieter.s if utilized as a, rental unit, they may not be subdivided from
the primary residence. Carriage house units must be located to the rear of the primary
residence and must meet all architectural standards applicable to the pririkary* residence.
Setbacks shall be the same as diose applicable to a. traditional detached. garage.
Carriage house units play an important role in providing for affordable housing. As an
inexpensive rental unit; they help provide affordable rental. housing that is .integrated into
the larger conlinunity. Ani additional benefit is that the units are `Cash flow positive"
helping to make the primary residence more affordable by providing the owner with
additional cash flow to pay the mortgage.. These nunits have been widely utilized in other
TND neighborhoods with tremendous success.
The first paragraph pertains to the general carriage house unit's architectural style and the second
paragraph pertains to size, location, setback and other related issues. The third paragraph says that the units
"play an important role in providing for affordable housing" because, as "inexpensive rental unit[s]" they help
provide "affordable rental housing." Consistent with Proffer 2.2, nothing in the third paragraph requires the
carriage house units to be rented to third persons, that they be rented for a particular rate, that they be rented to
persons eligible for affordable housing under the County's or any other governmental definition of the term, or
prohibits the owner of the primary dwelling unit from using the carriage house unit in any way.
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2. The legislative history of Proffer 2.2 establishes that neither the County nor the applicant
intended the proffer to require that the carriage house units be used for affordable housing.
Although there was significant discussion during the review of Belvedere on whether to have the
applicant proffer a specific number of affordable dwellings or to require the carriage house units.to be used for
affordable housing, it was never the intent of Proffer 2.2 to fulfill that purpose. From its very inception, Proffer
2.2 required the applicant and its successor to do nothing more than construct carriage house units. Affordable
housing was subsequently addressed in the proffers by the addition of Proffer 2.1 between the Board of
Supervisors' August 10, 2005 and September 7, 2005 meetings, which obligated a per unit cash proffer that
would be applied to affordable housing programs.
Assuming for the sake of argument that the language of Proffer 2.2 is not sufficiently clear on this point,
the legislative history of Proffer 2.2 confirms this conclusion in unmistaken terms. Below are relevant excerpts
of the minutes from the Planning Commission's and Board of Supervisors' work sessions and public hearings,
relevant excerpts from staff reports, and a compilation of Comity staff and applicant comments to Proffer 2.2 as
it was developed and revised in 2005. In summary, the minutes, staff reports and the comments reflect that the
Planning Commission, the Board of Supervisors, County staff and the applicant understood that Proffer 2.2 did
not require the carriage house units to be used for affordable housing but, instead, would provide a housing
stock which could be affordable if the owner of the primary dwelling unit desired to rent it to third persons.
Following are statements from the minutes, staff reports and comments to illustrate this understanding of Proffer
2.2:
A. Statements in the Minutes
The minutes below are the most relevant excerpts from the work sessions and public hearings before
both the Planning Commission and the Board of Supervisors. Beginning with the December 7, 2004 Planning
Commission work session, through the June 28, 2005 Planning Commission decision on ZMA 2004-007, until
the Board of Supervisors' approval of ZMA 2004-007, the minutes clearly show that Proffer 2.2 merely requires
a particular housing type and that the applicant did not intend to require that the carriage house units be used for
affordable housing. The minutes also show that these limitations were fully understood by the Board of
Supervisors, the Planning Commission, and County staff and were, ultimately, accepted by the Board of
Supervisors.
1. December 7, 2004, Planning Commission
Susan Thomas: Affordable housing is an area where planning staff had hoped to make more progress.... Right
now it was for carriage units only, which are to be regulated by market conditions and not any sort of
restrictions imposed by the developer.
Mr. Skelly stated that ... they have heard a lot of concern about affordable housing here in the County, they
have committed to provide 103 carriage house units. That will provide affordable housing that will be
integrated in and functioning in the greater Belvedere community.
Ron White, Albemarle County Housing Director, stated that he spoke about the carriage house units during the
August work session. Any increase in the number of units that are potentially affordable will have some
positive impact on the market.
2. June 28, 2005, Planning Commission
Sean Dou hg erty: Staff has identified factors that are of concern or that have not been sufficiently addressed that
remain outstanding:... The applicant's commitment to affordable housing places the responsibility for
providing such housing on individual, future owners of carriage house units and provides no enforcement
mechanism.
Don Skelly [said that they] are providing a commitment to affordable housing. It may not be exactly what
the County has outlined in its proposal, but he felt that they all recognize that Ron White has spoken to the
fact that they need to have a diversity of affordable housing options.
Mr. Stoner provided the following rebuttal [to staff's list of outstanding issues): The fifth item is affordable
housing... He felt that the assertion that "... the form of affordable housing will not give the County
enforcement" while accurate misses the point, which is that affordable housing of this type satisfies two things.
1. It makes the primary residence more affordable. 2. It provides a form of rental housing, which is currently not
available on the market.
Ms. Joseph moved to deny ZMA-2004-007, Belvedere, based on the fact that the proffers could not be
accepted as written. Although the proffers are procedurally correct, they do not contain information that the
Planning Commission can support. The three reasons [include the] ... applicant's commitment to
affordable housing places the responsibility for providing such housing on individual, future owners of
carriage house units and provides no enforcement mechanism.
The motion was approved by a vote of (3:2). (Joseph, Edgerton, Craddock - Aye) (Thomas, Higgins - No)
(Morris, Rieley - Absent)
3. August 3, 2005, Board of Supervisors
Mr. Dougherty explained that the developer is proposing 119 [sic] "carriage house units," a rental dwelling unit
over a garage. He said that the staff's concern is that there is no guarantee that any of these would be offered as
an affordable product, and no guarantee that they would be offered as a rental product. It is possible that an
affluent person might decide just to put a studio over their garage. Mr. Dougherty said it could also be argued
that rentals would be a secondary source of income people. There is just no guarantee that it is affordable
housing, that it will be affordable, and that it will even be available. He added that it would be the choice of the
owner to do with that space what they wish and charge any price that they want in rent.
Mr. Ron White, Director of Housing, addressed the Board. He agreed with Mr. Dougherty that there is no good
mechanism for ensuring that the units would be affordable. It is relying on the market. There is some argument
you can make that the nature of the units more than likely would be in the affordable range if they were rented.
Mr. Rooker commented that perhaps people would use the structures for parents, teenagers, etc.
Mr. Wyant said that it is possible that the rental income could allow people to live in the home affordably, and
allow the renter to live affordably.
4. August 10, 2005, Board of Supervisors
Mr. Bowerman said that he would rather see a plan for provision of affordable housing than a cash contribution.
He stated that the carriage house idea is interesting because it provides something the county does not have, but
does not guarantee housing because it is left up to the property owner.
Mr. Rooker said that there should be some combination of the carriage house approach plus a contribution to the
affordable housing fund so there is some assurance of down payment assistance going
forward.
Mr. Davis noted that the current carriage house proffer says there is no mechanism that assures those carriage
houses will ever be built.
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5. October 5, 2005, Board of Supervisors
Mr. Cilimberg said ... that initially there was a recommendation for denial from the Planning Commission
which expressed concerns regarding ... no commitment to affordable housing ... (Before the September 7,
2005 meeting, the applicant submitted Proffer 2. 1, which responded to Mr. Rooker's August 10, 2005 request
and obligated a per unit cash proffer that would be applied to affordable housing programs.) ... He said these
issues have now been addressed so staff feels they are no longer issues.
6. October 12, 2005, Board of Supervisors
Mr. Rooker said the Planning Commission recommended denial and set out eight reasons for that recommendation.
He thinks those eight things have now been dealt with adequately.
B. Statements in the Staff Reports
The statements below are the most relevant excerpts from the staff reports provided to the Planning
Commission and the Board of Supervisors. As with the statements in the minutes above, the staff reports
repeatedly acknowledge that Proffer 2.2 merely requires a particular housing type and that the applicant did not
intend to require that the carriage house units be used for affordable housing.
March 29, 2005, Planning Commission
"As noted above, there is an array of housing types ranging from rental apartments to estate lots included in
Belvedere. Presently the carriage units or granny flats are the only affordable offering, and these rely on market
forces to stay affordable. Additionally, the owner of a carriage house unit may choose not to rent the unit. At
the December 7, 2004 hearing, Ron White, Albemarle County Housing Director stated that the applicant's
proposal for carriage house units will have some positive impact on the market in terms of affordability. Based
on 775 dwelling units, 116 carriage house units would have to be provided to meet the 15% affordability goal.
The applicant is proffering to construct 103 carriage house units, but no commitment has been made for these or
any other units to be affordable."
2. June 28, 2005, Planning Commission
"Staff feels the applicant has provided a proposal for affordable housing that places the responsibility for
providing such housing on the individual owners of the carriage units, rather than the applicant, without an
enforcement mechanism. A commitment to provide for -sale affordable housing and a mechanism to insure the
carriage house units will be made available and offered at an affordable rent would better address the intent for
affordable housing found in the Comprehensive Plan."
3. August 3, 2005, August 10, 2005, September 7, 2005, Board of Supervisors
"The applicant's commitment to affordable housing places the responsibility for providing such housing on
individual, future owners of carriage house units and provides no enforcement mechanism."
C. Comments by Staff and the Applicant:
The comments from County staff and the applicant's representatives are from the final four months
when drafts of the applicant's proffers were being circulated among County staff for review and comment. The
earliest comments from the middle of June 2005 are in advance of the June 28, 2005 Planning Commission
public hearing after which the Planning Commission recommended denial of the rezoning because a number of
issues, including affordable housing, were not addressed. As with the minutes and the staff reports, these
comments repeatedly acknowledge that Proffer 2.2 merely requires a particular housing type and that the
applicant did not intend to require that the carriage house units be used for affordable housing.
NIM
1. Greg Kamptner, June 17, 2005, July 28, 2005 and August 10, 2005
"This proffer does not assure affordable housing, so the heading to sections 3 and 3.1 [later revised to sections 2
and 2.2] are misleading. To a great extent, the proffer only identifies a second housing type (See Zoning
Ordinance § 20A.5(c))."
2. Don Skelly, Applicant's Representative, June 27, 2005
"Ron White has spoken favorably to the Commission on two separate occasions regarding the carriage flats that
we have proposed to build in Belvedere. While staff is correct in their assertion that the responsibility for
providing this housing type would fall to the individual owners of the primary dwelling, the economic incentives
work to both provide new and different forms of affordable dwelling units that are not available in our
marketplace today and to make the primary dwelling more affordable, a benefit that has been overlooked in
County staff and attorney review."
Frank Stoner, Applicant's Representative, August 23, 2005
"We elected not to proffer a specific number of units in the development for affordable housing because we
aren't yet comfortable with the mechanics of the system, nor are we confident that the system will be responsive
and flexible enough to meet the needs of the market."
4. Ron White, August 25, 2005
"I would still support the inclusion of carriage house units in the development although I would question a
market for 103 such units in one development. By accepting to recognize these units as potentially affordable,
we need to also understand that there would be no control over rents or occupants other than controls provided
by the market. Rents may be relatively affordable simply based on housing type and size but may also be
attractive alternatives to multifamily properties and thus have higher rents. Either way, the units will represent
additional housing stock."
5. Greg Kamptner, August 29, 2005, August 31, 2005 and September 6, 2005
"There is nothing in the proffer that assures that these carriage house units, when constructed, will be available
on the housing market. The County will have no control over the rents or occupants of these units."
3. The heading of Proffer 2 does not change the requirements of Proffer 2.2.
Although the heading of Proffer 2 is "Affordable Housing," it cannot expand the requirements of Proffer
2.2. As a general rule of statutory construction, substantive meaning should not be accorded to the heading or
title of a section. Foster v. Commonwealth, 271 Va. 902 (2006). This general rule is codified in Albemarle
County Code § 1-103, which provides that the "catchlines of the several sections of this Code are intended as
mere catchwords, to indicate the contents of the section, and shall not be deemed or taken ... as any part of the
section ..." Albemarle County Code § 1-103 is modeled after Virginia Code § 1-217, which provides that the
"headlines of the sections ... are intended as mere catchwords to indicate the contents of the sections and do not
constitute part of the act of the General Assembly."
County staff recognized that the heading for Proffer 2 (originally, Proffer 3), was a misstatement of the
contents of the proffer. Greg Kamptner stated in his comments to the proffers on June 17, 2005, July 28, 2005
and August 10, 2005 that: "This proffer does not assure affordable housing, so the heading to sections 3 and 3.1
[later revised to sections 2 and 2.2] are misleading." The heading became a partially accurate catchline of
Proffer 2's contents when Proffer 2. 1, the cash proffer for affordable housing, was added by the applicant before
the September 7, 2005 Board of Supervisors meeting, after the staff report was prepared.
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Conclusion:
The plain and natural meaning of Proffer 2.2, which is further supported by the legislative history of
that proffer, does not require the carriage house units to be used for affordable housing.
If you are aggrieved by this decision, you may petition the Albemarle County Board of Supervisors for
review. The petition for review shall be filed with the Zoning Administrator and the Clerk of the Board of
Supervisors within 30 days of the date of this decision. The petition must specify the grounds upon which the
petitioner is aggrieved.
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