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HomeMy WebLinkAboutAP200900007 Correspondence 2009-08-31JOHN K. TAGGART, III M.E. GIBSON,.JR, . . THOMAS E. ALBRO PATRICIA D. MCGRAW R. LEE LIVINGSTON PETER J. CARAMANIS LAW OFFICES TREMBLAY & SMITH, LLP P. 0. Boa 1585 __CHARLOTTUVILLE,VI_RGINIA 22902 -1585 105-109 EAST HIGH STREET TELEPHONE (434) 977 -4455 FACSIMILE (434) 979-1221 www,tremblaysmith.com Via Hand Delivery August 31, 2009 Albemarle County Board of Zoning Appeals David Bass, Chairman L.F. Wood, Vice Chairman Randy Rinehart, Secretary David Bowerman M. Clifton McClure 401 McIntire Road Charlottesville, VA 22902 RE: Redfields PRD Appeal of Zoning Administrator's Determination AP# 200900007 Dear Members of the Board: NATHAN J. D, VELDHUIS ERNEST A. HARPER RETIRED E. GERALD TREMBLAY 1922 -2003 LLOYD T. SMITH, JR. I am writing on behalf of Redfields Development Corporation ( "RDC ") in response to the appeal filed by Redfields Community Association, Inc. and Barry Condron (collectively "the Association "), The appeal states that it requests the Board of Zoning Appeals ( "BZA ") to "overturn the determination made by the Zoning Administrator ... that Phase 5 of Redfields is not 'Open Space' as such term is defined in the Albemarle County Zoning Ordinance." RDC respectfully states that the Association has mischaracterized the Zoning Administrator's determination. The determination does not state that Phase 5 is not "Open Space" as defined in the Ordinance, but rather that it is not Open Space dedicated or required to be dedicated to the use of Redfields residents or other members of the public. Further, the determination indicates that Phase 5 is not required to remain Open Space to satisfy the Open Space requirements of the Redfields PRD, but notes that any future use of Phase 5 would require additional zoning approval(s). "Open Space" is defined in the Albemarle County Zoning Ordinance as follows: Open Space: Land or water left in undisturbed natural condition and unoccupied by building lots, structures, streets, or parking lots except as otherwise specifically provided in section 4.7, TREMBLAY & SMITH, LLP August 31, 2009 Page 2 Section 4.7 provides, in part, as follows: 4.7.2 USES PERMITTED IN OPEN SPACE Unless otherwise permitted by the commission in a particular case, open space shall be maintained in a natural state and shall not be developed with. any man -made feature. 4.7.4 OWNERSHIP OF OPEN SPACE Open space may be dedicated to public use subject to approval and acceptance by separate resolution of the board of supervisors. Open space so dedicated shall be counted as a part of the minimum required open space. (emphasis added.) In other words, to be "Open Space" a parcel simply needs to be undeveloped. If such parcel is required as Open Space to meet the terms of a zoning approval, then such Open Space must be dedicated for such use to ensure its continued use as Open Space, and thereby the continued compliance of the development with its Open Space requirements. The parcels in question are "Open Space" by definition in that they are undeveloped parcels. There was never any requirement by the Board or by the approval requirements that these parcels be dedicated as Open Space or remain as Open Space permanently. The Association points to statements in the history of this development that Phase 5 was not to be developed. Those were correct statements in that no development proposal was ever made for Phase 5, and during each phase of development proposed for Redfields, Phase 5 remained as "Open Space," as that term is used to indicate undeveloped land. The Association further quotes Percy Montague as stating that Phase 5 was not "part of this request" during the review of Phase 4B. Such statement indicates there was nothing being sought for approval for Phase 5, including development or a dedication of Open Space. The fact there was no development proposal for Phase 5, and that therefore it must be labeled as open space (i.e., undeveloped land), did not somehow create an obligation to dedicate Phase 5 as Open Space. The approval of Redfields PRD required there be 30% Open Space in the development. That number was created by proffer in which RDC promised to satisfy a higher percentage than the 25% required by the Ordinance. That requirement must be satisfied with dedicated Open Space. The attached Open Space Exhibit depicts the parcels that have been dedicated and are used to satisfy the 30% requirement, namely the shaded parcels. The non - shaded parcels which do not contain lot numbers constitute undeveloped land that is not used or necessary in satisfying the 30% requirement. Neither of the parcels involved in the Zoning Adminstrator's determination are necessary to meet the 30% requirement. Therefore, there is no obligation that either parcel be dedicated as Open Space. The Association asserts that Board's approval of ZMA 89 -18 was "conditioned on designating what is now known as Phase 5 as Open Space." In fact, Phase 5 was designated on that site plan as TREMBLAY & SMITH, LLP August 31, 2009 - Page 3 _ ... Open Space, because there was no development planned within that area. There is no other appropriate label for undeveloped land on a site plan. Again, designating a property as Open Space does not create an obligation to dedicate the property as Open Space. Designating it as Open Space simply means there Js no approved use of that land other than as undeveloped property. Phase 5 continues to be undeveloped property. As stated by the Zoning Administrator in her determination letter, This term [ "Open Space "] appears to have been used because it could have been open space in the future in the event the land area was necessary to satisfy the proffer requirement of 30 %0 open space. In addition, this term was used because there is no specific designated or approved use for the property per the approved rezoning. Therefore, for lack of another more appropriate term, it has been called open space." What was discussed in reviewing ZMA 89 -18 was not whether there would be a requirement to dedicate Phase 5 as Open Space, but rather how to label its use on the plan. The Board did not want it listed as open space and as future development. In the minutes, on page 12, Mr. Keeler makes a statement summarizing the position of the Board, as follows: In the addendum, in item 3(d), it says "Revise land use notes to include Phase 6 as Open Space." That's all you're approving now. The applicant is being up front with you and telling you that at some time in the future they may come back and want to include some development on that property. That would take a whole additional rezoning and hearing process just as we're going through now. In other words, the Board was clear that designation as Open Space was simply to indicate that no future use of Phase 5 (then Phase 6) was being approved at that time. It was not intended to require Phase 5 to be permanently dedicated as Open Space. On the contrary, it was recognized that the developer may choose to come back with a proposed development for that area in the future. RDC's request to the Zoning Administrator which is the subject of this appeal was to issue a determination whether the property could be sold. It was not a request to approve any proposed future development on the property. The Zoning Administrator determined that it could be sold, subject to the fact that its only present permissible use is as undeveloped land. Nothing has changed, except that it has been made clear RDC can sell the property as undeveloped land with no other approved uses. The Association's appeal seems to be addressed toward development of the property in question and development of the property is not even on the table. In summary, I believe it important for the BZA to note the following: (1) the Zoning Administrator's determination does not approve any development on the subject property, (2) the impact of the determination is only to make clear that RDC can sell the subject property, recognizing that there is no development approved for the property, (3) that a label as "Open Space" simply means the property is undeveloped and has no approved use other. than as an undeveloped parcel unless there are other approval conditions or like requirements that mandate dedication, (4) that TREMBLAY & SMITH, LLP August 31, 2009 Page 4 there has never been any mention of dedicating the subject property, except in the event the development included enough lots to require such dedication to meet the 30% requirement, and (5) that the 30% requirement is satisfied without the need to use the subject property as permanent "Open Space." Taking those facts into account, I believe it .is clear that the Zoning Administrator made the correct' determinationi and that such determination should be upheld by the BZA. i I respectfully ask that this letter be included in the packet of materials provided to the BZA members prior to the hearing on this appeal on October G, 2009. Best regards, Very truly yours, P`rk Peter J. Caramanis Enclosure Cc: Mr. Gaylon Beights (via e -mail) Mr. Justin Beights (via e -mail) Robert J. Kroner, Esquire (w /encl.) 0- PEAISf A CE EA-HIBIT RL_DF1. EL DS' "A PLANNED RESIDENTIAL COMMUNITY !UL) /2 2007 ALBLVARLECOUNT): VIRGIA-WI O SCALE PH, 4-A PH, 5 PH, 3-B PH, I-B IX PH. 2-B PH. 3-A "�I. \ \ y \ ° . \ _� w PH, 3-B V VN PH. 2-A Phil I iAI PH, 2-C -..;'-PH. I-C Open Space Summary Redfields Total Acreage 275,5271 Ac. Open Space Total Acreage 83.4824 Ac. .. _ Percentage of Total Acreage that is Dedicat 30 30% (See Sheet 2 for Uelail) SUBDIVISION SUMMARY Redfields PRD 8191 266.0891 Ac. Bowen Tracts added prior to Phase 4B 9.4380 Ac. Redfields Total 275.5271 Ac. Acreage Phase I Open Space Phase Phase 1 -A 14.5516 Ac. i .9913 Ac. Phase 1 -B 18.4545 Ac. Phase 1 -C 7.3904 Ac. i 4.7830 Ac. Phase 2 -A 9.9942 Ac. Phase 2 -B 10.5161 Ac. Phase 2 -C !: 3 -A 37.4752 Ac. 19.7018 Ac. Phase 3 -B 43.6109 Ac. 23.3298 Ac. Parcel E -3 2.2848 Ac. I Phase 4 -A 27.5606 Ac. I 10.5514 Ac. Phase 4 -B 45.2184 Ac. I 24.1251 Ac. Parcel E -4 - -- - --- ........__......... _.------•------ -- —�._. __...------ ._..... -- - - Total crew a Phase 1 -A thru 4 -B and Parcels E -3 and E-4 230.1843 Ac. 1 83.4824 Ac. Redfields Total Acreage__.. Open Space Total Acreage 275.5271 Ac. 83.4824 Ac. Percentage of Total Acreage that is Dedicated Open Space 30.301% Redfields Total _- 275.5271 Ac. Total Phase 1 -A thru 4 -B and Parcels E -3 and E -4 230.1843 Ac. Remaining Parcel E I Phase 5 45.3428 Ac. PREPA REV BY 1 T' Y0H 5 6" PL,A , \4\'E1 —,` FA ST HIGH S TR..FF7• c:'/l,•I!'LOTTFS t7Ll.F. V,-,A.2?902 296-6,942 S7 -IEET 2 OF Area Summary by Occurance Redfield. Phase 2 -C & 3 -A D.B. 122G, Pg 643 (PI-1) Rodfialds Ph.- 4-B Cumulative Redfields I Less RjW burn Lol 35 Ph 1 -A 1.11374 Open Space Residue Phase I Parcel Acres Acres %, Acres _. -_... R.dfiolds PRD 8191 266.0891 D.B. 1347, Pg. 72 (peat) - 0.2416 i Redhold, Phasa twit Lots 1 -17 2.2037 I D.D. 1150. PD 735 (Plat) U.3237 i - 1 PnrceOrape OPan Slkice Phase I -C a Uemcal-d WV:' 146 �( • UpCr, Space 3.6615 ( Pereenlaw Open Space Phase 2 -C 8 3-A O.B. 1437, Pg. 695 (PI-0 • a „��.,,:,r.. nl roan Since Pnase l -A 6 879: I 7.7403 Redfiolds Ph... 1 -8 Redfield. Phase 2 -C & 3 -A D.B. 122G, Pg 643 (PI-1) Rodfialds Ph.- 4-B Lola: 14L 15.4117:4 Less RjW burn Lol 35 Ph 1 -A 1.11374 Dedicated PJW Lut 122 f purfion or Phase 4 -A) Total Phase 1 -8 10.4646 7-•3073 i Rodrrelds Pt--- 1 -C 4.6544 pHrcenfa9e OPer1 Srxan: Pln_ase 4 -R -_-_53.35°_ D.B. 1347, Pg. 72 (peat) - 0.2416 i Lots 1 -17 2.2037 j Pmr4te Road WW U.3237 i i Cpen Spncc 47830 PnrceOrape OPan Slkice Phase I -C G4. -719b j Total Phasa 1 -C 7.3904 • ; Rodrwlds Phase 2 -A 3.6615 ( Pereenlaw Open Space Phase 2 -C 8 3-A O.B. 1437, Pg. 695 (PI-0 Total Phase 2 -0 8 3-A Lots 1.31 7.7403 Redfields Phase 3 -B Dedicated R1W 2.2530 D.B. 1819, Pg. 73 (PIM) Total Ph-- 2 -A 9.9942 Lots 1 -81 Rodrnnlds Phase 2 -B Dadicated RMr O.B. 1459, Pg 179 (Piet) I Open Spaces Lot. 1 -27 9.4215 PeropwacT. Open Space Phase 3-B Less Portion to Parcel E -3 _ 0.0504 Bowan Traets to twcorm part of Pt.aso 46 Tmp 76.226 7.9090 Trn 76 -220 1.5290 Redfield. Phase 2 -C & 3 -A 9.4380 Rodfialds Ph.- 4-B D.B. 1568, Pg. 218 (Plat) D. B. 2456, Pg. 746 (#W) Lots 1.58 (Phase 2 -C) °•7553 Lut 122 f purfion or Phase 4 -A) Lots 1 -26 (Phase 3-A) 3.3086 7-•3073 i Dedicated RAr 4.6544 pHrcenfa9e OPer1 Srxan: Pln_ase 4 -R -_-_53.35°_ Less Dedicated R/W Pluse 1 -C - 0.2416 i Parcel G3A 0.0325 j Parcel G3B 0.0168 I i Parcel G3C 0.0228 a Parcel 630 0.0246 j open Space 2 -C 16.0203 Open Space 3-A 3.6615 ( Pereenlaw Open Space Phase 2 -C 8 3-A 51.90% Total Phase 2 -0 8 3-A 37.4752 Redfields Phase 3 -B i D.B. 1819, Pg. 73 (PIM) , Lots 1 -81 16.2805 j Dadicated RMr 3.9946 I Open Spaces 23.3296 I I PeropwacT. Open Space Phase 3-B 53.50% Total Phase 3-B 43.6109 Parcel E -3 D.B. 1622, Pg. 471 (plat) Portion Tax M.sP 76R Parcel -3 2.234D Pore on of Lot 19 Phase 2 -B 0.0508 Taal 2.284e Redfield, Phase 4 -A D.B. 2126, P& 72 (plat) Lots 1.62 14.7055 Dedicated PJW 2.8193 Reserved R/VV 0.1030 Less Puture Lot 122 to Phase 4-11 - 0.5605 Less vacated RAW in Phase 1B - 0.0361 Open Space 10.5514 Bowan Traets to twcorm part of Pt.aso 46 Tmp 76.226 7.9090 Trn 76 -220 1.5290 Additional Lands added to Radhalds 9.4380 Rodfialds Ph.- 4-B D. B. 2456, Pg. 746 (#W) Lots 63 -121 16.2055 Lut 122 f purfion or Phase 4 -A) 0.5805 Dedi led Rlw 7-•3073 i Cpen space. z4 1251 pHrcenfa9e OPer1 Srxan: Pln_ase 4 -R -_-_53.35°_ Total Ph.- 4 -9 46.21&1 Parcel E -4 2497, Pg 720 Parcel E 56.4704 OPEC , SPI }ED IL IDS A PLANNED RESIDENTIAL COMMUNITY 9s " JULY 12 2007 9, ALBS? 41WLE COUAITY, VIRGIA"I:1 97 SCALE: I — 200 91 PHA 4- NOR O 101 dB , rl9 PHN 4 —A us B! ' IN Z dl �J� CJEIi S ^.10.' 5 JBJ IGi !03 :J9 /ll J17 :101!Y ?K IA' J13 9T 171 J d 19 Jld 11J . PH. 5 B/ .. 9 7d X A TP n PHI �'O� �` IB CJ iI ?• S S P AR CELE PARCEL E-J IS.J428ACRE5 2.2848 AC. - JI 0 s, PARCEL E-0 - !J J, ZJ .`` do 1J.1278AC. Js / !J s3 nn1i PH B%C r �� IZ %D II fl 7! JT i fd IS Sd lo r— PI: ! 6v iii✓ 77 M IJ 1t Is 13 V, SJ Id � ` !3 JI a z! Il d9 q J! JI ..71:! 1�f �'/(�Jj �` u Id is M ��!J rB.. 4iL1y Jy� 61 5: w 11 11I! a ! l3 • Zi 4 77 JI Sf 0 3 u J9 I! J 17 11 d 1J p JJ i1 :9 17 11 , iB _ I p! J' %• !' " 79 uJi SI 11 73 d •b' ,y;�$ 9 70 Id JJ So Jl JT � o tiSC,tiG S Zl ,d 43 x ,Jd y IJ , J d 11 N 10 1 ' J I, ,P•' J :s 4'• JJ I! p�j.RGR�FNF�'Ry d I B s JJ is ^7 s ss PH.`!�' js Jj 7 B s ,V 78.2JA �, Jd I 1 f 1 i,lJ -E SJ JB JJ ,) 52 31UAC P, 15 rT4�!S':CC,AVlirlaLA'Q ).. � 9I N •• S' '� I! , JI JI J6 i LOTS APPROVED ZMA 89 -18 656 aPtlsACc !. JJ Jo 9 e `: � z n\' Js LESS 35 LOTS PHASE 1 —A 35 J�K IJ , JJ LESS 42 LOT S PHASc 1 —B u2 s a svAc LESS 17 Lor PHASE i —C 17 LESS 31 LOTS PHASE 2 —A 31 , z LESS 27 LOTS PHASE 2 -6 27 J J s LESS 58 LOTS PHASE 2—C 58 4 �...� LAKE rwn LESS 28 LOTS PHASE 3 —A 28 LESS 81 LOTS PHASE 3 -8 87 B ! PH. 2�C PREPARED BY' LESS 62 LOTS PHASE y —A K2 zz ' PH % a — J KIRK HUGHES c� A �SOCIfI TES !.E:SS 6U LOTS PHASE 4 -6 6G REMAINING LOTS 215 x X A LAND SOW i'EYURS&PLANNERS ` I' 19 11 220 ! -AST HIGIl STRGE-T aPJraP.a;= : Zd JB ,J CHARLOTTESVILLE, VA. 22902 OSel6 A.^ Jd 19 13 J (434) 296 -6942 is J .. :..'� :.. ' -.:... OPENSPA;E r, :T 1•1;?u; ::: = ^Cr.i P]IN AL SHEET I OF 2 j Area Summary by Occurance 266.0891 Ac. Bowen Tracts added Cumulative Redfields Redfields Total 275.5271 Ac. Open Space Residue Phase / Parcel Acres Acres % Acres Rodfiolds PRD 8191 266.0891 18.4545 Ac. Phase 1 -C Rodfiolds Phases 1 -A 4.7830 Ac. Phase 2 -A 9.9942 Ac. _.. D.B. 1150, Pg. 736(Praf). 10.5161 Ac. Phase 2 -C & 3 -A 37.4752 Ac. Lets 1 -35 - 10.3457 - - - Dedicated RAN 3.2146 Phase 4 -A 27.5606 Ac. 10.5514 Ac. Open Space U.VJ13. . 24.1251 Ac. Parcel E -4 13.1276 Ac. Percentage of Open Space Phase l -A 6.81% 230.1843 Ac. 83.4824 Ac. Redfields Total Acreage Total Phase 1 -A 14.6616 O en S ace Total Acreage 83.4824 Ac. 0.9913 0.37% 261.5375 275.5271 Ac. Total Phase 1 -A thru 4 -B and Parcels E -3 and E -4 230.1843 Ac. Redfields Phaso i -B D. B. 1226, Pg 643 (Plat) Lots 1 -42 15.4843 Less R1W from Lot 35 Ph. 1 -A 1.1874 Dedicated R/W 4.1576 Total Phase t -B._ - 18.4646 - - - -- - 0.9913 233.0830 Rodfiolds Phase 1-C D.B. 1347, Pg 72 (F1.0 Lots 1 -17 2.2837 Private Road RAN 0.3237 Cpen Spaces 4.7830 Percenfaw OP." Space Phase 1 -C 64.7251 Total Phase 1 -C 7.3904 6.7743 2.171%. 226.6926 Rodfiolds Ph-so 2 -A D.B. 1437, Pg 695 (jo t) Lots 1.31 7.7403 Dedicated R/W 2.2539 Total Phase 2 -A 9.9942 6.7743 2.17% 216.6984 Rodfiolds Phase 2 -8 D.B. 1459, Pg 179 (Plot) Lots 1.27 9.4215 Less Portion to Parcel E -3 - 0.0504 R/w 1.0946 - _Dedicated _ - -- Total Phase 2 -B 10.6161 6_7743__2_17% 206_1823 Redfields Phase 2-C & 3 -A D.B. 1568, Pg 218 (plat) Lola 1.58 (Phase 2 -C) 9.7553 Lots 1 -28 (Phase 3 -A) 3.3086 Dedicated R/W 4.8544 Less Dedicated R/W Phase 1 -C - 0.2416 Parcel C3M 0.0325 Parcel G3B 0.0168 Parcel G3C 0.0228 Parcel G3D 0.0246 Open Space 2 -C 16.0203 Dean Space 3-A 3.6815 Percentaw Open Space Phase 2 -C & 3-A 51.90'/ Total Phase 2-C & 3-A 37.4762 25.4761 9.67% 167.7071 Rodfietds Phase 3 -B D.B. 1819, Pg 73 (plat) Lots 1 -81 16.2865 Dedicated R/W 3.9946 Cpen Spaces 23.3298 Percentage Open Space Phase 3-8 53.50.01 Total Phase 3 -8 43.6109 48.8059 18.34% 124.0962 Par-[ E3 D.B. 1622, Pg. 471 (plat) Portion Tax Map 76R Parcel E -3 2.2340 Portion of Lot 19 Phase 2 -8 0.0508 Total 2.2648 48.8069 18.34% 121.8114 Redfrokts Phase 4 -A D.B. 2126, Pg. 72 (Prat) Lots 1 -62 14.7055 Dedicated R/W 2.8193 Reserved RAN 0.1030 Less Future Lot 122 to Phase 4-8 . 0.5805 Less Vacated R/W in Phase 4-8 - 0.0381 Open Space 10.5514 Percentage Open Space Phase 4 -A 38.2311 Total Phase 4-A 27.5606 59.3573 2Z.31% 94.2608 Bowen Tracts to become part or Phase 4B Tmp 76-228 7.9090 Tm 76-22D 1.5290 Additional Lands added to Rodriolds 9.4380 103.6888 Rodfiolds Phase 4 -8 0. S. 2456, Pg 746 (Prat) Lots 63-121 18.2055 Lot 122 (Portion of Phase 4 -A) 0.5805 Dedicated Rtw 2.3073 Open Spaces 24.1251 Porcenla9a Open Space Phase 4 -B 513590 Total Phase 4-8 46.2184 83.4824 30.30 % 68.4704 Partial E-4 D.B. 2497, Pg. 720 Parcel E 56.4704 Parcel E -4 13.1276 45.3428 Remaining Parcel E 45.3428 Open Space Summary Redfields Total Acreage 275.5271 Ac. Open Space Total Acreage 83.4824 Ac. Percentage of Total Acreage that is Dedicat 30.30% (See Sheet 2 for Detail) SUBDIVISION SUMMARY Redfields PRD 8191 266.0891 Ac. Bowen Tracts added prior to Phase 4B 9.4380 Ac. Redfields Total 275.5271 Ac. Acreage Phase Open Space Phase Phase 1 -A 14.5516 Ac. .9913 Ac. Phase 1 -B 18.4545 Ac. Phase 1 -C 7.3904 Ac. 4.7830 Ac. Phase 2 -A 9.9942 Ac. Phase 2 -B 10.5161 Ac. Phase 2 -C & 3 -A 37.4752 Ac. 19.7018 Ac. Phase 3 -8 43.6109 Ac. 23.3298 Ac. Parcel E -3 2.2848 Ac. Phase 4 -A 27.5606 Ac. 10.5514 Ac. Phase 4 -B 45.2184 Ac. 24.1251 Ac. Parcel E -4 13.1276 Ac. Total Acrea a Phase 1 -A thru 4 -B and Parcels E -3 and E-4 230.1843 Ac. 83.4824 Ac. Redfields Total Acreage 275.5271 Ac. O en S ace Total Acreage 83.4824 Ac. Percentage of Total Acreage that is Dedicated Open Space 30.30% Redfields Total 275.5271 Ac. Total Phase 1 -A thru 4 -B and Parcels E -3 and E -4 230.1843 Ac. Remaining Parcel E I Phase 5 45.3428 Ac. PRL xc n ay: KIRK N11G1 -1ES & ASSOCIA TES LAIVD.S(;RVEYOHS & PLANNERS 220 EAST HIGHSTREF_T CHARLOTTESVILLE, VA.-'L�902 (434) 296 -6,942 SHEET 2 OF 2 ............ .... ............